Purnell v. State

BELL, C.J. The sole issue presented by this appeal is whether the appropriate unit of prosecution for the common law crime of resisting arrest is determined by the number of police officers a criminal defendant resists during an arrest or, more simply, by the arrest itself. 1 During one episode of attempting to elude police custody, Charles Purnell, the petitioner, was charged with two counts of resisting arrest: one count for each of the two officers attempting to arrest him. The petitioner was also charged, inter alia, with two counts of second degree assault, 2 again ⁶⁸² one count for each police officer. Following a bench trial, the Circuit Court for Baltimore City convicted the petitioner of both counts of resisting arrest and both counts of assault and, subsequently, imposed, as to each conviction, a ten-year term of incarceration, with all but two years suspended, to be served concurrently. In an unreported opinion, the Court of Special Appeals affirmed those judgments.

This Court granted the petitioner’s Petition for Writ of Certiorari. Purnell v. State, 359 Md. 668, 755 A.2d 1139 (2000). Because we conclude that it is inappropriate to determine the unit of prosecution for the crime of resisting arrest by reference to the number of law enforcement officers resisted, or by the number of officers put at risk by the resistance, we shall reverse the judgment of the intermediate appellate court and order that one of the petitioner’s convictions for resisting arrest be vacated. I. Although not married, the petitioner had a long term relationship with Ms. Terry Washington, the mother of the petitioner’s four children.

Despite not having shared a domicile with Ms. Washington for more than two years, the petitioner paid the mortgage on the home that she and the children shared, as well as the gas and electric bills. This case arose out of events occurring on August 12, 1998. As to those events, the petitioner and Ms. Washington tell widely differing stories. Because the court acquitted the petitioner of all of the charges related to Ms. Washington, 3 we shall rely on the ⁶⁸³ petitioner’s version of the events leading up to his arrest for assault and resisting arrest.

In the late afternoon of August 12, 1998, the petitioner drove to Ms. Washington’s place of employment in Baltimore City, arriving as she was leaving work for the day. According to the petitioner, he did so in response to a page from Ms. Washington, in which she used a code that they had devised, indicating that Ms. Washington needed the petitioner to give her a ride home. 4 He said that he informed his co-workers that he was leaving work to pick up Ms. Washington and that he would return later. The petitioner testified that, while he was taking Ms. Washington home, they had an argument about Ms. Washington’s relationship with one of her coworkers. During the argument, Ms. Washington informed the petitioner that she was having pains in her chest and that he should take her to the emergency room, whereupon he drove her to the emergency room of the University of Maryland Hospital.

At the hospital, Ms. Washington, unaccompanied, checked in with the triage nurse while the petitioner searched for a parking spot. Telling the nurse that she was the victim of ⁶⁸⁴ domestic violence and that the perpetrator would be sitting in the waiting room, Ms. Washington asked the nurse to call the police. After Ms. Washington had returned to her seat in the waiting room and while sitting next to the petitioner, Officer Wayne’Early, who was responding to a call for a “problem” at the University of Maryland Hospital emergency room, arrived. A member of the hospital staff pointed out Ms. Washington and she stood up and identified herself, saying, “[i]t was me.” When Officer Early asked the petitioner for identification, the petitioner stood up and handed him his driver’s license, thus complying.

He refused Officer Early’s request to sit down, prompted by Officer Early’s perception that the petitioner was getting “fidgety” and concern “for [his] safety,” however, and, after the second request, the petitioner pushed Officer Early into a wall and ran toward the hospital door, where he was met by Officer John Vogelpohl, a University of Maryland campus police officer. The petitioner and Officer Vogelpohl “went to the ground” as the petitioner attempted to flee from the emergency room waiting area. When he fled, the petitioner had not been placed under arrest or told that he was. The petitioner managed to get out of the hospital with a “fifteen yard head start,” but with the two officers in pursuit.

As a result of the confrontation with, or chase of, the petitioner, Officer Early suffered a pulled muscle in his leg and Officer Vogelpohl suffered a cut on his right forearm. Having been directed there by by-standers, the officers found the petitioner in a parking lot, hiding under a pick-up truck. Concerned that the petitioner may have been armed, the officers drew their weapons and ordered the petitioner to “come out.” Although he did not do so initially, after “a few commands” and with the aid of Baltimore City police officers, the petitioner did come from under the truck. After the petitioner emerged from under the truck, the officers attempted to place the petitioner under arrest, directing him “several times ... to place his hands behind his back.” The petitioner resisted their attempts to handcuff him, by “attempt[ing] to push up,” which then required the officers to push “him back down to actually get him handcuffed.” ⁶⁸⁵ The petitioner was charged, with regard to Ms. Washington, with false imprisonment, assault and stalking.

