Rice v. State

MURPHY, Chief Judge. Maryland’s consolidated theft statute, Maryland Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.) Article 27, §§ 340-344, enumerates in five subsections of § 342 alternate methods by which the crime of theft can be committed. 1 This ¹¹⁹ appeal presents the question whether a defendant, charged with theft, is entitled to a jury instruction that a conviction for this offense could not be obtained unless the jury agreed unanimously on all elements of at least one subsection of the statute. To resolve this question we must address issues both of the proper interpretation of the theft ¹²⁰ statute and of the statute’s constitutionality under Articles 5 and 21 of the Maryland Declaration of Rights. 2 I In April 1985, at the conclusion of a jury trial in the Circuit Court for Montgomery County, appellant Anthony Rice was convicted of burglary, two counts of robbery with a dangerous and deadly weapon, two counts of use of a handgun in a crime of violence, and theft of property having a value of more than $300. Rice was subsequently sentenced to imprisonment for eighty years, including fifteen years on the theft count.

The charges against him stemmed from a burglary and armed robbery on the night of January 17, 1984, of Harold and Cynthia Resnick at their residence in Montgomery County. The circumstances attending this crime and Rice’s subsequent arrest and conviction are not in dispute. The Montgomery County Police were conducting surveillance in the Resnick neighborhood because numerous armed robberies had recently occurred in the area. On the evening of January 17, the police noticed a white Cadillac parked not far from the Resnick residence.

Shortly before 11 p.m. that same night the police observed the Cadillac being operated by two men. The driver was wearing a bulky jacket, had facial hair, and appeared to be a black male. At 11:20 p.m. the Resnicks reported that they had been the victims of an ¹²¹ armed robbery that had begun shortly after 9 p.m. They described the robbers as two black males, armed, wearing ski masks, approximately thirty years old, six feet tall, thin, and with facial hair.

On learning of the robbery, the police traced the ownership of the Cadillac to Annabelle Postell, known to the police as an associate of Rice and his twin brother. Early on January 18 the vehicle was located outside a pool hall in Prince George’s County and placed under surveillance. About 6:30 a.m. police observed a black male—described at trial as “six feet tall, beard, long three-quarter length blue winter coat on, like a ski parka type thing, and [he] had a hat on”—come out of the pool hall, open the trunk of the car, remove something from the trunk, and return to the building. At approximately 8 a.m., as the man drove the car from the pool hall, he was arrested by the police.

He identified himself as Anthony Rice. The Cadillac was impounded and searched, pursuant to a warrant. The Resnicks had reported that furs, jewelry, and cash were taken in the robbery. The Cadillac contained two handguns, tools, some jewelry, and several fur coats.

The fur coats, jewelry, and a chain worn by Rice when he was arrested were identified by the Resnicks as their property. Many other items taken from the Resnicks, including $1,800 in cash, antiques, and other fur coats and jewelry, were never recovered. Neither of the Resnicks identified appellant as one of the robbers. On the basis of this evidence the trial judge instructed the jury as follows with respect to the theft count: “The Maryland Theft Statute indicates that a Defendant may be guilty of violating either Subsection A or Subsection C of the statute or guilty of violating both subsections____ “In order for you to find the Defendant guilty, all of you must find that the Defendant violated Subsection A or Subsection C or both____ ¹²² “Now, in order to reach a verdict in this case, each of you must agree upon it.

Your verdict must be unanimous and it must be based entirely upon the evidence you have heard and seen in the courtroom and the laws given in these instructions.” Rice appealed his conviction to the Court of Special Appeals, asserting that the trial judge’s jury instructions were improper. In an unreported opinion the Court of Special Appeals, relying on Craddock v. State, 64 Md.App. 269 , 494 A.2d 971 , cert. denied, 304 Md. 297 , 498 A.2d 1184 (1985), rejected this contention. We granted certiorari to consider the significant issue raised in the case. II Appellant contends that the trial judge erred in failing to instruct the jury “that it could convict the defendant of theft only if all twelve jurors agreed unanimously that the defendant had committed all the elements of larceny under subsection (a) [of § 342] or all the elements of possession of stolen property under subsection (c).” This error, appellant asserts, created the possibility that in the jury deliberations leading to his conviction the following occurred: six jurors believed Rice took the property from the Resnicks, and so thought him guilty of violating subsection (a); they did not believe he possessed the Resnick property as stolen property, and thus did not think him guilty of violating subsection (c).

