State v. Johnson

WATTS, J. We decide whether the convictions for one or all predicate felonies merge for sentencing purposes with a felony murder conviction 1 where a defendant is convicted of felony murder and multiple predicate felonies. We hold that, where a defendant is convicted of felony murder and multiple predicate felonies, only one predicate felony conviction merges for sentencing purposes with the felony murder conviction; and, absent an unambiguous designation that the trier of fact intended a specific felony to serve as the predicate felony, the conviction for the felony with the greatest maximum sentence merges for sentencing purposes. BACKGROUND The State, Petitioner, charged Derrell Johnson (“Johnson”), Respondent, and three other people with various crimes, including first-degree murder, kidnapping, robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence or felony, and unlawfully wearing, carrying, or transporting a handgun. In the Circuit Court for Baltimore City (“the circuit court”), a jury tried Johnson and his three co-defendants.

At trial, the State’s theory of the case was that, on April 21, 2009, Johnson, the three codefendants, and possibly another person kidnapped Qonta Charles Wad-dell (“Waddell”), put Waddell in a truck, and tried to get money from him. While the truck was parked in an alley in ²¹⁵ the 3100 block of Windsor Avenue, Waddell attempted to escape, and one of Johnson’s co-defendants shot and killed Waddell. The jury convicted Johnson of, among other crimes, felony murder, kidnapping, and robbery. 2 On January 18, 2012, the circuit court sentenced Johnson, in relevant part, to life imprisonment for felony murder, twenty years’ imprisonment concurrent for kidnapping, and ten years’ imprisonment concurrent for robbery. 3 Johnson appealed and, in an unreported opinion, the Court of Special Appeals vacated the sentences for the convictions for kidnapping and robbery, determining that the rule of lenity required merger for sentencing purposes of the convictions for kidnapping and robbery with the felony murder conviction because it was unclear which felony was the predicate felony for the felony murder conviction. The Court of Special Appeals also vacated the sentences for the convictions for conspiracy to commit kidnapping and conspiracy to commit robbery with a dangerous weapon, and affirmed in all other respects.

The State petitioned for a writ of certiorari, raising one issue: “Did the Court of Special Appeals err in merging both ²¹⁶ the kidnapping and robbery sentences into the felony murder sentence, rather than merging only one of them?” On August 27, 2014, we granted the petition. See State v. Johnson, 439 Md. 694 , 98 A.3d 233 (2014). DISCUSSION The State contends that the Court of Special Appeals erred in merging for sentencing purposes the kidnapping and robbery convictions with the felony murder conviction. The State argues that, because Maryland law requires one predicate felony for a felony murder conviction, where a defendant is convicted of multiple predicate felonies, only one predicate felony conviction — not all of them — merges for sentencing purposes with the felony murder conviction.

The State asserts that the conviction for the predicate felony with the greatest maximum sentence (here, kidnapping) merges for sentencing purposes. Johnson responds that the Court of Special Appeals was correct in holding that the kidnapping and robbery convictions both merged for sentencing purposes with the felony murder conviction. Johnson contends that it is unclear whether kidnapping, robbery, or both crimes formed the basis for the felony murder conviction, and thus, the required evidence test and Maryland case law require that any ambiguity be resolved in his favor and that the convictions for both kidnapping and robbery merge for sentencing purposes with the felony murder conviction. In addition, Johnson argues that the rule of lenity requires that the convictions for both kidnapping and robbery merge for sentencing purposes with the felony murder conviction, and asserts that the General Assembly has not indicated an intent to permit separate sentences where felony murder is based on multiple predicate felonies.

Johnson agrees with the State that, should this Court conclude that the conviction for one predicate felony merges for sentencing purposes with the felony murder conviction, then the conviction for the predicate felony with the greatest maximum sentence (here, kidnapping) should merge for sentencing purposes. ²¹⁷ In a reply brief, the State contends that the General Assembly has expressed the view that, although multiple crimes may be predicate felonies, only one predicate felony is required for a felony murder conviction, and thus separate sentences are permissible for additional predicate felonies. The Fifth Amendment to the United States Constitution provides, in relevant part: “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb[.]” 4 “The Double Jeopardy Clause protects a criminal defendant against ... multiple punishment for the same offense.” Br own v. State, 311 Md. 426, 431 , 535 A.2d 485, 487 (1988) (citations omitted). “Multiple punishment challenges generally arise” where, for example, a statute “proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription.” Id. at 431 , 535 A.2d at 487 (citation omitted). Recently, in Brooks v. State, 439 Md. 698, 737 , 98 A.3d 236, 258 (2014), we discussed merger for sentencing purposes, explaining: The merger of convictions for purposes of sentencing derives from the protection against double jeopardy afforded by the Fifth Amendment of the federal Constitution and by Maryland common law. Merger protects a convicted defendant from multiple punishments for the same offense.

Sentences for two convictions must be merged when: (1) the convictions are based on the same act or acts, and (2) under the required evidence test, the two offenses are deemed to be the same, or one offense is deemed to be the lesser included offense of the other. ²¹⁸ (Citations omitted). As to the required evidence test, in Nicolas v. State, 426 Md. 385, 401-02 , 44 A.3d 396, 405-06 (2012), we stated: 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. Stated another way, 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, there is no merger under the required evidence test even though both offenses are based upon the same act or acts.

