Thompson v. State

MOYLAN, Judge. The problem giving rise to this appeal is a small one, but a chronic and nagging one. What it involves is, to be sure, merely a peripheral aspect of a conviction for a larger offense, but it is nonetheless a problem that recurs with annoying ⁶⁰⁸ frequency. It is generally the result of a stubborn obstinacy on the part of the State in attempting to make a single assault conviction, in the context of a general verdict of guilty on a multi-count indictment, do double duty.

The State frequently seeks to endow that single charge of assault with the chameleon-like capacity to allege first one crime and then, should the desire arise, a separate and distinct crime and potentially, therefore, two crimes at once. The major non-lethal felonies involving violence against the person — robbery (armed or unarmed), rape (in either degree), and a sexual offense (in the first or second degree) — all include an assault as one of the constituent elements of the greater offense. A carefully drawn indictment for any of those major felonies, cautiously providing for any unexpected trial contingency, routinely includes a charge of assault among its entourage of lesser counts. When the conviction is had on the major charge, all convictions for its lesser included offenses are regularly subsumed (merged) into that for the greater offense.

The problem arises when, as in this case, the State suddenly balks at the merger and insists that the assault count was not for the assault that was part of the robbery (or rape or sexual offense) at all, but was for a separate and unrelated assault that arguably occurred ten minutes before or twenty minutes after the major crime of violence. To support its proposition that the assault conviction in issue should not merge, the State almost always points to the evidence, arguing, as it does in this case, that the evidence was legally sufficient to permit a finding of fact that a second assault occurred that was not a part of the major crime. Such evidence-based arguments, moreover, frequently enjoy at least a surface plausibility. Everyone gets immediately distracted by the evidentiary issue.

The question of whether a follow-up blow, delivered five or ten minutes after the opening jab, is a fresh assault or a continuation of the original assault is a fine distinction over which Thomistic philosophers could wrangle interminably. ⁶⁰⁹ In an effort to lay this nagging and unnecessary problem to rest with some finality, we hold in this case that the resolution of the merger problem is to be found not in the state of the evidence but in the state of the pleadings. The pertinent question is not whether more than one assault was conceivably proved. It is whether more than one assault was actually charged and, if not, then which of several possible assaults was the only assault charged. The appellant, Eugene James Thompson, was convicted by a Charles County jury of fourteen counts of a fifteen-count indictment.

Two of the convictions, not here pertinent, were for 1) conspiracy and 2) the possession of a firearm by a convicted felon. The other thirteen counts, twelve of which were submitted to the jury, charged three sets of offenses committed against three respective victims. The flagship charges for each of those sets were: 1) the armed robbery of Lyray Simpson, 2) the attempted armed robbery of Clifton Linkins, and 3) the attempted armed robbery of Shannell Stewart. The first, and the more interesting, of the appellant’s contentions is that his convictions for 1) the first-degree assault on and 2) the theft from Lyray Simpson should have merged into his conviction for the armed robbery of Lyray Simpson and that his conviction for the first-degree assault on Shannell Stewart should have merged into his conviction for the attempted armed robbery of Shannell Stewart.

Stewart was a drug dealer. On the evening of October 23, 1996, Stewart, Linkins, and Simpson were all spending the night at the trailer home of Yolanda Day. At a relatively late hour that evening, not further specified by the evidence, the appellant and his brother, Howard Thompson, entered the trailer and, at gunpoint, attempted to rob the three male occupants of the trailer. The appellant took from Simpson seven dollars in cash and Simpson’s leather jacket.

The other two would-be robbery victims, however, pulled out their pockets and revealed that they had nothing worth stealing. After approximately a ten-minute confrontation, the appellant and his brother left. That was the first confrontation between the appellant and his three victims. Simply as a linguistic conve ⁶¹⁰ nience, we will hereinafter refer to it as the “eleven o’clock incident.” The fifteen-count indictment dealt, at least predominantly if not exclusively, with the “eleven o’clock incident.” The factual complication that gave rise to the present appellate problem is that the appellant got greedy and returned to the scene of the crime.

Shortly after the appellant and his brother concluded the “eleven o’clock” robbery and left the trailer, the appellant, this time without his brother, returned to the trailer and, again at gunpoint, confronted the three victims for a second time. On that second occasion, the appellant robbed Lyray Simpson of an undesignated quantity of narcotic drugs. As on the first occasion, Linkins and Stewart had nothing worth taking. The testimony varied as to the time that elapsed between the conclusion of the first confrontation and the initiation of the second.