The other six jurors believed the opposite: they thought Rice guilty of possessing stolen property but not of taking it himself from the Resnicks. 3 As to each subsection, therefore, half the jurors were unconvinced of Rice’s guilt. Yet, the appellant postulates, given no jury instruction requiring unanimity as to all elements of at least one subsection, the jury nonetheless returned a verdict of guilty. ¹²³ While the result appellant condemns is theoretically possible, the question remains whether it is permissible. With considerable cogency appellant contends it is not. In support of his position, he points out that consolidated criminal statutes are of two classes.

The first defines a single crime and, in enumerating subsection offenses, provides different ways the crime may be committed; the second, though cast in the form of a single statute or section, in enumerating subsection offenses actually states autonomous crimes. 4 According to Rice, to determine in which class the subsections of a particular consolidated statute belong requires a comparison of the statute’s subsections with each other. He says that if the subsection offenses are conceptually distinct, then they are autonomous crimes and the right to jury unanimity applies to all essential elements. Rice urges that subsections (a) and (c) of § 342 are conceptually distinct (are separate crimes) because they contain different actus reus elements and are basically renovated versions of crimes, namely larceny and receiving stolen property, that have quite different common law origins. We think appellant’s argument requires that we first consider whether, as a matter of statutory construction, the jury unanimity appellant seeks is consonant with the language and purposes of the theft statute.

Second, we must canvas the relevant case law in determining, as a matter of constitutional law, the proper scope of jury unanimity with respect to consolidated criminal statutes. And, third, we must apply the applicable law to Maryland’s consolidated theft statute. Ill Statutory Construction This is not the first time we have considered whether the legislature intended that Maryland’s theft statute be re ¹²⁴ garded as one crime or several. In Jones v. State, 303 Md. 323 , 493 A.2d 1062 (1985), we confronted this question directly in rejecting a constitutional challenge to the short form charging document provided by § 342(c) of the theft statute.

The appellant in Jones asserted that because of the wide diversity of elements which comprise the crime of theft under § 342, a charging document stating merely that the defendant “did steal” specified property of the named victim in violation of the statute failed to provide constitutionally adequate notice of the essential elements of the crime charged. Our decision in that case turned on whether the legislature had made “stealing” property or services of another a single criminal offense. We held that it had. Jones thus focused on an earlier stage of a theft prosecution than that here involved.

The predicate of our reasoning in Jones was “that Maryland’s consolidated theft statute constitutes a single crime; [and] that the subsections of § 342 merely specify different acts or transactions through which theft can be proved____” 303 Md. at 338 , 493 A.2d 1062 . Nothing in the language of the theft statute or its legislative history suggests that § 342 encompasses multiple crimes for jury instruction purposes. Indeed, the first sentence of § 341 flatly and unequivocally states: “Conduct designated as theft in this subheading constitutes a single crime....” As set forth in the October 1978 report of the General Assembly’s Joint Subcommittee on Theft Related Offenses, the legislative history underlying enactment of the consolidated theft statute clearly posits a single offense. In the introduction to that report the subcommittee quotes with approval the following from Farlow v. State, 9 Md. App. 515, 516 , 265 A.2d 578 (1970): “If a person unlawfully appropriates the personal property of another to his own use the path between proof of that fact and conviction of a crime should be straight and clear.” It may be true, as appellant has hypothesized, that, in jury deliberations, six jurors may think the defendant ¹²⁵ guilty of violating § 342(a) and six guilty of violating § 342(c); but on neither (a) nor (c) do all twelve agree.

But that hypothetical has another aspect—all twelve jurors are convinced that the defendant has “unlawfully appropriate^] the personal property of another to his own use.” Farlow, supra, 9 Md.App. at 516 , 265 A.2d 578 . From proof of that fact to conviction of a crime the legislature undertook to make a straight and clear path by means of the consolidated theft statute. It appears to us the requirement of jury unanimity that appellant advocates would place substantial obstacles in that path, in manifest contravention of the intent of the legislature. Even more telling is the commentary in the legislative report that specifically annotates the criminal possession subsection, § 342(c).

This commentary states: “By merging the acts of receiving stolen goods and the acts constituting the actual stealing into a single offense (i.e., theft) some confusion has been eliminated. Under Maryland case law, either of two inferences could arise if a person was found in possession of recently stolen goods. One inference was that the possessor was the thief, and the other inference was that the possessor was the receiver of stolen goods____ In some instances, courts were confounded by the dilemma of which inference to draw. However, now that the act of stealing and the act of receiving constitute a single offense (i.e., theft), the confusion is eliminated.” Joint Subcomm.

