Pennington v. State

MARVIN H. SMITH, Judge. Appellant, Jean Pennington, was convicted in the Circuit Court for Baltimore City of a violation of Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 27, pertaining to obstruction of justice, upon her entering an “Alford” plea of guilty. 1 The charge stemmed from her having stabbed another woman in order to dissuade the woman from testifying in an assault case then pending in Baltimore City. The entire incident took place in the District of Columbia. Pennington contended in the Court of Special Appeals and contends here that Maryland courts lack jurisdiction over the offense because every act attributed to her took place in the District of Columbia.

The Court of Special Appeals disagreed with Pennington and affirmed her conviction. Pennington v. State, 66 Md.App. 710 , 505 A.2d 895 (1986). We granted Pennington’s petition for a writ of certiorari in order that we might consider the important public question here presented, one of first impression, not only in this State but elsewhere. We shall affirm.

Code (1974, 1984 Repl.Vol.) § 1-501, Courts and Judicial Proceedings Article, provides that our “circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State.” Each such court “has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.” Neither the Constitution nor the code specifically ⁷²⁹ addresses jurisdiction over the offense of obstructing justice. 2 Under § 1-501 of the Courts Article, then, the ques ⁷³⁰ tion of jurisdiction in this case must be determined with reference to the common law. The general rule under the common law is that a state may punish only those crimes committed within its territorial limits. 3 See, e.g., Urciolo v. State, 272 Md. 607 , 325 A.2d 878 (1974); Goodman v. State, 237 Md. 64 , 205 A.2d 53 (1964); Bowen v. State, 206 Md. 368 , 111 A.2d 844 (1955); Stout v. State, 76 Md. 317 , 25 A. 299 (1892). If the various elements of a given offense do not all occur within the borders of a single state, it becomes necessary to decide in which state or states the offense has been “committed.” 1 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 2.9 (1986) states that when the elements are thus scattered, “the common law picked out one particular act (or omission) or result of the act (or omission) as vital for the determination of the place of commission (i.e. the situs) of each of the various crimes and gave jurisdiction to that state ... where the vital act or result occurred. Generally, it may be said that the situs of a crime at common law is the place of the act (or omission) if the crime is defined only in these terms, and the place of the result if the ⁷³¹ definition of the crime includes such a result.” Id. at 180-81.

Likewise, R. Perkins & R. Boyce, Criminal Law ch. 1, § 3 (3d ed. 1982) states: “[I]t came to be accepted that each crime has a particular situs. In any case of difference, for example, homicide is committed, not at the place from which the killer started the fatal force, but where it impinged upon the body of the victim. Thus when one standing in North Carolina fired across the boundary line a shot which hit and killed the victim in Tennessee, this was not a North Carolina crime but a Tennessee crime, and a conviction in North Carolina had to be reversed. To mention other examples, robbery is committed where the property is taken from the victim and not where he was first seized, or where the property was subsequently taken.

Libel is committed at the place of publication, and bigamy where the bigamous ceremony is performed.” Id. at 40-41 (footnotes omitted). See generally 22 C.J.S. Criminal Law § 136 (1961 & Supp. 1986). Maryland cases in which the particular situs of an offense has been identified for jurisdictional purposes include Urciolo, 272 Md. 607 , 325 A.2d 878 (jurisdiction over embezzlement; there must be some act by the accused or his agent within the state); Goodman, 237 Md. 64 , 205 A.2d 53 (no territorial jurisdiction over unlawfully obtaining narcotic drug by misrepresentation where the misrepresentation was made in Maryland but the prescription was filled in the District of Columbia); Medley v. Warden, 210 Md. 649 , 123 A.2d 595 (forgery committed at place where the false instrument is uttered; fact that instrument was made in Virginia no bar to prosecution in Maryland), cert. denied, 352 U.S. 858 , 77 S.Ct. 77 , 1 L.Ed.2d 64 (1956); Bowen, 206 Md. 368 , 111 A.2d 844 (larceny after trust and embezzlement; there can be no prosecution in Maryland of larceny after trust or embezzlement absent some act of conversion or appropriation within the jurisdiction); Stout, 76 Md. 317 , ⁷³² 25 A. 299 (jurisdiction over murder prosecution exists in the state where the mortal blow was inflicted, notwithstanding fact that the victim died in another state); Grindstaff v. State, 57 Md.App. 412 , 470 A.2d 809 (jurisdiction exists over bribery prosecution where the duties sought to be affected by the bribe offer were to be performed in Maryland, although the offer and payment occurred outside of Maryland), ce rt. denied, 299 Md. 655 , 474 A.2d 1344 (1984); State v. Jones, 51 Md.App. 321 , 443 A.2d 967 (1982) (jurisdiction exists over first degree rape prosecution where intercourse occurred outside of Maryland yet other essential elements occurred within Maryland), vacated on other grounds, 298 Md. 634 , 471 A.2d 1055 (1984). Two aspects of the principle of territorial jurisdiction merit mention in this case.