He also was charged with two counts each of assault and resisting arrest, one count of each for Officer Early and Officer Vogelpohl. After a bench trial, the petitioner was acquitted of the charges relating to Ms. Washington, but convicted of all of the charges relating to the police officers. The trial court’s findings of fact supporting the guilty verdicts were summarized as follows: “[CJount one, resisting arrest [to Officer Early], I find that there was resisting arrest, but not at the hospital, but at the parking lot. This was a warrantless arrest and, therefore, I find the defendant guilty beyond a reasonable doubt where the evidence indicated he certainly knew that the police officers intended to place him under arrest when he was in the parking lot and under the car and that there was a scuffle whereby he clearly resisted arrest.

H* “In respect to case number 598273006, the events regarding Officer John Vogelpohl, I find in respect to count one that there was a resisting arrest. I find that beyond a reasonable doubt and these, again, are events at the parking lot and not the hospital.” The petitioner unsuccessfully appealed his conviction as to Officer Vogelpohl to the Court of Special Appeals. On his direct appeal to that court, the petitioner’s argued, inter alia, that his conviction for resisting arrest relating to Officer Vogelpohl was invalid, as a matter of law, because it was part of the same arrest being effected by Officer Early, the conviction relating to whom he did not contest. The Court of Special Appeals, rejecting the petitioner’s arguments, affirmed both of the judgments.

The court expressly disagreed with the petitioner’s contention that he “resisted with one act on one occasion.” The intermediate appellate court explained: “[t]he trial court could have found two separate acts of resisting arrest: (1) appellant’s refusal to emerge from under the vehicle when ordered to do so at gunpoint by ⁶⁸⁶ [Officer] Vogelpohl, and (2) appellant’s attempts to ‘push up’ while [Officer] Early and other officers tried to handcuff him, necessitating that officers ‘push him back down to actually get him handcuffed.’ ” In support of his appeal to this Court, the petitioner argues that his second conviction for resisting arrest cannot, as a matter of law, be upheld because the principal act involved in the wrongful conduct — resisting—was the same act that formed the basis of his first conviction for the same offense. Put another way, the petitioner argues that the appropriate unit of prosecution for the resistance to one lawful arrest is determined by the arrest itself and that he cannot be convicted twice for the same crime. Petitioner specifically draws this Court’s attention to the factual findings of the trial court that both convictions for resisting arrest were based upon his act or acts of resistance in the parking lot where he was ultimately apprehended, and exclusive of any conduct that took place in the hospital. The petitioner’s argument, in substance, is a double jeopardy challenge to the prosecutor’s decision to charge him with two counts of resisting arrest from purportedly a single event. 5 ⁶⁸⁷ In rebuttal, the State notes that “in most unit of prosecution cases involving statutory offenses, this Court has repeatedly stated that the critical inquiry is one of legislative intent.” (Respondent’s Brief at 14) (citing Huffman v. State, 356 Md. 622, 627 , 741 A.2d 1088, 1091 (1999); Randall Book Corp. v. State, 316 Md. 315, 324 , 558 A.2d 715, 720 (1989); Brown v. State, 311 Md. 426, 434 , 535 A.2d 485, 489 (1988)).

The State, however, attempts to persuade this Court that, absent statutory guidance, an historical review of certain authoritative writings on the common law of England, and in particular the crime of resisting arrest, instructs that the appropriate unit of prosecution is determined by each person subjected to harm, or the risk of harm by each act of resistance. Thus, the State argues that both Officers Early and Vogelpohl were either harmed, or, put at risk, by the petitioner’s attempt to resist arrest. Consequently, multiple convictions for the offense of resisting arrest are appropriate, it argues. We are not persuaded by the State’s argument.