Report at 35. It is manifest from these statements that the subcommittee was well aware that jurors might draw conflicting inferences from evidence such as that presented at appellant’s trial. Recognizing that the jury might form different views about the defendant’s course of conduct, the subcommittee’s concern was that the jury not be required to choose between the conflicting inferences. No unanimity was to be forced upon them because there was to be no necessity to choose: either inference, whether of larceny or of possessing stolen goods, would lead to the conclusion that the ¹²⁶ defendant was guilty of theft.

We thus construe Maryland’s theft statute to not require the jury unanimity that appellant seeks. IV Constitutionality The legislature has broad power to define what acts shall constitute criminal offenses. Greenwald v. State, 221 Md. 235, 240 , 155 A.2d 894 (1959), appeal dismissed, 363 U.S. 719 , 80 S.Ct. 1596 , 4 L.Ed.2d 1521 (1960). Included within this power is the prerogative of designating the crime by such names or titles as the legislature deems appropriate.

See Wimpling v. State, 171 Md. 362, 370 , 189 A. 248 (1937). This power, however, is not without constitutional restraints. Greenwald, supra, 221 Md. at 240 , 155 A.2d 894 ; Glickfield v. State, 203 Md. 400, 404 , 101 A.2d 229 (1953). One such restraint is provided by the jury unanimity guarantees of Articles 5 and 21 of the Declaration of Rights, supra, n. 2.

As we noted in State v. McKay, 280 Md. 558, 561 , 375 A.2d 228 (1977), the origins of the jury unanimity rule are not easily discerned. 5 It is beyond question, however, that ¹²⁷ the rule was firmly established in the common law many centuries* **** 6 before November 3, 1776, the day when the Maryland Constitutional Convention, in approving our original Declaration of Rights, gave the rule explicit constitutional protection in then Article 19. This guarantee was readopted without change in the Declarations of Rights of Maryland’s 1851, 1864, and 1867 Constitutions. 7 Virtually no debate specifically concerning the rule survives from the 1776 or subsequent constitutional conventions. 8 ¹²⁸ Although we have not previously addressed the specific question now before us, we have considered other facets of the jury unanimity guarantee. One group of our cases focuses on the defendant’s right in criminal cases to poll the jury to assure that its verdict was unanimous. In the early case of Ford v. State, 12 Md. 514, 549 (1859), the jury was polled as to whether the defendant was guilty of first or second degree murder.

The foreman answered, “Guilty of murder in the first degree,” but each of the remaining eleven jurors responded merely “Guilty.” Id. at 548 . We held that on these facts the defendant’s right to jury unanimity had been violated: “ ‘The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial.’ Unanimity is ¹²⁹ indispensable to the sufficiency of the verdict, and this, we have seen, has not been in the case before us.” Id. at 549 (emphasis in original; quoting from 10 Bacon’s Abridg. Title Verdict 306). Other cases of this nature are Williams v. State, 60 Md. 402 (1883); Coby v. State, 225 Md. 293 , 170 A.2d 199 (1961); Smith v. State, 299 Md. 158 , 472 A.2d 988 (1984).

In Givens v. State, 76 Md. 485 , 25 A. 689 (1893), we addressed the related issue of the defendant’s right to have the clerk “hearken the verdict.” 9 In McKay we delved into the fundamental nature of the right to jury unanimity, and whether the right was waivable. We reasoned that the right was not an imperative requirement, but rather existed for the defendant’s benefit; hence, like other fundamental rights, such as those to counsel and to confront witnesses, it can be waived. Id. [280 Md.] at 569-70, 375 A.2d 228 . We rejected the common law prohibition against waiver, stating that “the conditions justifying the common law rule no longer exist.” Id. at 567 , 375 A.2d 228 .

Recently, in Mills v. State, 310 Md. 33 , 527 A.2d 3 (1987), we had occasion to interpret the meaning of jury unanimity in the context of a constitutional challenge to Maryland’s capital punishment statute. At issue, inter alia, was whether jury unanimity was required as to the nonexistence of specific mitigating circumstances. This issue raised the broader question of the level of jury deliberation at which unanimity is requisite. Both the majority and the dissent agreed that there must be unanimity as to the verdict, and further that the jury’s “ ‘determination of any ultimate ¹³⁰ issue essential to the verdict must be unanimous/ ” 310 Md. at 60, 84 , 527 A.2d 3 (emphasis in original).