When asked about the length of time between the appellant’s earlier departure and subsequent return, Simpson testified that he was “not sure but it wasn’t long.” On cross-examination, he acknowledged that in his earlier statement to the police he had said that the appellant had “come back ten minutes later and tried to rob us again.” Stewart also recalled the time gap as “probably ten or fifteen minutes.” Linkins, on the other hand, testified that the lapse of time between the appellant’s departure and return was “like three or four minutes.” At the other end of the spectrum, Yolanda Day, who owned the trailer and who witnessed both incidents, described the time that had elapsed as “like thirty minutes, thirty-five minutes.” The estimates thus range from three minutes to thirty-five minutes. Factually, a three-minute gap reduces the appellant’s return to little more than a Parthian dart, an afterthought to make certain that any available narcotics were not left out of the night’s booty. An unbroken thirty-five-minute gap, on the other hand, might well support a permitted inference of a separate and distinct criminal episode. Ten or fifteen-minute gaps would be more problematic.

If we were looking at the state of the evidence to resolve this merger ⁶¹¹ issue, we would indulge the State with that version of the facts most favorable to it, to wit, a thirty-five-minute gap between the incidents. Simply as a second linguistic convenience, we will hereinafter refer to this subsequent encounter as the “eleven thirty incident.” Arguendo, we will agree with the State that the “eleven thirty incident” could factually be deemed to have been a criminal episode separate and distinct from the earlier “eleven o’clock incident.” Arguendo, therefore, it could have given rise to an entire additional matrix of charges, replicating fourteen counts of the fifteen-count indictment already described. Only the conspiracy count could not have been replicated, for on the second occasion the appellant acted alone. The State’s argument, pushed to the limits of its logic, should have produced a twenty-nine-count indictment.

Arguendo, the evidence was legally sufficient to establish both an assault on and a theft (of narcotics) from Lyray Simpson as part of the “eleven thirty incident.” Arguendo, the evidence was legally sufficient to establish an assault on Shannell Stewart as part of the “eleven thirty incident.” All of the evidence, assumed for the sake of argument to be legally sufficient, gets the State nowhere, however, unless those separate offenses were clearly and distinctly charged as part of the Grand Jury indictment. It is our inescapable conclusion that in this case, they were not. This brings us then to the state of the pleadings. The strategic configuration of the Grand Jury indictment is transparently clear.

Counts fourteen and fifteen related to the “eleven o’clock incident” as a totality. Count fourteen charged the appellant with conspiring with his brother to commit robbery. Obviously this related to the “eleven o’clock incident,” for only there was a second conspirator involved. Count fifteen charged the appellant with the unlawful possession of a firearm as a convicted felon.

The other thirteen counts grouped themselves into three sets of major and lesser included crimes committed against each of the three victims respectively. Counts one, two, and ⁶¹² three were the flagship counts, charging the appellant with 1) the armed robbery of Lyray Simpson, 2) the attempted armed robbery of Clifton Linkins, and 3) the attempted armed robbery of Shannell Stewart. LYRAY SIMPSON 1. Armed Robbery CLIFTON LINKINS 2.

Attempted Armed Robbery SHANNELL STEWART 3. Attempted Armed Robbery There then followed under each of those three flagship counts, three descending ladders of lesser included (and in one instance lesser unincluded) charges. Because the attempted armed robberies were drawn under Art. 27, § 488, each of the three flagship counts was a felony. Under § 36B(d), therefore, the appellant was guilty of three separate instances of the Use of a Handgun in the Commission of a Felony.

By statutory proviso, those charges, though arguably lesser included offenses, would not merge into their respective underlying felonies. Counts four, five, and six were the respective handgun counts. LYRAY SIMPSON 1. Armed Robbery 4.

Use of a Handgun CLIFTON LINKINS E Attempted Armed Robbery 5. Use of a Handgun SHANNELL STEWART 3. Attempted Armed Robbery 6. Use of a Handgun In a carefully drawn indictment, one of the dangers that a prosecutor guards against is that a defense of voluntary intoxication (by virtue of drugs or alcohol) could succeed in showing that a defendant lacked the mental capacity to form a specific intent.

