Spitzinger v. State

RAKER, Judge, dissenting: The majority in this case decides that a defendant who has been acquitted of robbery but convicted of felony theft may be sentenced to a longer prison term than the maximum allowed for a robbery conviction. This conclusion is premised on the majority’s determination that the General Assembly intended to alter the relationship between robbery and theft when it enacted the consolidated theft statute, 1978 Maryland Laws ch. 849, at 2461 (codified as amended at Maryland Code (1957, 1992 RepLVol., 1994 Cum.Supp.) Art. 27, §§ 340 et seq.). Because I believe that the majority misconstrues the legislative intent and ignores longstanding policies and historical practices, I dissent. I would hold that felony theft merges into robbery for penalty purposes where the two convictions arise from the same act or acts.

Accordingly, if Spitzinger had been convict ¹³¹ ed of both robbery and felony theft, he would have been subject to a maximum sentence of ten years. Under the rule enunciated in Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), this limit should apply even though Spitzinger was acquitted of the robbery charge. I. The majority’s analysis begins by stating that “[l]egislative intent controls our determination of the validity of Spitzinger’s sentence because it is for the legislature to define criminal offenses and their punishments.” Majority Op. at 119. This statement is incomplete; furthermore, even if it were entirely accurate, I would find the majority’s analysis of legislative intent unpersuasive.

The statement is incomplete because in merger cases this Court looks at numerous factors other than legislative intent. The predominant test, of course, is the “required evidence test.” Williams v. State, 323 Md. 312, 316 , 593 A.2d 671, 673 (1991). The majority characterizes this test as “simply an aid in determining whether the legislature may have intended to preclude cumulative punishment.” Majority Op. at 121. The majority relies on United States Supreme Court cases to support this proposition; this authority is persuasive, perhaps, but it is not binding in a case decided under Maryland common law.

There are some statements in Maryland cases that arguably support the majority’s assertion, see, e.g., Randall Book Corp. v. State, 316 Md. 315, 324 , 558 A.2d 715, 720 (1989), but we emphatically repudiated the majority’s view of the required evidence test in State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993): Under this Court’s decisions, the required evidence test is not simply another rule of statutory construction. Instead, it is a long-standing rule of law to determine whether one offense is included within another when both are based on the same act or acts. Id. at 409 , 631 A.2d at 466 . This Court has also considered several other criteria: ¹³² [I]n deciding merger questions, we have examined the position taken in other jurisdictions.

We have also looked to whether the type of act has historically resulted in multiple punishment. The fairness of multiple punishments in a particular situation is obviously important. White v. State, 318 Md. 740, 746 , 569 A.2d 1271, 1274 (1990) (citations omitted). Each of these factors is independent of the legislative intent.

Thus, in merger cases, express statutory language 1 will ordinarily control the outcome, but legislative intent is only one of several relevant considerations. I shall explain below why I believe these other considerations, excluding the required evidence test and fairness, militate against the result reached by the majority. 2 In this section, I shall indicate why I believe the legislative intent runs contrary to the majority’s view. My exploration of the legislative intent begins with the principle that where a criminal statute addresses a common-law offense, “it is not to be presumed that the legislature ... intended to make any alteration in the common law other than what has been specified and plainly pronounced.” Gleaton v. State, 235 Md. 271, 277 , 201 A.2d 353, 356 (1964). As we recently observed: “[Statutes are not presumed to make any alterations in the common law further than is expressly declared, and ... a statute, made in the affirmative without any negative expressed or implied, does not take away the common law.

The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language.” Richwind v. Brunson, 335 Md. 661, 672 , 645 A.2d 1147, 1152 (1994) (quoting Lutz v. State, 167 Md. 12, 15 , 172 A. 354, 356 ¹³³ (1934)). This principle seems especially pertinent in the context of the consolidated theft statute, in which the General Assembly expressly stated its intent to “embrace” the common-law theft offenses. Maryland Code (1957,1992 Repl.Vol., 1994 Cum.Supp.) Art. 27, § 341. 3 As I recount below, the historical understanding was that theft was included within robbery, and that robbery was more severe; in accord with this understanding, the courts of Maryland routinely merged grand larceny offenses into theft offenses for sentencing purposes. Thus, the application of the principle that statutes displace the common law only where expressly declared leads to the conclusion that the General Assembly did not intend to abrogate this common-law merger rule.

