Osborne v. State

COLE, Judge. This case presents the question of what is the maximum punishment for accessoryship after the fact to first degree murder. More specifically, we shall determine whether the punishment is life imprisonment, as prescribed by the murder punishment statute, or five years, as set forth by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 626. The facts giving rise to this controversy are as follows.

Kenneth Lee Osborne, appellant, was indicted by a Prince George’s County grand jury on September 15, 1982 for Osborne’s involvement in the events surrounding the murders of George and Gerald Hayes. The indictment charged Osborne with two counts of use of a handgun in the commission of a crime of violence, two counts of accessory before the fact to murder, two counts of accessory after the fact to murder, and one count each of robbery with a deadly weapon and theft. By plea agreement, Osborne pled guilty to both counts of accessory after the fact to first degree murder. The evidence adduced at the plea hearing showed that Osborne was not the trigger man in either murder.

Osborne had been present at the time of the killings, however, and he had assisted in removing the bodies from the scene. The court sentenced Osborne to life imprisonment with reference to the count of accessoryship after the fact to the murder of George Hayes and suspended Osborne’s serving all but twenty years of that term. As to the count of accessory to the murder of Gerald Hayes, the court sentenced Osborne to serve thirty years and suspended all but ten years of the sentence. Following the sentencing, the State entered a nolle prosequi to the remaining counts. ³²⁶ On appeal, the Court of Special Appeals, in an unreported per curiam opinion, affirmed, holding that because the issues raised on appeal were not raised at the trial level, Maryland Rule 1085 precluded review. 1 We granted certiorari to consider the important questions presented.

I Before addressing the parties’ arguments as to the punishment of accessoryship after the fact to first degree murder, it will be useful to discuss the history, common law development and present day views of accessoryship after the fact. At common law and under present Maryland law, 2 a person can be guilty of a felony in four capacities: as a principal in the first degree, a principal in the second degree, an accessory before the fact, or an accessory after the fact. See 4 W. Blackstone, Commentaries * 34-40; 2 J. Stephen, A History of the Criminal Law of England ch. 22, at 229-31 (1883). An accessory after the fact is one who, knowing a completed felony has been committed, harbors and protects the felon or assists him to avoid capture or punishment.

Watson v. State, 208 Md. 210 , ³²⁷ 217-18, 117 A.2d 549, 552 (1955); 4 W. Blackstone, supra, at 37; 2 J. Stephen, supra, ch. 22, at 231; R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure § 21.0 (1983). 3 At early common law, an accessory after the fact received the same punishment for his offense as the principal. If the principal was subject to death, then the accessory after the fact would be subject to death. 4 W. Blackstone, supra, at 39; 2 J. Stephen, supra, ch. 22, at 231. Noting this lack of difference in punishment, Blackstone posed and answered the logical question: Why then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment? For these reasons. 1.

To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted---- 2. Because, though by ancient law the rule is as before laid down, that both shall be punished alike, yet now by statutes relating to the benefit of clergy a distinction is still made between them: accessories after the fact being still allowed the benefit of clergy in all cases; which is denied to the principals, and accessories before the fact, in many cases; as in petit treason, murder, robbery, and wilful burning. 4 W. Blackstone, supra, at 39 (emphasis in original). The benefit of clergy was a common law defense which had its origins in the clergy’s insistence that it was not amenable to the secular courts for any crime. See generally 2 M. Hale, Historia Placitorum Coronae: The History ³²⁸ of the Pleas of the Crown ch. 44 (1st American ed.1847); 2 W. Hawkins, A Treatise of the Pleas of the Crown ch. 33 (8th ed.1824).

Upon successfully asserting the defense (praying his clergy), the member of the clerical order was turned over to the ecclesiastical courts, which handed down much more lenient punishments than did the secular tribunals. See 2 W. Hawkins, supra, ch. 44, § 1; 1 Russell on Crime ch. 4, at 131 (11th ed.1958). The privilege was later extended to those who qualified to be admitted into the clergy — the test being whether the defendant could read. 2 W. Hawkins, supra, ch. 33, § 5. Although at early common law dispensation by benefit of clergy was accomplished by the immediate transfer of the defendant from the lay courts to the courts of the bishops to be tried before a jury of clerks, the law later required that the offender, before being turned over to the ordinary for punishment, first be tried by the lay courts — which were able, upon the conviction, to secure for the Crown the convict’s chattels. 1 Russell, supra, ch. 4, at 131-32.

