Manigault v. State

²⁷⁴ MOYLAN, Judge. As we try to honor the Double Jeopardy Clause’s prohibition against multiple punishment for “the same offense,” multiple indictments pose problems in terms of adding up the legitimate units of permitted prosecution. A single multi-count indictment poses similar problems. The potential problems, however, increase exponentially when we encounter multiple multi-count indictments.

The appellant, Arnold Manigault, went to trial before a Baltimore City jury on multiple multi-count indictments. He was indisputably guilty of perpetrating assaults, in the course of a single criminal episode, upon two separate victims. The Grand Jury returned separate indictments, charging similar sets of alleged crimes committed upon each victim. Except for naming different victims, the two indictments duplicated each other.

Each was drawn in four counts. Each first count charged the felony of assault with intent to rob in violation of Md.Ann.Code, Art. 27, § 12 (1982 RephVol.). Each second count charged the lesser included offense of common law assault. Each third count charged the unlawful carrying of a handgun.

Each fourth count charged the use of a handgun in the commission of a crime of violence. In each indictment, the three latter counts referred back to the first count, as they “further presented] the said Arnold Manigault late of said City”; as they designated the charging body as “the Jurors aforesaid, upon their oath aforesaid”; as they particularized the situs of the crime as “in the City aforesaid”; and as they pinpointed the time of the crime as “on the said day, in the said year.” Indeed, without such reference back, one of the two fourth counts would have been redundant, for each was a verbatim reproduction of the other. The only thing that allowed them to retain individual identities was implicit reference back to a first count, which specified a particular crime against a particular victim. This implicit reference to the leading or titular count, which the State seeks to avoid ²⁷⁵ in another context, is ironically the only thing that saves the State from the error of double-charging in this context.

With these two indictments, as with most multi-count indictments, the various lesser included and other more or less related counts take on coloration from the “flagship count.” It is the “flagship count” that gives the entire indictment its name and its identity. The initial problem with this prosecution is that the two “flagship counts” had no business being in the case. Upon timely motions for judgments of acquittal at the close of the State’s case, those counts, charging assault with intent to rob, were promptly and properly buried; as with Maitland’s forms of actions, however, the “flagship counts” may have been “buried, but they rule us from their graves.” The lead counts should have charged assault with intent to murder. There was no suggestion of robbery or any other larcenous motive in this case.

There had been, rather, a history of bad blood, rancor, and earlier fights between the appellant and one of the victims, Darryl Wilson. There had been a similar history of hostility, friction, and physical violence between the appellant’s girlfriend and the second victim in this case, Desire Moore. There had been, as well, a history of animosity between the families and respective friends of the contending factions. On September 23, 1983, at about 10 p.m., Darryl Wilson and Desire Moore were standing on the corner of Ashland and Milton Avenues, when the appellant approached with a drawn .38 caliber revolver.

Darryl Wilson and Desire Moore ran in opposite directions, the appellant pursuing Darryl Wilson. He fired at Wilson six times, hitting him with three of the shots. The initial Statement of Charges in the district court charged the appellant with assault with intent to murder. The front cover of the two “True Bills” returned by the Grand Jury carried the caption “assault with intent to murder.” There is no disputing that this was the crime the State intended to charge.

However the mistake occurred, ²⁷⁶ there is similarly no disputing that this was not the crime which the State actually did charge. What matters is not what the State intended to do, but what the State did. One must live with even a clerical mistake, if the mistake goes to substance and not to mere form. With the probable explanation being that both assault with intent to murder and assault with intent to rob are found within the same Art. 27, § 12, an indictment clerk erroneously drafted each first count so as to charge assault with intent to rob.

With the exception of the defense attorney, no one noticed the mistake until the motions for judgments of acquittal were suddently made at the end of the State’s case. The motions were, of course, granted. The trial went forward on the remaining three counts of each indictment. The appellant was convicted and sentenced on all six of the remaining counts.