II

This Court has stated that resisting arrest constitutes an offense at common law in this State. 6 Preston v. Warden of ⁶⁸⁸ Maryland, 225 Md. 628, 629, 169 A.2d 407 , 408 (1961), cert. denied 366 U.S. 974 , 81 S.Ct. 1940 , 6 L.Ed.2d 1262 (1961); See also Busch v. State, 289 Md. 669, 675 , 426 A.2d 954, 957 (1981); 7 R. Perkins, Criminal Law 495-97 (2d ed.1969); 4 Wharton’s Criminal Law & Procedure § 1617 (Anderson 1957). In Busch , by reference to an English case, we described the character of the offense of resisting arrest, as follows: “The prisoner was indicted for cutting and wounding with intent to ■ resist his lawful apprehension: the evidence showed that the prosecutor, a police constable, went with a brother officer, both being in plain clothes, and with two other policemen in uniform, to a public house, and told the prisoner that he wanted him on a charge of highway robbery. He had no warrant, but from information he had received, he thought it his duty to apprehend the prisoner. The latter asked him for further information relative to the charge, which he refused to give, and the prisoner then told ⁶⁸⁹ him that he would not go to the station-house, unless he was told why, or by what authority, he was apprehended.

On the witness immediately proceeding to arrest him, the prisoner violently assaulted and seriously injured him. “Robinson (for the prisoner) contended that, upon this evidence, the prisoner could not be convicted of the crime alleged against him. “Talfourf, J. — I am of opinion, that the objection taken is not well founded. There is, upon the evidence, a sufficient case for the jury. I think that, to support a charge of resisting a lawful apprehension, it is enough that prisoner is lawfully apprehended, and it is his determination to resist it.” Busch, supra, 289 Md. at 673-674 , 426 A.2d at 956-957 (emphasis in original), quoting Regina v. Bentley, 4 Cox C.C. 406, 406-08 (1850). Then, referencing and quoting Preston, 225 Md. at 629, 169 A.2d at 408, we acknowledged that “the offense of resisting arrest ordinarily requires resistance to a lawful arrest made by an officer of the law in the performance of his official duties.” Busch, supra, 289 Md. at 675 , 426 A.2d at 957 .

From that premise, we emphasized that a lawful arrest was a prerequisite to the offense of resisting arrest. Id. In our most recent decision relating to the crime of resisting arrest, this Court approved a jury instruction, stating “that the prosecution had the burden of proving that the defendant was arrested; the arrest was lawful; and that the defendant refused to submit to that arrest.” Barnhard v. State, 325 Md. 602, 609-610 , 602 A.2d 701, 704-705 (1992). Our cases and those of the Court of Special Appeals, see, e.g.

Jordan v. State, 17 Md.App. 201, 208 , 300 A.2d 701, 704 (1973); Lyles v. State, 10 Md.App. 265, 268 , 269 A.2d 178, 180 (1970), uniformly and consistently have stated that the offense, in the absence of statutory enactment, is a part of Maryland’s common law. 8 ⁶⁹⁰ Double jeopardy principles apply, whether a criminal defendant is charged with a common law offense or a statutory offense. Miles v. State, 349 Md. 215, 219 , 707 A.2d 841, 843-844 (1998); Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056, 1059 (1991) (“Although Blockburger involved statutory offenses ... [the same test] is also the applicable standard under the common law Maryland merger doctrine.”). See also, Miles v. State, supra, 349 Md. at 219 , 707 A.2d at 843-844 (merger of common law battery and aggressive panhandling ordinance); State v. Lancaster, 332 Md. 385, 391 , 631 A.2d 453, 456 (1993) (merger of statutory offenses); Eldridge v. State, 329 Md. 307, 319-320 , 619 A.2d 531, 537 (1993) (merger of sentences for robbery with a deadly weapon and wearing and carrying the weapon openly and with intent to injure); In Re Montrail M., 325 Md. 527, 531 , 601 A.2d 1102, 1104 (1992) (applying doctrine to juvenile delinquency proceedings); Biggus v. State, 323 Md. 339, 350 , 593 A.2d 1060, 1065 (1991) (addressing whether third degree sexual act stat ⁶⁹¹ ute established a single offense, committed in different ways, or several distinct offenses); Williams v. State, 323 Md. 312, 316 , 593 A.2d 671, 673 (1991) (merger of attempted first degree murder and assault with intent to murder). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides the criminally accused with protection from, inter alia, multiple punishment stemming from the same offense. 9 See, Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221, 2225 , 53 L.Ed.2d 187, 194 (1977) citing North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656, 665 (1969) (The Double Jeopardy Clause “protects against multiple punishment for the same offense”).