Statutes were later passed which set forth that, in lieu of being delivered to the ordinary, the defendant would be branded upon the brawn of his left thumb and then imprisoned for a period not exceeding one year. 2 M. Hale, supra, ch. 44, at 254; 2 W. Hawkins, supra, ch. 33, §§ 124-25 (quoting 18 Eliz., ch. 7, § 3). Subsequent statutes replaced the branding with a fine or public or private whipping, and a six month to two year imprisonment. 2 W. Hawkins, supra, ch. 33, § 135 (quoting 19 Geo. 3, ch. 74, § 3). From the 12th century onwards, Parliament used benefit of clergy as a means of varying and distinguishing one crime from another, and excluded the benefit where criminal policy demanded more harsh punishment. 1 Russell, supra, ch. 4, at 132. Although the benefit of clergy had at first applied to all felonies unless it was expressly excluded by statute, the exceptions to the rule soon expanded until principals and accessories before the fact to most felonies were denied benefit of clergy by statute.

See 2 M. Hale, supra, chs. 45-50; 2 W. Hawkins, supra, ch. 33, §§ 54-109. ³²⁹ The defense of benefit of clergy remained as to the accessories after the fact, however. Thus, those convicted of this crime generally received short term sentences. 1 J. Chitty, A Practical Treatise on the Criminal Law ch. 5, at 267 (4th ed. 1841). The benefit of clergy was abolished by statute in England in 1827. 7 & 8 Geo. 4, ch. 28, § 6 (1827). Though benefit of clergy was abrogated, all formerly clergyable offenses were exempted from punishment of death. 7 & 8 Geo. 4, ch. 28, § 7 (1827).

From 1827 to 1848, an accessory after the fact in England was once again amenable to the same punishment (except for death) as the principal. In 1848, a statute was passed which set the maximum penalty for accessories after the fact at two years imprisonment, 24 & 25 Vic., ch. 95, § 4 (1848), except in cases of accessory after the fact to murder, where the punishment was ten years imprisonment. 24 & 25 Vic., ch. 100, § 67 (1848). Maryland abolished the benefit of clergy by 1809 Md. Laws ch. 138, § 11 (now Maryland Code (1957, 1982 Repl. Vol.), Art. 27, § 626).

Art. 27, § 626 provides an eighteen month to five year penalty for all felonies “heretofore deemed clergyable ... except in those cases where some other specific penalty is prescribed by this Code.” Currently, in virtually every jurisdiction an accessory after the fact is not considered a party to the principal felony and is not subject to the punishment of the principal. See generally W. LaFave & A. Scott, Jr., Handbook on Criminal Law § 66, at 522, 524; 1 Wharton’s Criminal Law § 35, at 182-84 (14th ed.1978). The statutes do not treat accessories after the fact as parties to the principal felony; rather, the statutes recognize the conceptual distinction between an accessory after the fact and other offenders and view the accessory after the fact as a separate offender who has obstructed justice. 1 Wharton, supra, § 35 at 182. The vast majority of American jurisdictions address the punishment for accessories after the fact without reference to the principal crime and set penalties ³³⁰ ranging from six months to ten years, the most common of which is five years.

The justification for the modern treatment of accessory-ship after the fact parallels the common law justification for not excepting accessories after the fact from benefit of clergy. As Blackstone noted, accessoryship after the fact “is always an offense of a different species of guilt, principally tending to evade the public justice.” 4 W. Blackstone, supra, at 40. As to the modern treatment of accessoryship after the fact, Professors LaFave and Scott write: This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modern tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. The latter three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission.

The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and is best dealt with on those terms. W. LaFave & A. Scott, Jr., supra, § 66, at 524; see also L. Hocheimer, Crimes and Criminal Procedure § 26 (2d ed. 1904). The determination of the proper punishment in Maryland for accessories after the fact to first degree murder requires an examination of present and past statutory provisions in light of the common law principles of accessoryship. Because accessoryship after the fact to first degree murder was a clergyable offense at common law, we turn to the statute which abolished benefit of clergy in Maryland.