There was also tentative agreement that “ ‘where alternative findings of historic facts are advanced in support of a single conclusion the better rule is that the jurors need not agree on any single alternative fact provided they all agree on some alternative fact that leads them to a single conclusion on the ultimate issue/ ” Id. There was disagreement, however, whether the General Assembly in the capital punishment statute had provided that the existence and the nonexistence of specific mitigating circumstances were to be treated as separate “ultimate issues.” Although Mills bears more directly on the issues we now confront than any of our other prior cases, in large measure it is inapposite, for Mills assumes that it was interpreting a unitary crime. Of course, it is this very question—whether theft is one crime or several—that is here in question. Cases from other jurisdictions germane to the issue before us differ from one another in many respects, but chiefly with respect to whether they deal with theft statutes or other criminal statutes; whether they enumerate theories or merely announce conclusions; whether, if they enunciate theories, these theories are cast as principles of statutory construction or as constitutional doctrine; and, if they enunciate theories, what these theories postulate.

An early authority of considerable influence in shaping the law in this area is People v. Sullivan, 173 N.Y. 122 , 65 N.E. 989 (1903). In that case the defendant had been indicted for first degree murder. The evidence established an apparent attempted burglary by what the dissent described as “a band of tramps,” 65 N.E. at 994 , of whom defendant was one, and the killing of a policeman. The case was submitted to the jury with an instruction that it could convict the defendant of the murder of the policeman on either of two theories: premeditated murder or felony murder.

When Sullivan challenged his conviction, claiming that the instructions violated his right to a unanimous verdict, the New York Court of Appeals stated: ¹³¹ “There was but a single crime charged in the indictment against the defendant,—that of murder in the first degree; and the only issue to be determined by the jury was whether the defendant had been guilty of that crime.... ‘It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other.’ ” The Sullivan rationale has been applied in a great many cases, chiefly those involving murder, see, e.g., People v. Chavez, 37 Cal.2d 656 , 234 P.2d 632, 641 (1951); State v. Wilson, 220 Kan. 341 , 552 P.2d 931, 936 (1976), but also many involving other crimes, see, e.g., People v. Failla, 64 Cal.2d 560 , 414 P.2d 39, 44 , 51 Cal.Rptr. 103 (1966) (burglary); Wells v. Commonwealth, 561 S.W.2d 85, 87-88 (Ky. 1978) (first degree assault). In substance it was the Sullivan rationale expressed by the Court of Special Appeals in its Craddock decision, supra, 64 Md.App. 269 , 494 A.2d 971 , when that court was confronted with the identical question now before us. In Craddock , the court stated: “Generally, jurors are not required to uniformly accept all of the evidence presented in order to arrive at a unanimous verdict.

Some jurors unquestionably reject evidence that others accept in determining guilt or innocence. In short, the law requires unanimity only in the verdict, not in the rationale upon which the verdict is based. In the case sub judice, the statute sets forth various acts that constitute the crime of theft. As long as jurors unanimously agree that theft in some form was committed, nothing more is required.” Id. at 278 , 494 A.2d 971 .

The Sullivan rule provides a partial answer to the jury unanimity question but not a complete one since the rule appears to impose virtually no constitutional restraints on a legislature’s power to define criminal conduct. That such ¹³² restraints rightly exist, however, cannot be doubted. By way of illustration, consider that a legislature created a very comprehensive crime which it named “misconduct,” and included within it such disparate acts as striking one’s spouse, sedition, and driving an unsafe vehicle. No statutory language or manifestations of legislative intent, however unequivocal, that this “misconduct” was “one crime” could possibly relieve the State from its constitutional obligation to accord a defendant the right to jury unanimity as to each of the separate acts. 10 Courts that have sought to qualify the Sullivan rule and thus to impose constitutional limits on the legislature’s power to define crimes have generally done so by attempting to articulate the factors that distinguish the concept of a single crime committable in alternative ways from the concept of multiple autonomous crimes.

The predicate of this reasoning is that if the crime is single, the Sullivan rule applies; if the crimes are multiple, it does not. See, e.g., State v. James, 698 P.2d 1161, 1165 (Alaska 1985). We ¹³³ think