State v. Holmes

COLE, Judge. In this appeal we must determine whether the trial court erred in sentencing Derrik Holmes to life imprisonment with all but thirty-five years suspended for his conviction of attempted murder in the first degree. This question turns in significant part upon whether the offenses of assault with intent to murder and attempted murder in the first degree are the “same” offense for purposes of the Maryland common law prohibition against multiple punishment for the “same” offense. We conclude that they are not.

Holmes was charged in the Circuit Court for Prince George’s County with assault with intent to murder and attempted murder, among other charges. At trial, after the close of the evidence, the State entered a nolle prosequi as to several of Holmes’s charges, including that of assault with intent to murder. The judge instructed the jury on the remaining charges, including attempted first degree murder and attempted second degree murder. The jury found Holmes guilty of attempted murder in the first degree, and all other charges except attempted murder in the second degree.

The trial judge sentenced Holmes to life imprisonment with all but thirty-five years suspended for his attempted first degree murder conviction. Holmes challenged his convictions and life sentence on appeal to the Court of Special Appeals. The intermediate appellate court held that the trial court erred in sentencing Holmes to life imprisonment for his attempted murder conviction. Holmes v. State, 65 Md.App. 428 , 501 A.2d 76 (1985).

In reaching its decision, the Court of Special Appeals relied on our decision in Hardy v. State, 301 Md. 124 , ²⁶³ 482 A.2d 474 (1984) for the proposition that “assault with intent to murder is the same as attempted murder except assault with intent to murder requires a greater degree of proximity.” Holmes v. State, 65 Md.App. at 441 , 501 A.2d at 82 . Thus, the intermediate appellate court concluded, attempted murder is a lesser included offense of assault with intent to murder, and under the rule enunciated in Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), the maximum penalty Holmes was eligible to receive for his attempted murder conviction was thirty years, the maximum penalty available for assault with intent to murder. Holmes v. State, 65 Md.App. at 442 , 501 A.2d at 83 . Accordingly, the Court of Special Appeals upheld Holmes’s convictions but vacated his life sentence and remanded the case to the circuit court for resentencing.

We granted the State’s petition for a writ of certiorari to review the question of whether the trial court erred in sentencing Holmes to life imprisonment for his conviction of attempted murder in the first degree. The State contends that the Court of Special Appeals erred in vacating Holmes’s life sentence because the Simms rule is inapplicable under the circumstances sub judice. First, the State argues that attempted murder in the first degree is not a lesser included offense of assault with intent to murder because each of these offenses has an element that the other does not: Assault with intent to murder requires an assault, while attempted murder does not; and attempted murder in the first degree requires premeditation and deliberation, while assault with intent to murder does not. Additionally, the State argues that, assuming attempted murder is a lesser included offense of assault with intent to murder, the Simms rule is still inapplicable.

The State argues that where, as here, a nolle prosequi is entered notwithstanding the existence of sufficient evidence to support the charge, the nolle prosequi should not be treated as ²⁶⁴ an acquittal for purposes of applying the Simms rule. 1 Holmes argues that the Court of Special Appeals was correct in vacating his sentence for attempted murder because, under this Court’s decision in Hardy , attempted murder is a lesser included offense of assault with intent to murder. Holmes further contends that under Simms , a nolle prosequi entered after jeopardy has attached operates as an acquittal notwithstanding the fact there was sufficient evidence to support the charge. Our task today is to determine whether the Simms rule applies to the facts of this case. The Simms rule may be simply stated: [W]hen a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convicted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge.

Id. at 724 , 421 A.2d at 964 . The facts of Simms and its companion case Thomas v. State reveal the purpose of the rule. Simms and Thomas were each charged in separate proceedings with simple assault and assault with intent to rob. The jury found Simms guilty of simple assault and not guilty of assault with intent to rob, and Simms was sentenced to twelve years of imprisonment.

In Thomas’s case, however, the assault with intent to rob charge never reached the jury. Instead, the State entered a nolle prosequi of the charge at the close of all the evidence. 2 As in Simms’s case, the jury ²⁶⁵ found Thomas guilty of simple assault and he was sentenced to twelve years of imprisonment. On appeal, the Court of Special Appeals upheld each defendant’s conviction and sentence in an unreported opinion. This Court reversed in a single opinion, setting forth the above rule.