Maryland Code (1957, 1982 Repl.Vol.), originally 1809 Md. Laws ch. 138, § 11, sets forth: All claims to dispensation from punishment by benefit of clergy are forever abolished; and every person convicted of any felony heretofore deemed clergyable shall be ³³¹ sentenced to undergo a confinement in the penitentiary for any time not less than eighteen months nor more than five years, except in those cases where some other specific penalty is prescribed by this Code. And every person who shall be convicted of any felony heretofore excluded from the benefit of clergy, and not specified in this Code, shall be sentenced to undergo a confinement in the penitentiary for not less than five nor more than twenty years. [Emphasis supplied.] The next question to be answered is whether the legislature excepted accessoryship after the fact to first degree murder from the purview of this statute by prescribing a penalty for first degree murder itself. As first enacted in 1809, the first degree murder punishment statute read: Every person convicted of murder in the first degree, his aiders, abettors and counsellors, shall suffer death, by hanging by the neck. 1809 Md.Laws ch. 138, § 4 (emphasis supplied). As amended in 1908 the punishment statute provided: Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their [sic] natural life, in the discretion of the court before whom such person may be tried. 1908 Md.Laws ch. 115 (emphasis supplied).

In amending the murder punishment statute in 1975, the legislature created a section entitled “aiding, abetting or counselling” which read: Every person convicted of aiding, abetting or counsel-ling the commission of any murder ... shall be sentenced to life imprisonment. Maryland Code (1958, 1976 Repl.Vol.), Art. 27, § 413(c) (emphasis supplied). The punishment statute was again amended in 1978. Chapter 3, Acts of 1978 repealed § 413 and enacted a new section, now Maryland Code (1957, 1982 Repl.Vol.), Art. 27, ³³² § 412, which omitted all reference to “aiders, abettors and counsellors.” The State argues that the words “aiders, abettors and counsellors” in the pre-1978 statute evince the intent of the legislature to include accessories after the fact in the punishment for first degree murder.

Furthermore, the State contends that the 1978 amendment to the statute does not repeal all penalties as to accessories because the words “aiders, abettors and counsellors” were merely surplusage in the original statute. The State posits that because accessoryship after the fact is not a distinct substantive offense in Maryland, it is part and parcel of the principal crime, in this case, first degree murder, and is therefore subject to the same penalty as the principal crime. We disagree. Neither the present version of the statute nor past enactments show a legislative intent to include accessories after the fact in the punishment for first degree murder.

As it appears today, the punishment statute makes no reference to accessories. Though it is clear that one who assists or is accessory to the principal in the commission of the crime is subject to the same punishment as the principal, an accessory after the fact does not fall into this category because he does not assist in the crime’s commission. His assistance consists of a post facto act which is in the nature of an obstruction of justice. The presence of the words “aider, abettor and counsellors” in the pre-1978 enactments does not alter this interpretation; indeed, these words strengthen the conclusion that the first degree murder punishment provision does not apply to accessories after the fact.

The 1975 version of the statute expressly stated that those who aid, abet or counsel the commission of the murder will be punished by life imprisonment. Again, an accessory after the fact plays no part in the commission of the crime. Furthermore, an examination of case law and commentary shows that the words, “aider, abettor and counsellor” do not apply to accessories after the fact. In Anello v. State, ³³³ 201 Md. 164, 168 , 93 A.2d 71, 72-73 (1952), this Court defined the words “aider” and “abettor”: The legal definition of the word “aider” is not different from its meaning in common parlance.

It means one who assists, supports or supplements the efforts of another. The word “abettor” means in law one who instigates, advises or encourages the commission of a crime. Thus the word “abet” may import that one is present at the commission of a crime without giving active assistance .... To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in absence of such action, it is essential that one should in some way advocate or encourage the commission of the crime. [Emphasis supplied.] It could be argued that the word “aider” encompasses accessories after the fact — since these offenders assist the perpetrator to evade justice and support the perpetrator after the crime has been committed.

See State v. Empey, 79 Iowa 460, 461 , 44 N.W. 707, 707