But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or aets[,] merger follows. (Citations and ellipses omitted); see also McGrath v. State, 356 Md. 20, 24 , 736 A.2d 1067, 1069 (1999) (The required evidence test “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.” (Citation omitted)). The rule of lenity provides another standard for determining merger for sentencing purposes. See McGrath, 356 Md. at 24-25 , 736 A.2d at 1069 (“[T]he required evidence test is not the exclusive standard under Maryland law for determining questions of merger, and even where two offenses are separate under the required evidence test, there still may be a merger for sentencing purposes based on considerations such as the rule of lenity[.]” (Citation and internal quotation marks omitted)). “The rule of lenity, applicable to statutory offenses only, provides that where there is no indication that the [General Assembly] intended multiple punishments for the same act, a court will not impose multiple punishments but will, for sentencing purposes, merge one offense into the other.” Id. at 25 , 736 A.2d at 1069 (citations omitted). “The rule of lenity allows [a court] to avoid interpreting a criminal ²¹⁹ statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the General Assembly] intended.” Khalifa v. State, 382 Md. 400, 434 , 855 A.2d 1175, 1194 (2004) (citation, internal quotation marks, ellipsis, and some brackets omitted).

Recently, in Oglesby v. State, 441 Md. 673, 681 , 109 A.3d 1147 (2015), we explained the rule of lenity as follows: The “rule of lenity” is not a rule in the usual sense, but an aid for dealing with ambiguity in a criminal statute. Under the rule of lenity, a court confronted with an otherwise unresolvable ambiguity in a criminal statute that allows for two possible interpretations of the statute will opt for the construction that favors the defendant. For a court construing a statute, the rale of lenity is not a means for determining — or defeating — legislative intent. Rather, it is a tie-goes-to-the-runner device that the court may turn to when it despairs of fathoming how the General Assembly intended that the statute be applied in the particular circumstances.

It is a tool of last resort, to be rarely deployed and applied only when all other tools of statutory construction fail to resolve an ambiguity. (Citation omitted). In Maryland, first-degree murder is proven by showing, among other things, “deliberation, wil[l]fulness and premeditation (premeditated murder), or by showing a homicide committed in the perpetration, or attempted perpetration, of one of the enumerated felonies (felony murder).” Ross v. State, 308 Md. 337, 341-42 , 519 A.2d 735, 737 (1987). As to felony murder, Md.Code Ann., Crim.

Law (2002, 2012 Repl.Vol.) (“CR”) § 2-201(a)(4) provides, in pertinent part: A murder is in the first degree if it is ... committed in the perpetration of or an attempt to perpetrate: ... (vi) kidnapping under § 3-502 or § 3-503(a)(2) of this article; ... (ix) robbery under § 3-402 or § 3-403 of this article; ... or (xii) a violation of § 4-503 of this article concerning destructive devices. ²²⁰ (Paragraph breaks omitted). In Newton v. State, 280 Md. 260, 262-63, 268 , 373 A.2d 262, 264, 266 (1977), this Court addressed merger for sentencing purposes in the context of a conviction for felony murder and a conviction for a predicate felony (attempted robbery), and held that, under “the required evidence test, ... the felony murder and the underlying felony must be deemed the same for double jeopardy purposes.” In so concluding, we explained: [Ujnder [CR § 2-201’s predecessor], murder committed in the perpetration of certain enumerated felonies, including attempted robbery, is first degree murder----By proving every element of the underlying felony, the element of malice necessary for murder is established.

And having established murder by proving a homicide during the perpetration or attempted perpetration of a felony, [CR § 2-201’s predecessor] provides that the murder shall be murder in the first degree.... Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death.

The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder merge. Id. at 268-69, 373 A.2d at 266-67 (citations omitted). See also Roary v. State, 385 Md. 217 , 232 n. 14, 867 A.2d 1095 , 1103 n. 14 (2005) (“[I]n the case of felony-murder, the underlying felony would merge into the greater offense for sentencing purposes” under “Maryland merger law and the required evidence test[.]” (Citing Newton, 280 Md. at 268 , 373 A.2d at 266 )); Fisher v. State, 367 Md. 218, 286 , 786 A.2d 706, 746 (2001) (“[A]s only one offense (murder) requires proof of a fact ²²¹ that the other (the underlying felony) does not, under the required evidence test[,] the underlying felony and the murder merge.” (Citing Newton, 280 Md. at 269 , 373 A.2d at 267 )).

Here, we hold that, where a defendant is convicted of felony murder and multiple predicate felonies, only one conviction for a predicate felony merges for sentencing purposes with the felony murder conviction, and, absent an unambiguous indication that the trier of fact intended otherwise, the conviction for the predicate felony with the greatest maximum sentence merges for sentencing purposes. Both CR § 2-201(a)(4) and our case law make clear that only one predicate felony is required to support a felony murder conviction. CR § 2-201(a)(4) provides that first-degree murder occurs if it is “committed in the perpetration of or an attempt to perpetrate” one of the twelve enumerated felonies. Significantly, the enumerated felonies are separated by the key word “or,” which appears between the last two felonies in the list.

Stated otherwise, CR § 2-201(a)(4)’s plain language requires only one predicate felony; CR § 2-201(a)(4) does not require multiple predicate felonies (e.g., felony A and felony B) to support a felony murder