I find additional support for this conclusion in the Maryland carjacking statute, § 348A of Article 27. The carjacking statute contains the following cumulative sentencing provision: The sentence imposed under this section may be imposed separate from and consecutive to a sentence for any other offense arising from the conduct underlying the offenses of carjacking or armed carjacking. Art. 27, § 348A(d). If the General Assembly did not anticipate that included offenses of carjacking would merge with each other or with the carjacking, there would have been no need to include § 348A(d).

The majority, disregarding our rules of construction, cursorily dismisses all larceny practices: Regardless of whether there may have been a common law merger of larceny into robbery, common law larceny no longer exists. Larceny is now part of two separate statutory theft offenses, misdemeanor theft and felony theft with ¹³⁴ the latter containing a value requirement different from common law larceny.[ 4 ] Majority Op. at 123 (footnote omitted). This interpretation of the statute defies the very language of the statute itself, which states, “[cjonduct designated as theft in this subheading constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, [and] larceny after trust____” Art. 27, § 341 (emphasis added). Moreover, the legislative history contradicts the majority’s apparent belief that larceny cases are irrelevant.

The General Assembly enacted the consolidated theft statute to “eliminate these technical and absurd distinctions that have plagued the larceny related offenses.” Joint Subcommittee on Theft Related Offenses, Revision of Maryland Theft Laws and Bad Check Laws 2 (1978). That the new statute was not intended to effect a decisive break from the common law is reflected in the similarities between statutory theft and common law larceny, such as the division of the offense, based on the value of the property stolen, into felony and misdemeanor forms. See Hagans v. State, 316 Md. 429, 438 , 559 A.2d 792, 797 (1989) (“With respect to being a single crime divided for purpose of punishment, theft is completely similar to larceny.”). Another similarity between theft and larceny, especially significant in this context, is in the penalties: they are identical.

Compare Art. 27, § 342(f) with Maryland Code (1957, 1971 Repl.Vol.) Art. 27, §§ 340 & 341. Notwithstanding this identity, the majority imputes to the General Assembly the intent to revise the traditional view of the theft-related offenses and to establish an innovative “rational sentencing ¹³⁵ hierarchy.” Majority Op. at 127. The fact that the penalties for larceny were incorporated into the theft statute demonstrates, however, that the consolidated theft statute did nothing to revise the traditional sentencing hierarchy. This reinforces, rather than excuses, the application of the Riehwind principle.

In sum, I do not believe that the General Assembly intended to abrogate the common-law merger policies. On the contrary, it appears to me, based on our rules of construction and on the similarities between statutory theft and the pre-existing larceny-type offenses, that the General Assembly intended to preserve most of the historic attributes of larceny, including the relationship between larceny and robbery.

II

A. In the previous section, I explained why I believe that the Legislature intended to preserve the traditional merger practices relating to theft offenses and robbery. I also noted that historical practice is relevant when deciding merger questions. As I now discuss, at common law, the consistent practice was to merge grand larceny and robbery, a form of compound larceny, when the two convictions arose from the same act or acts. This Court has found merger based on historical practice where two offenses with distinct elements have traditionally been regarded as the same offense, or where a single offense can be committed in multiple distinct ways.

For instance, in Huffington v. State, 302 Md. 184 , 486 A.2d 200 (1985), we stated, “[i]n Maryland the homicide of one person ordinarily gives rise to a single homicide offense, and multiple prosecutions or punishments for different homicide offenses, based on the slaying of one person, are generally precluded.” Id. at 189 n. 4, 486 A.2d at 203 n. 4. The Court noted that this treatment is based on historical practice, not on the required evidence test: [Hjistorically, and for some purposes today, all murder is regarded as a single crime. Moreover, generally for pur ¹³⁶ poses of the double jeopardy prohibitions against successive trials or multiple punishments, premeditated murder and felony murder would be deemed the same offense. This is analogous to first degree murder and second degree murder being deemed the same offense for such purposes.

Nevertheless, premeditated murder and felony murder do not have entirely identical elements____ Id. at 188 , 486 A.2d at 202 (citations omitted). I believe that theft and robbery bear a similar relationship to each other. My analysis of the historical practice relating to theft and robbery begins with an exploration of larceny, a common-law crime which is now subsumed within Maryland’s consolidated theft statute. Art. 27, § 341.