Such a defense would be capable of negating guilt on the three flagship counts and, thereby, negating guilt on the three handgun counts by negating the underlying felonies. In such a situation, the State would fall back, with respect to each victim, on the lesser included offense of first-degree assault, a crime requiring only a general intent. 1 ⁶¹³ Counts seven, eight, and nine represented the State’s fail-back position in that eventuality. LYRAY SIMPSON 1. Armed Robbery 4.

Use of a Handgun 7. lst° Assault CLIFTON LINKINS 2. Attempted Armed Robbery 5. Use of a Handgun 8. lst° Assault SHANNELL STEWART 3. Attempted Armed Robbery 6.

Use of a Handgun 9. lst° Assault What happened to the charges along that assault line (Counts 7, 8, and 9) is also revealing. It was on Count 8, charging a first-degree assault on Clifton Linkins, that the appellant received a judgment of acquittal. Both counsel argued the point at length. The motion was granted because the judge was convinced that Linkins had not been placed in fear.

All of the testimony that was referred to in illuminating that argument clearly referred to the “eleven o’clock incident” and not to the “eleven thirty incident.” In countering the defense argument that Yolanda Day had testified that Clifton Linkins openly defied, rather than feared, his two assailants, the State argued, “She said he complied with them.” At another point in the argument over the motion, the trial judge, with the acquiescence of the State, used the plural in describing Clifton Linkins’s reaction to the threats from his assailants: The Court: Didn’t he say that he knew that they weren’t going to harm him or something along those lines? Mr. DiLorenzo: He said that but obviously he wasn’t too cooperative. If Count 8, therefore, charged an assault on one of the victims as part of the “eleven o’clock incident,” it follows that Counts 7 and 9 did the same with respect to the other two victims. In a carefully drawn indictment, another of the dangers that a prosecutor must guard against is the failure of proof with ⁶¹⁴ respect to a weapon (“The weapon was not produced;” “The weapon was not adequately described;” “The weapon was somehow obviously inoperable,” etc.).

Remove the deadly weapon from the crime of robbery with a deadly weapon and one is left with the crime of simple robbery. Remove the deadly weapon from the crime of attempted robbery with a deadly weapon and one is left with the crime of attempted simple robbery. Counts ten, eleven, and twelve provided for consummated and attempted simple robberies. LYRAY SIMPSON 1.

Armed Robbery 4. Use of a Handgun 7. lst° Assault 10. Simple Robbery CLIFTON LINKINS 2. Attempted Armed Robbery 5.

Use of a Handgun 8. lst° Assault 11. Attempted Simple Robbery SHANNELL STEWART 3. Attempted Armed Robbery 6. Use of a Handgun 9. 1st0 Assault 12.

Attempted Simple Robbery With respect to the consummated robbery (either armed or unarmed) of Lyray Simpson, moreover, there is, as a lesser included element, the actual theft of the seven dollars in cash and the jacket. LYRAY SIMPSON 1. Armed Robbery 4. Use of a Handgun 7. 1st0 Assault 10.

Simple Robbery 13. Theft CLIFTON LINKINS 2. Attempted Armed Robbery 5. Use of a Handgun 8. lst° Assault 11.

Attempted Simple Robbery SHANNELL STEWART 3. Attempted Armed Robbery 6. Use of a Handgun 9. lst° Assault 12. Attempted Simple Robbery A passing glance at that pattern reveals symmetry, parallel structure, integration, interrelated logic.

The State’s Attor ⁶¹⁵ ney’s charging scheme leaps off the page -with self-evident clarity. In the face of such a clear charging master plan, it is bizarre for the State now to claim that out of that integrated matrix of thirteen charges with respect to the “eleven o’clock incident,” three of them should be randomly plucked out of context and inserted, instead, into a woefully tatterdemalion patchwork of charges with respect to the “eleven thirty incident.” The State seeks to do this with respect to Counts 7 and 13, charging an assault on and a theft from Lyray Simpson, and Count 9, charging an assault on Shannell Stewart. Why the prosecution would have chosen to create three gaping holes in its otherwise perfect and mutually reinforcing matrix of charges for the “eleven o’clock incident,” the State does not attempt to explain. Why the prosecution, if it were planning to bring separate charges at all with respect to the “eleven thirty incident,” would randomly have chosen only those three orphaned charges while neglecting, by way of obvious analogy to the “eleven o’clock incident,” to bring ten other possible charges including the more significant ones, the State does not attempt to explain.