Lightfoot v. State

Moore, J., delivered the opinion of the Court. On January 20, 1972 close to 8:30 p.m., an armed robbery occurred at the Speedy Clean Laundromat located at Gwynn Oak and Liberty Heights Avenues in Baltimore City. The crime was perpetrated by three tall young men, all armed. The net proceeds of their unlawful enterprise came to $90.

Thereafter, the appellant, Thomas Lightfoot, Daniel Lightfoot and Robert Lightfoot (apparently his brothers) were charged in a seven count indictment with (1) robbery with a dangerous and deadly weapon, (2) attempted robbery with a dangerous and deadly weapon, (3) robbery, (4) assault with intent to rob, (5) assault, (6) larceny and (7) receiving. At the time of his arrest and search, appellant was found to have on his person a .25 caliber automatic pistol. He was accordingly the subject of a separate three count indictment charging (1) carrying a concealed weapon, (2) rogue and vagabond and (3) carrying a weapon openly with intent to injure. In a jury trial in the Criminal Court of Baltimore (Sklar, J. presiding), appellant was convicted of attempted robbery with a dangerous and deadly weapon, for which he was sentenced to a term of fifteen years, and of carrying a concealed weapon, for which he received a concurrent term of two years.

On this appeal, he assails the sufficiency of the evidence on two specific grounds: (a) Since the State’s evidence established a consummated armed robbery, he could not be convicted of attempted armed robbery; and (b) the eyewitness identifications of appellant were so inconsistent as to afford insufficient basis for a conviction. 1 Appellant did not dispute the occurrence of the incident but denied the corpus delicti of attempted robbery and his criminal agency, placing reliance upon an alibi defense — ¹⁵⁰ that he was at the home of one of his other brothers all evening until they all went to a local bar for a “soft drink” and some cigarettes, shortly before he was apprehended there by the police. The State produced the manager of the laundromat, Beulah .Dorsey, 58; the security officer on the premises, Jimmy Powell, 57; a customer, William Jackson, 17; and Officer James Birch of the K-9 Squad who made the arrest of appellant. From their testimony the jury could have found that the armed trio entered the laundromat, with weapons concealed, and walked toward the telephone in the rear as if they intended to use it. When they just stood there for a relatively long interval, the manager asked what they wanted but received no response.

One of the men did thereafter inquire about dry cleaning his coat. Mrs. Dorsey went back into the office and when she later emerged, one of the men approached her and “poked a gun in my stomach and I went to the cash register; I knew what he wanted.” She gave him $77 from the register and $13 from her own pocketbook. The two customers, the security guard and the manager were then herded into a bathroom in the rear and admonished to remain there for fifteen minutes. Over the police radio some distance away, Officer Birch listened to the report of the robbery and some three hours later he observed three subjects in his area, one of whom matched the description of one of the individuals involved in the laundromat holdup.

After observing the men enter Lucky Lou’s Tavern, Officer Birch requested a detailed description of the suspects as well as additional police assistance. He subsequently entered the tavern and beckoned appellant outside. When appellant responded to the officer’s request for identification, Officer Birch noticed a bulge in his pocket. He searched him and found the automatic pistol.

Appellant was then placed under arrest. 2 At the trial, he testified that he was carrying the weapon for protection because his life had been threatened. ¹⁵¹ Mrs. Dorsey made an in-court identification of appellant as one of the three robbers but not the one who had held a pistol to her person. The customer, William Jackson, a high school senior who was reading a book in the laundromat while waiting for his football uniform to dry, also identified appellant as one of the three gunmen and as the one who “was standing there and told us to keep quiet and no one would get hurt.” The security officer, Mr. Powell, generally confirmed the testimony of the other witnesses concerning the corpus delicti He testified that appellant “looked like the fellow that had the gun on Beulah,” but also emphasized that, obedient to a command from one of the men to keep his eyes down, he had made no effort to observe the faces of the intruders. Challenged on cross-examination concerning her prior identification of appellant, Beulah Dorsey testified: “Mister, I will never forget them mens because these mens cost me hospital bills and doctors’ bills. My nerves have been bad ever since.” Questioned further, she responded as follows: “Q. Well you were looking at him (the man holding the gun on her stomach) and no one else, weren’t you? “A. Mister, they stayed there long enough for me to get a look at all three of them.” I The second contention contained in appellant’s brief — which we address first in sequence — is that the eyewitness identification of appellant was factually insufficient to sustain a conviction of attempted armed robbery.

Upon our independent review of the record, we deem it clearly established that the witnesses positively identified the appellant as a participant in the robbery. Although there were some inconsistencies in the description of his hair and clothing and whether or not he was wearing glasses, both the manager and the youthful customer clearly identified Lightfoot as the one who stood armed watch over the ¹⁵² customers and the security officer; and, of course, the security officer himself placed the appellant at the scene. The weight of the evidence and the credibility of the witnesses are for the trier of facts to determine, Gunther v. State, 4 Md. App. 181 , 241 A. 2d 907 (1968); and the positive identification of a single eyewitness, if believed by the trier of facts, is ample evidence to sustain a conviction. Montague v. State, 3 Md. App. 66 , 237 A. 2d 816 (1968).

We find that there was abundant evidence from which the jury could have been convinced beyond a reasonable doubt that the crime of armed robbery had been committed and that the appellant was a principal, at least in the second degree. Williams and McClelland v. State, 5 Md. App. 450 , 247 A. 2d 731 (1968); Agresti v. State, 2 Md. App. 278, 234 A. 2d 284 (1967). As Chief Judge Orth stated for the Court in Agresti: “Principals in the first degree are those who commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Under common law, persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree, provided there is a guilty principal in the first degree.” p. 280.