First, as 1 Wharton’s Criminal Law § 14 (C. Torcia 14th ed. 1978) states: “Although a court has jurisdiction to subject an accused to prosecution only if the crime charged was committed within the territorial limits of the state wherein such court is sitting, the accused’s actual presence in such state at the time the crime was committed is not necessary. As one court has put it, the accused’s presence within a state ‘need not be actual; it may be constructive. The well-established theory of the law is that where one puts in force an agency for the commission of crime, he in legal contemplation accompanies the same to the point where it becomes effectual____ So, if a man in the State of South Carolina criminally fires a ball into the State of Georgia the law regards him as accompanying the ball and as being represented by it up to the point where it strikes.’ ” Id. at 69 (quoting Simpson v. State, 92 Ga. 41 , 17 S.E. 984 (1893)). Accord W.L. Clark & W.L. Marshall, A Treatise on the Law of Crimes § 3.02, at 148 (M. Barnes ed. 1967); Urciolo, 272 Md. at 631 , 325 A.2d at 892 .

See generally Annotation, Absence from State at Time of Offense as Affecting Jurisdiction of Offense, 42 A.L.R. 272 (1926). Second, as observed by LaFave and Scott, supra: ⁷³³ “Generally, it may be said that the situs of a crime at common law is the place of the act (or omission) if the crime is defined only in these terms, and the place of the result if the definition of the crime includes such a result.” Id. at 180-81. The Court of Special Appeals applied this theory in Grindstaff, 57 Md.App. 412 , 470 A.2d 809 , in upholding a bribery conviction where all of the elements of the offense save the intended result occurred in the District of Columbia: “In the instant case the crime charged was the corrupt offering of something of value to a Mt. Rainier, Maryland police officer to influence the performance of his official duties in Maryland.

The false report was to be made concerning his business in Maryland. We think this case is akin to those involving the offense of obstruction of justice. The gravamen of the crime was the intended result in Maryland. Thus, in In re Special Investigation No. m, 54 Md.App. 137, 144, n. 1 , 458 A.2d 454 [, cert. denied, 296 Md. 414 ] (1983), Judge Moylan, writing for this Court, stated: United States v. Kibler, 667 F.2d 452 (4th Cir.1982), held that jurisdiction over an obstruction of justice case properly lay in the District of Maryland, although the threats upon a witness which represented the obstruction had occurred in the District of Columbia.

The Court held, at 454, ‘[T]he situs of the crime is the place of the judicial proceeding that the accused sought to thwart.’ ” 57 Md.App. at 416-17 , 470 A.2d at 812 . 4 Similarly, commentary to the Model Penal Code contains the observation that “[b]oth the decisions and the statutes generally affirm state jurisdiction” where causing a particular result constitutes an element of the offense “and the result is caused within the state by conduct occurring in another jurisdiction in which such conduct is lawful.” Mod ⁷³⁴ el Penal Code § 1.03 comment, at 45 (1985) (citing, among other authorities, Medley, 210 Md. 649 , 123 A.2d 595 , and State v. Kriss, 191 Md. 568 , 62 A.2d 568 (1948)). Manifestly, causing or attempting to cause a particular result — the obstruction of justice — forms an essential ingredient of the offense here involved: “If any person by corrupt means or by threats or force endeavors to influence, intimidate, or impede any juror, witness, or court officer of any court of this State in the discharge of his duty, or by corrupt means or by threats or force obstructs, impedes, or endeavors to obstruct or impede the due administration of justice therein, he is liable to be prosecuted, and on conviction to be punished by fine not exceeding $10,000, or by imprisonment not exceeding 3 years, or both, according to the nature and aggravation of the offense.” Code (1957, 1982 Repl.Vol.) Art. 27, § 27. In a decision involving issues not germane to the present case, 5 this Court construed an earlier but substantially similar version of Art. 27, § 27, then Code (1939) Art. 27, § 30. 6 See Romans v. State, 178 Md. 588, 592 , 16 A.2d 642, 644 (1940), cert. denied, 312 U.S. 695 , 61 S.Ct. 732 , 85 L.Ed. 1131 (1941). The Court stressed the importance, relative to ⁷³⁵ the other elements of the offense, of the result element.