He received a sentence of 15 years’ imprisonment for the simple assault on Darryl Wilson. He received a concurrent sentence of three years for the possession of a handgun charged in the Darryl Wilson indictment and a concurrent sentence of 15 years for the use of a handgun while committing a crime of violence, also charged in the Darryl Wilson indictment. He received a concurrent sentence of 15 years for the simple assault on Desire Moore. He received a concurrent sentence of three years for the possession of a handgun charged in the Desire Moore indictment and a concurrent sentence of 15 years for the use of a handgun violation charged in the Desire Moore indictment.

The net result was a 15-year sentence for the assault on Darryl Wilson, with the five other sentences being directly or indirectly concurrent with it. The 15-Year Sentences for Common Law Assault With commendable forbearance, the appellant does not attack the legal sufficiency of the evidence to support the two convictions for common law assault. He does most strenuously attack, however, his sentences of 15 years’ ²⁷⁷ imprisonment upon those convictions. His attack is well mounted.

It is, of course, true that there is no upper limit on the common law sentence that may be imposed for a conviction of common law assault, save only that the sentence be not cruel and unusual. Gleaton v. State, 235 Md. 271, 277-278 , 201 A.2d 353 (1964); Roberts v. Warden, 242 Md. 459, 460-461 , 219 A.2d 254 (1966); Simms v. State, 288 Md. 712, 725-726 , 421 A.2d 957 (1980); Walker v. State, 53 Md.App. 171, 193-200 , 452 A.2d 1234 (1982). As Judge Wilner pointed out for this Court in Turner v. State, 45 Md.App. 168, 172-173 , 411 A.2d 1094 (1980), the State could easily have avoided any upper limit or “cap” being placed on the assault sentence by indicting for common law assault alone. When, however, the State relegated the common law assault counts to the shadow of the first counts, charging the statutory felonies of assault with intent to rob, it imposed an upper limit upon itself.

As Judge Eldridge pointed out for the Court of Appeals in Simms v. State, supra, at 288 Md. 724 , 421 A.2d 957 : “When a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial and when the defendant is convicted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge.” The Simms situation is indistinguishable from the one here. In that case, as here, the defendant had been found not guilty under a first count charging assault with intent to rob. That crime, as it still does, carried a maximum penalty of 10 years. The actual conviction in Simms was for the lesser included charge of simple assault, for which a sentence of 12 years’ imprisonment was imposed.

Simms held that 10 years was the upper limit under the pleading configuration of that indictment. In Walker v. State, su ²⁷⁸ pra, at 53 Md.App. 189 , 452 A.2d 1234 , we discussed the Simms rule: “The tightly reasoned opinion of Judge Eldridge for the Court of Appeals in Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), dealt with the sentencing limitations which the State imposes on itself, advertently or inadvertently, when it charges two offenses which can be deemed ‘the same offense’ within the contemplation of double jeopardy language. As long as there is neither multiple conviction nor multiple punishment, the double jeopardy clause itself is not engaged. Under Maryland common law, however, the State is deemed to have established the graver of the two offenses as the ‘flagship ’ crime, thereby setting the upper limit for punishment purposes.” (Emphasis supplied).

See also Gerald v. State, 299 Md. 138 , 472 A.2d 977 (1984). Under the indictments actually handed down in this case and upon which the appellant went to trial, the statutory maximum that could have been imposed under the first counts was 10 years. Ten years, therefore, became the “cap” upon the sentences that could be imposed upon the lesser included second counts. Accordingly, we will vacate the two sentences for the two common law assault convictions and remand for resentencing.

The Dual Convictions for Possession of a Handgun The third count of the Darryl Wilson indictment and the third count of the Desire Moore indictment charged precisely the same offense, to wit the unlawful wearing, carrying, or transporting of a handgun in violation of Md.Ann.Code, Art. 27, § 36B (1982 Repl.Vol.). The appellant is understandably chagrined at having been convicted twice and having been sentenced twice for the same offense in clear contravention of the Double Jeopardy Clause. This is no mere question of merger which we might decline to notice under Rose v. State, 37 Md.App. 388, 393 , 377 A.2d 588 (1977), when there is no objection below and where the sentences are made to run concurrently. That situation ²⁷⁹ contemplates a proper general conviction for both a greater inclusive offense and a lesser included offense with the lesser conviction being merged or subsumed into the greater simply to avoid multiple punishment.