This Court has frequently found it helpful to consider cases and other authority relating to larceny when construing the theft statute. See, e.g., Hagans v. State, 316 Md. 429, 440 , 559 A.2d 792, 797 (1989); West v. State, 312 Md. 197 , 202 n. 1, 539 A.2d 231 , 233 n. 1 (1988). In 1275, the Statute of Westminster, 3 Edw. 1 (1275) (Eng.), divided the common-law offense of larceny into two degrees, with grand larceny encompassing larceny of properly having a value in excess of twelve pence and petit larceny encompassing larceny of property having a value of twelve pence or less. W. Clark & W. Marshall, A Treatise on the Law of Crimes § 12.07, at 870 (M. Barnes ed., 7th ed. 1967); R. Perkins, Criminal Law 232 (2d ed. 1969).

This statutory bifurcation was incorporated into the American common law. Clark & Marshall, supra, § 12.07, at 870. Under this scheme, petit larceny was a variant of the basic offense of grand larceny: As a matter of logic grand larceny might have been regarded as an aggravated form of larceny, but this was not the view. On the contrary, if the value of the property stolen did not exceed twelve pence this was regarded as a mitigating circumstance which entitled the thief to be spared from the extreme penalty (death).

Perkins, supra, at 276. Robbery, in turn, is a compound larceny. Clark & Marshall, supra, § 12.08, at 874. Chief Judge Murphy, writing for ¹³⁷ this Court in West , defined robbery as “larceny from the person, accompanied by violence or putting in fear.” 312 Md. at 202 , 539 A.2d at 233 .

The opinion went on to explore historical sources: In William Hawkins’ Treatise of the Pleas of the Crown, published in 1724, in the chapter entitled “Of Robbery,” it is said: “Sect. 2. Larceny from the Person of a Man either puts him in Fear, and then it is called Robbery; or does not put him in Fear, and then it is called barely, Larceny from the Person. Sect. 3. Robbery is a felonious and violent Taking away from the Person of another, Goods or Money to any Value, putting him in Fear.” John Latrobe’s Justice’s Practice under the Laws of Maryland, published in 1826, is evidence of the early adherence of Maryland to this requirement, for Section 1252 of that authority states: “Open and violent larceny from the person, or robbery, is the felonious and forcible taking from the person of another, of goods or money to any value, by violence, or putting him in fear.

The putting in fear distinguishes it from other larcenies. 4 Blac.Comm. 242.” Id. at 284 . Id. at 203 , 539 A.2d at 233-34 . Accordingly, under the common law, larceny was a lesser included offense of robbery. Vogel v. State, 76 Md.App. 56, 62 , 543 A.2d 398, 401 (1988), aff'd, 315 Md. 458 , 554 A.2d 1231 (1989); W. Clark, Jr., Handbook of Criminal Law 373 (3d ed. 1915); Clark & Marshall, supra, § 12.09, at 882; R. Gilbert & C. Moylan, Jr., Maryland Criminal Law: Practice and Procedure § 12.0, at 138 (1983) (noting that “robbery is larceny or theft by force”); L. Hochheimer, The Law of Crimes and Criminal Procedure § 432, at 467 (2d ed. 1904) (“Robbery is larceny, or theft, aggravated by the circumstance of a taking from the person by means of force or violence.”); 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.11, at 437 n. 2 (1986); Perkins, supra, at 280; 4 C. Torcia, Wharton’s ¹³⁸ Criminal Law § 472, at 49 (14th ed. 1981).

As the Court of Special Appeals stated in Gray v. State, 10 Md.App. 478 , 271 A.2d 390 (1970), “[r]obbery, a common law offense in Maryland, is grand or petit larceny from the person of another by violence.” Id. at 480 , 271 A.2d at 392 . Furthermore, the prevailing practice at common law was to merge grand larceny convictions into robbery convictions. 5 See Smallwood v. State, 51 Md.App. 463, 464 , 443 A.2d 1003, 1004 (1982) (noting that the trial judge merged a grand larceny conviction into an armed robbery conviction); Burley v. State, 8 Md.App. 702, 708 , 262 A.2d 769, 772 (1970) (vacating a grand larceny conviction, on merger grounds, because the defendant had been convicted of armed robbery); Smith v. State, 6 Md.App. 59, 70 , 250 A.2d 285, 292 (noting that the trial judge merged a grand larceny conviction into an armed robbery conviction), cert. denied, 254 Md. 720 (1969), and cert. denied, Samuels v. State, 255 Md. 743 (1969) (companion case to Smith), cert. denied, 397 U.S. 1057 , 90 S.Ct. 1402 , 25 L.Ed.2d 674 (1970); Price v. State, 3 Md.App. 155, 160 , 238 A.2d 275, 278 (1968)