Appellant’s assignment of error based upon alleged insufficiency of identification must therefore be rejected. II Under appellant’s first assignment of error, the narrow question for decision is whether the commission of an armed robbery in which appellant participated as a principal in the first or second degree, precluded his conviction under the second count of the indictment charging attempted armed robbery. It is appellant’s position, relying upon the decisions of this Court in Boone v. State, 2 Md. App. 80, 233 A. 2d 476 (1967), Wiggins v. State, 8 Md. App. 598 , 261 A. 2d 503 (1970) and McDuffie v. State, 12 Md. App. 264 , 278 A. 2d 307 (1971), ¹⁵³ that under Maryland law an accused may not be convicted of an attempt when the evidence has established the consummation of the crime. Appellant’s reliance upon the cases cited is misplaced.

We hold contrary to his position. Preliminarily, we observe that in Maryland, except as may be otherwise provided by statute, an attempt to commit a crime of any grade, whether common law or statutory, is a common-law misdemeanor. Hochheimer, Crimes and Criminal Procedure, § 515. Fisher v. State, 1 Md. App. 505 , 231 A. 2d 720 (1967).

A sentence for a common-law crime for which no penalty is fixed is not invalid unless it constitutes cruel or unusual punishment; and in the case of an attempt to commit an offense the sentence is not necessarily controlled by the statutory penalty for the completed offense. Tillett v. Warden, 215 Md. 596 , 135 A. 2d 629 (1957). As previously noted, the punishment prescribed by the statute, Md. Code, Art. 27, § 488, is the same for both armed robbery and attempted armed robbery. 3 The question whether a finding of not guilty of armed robbery renders invalid a verdict of guilt of the attempt has not, it will be seen, been answered by Boone, Wiggins or McDuffie nor, indeed by any other decided case in this Court or the Court of Appeals. ¹⁵⁴ In Boone v. State, supra, this Court was dealing with inconsistent jury verdicts whereby the appellant was found guilty of both the consummated crime and armed robbery and the attempt to perpetrate the crime. We held that although the better practice under the doctrine of Heinze v. State, 184 Md. 613, 617-19 , 42 A. 2d 128 (1945) would have been for the trial judge to return the jurors to the jury room “to correct what was patently an inconsistency in the verdict announced by them,” the question was not properly preserved in the absence of a motion in arrest of judgment or a request for correction of the record.

We also pointed out, however, that since only one sentence was imposed and it was within the penalty prescribed by Article 27, § 488 for either of the offenses, there was no prejudice to the appellant. Defining an attempt in Boone , we stated that it “consists of an intent to commit [a crime], the performance of some act towards its commission and the failure to consummate its commission.” (p. 114). As obiter dictum in Boone we also stated that: “A failure to consummate the crime is as much an essential element of an attempt as the intent and the performance of an overt act towards its commission. Evidence that a crime has been committed will not sustain a verdict on an attempt to commit it because the essential element of interception, or prevention of execution is lacking.

Consummation of the crime can take the behavior out of the definition of an ‘attempt’. See Clark & Marshall, Law on Crimes, supra, Sec. 4.14, citing People v. Lardner, 300 Ill. 264, 267 , 133 N. E. 375 , 19 A.L.R. 721 (1921), where a conviction for an ‘attempt to commit larceny’ was reversed upon facts which showed the consummation of the larceny.” (Emphasis added.) The ratio decidendi of Boone , we re-emphasize, is that having been convicted of committing the robbery with a deadly weapon, the appellant could not also be found guilty ¹⁵⁵ under the count charging attempted robbery. See, Jones v. State, 3 Md. App. 608 at p. 613 , 240 A. 2d 347 (1968). In Wiggins v. State, supra, upon which appellant also relies, the question before us was the sufficiency of the evidence to establish that a homicide committed by appellant was murder in the first degree.

We observed at the outset that if the evidence was sufficient to establish that the appellant committed murder in the perpetration of a robbery or in an attempt to perpetrate a robbery, the verdict was proper. We there merely cited Boone in support of our definition of an attempt as “an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended.” (p. 604). As the opinion of Judge Moylan in McDuffie v. State, supra, makes abundantly clear, we were there confronted with an issue similar to that presented in Boone . In McDuffie there were seven counts of an indictment charging robbery with a dangerous and deadly weapon and lesser offenses, as in the case at bar.

The jury rendered a verdict of guilty as to each count. Appellant moved for a mistrial on the ground that convictions of attempted robbery with a deadly weapon under the second count and of attempted robbery under the fifth count were inconsistent. The Court discharged the jury and directed the clerk to enter findings of not guilty on all but the first count. Explicitly stating that in Boone, supra, “this Court was dealing with inconsistent jury verdicts” Judge Moylan pointed out that while we relied there primarily on waiver we also held there was no prejudice to the appellant.

We concluded in McDuffie that although, unquestionably, it would have been better practice for the Court to have resubmitted the inconsistent verdicts to the jury, we could not say that the trial judge committed prejudicial error when he directed the clerk to enter findings of not guilty on all counts but the first count. We also adverted to the cases of Tender v. State, 2 Md. App. 692, 237 A. 2d 65 (1968) and Price v. State, 3 Md. App. 155 , 238 A. 2d 275 (1968) where inconsistent verdicts were reached by trial judges sitting ¹⁵⁶ without juries. With respect to these cases McDuffie observes (p. 271): “In each case, there was a verdict finding guilt for the consummated crime of armed robbery and also for the attempt to commit that crime. In neither case did we permit ourselves to be boxed into the logical absurdity of holding that the fact-finder had somehow concluded, beyond a reasonable doubt, both that the defendant had completed the crime and also that he had failed to complete the crime.

In each case, recognizing the error for what it was, we simply reversed the judgment of guilt as to the count charging the attempt.” In the instant appeal there also