Similarly, despite the lack of a double jeopardy clause in its Constitution, Maryland’s common law provides protection from double jeopardy to the criminally accused. See, Ware v. State, 360 Md. 650, 708 , 759 A.2d 764, 794-795 (2000) (citing Gianiny v. State, 320 Md. 337, 347 , 577 A.2d 795, 799 (1990); Pugh v. State, 271 Md. 701, 705 , 319 A.2d 542, 544 (1974); State v. Barger, 242 Md. 616, 619 , 220 A.2d 304, 306 (1966)). The Double Jeopardy Clause of the United States Constitution “protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” ⁶⁹² Randall Book Corp., supra, 316 Md. at 323 , 558 A.2d at 719 , citing United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), overruled by Hudson v. United States, 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997); North Carolina v. Pearce, supra, 395 U.S. at 717 , 89 S.Ct. at 2076 , 23 L.Ed.2d at 665 . As there has only been one prosecution in the case sub judice, we are concerned solely with the prohibition against multiple punishment for the same offense.

A criminal defendant may raise a double jeopardy challenge, alleging multiple punishment, generally in “two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct, and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction.” Richmond v. State, 326 Md. 257, 261 , 604 A.2d 483, 485 (1992) citing Gore v. United States, 357 U.S. 386, 393-94 , 78 S.Ct. 1280, 1285 , 2 L.Ed.2d 1405, 1411 (1958) (Warren, C.J. dissenting); Randall Book Corp., supra, 316 Md. at 324 , 558 A.2d at 720 . In the case sub judice, we are confronted with a situation where a single common law offense is alleged to have created multiple units of prosecution for conduct occurring, as the petitioner argues, from the same criminal transaction. 10 This Court has stated: “whether a particular course of conduct constitutes one or more violations of a single statutory offense affects an accused in three distinct, albeit related ways: multiplicity in the indictment or information, multiple convictions for the same offense, and multiple sentences for the same offense. All three turn on the unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent.” Brown v. State, supra, 311 Md. at 432 , 535 A.2d at 488 (citations omitted). The Court further opined in Brown that: ⁶⁹³ “[t]he unit of prosecution analysis is applicable to those multiple punishment cases which involve the construction of a single statutory provision.

In determining whether two different offenses are the same for double jeopardy purposes, both in the context of merger of offenses in a single trial and successive trials for the same offense, we have generally employed the Blockburger required evidence test. Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932). See Dillsworth v. State, 308 Md. 354, 356-61 , 519 A.2d 1269, 1270-73 (1987); State v. Jenkins, 307 Md. 501, 517-18 , 515 A.2d 465, 473-74 (1986); Hawkins v. State, 291 Md. 688, 691-92 , 436 A.2d 900, 901-02 (1981); Whack v. State, 288 Md. 137, 141-42 , 416 A.2d 265, 266-68 (1980), appeal dismissed, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981) and case cited therein.” Brown v. State, supra, 311 Md. at 432, n. 6 , 535 A.2d at 488, n. 6 . Generally, this Court has relied upon the Blockburger “required evidence test” in resolving double jeopardy challenges involving two offenses stemming from the same act or acts.

Miles v. State, supra, 349 Md. at 219 , 707 A.2d at 843-844 (“We have often pointed out that, as a matter of Maryland common law, the normal standard for determining whether one offense merges into another is what is usually called the ‘required evidence test.’ ”). See Williams v. State, supra, 323 Md. at 316-317, 593 A.2d. at 673 (“Under settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, as well as the usual rule for determining whether two offenses are deemed the same for double jeopardy purposes, when both offenses are based on the same act or acts, is the so-called “required evidence test.”) (emphasis added). We outlined the application of the required evidence test in Williams as follows: “The required evidence test, or “same evidence test” or “elements test” as it is sometimes called, applies to both ⁶⁹⁴ common law offenses and statutory offenses. Snowden v. State, supra, 321 Md. at 617 , 583 A.2d at 1059 ; State v. Ferrell, supra, 313 Md. at 297-298, 545 A.2d at 656. “The required evidence test ‘focuses' upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.’ ” Snowden v. State, supra, 321 Md. at 617 , 583 A.2d at 1059 , quoting from State v. Jenkins, supra, 307 Md. at 517 , 515 A.2d at 473 .

The test was explained in Thomas v. State, supra, 277 Md. at 267, 353 A.2d at 246-247, as follows: “The required evidence is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy and merger purposes, even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy and merger purposes.” Williams v. State, supra, 323 Md. at 317-318, 593 A.2d at 673 (emphasis added). Finally, under the Maryland common law approach, the double jeopardy analysis is a two step process.