Here, by way of contrast, we have an improper second conviction for the same, identical offense. A single criminal episode may, of course, give rise to a number of separate criminal charges, some of which may be multiplied but some of which may not. The key is to identify the unit of prosecution. Both an aggravated assault (Count 1) and a simple assault (Count 2) may properly be multiplied when there are multiple victims.

The unit of prosecution is the victim. With respect to the use of a handgun to perpetrate a crime of violence (Count 4), the unit of prosecution is the crime of violence. Assuming that the other elements have been proved, two victims imply two crimes of violence. That, in turn, implies two separate crimes of using a handgun to commit a crime of violence.

With respect to the possession of a handgun (Count 3), however, the unit of prosecution is the gun, not the victim. Pinkett v. State, 30 Md.App. 458 , 352 A.2d 358 (1976). There was only one gun in this case and there was, therefore, only one crime of possessing a gun. A single assault committed with two guns could yield two possession convictions, but even multiple assaults with a single gun may yield only one possession conviction.

Accordingly, the conviction under the third count of the Desire Moore indictment, charging the unlawful possession of a handgun, will be reversed as a multiple conviction for the identical offense charged in the companion indictment. The Convictions for the Use of a Handgun to Commit a Crime of Violence A “crime of violence” within the contemplation of Art. 27, § 36B(d) is a crime that is so defined by Md.Ann. Code, Art. 27, § 441 (1982 Repl.Vol.). A simple, common law assault does not qualify. Either an assault with intent to rob or an ²⁸⁰ assault with intent to murder would so qualify.

The issue before us is that of what is the “crime of violence” contemplated by the fourth count of each of these indictments. Is it, as the State contends, assault with intent to murder? Or is it, as the appellant contends, assault with intent to rob? It is purely a question of pleading.

If the two fourth counts had charged the use of a handgun to commit the crime of assault with intent to murder, the evidence would clearly have been legally sufficient to support convictions. If, on the other hand, the two fourth counts charged the use of a handgun to commit the crime of assault with intent to rob (as we hold they did), the evidence was not legally sufficient to support those convictions. This is so not because the first counts, charging assault with intent to rob, resulted in judgments of acquittal, but rather because the same reasoning would apply to the handgun counts. The similar fates of the first count and the fourth count would be coincidental, not consequential.

The fourth count falls, if it must, not because the first count has earlier fallen but because the reasons which led to the dismissal of the first count would also, but quite independently, dictate the dismissal of the fourth count. It was of this phenomenon that we spoke in Ball v. State, 57 Md.App. 338, 388 , 470 A.2d 361 (1984): “The validity of his position, [that a charge should be dismissed for evidentiary insufficiency] however, will not depend upon the disposition of that companion charge, for his position would be just as strong if the companion charge had never been in the case. What happened or didn’t happen to the companion charge is coincidental. It is rather the case that the external events themselves that made the granting of the motion on the companion charge proper would also compel the granting of the motion as to the felony-murder.

We look to the disposition of this charge in a vacuum." (Emphasis supplied). ²⁸¹ The issue of evidentiary sufficiency under the fourth count is a self-contained phenomenon, totally uninfluenced by what may have happened to other counts. If the evidence is not legally sufficient to sustain a conviction under the fourth count, that count must fall, regardless of whether the first count 1) has consistently been dismissed as well; 2) has inconsistently not been dismissed; 3) has had no action taken as to it; or 4) has never even been charged as part of the indictment. Conversely, if the evidence is legally sufficient to sustain a conviction under the fourth count, that count should not fall, notwithstanding the fact that the related first count has inconsistently been dismissed. It is the difference between arguing 1) that B should happen because A happened, and 2) that B should happen for the same reason that A happened.

The fates of the two related counts are not in any cause-and-effect relationship to each other; they are, rather, two independent effects proceeding (hopefully consistently, but not necessarily so) from the same cause. In this case, and quite aside from whatever happened to the first counts, the evidence was not legally sufficient to support convictions upon the fourth counts, for the reason that the predicate “crimes of violence” — the assaults with