In reaching our conclusion in Simms , we observed that, because “all of the elements of simple assault are present in the offense of assault with intent to rob, both offenses, if based upon the same acts of the defendant, are deemed the same for merger and double jeopardy purposes.” Id. at 718 , 421 A.2d at 960-61 . Accordingly, we noted, “if a defendant were found guilty of both, he could not receive a separate sentence for each offense,” id. at 719 , 421 A.2d at 961 (emphasis supplied), because Maryland common law double jeopardy principles preclude double punishment for the “same” offense. Newton v. State, 280 Md. 260, 264-65 , 373 A.2d 262, 264 (1977); Thomas v. State, 277 Md. 257, 262 , 353 A.2d 240, 243 (1976); Gilpin v. State, 142 Md. 464, 466 , 121 A. 354, 355 (1923). Thus, had Simms and Thomas each been convicted of both simple assault and assault with intent to rob, the maximum sentence he could have received would have been ten years of imprisonment.* * 3 However, when each defendant was acquitted of the greater offense of assault with intent to rob, each became theoretically eligible for a sentence in excess of ten years, 4 and thus could have been penalized for his acquittal of the greater offense.

Recognizing the inequities inherent in this situation we held that when a defendant is charged with, and jeopardy attaches to, both a greater and a lesser included ²⁶⁶ offense, and the defendant is acquitted of the greater offense, the penalty available for the lesser offense is limited to that which the defendant could have received had he been convicted of the greater offense. Simms v. State, 288 Md. at 724 , 421 A.2d at 964 . Our most recent application of the Simms rule was in Gerald v. State, 299 Md. 138 , 472 A.2d 977 (1984). In Gerald , the defendant was acquitted of armed robbery, for which the maximum available sentence was twenty years, and robbery, for which the maximum available sentence was ten years.

He was convicted of assault and battery and sentenced to fifteen years of imprisonment. On appeal to the Court of Special Appeals, the defendant argued that his fifteen-year sentence was illegal under Simms because it exceeded the maximum punishment available for robbery. The intermediate appellate court found Gerald’s sentence entirely proper and affirmed the trial court’s judgment. Gerald v. State, 55 Md.App. 483, 462 A.2d 85 (1983).

We reversed. Initially, we noted that simple assault is a lesser included offense of robbery and that, in turn, robbery is a lesser included offense of armed robbery. Accordingly, the question before us was whether the “greater” offense of robbery or the “greatest” offense of armed robbery imposed a limit on the sentence that Gerald could receive for the least included offense of assault and battery. We observed that, if the “greatest” offense of armed robbery imposed the limit, Gerald’s robbery acquittal rendered him eligible for a harsher sentence—a result we found inequitable in Simms.

Gerald v. State, 299 Md. at 144 , 472 A.2d at 980 . Accordingly, we held that under our rationale in Simms , the “next greater offense” of robbery limited the sentence Gerald could receive for the “least included” offense of assault. Id. at 145, 472 A.2d at 981 . Today we must decide whether the rule enunciated in Simms and refined in Gerald applies to the facts of this case.

To do so, we must determine whether attempted murder in the first degree and assault with intent to murder are the “same” offense for double jeopardy purposes; if ²⁶⁷ they are, then the Simms rule applies and Holmes’s life sentence is illegal. Thus, we turn now to the question of whether attempted murder in the first degree and assault with intent to murder are the “same” offense under Maryland double jeopardy law. Maryland courts have consistently applied the “required evidence test” to determine whether two offenses are the “same” for purposes of the common law and constitutional prohibitions against double jeopardy. Dillsworth v. State, 308 Md. 354, 356 , 519 A.2d 1269, 1270 (1987); Hawkins v. State, 291 Md. 688, 691 , 436 A.2d 900, 901-02 (1981); Whack v. State, 288 Md. 137, 141-42 , 416 A.2d 265, 267 (1980); Lewis v. State, 285 Md. 705, 722-23 , 404 A.2d 1073, 1082 (1979); Brooks v. State, 284 Md. 416, 418 , 397 A.2d 596, 597-98 (1979); State v. Frye, 283 Md. 709, 714-15 , 393 A.2d 1372, 1374-75 (1978); Johnson v. State, 283 Md. 196, 203 , 388 A.2d 926, 930 (1978); Newton v. State, 280 Md. at 265-66 , 373 A.2d at 265 ; Bynum v. State, 277 Md. 703, 706 , 357 A.2d 339, 341 (1976); Cousins v. State, 277 Md. 383, 394 , 354 A.2d 825, 832 , cert. denied, 429 U.S. 1027 , 97 S.Ct. 652 , 50 L.Ed.2d 631 (1976); Thomas v. State, 277 Md. at 266-67, 353 A.2d at 246-47 .

In Thomas v. State, 277 Md. at 267, 353 A.2d at 246 , we noted that “Maryland [courts] have ... consistently focused upon the evidence required to convict to determine whether two offenses are the same for double jeopardy purposes,” and that “certain principles ... [have] emerge[d] from [these] cases.” We summarized the law 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 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 ²⁶⁸ purposes. And of course if both [offenses] have exactly the same elements, the offenses are also the same within the meaning of the prohibition against double jeopardy.

Id. at 267,