Initially, the Court noted that the section does not enumerate the various acts which may amount to an obstruction of justice: “The statute is in aid and definition of a class of those criminal acts which are known to the common law as obstructions of justice. The words of the statute are general and embrace in comprehensive terms various forms of obstruction. Thus the particular acts are not specified____” 178 Md. at 592 , 16 A.2d at 644 . The Court then pointed out that irrespective of the identity of the immediate victim, the ultimate victim is inevitably the court: 7 “Furthermore, it is quite clear that the corrupt act, or one of threat or force, employed to influence or intimidate or impede any such juror, witness, or officer in the discharge of his duty in a court, must necessarily be, also, an endeavor to obstruct or impede in such court the due administration of justice.” 178 Md. at 592 , 16 A.2d at 644 .

Our research has disclosed no reported state court decision determining whether, under the common law, jurisdiction over an obstruction of justice charge exists where all of the affirmative acts were committed without the forum state’s borders. 8 But c.f. State v. Jones, 39 N.M. 395 , 48 ⁷³⁶ P.2d 403 (1935). In that case a witness in a New Mexico proceeding was approached in New Mexico relative to not testifying in the proceeding. The money was paid in Texas.

The court said: “The crime was not consummated in Texas, as contended for by the defendants ... but in Dona Ana county, N.M., where witness Rhyne was first approached and offered a bribe to abstain from testifying.” 39 N.M. at 400 , 48 P.2d at 405-06 . The State contends, nonetheless, that jurisdiction in this case falls squarely within the common law, i.e., that the situs of the offense is the location of the judicial proceedings sought to be obstructed. Maryland decisional law furnishes some, albeit indirect, support for the State’s position. In Kriss, 191 Md. 568 , 62 A.2d 568 , a habeas corpus case, the petitioner was charged in North Carolina with conspiracy to violate the alcoholic beverage laws of that state.

He was never present in North Carolina during the commission of the offense, but rather allegedly caused the transportation and sale of liquor to bootleggers in North Carolina while in Maryland. North Carolina demanded his extradition pursuant to the Uniform Criminal Extradition Act. Code (1939) Art. 41, § 18 then stated: “The Governor of this state may ... surrender, on demand of the Executive Authority of any other state, any person in this state charged in such other state ... with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand ... even ⁷³⁷ though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.” (Emphasis added.) In upholding the constitutionality of § 18 and finding that the extradition papers complied with its requirements, Judge Markell stated for the Court: “It is not inconsistent to lay the venue of the crime, in the warrant, in North Carolina, though petitioner was not in North Carolina. ‘Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.’ Strassheim v. Daily, 221 U.S. 280, 285 , 31 S.Ct. 558, 560 , 55 L.Ed. 735 [1911].” 9 191 Md. at 575 , 62 A.2d at 570 . Strassheim v. Daily, 221 U.S. 280 , 31 S.Ct. 558 , 55 L.Ed. 735 (1911), upon which the Kriss Court relied, also involved the validity of extradition proceedings.

Daily was indicted in Michigan for bribing a Michigan prison warden and obtaining money from the State of Michigan by false pretenses. The indictment alleged in essence that Daily bribed the officer to allow Daily to fraudulently substitute secondhand machinery in a contract between Daily and the state, under which Daily was supposed to furnish new machinery. The issue before the Court was whether Daily qualified as a fugitive from justice from Michigan, since virtually all, but not quite all, of Daily’s criminal conduct occurred in Illinois. 10 In holding that Daily was a fugitive from justice, Justice Holmes said for the Court: “If a jury should believe the evidence and find that Daily did the acts that led [the prison warden] to betray [the warden’s] trust, deceived the [State agency with which Daily contracted], and induced by fraud the payment by ⁷³⁸ the State, the usage of-the civilized world would warrant Michigan in punishing him, although he never had set foot in the State until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power.

Commonwealth v. Smith, 11 Allen, 243 , 256, 259. Simpson v. State, 92 Ga. 41 [ 17 S.E. 984 ]. American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 [ 29 S.Ct. 511, 512 , 53 L.Ed. 826 ]. Commonwealth v. Macloon, 101 Mass. 1, 6, 18 .” 221 U.S. at 284-85 , 31 S.Ct. at 560 , 55 L.Ed. at 738 .