According to Jones v. State, 357 Md. 141, 157 , 742 A.2d 493, 501-502 (1999), we must first determine “whether the charges arose out of the same act or transaction, and second, whether the crimes charged are the same offense.” The crimes charged are the same offense if the elements of each are identical. Id. at 158 , 742 A.2d at 502 (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)). “This does not end the inquiry, however, because the focus is upon the intent of the Legislature.” Jones, supra at 158-59 , 742 A.2d at 502 (noting that “the Blockburger rule ⁶⁹⁵ does not provide the final answer in cases involving multiple punishment because, when specifically authorized by the legislature, cumulative sentences for the same offense may under some circumstances be imposed after a single trial”). In such instances, the appropriate measure of the allowable unit of prosecution would be what “the legislature intended.” Huffman v. State, supra, 356 Md. at 628 , 741 A.2d at 1091 . Indeed, “our primary task in a unit of prosecution analysis is to find and give effect to the legislative intent underlying the statute.” Id. at 632-33 , 741 A.2d at 1093 .

III

As we have seen, the crime of resisting arrest has not been codified by the Maryland General Assembly; consequently, we are unable to determine the unit of prosecution for the offense by referring to a statute. Therefore, we believe the appropriate starting point of the unit of prosecution analysis when the offense under review is a common law crime is an examination of the elements of that crime, as, when appropriate, announced by this Court. In this case, we must review the elements of the common law crime of resisting arrest. The elements of the offense of resisting arrest, we have stated, are: refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties.

See Preston v. Warden of the Maryland House of Correction, supra, 225 Md. at 629, 169 A.2d at 408; Accord, State v. Huebner, 305 Md. 601, 608 , 505 A.2d 1331, 1334-1335 (1986); Busch v. State, supra, 289 Md. at 673 , 426 A.2d at 956 ; and Matter of Nawrocki, 15 Md.App. 252, 263 , 289 A.2d 846, 852 (1972) cert. denied, 266 Md. 741 (1972). In Barnhard v. State, supra, this Court, as we have seen, approved an instruction which further defined the elements of the crime that: (1) the defendant was arrested; (2) the arrest was lawful; and (3) the defendant resisted or refused to submit to that arrest.” 325 Md. at 609-610, 602 A.2d at 705 . We adopt the statement of the elements of the offense expressed in Barnhard . Unlike the statement of the elements made by the Preston Court, ⁶⁹⁶ Barnhard’s formulation does not refer to a “law enforcement officer,” as the object of the resistance.

No extensive analysis of the facts presented in this case is required to determine that all of the elements of the crime of resisting arrest were satisfied. The petitioner was arrested; the arrest was lawful — there was evidence that the petitioner assaulted Officer Early as he attempted to effect his escape; and, based upon the credited testimony of the officers, the petitioner resisted the arrest. Furthermore, under the “required evidence test” no element of the resisting arrest count relating to Officer Vogelpohl required additional proof that was not already furnished in the resisting arrest count relating to Officer Early. Consequently, the conclusion is inescapable, both resisting arrest counts are the same for double jeopardy purposes.

Under double jeopardy analysis, we next must ascertain whether the charges arose out of the same act or transaction. To make that determination, we refer to the “single transaction” theory this Court first enunciated in State v. Warren, 77 Md. 121 , 26 A. 500 (1893). In Warren , this Court addressed the question whether a defendant who stole, at the same time, several articles of property belonging to several different owners, was guilty of but one offense or whether he was guilty of as many offenses as there were owners. In applying the single transaction theory, this Court determined that the: “gist of the offense ... [is] the felonious taking of the property [the act itself].

We do not see how the legal quality of the act is in any manner affected by the fact, that the property stolen, instead of belonging to one person is the several property of different persons. The offense is an offense against the public, and the prosecution is conducted, not in the name of the owner of the property, nor in his behalf — but in the name of the State, the primary object being to protect the public against such offenses by the punishment of the offender.” State v. Warren, supra, 77 Md. at 122 , 26 A. at 500 ; See also, State v. White, 348 Md. 179, 192 , 702 A.2d 1263, 1269 (1997) ⁶⁹⁷ (following Warren analysis that the theft of several articles at the same time, belonging to different owners, constitutes but one offense). In Bane v. State, 327 Md. 305 , 609 A.2d 313 (1992), we were asked to determine whether “separate convictions of [the statutory offense of] storehouse breaking and stealing may be sustained,” where a single building, in which two