Although Kriss and Strassheim concerned extradition proceedings, the principles enunciated in those cases have received attention in a few subsequent Maryland cases involving the question of criminal jurisdiction. In the forgery case of Medley, 210 Md. 649 , 123 A.2d 595 , the Court made the general observation: “Jurisdiction over the subject-matter may attach where acts are performed in one state with the intention of producing an illegal effect in another, or where the crime is consummated. State v. Kriss, 191 Md. 568, 575 [ 62 A.2d 568 ]; Restatement, Conflict of Laws, § 65, and § 428. See also Bloomer v. State, 48 Md. 521, 535 , and Stout v. State, 76 Md. 317 [ 25 A. 299 ].” 210 Md. at 652 , 123 A.2d at 596 . 11 See also Urciolo, 272 Md. at 631 , 325 A.2d at 892 .

Grindstaff, 57 Md.App. 412 , 470 A.2d 809 , which we have, earlier discussed, in turn relied upon Kriss, Strassheim, and Urciolo in holding that jurisdiction over bribery exists at the ⁷³⁹ locus of the duties sought to be influenced. 57 Md.App. at 416 , 470 A.2d at 811-12 . The stabbing here constituted two crimes, the assault and the obstruction of justice. The first, which trammeled upon the woman’s rights, was an offense against District of Columbia law. However, in the second, the obstruction of justice, as in Grindstaff , no individual’s rights were trammeled upon, but the offense is against the State itself.

It thus would appear to make sense to view the gravamen of those crimes as being the injury to the State and to conclude that jurisdiction exists where the offended agency of the State is located. In addition to Grindstaff , at least one other state court decision appears to espouse this attitude toward crimes against government. 12 In Commonwealth v. Welch, 345 Mass. 366 , 187 N.E.2d 813 (1963), a public official of Massachusetts, who illegally accepted a gift of money while in Rhode Island, contended that Massachusetts ⁷⁴⁰ courts lacked jurisdiction over the offense. The Supreme Judicial Court of Massachusetts disagreed, explaining: “The defendant was a public official of a municipality in Massachusetts. It was an offence in violation of a Massachusetts statute and the harm was to the municipality.

The physical act of handing over the money was but one step in the commission of the offence. An offender cannot evade guilt under this statute by the simple expedient of stepping across our State border for the sole purpose of accepting the money.” 345 Mass, at 370-71, 187 N.E.2d at 816 (citations omitted). Graham v. Lanning, 698 P.2d 25 (Okla.Crim.App.1985), dealt with the question of jurisdiction over the offense of perjury. The defendant in that case was accused of committing perjury during the course of a deposition videotaped in Texas and subsequently used as evidence in an Oklahoma civil case.

Based on a statute conferring jurisdiction over crimes “consummated” within Oklahoma, that state’s Court of Criminal Appeals held that the defendant could be prosecuted in Oklahoma for the penury. Among other things, the court observed, “It is the citizens and courts of Oklahoma, not Texas, who are injured by the perjury alleged to have been committed.” 698 P.2d at 27 . As indicated in n. 8, the Court of Special Appeals relied upon cases arising under the federal obstruction of justice statute, which cases concern venue. The federal statute is codified at 18 U.S.C. § 1503 (1982).

In United States v. Tedesco, 635 F.2d 902, 905 (1st Cir.1980), cert. denied, 452 U.S. 962 , 101 S.Ct. 3112 , 69 L.Ed.2d 974 (1981), the court said, “The source of this section is the Act of March 2, 1831, 4 Stat. 487 , which outlined the contempt jurisdiction of the federal courts.” On this subject Chief Judge Winter said in his dissent in United States v. Kibler, 667 F.2d 452 (4th Cir.), cert. denied, 456 U.S. 961 , 102 S.Ct. 2037 , 72 L.Ed.2d 485 (1982): “It seems to me that the purpose of § 2 of the Act of March 2, 1831 which was the predecessor of 18 U.S.C. § 1503 , see Nye v. United States, 313 U.S. 33, 45-48 , 61 ⁷⁴¹ S.Ct. 810, 814-815, 85 L.Ed. 1172 (1941), was to remove the courts’ power to punish for constructive contempts and to require that such proceedings be conducted by the