Turner v. State

¹⁶⁹ Wilner, J., delivered the opinion of the Court. Appellant was convicted by a jury in the Criminal Court of Baltimore of larceny and assault. He was sentenced to prison for 18 months on the larceny conviction and 12 years, consecutive, for the assault. In this appeal, he contends: (1) He was improperly induced to testify in his own defense by the court’s “misadvisement” relating to burden of proof; (2) He was wrongfully charged, convicted, and sentenced for larceny and assault; (3) The court gave an erroneous instruction on the definition of a “principal”; (4) The court erred in failing to grant a new trial because of incompetence of counsel; and (5) The evidence was insufficient to sustain his convictions.

We shall consider these complaints in a somewhat different order: (5), (2), (1), (3), (4). (5) Sufficiency of the Evidence David Papilon stated that, on November 18, 1978, he was walking up Park Avenue, in Baltimore City, when two men accosted him and asked him for money. He refused, whereupon they led him up the outside steps of an apartment dwelling, on to the vestibule. One of the men threw him to the ground and the other searched his back pockets, removing his wallet containing $38.

Papilon identified one of the men as appellant. It so happened that Police Officer Lee Saunders and two fellow officers were driving by in a patrol car as all of this was happening. Saunders saw two black men strike a white man and drag him into a doorway where one removed a wallet from the victim’s pocket. Saunders and the other officers immediately stopped, gave chase, saw the assailants go into a nearby shack, and captured them both as they were attempting to escape through a window therein.

Papilon’s wallet was found inside the shack. Saunders also positively ¹⁷⁰ identified appellant. Officers George Smith and Leonard Baze corroborated most of Officer Saunders’ testimony and also identified appellant as one of the two assailants. From this, we can quickly dispose of appellant’s fifth complaint.

The evidence more than sufficed to sustain the convictions of larceny and assault. (2) Improper Charge and Sentence For whatever reason, appellant was never formally charged with robbery, although the evidence adduced at trial would seem to have supported such a charge. Instead, he was charged (and convicted) only of the lesser included offenses of larceny and assault. Ordinarily, a defendant would be quite well satisfied with such a circumstance, and, indeed, appellant never raised any complaint about it before or during his trial.

It is only after the sentences were imposed that he (or his counsel) realized that, had he been charged and convicted of robbery, his maximum sentence would have been 10 years. The assault and larceny convictions would have merged into the robbery conviction as lesser included offenses. By failing to charge robbery, he thus claims, the State has managed to secure a longer sentence than was otherwise possible; and this, he cries, is unfair, unconstitutional, and illegal. He relies on Roberts v. Collins, 544 F.2d 168 (4th Cir. 1976), and asks that his convictions be reversed.

In Roberts , the Court had before it, in a habeas corpus proceeding, a situation in which a defendant had been charged with a variety of offenses, headed by two counts of assault with intent to murder. All of this grew out of an attack on two police officers. At some point, and for reasons not entirely clear in the Opinion of the appellate or the district court (Roberts v. Collins, 404 F. Supp. 119 (D. Md. 1975)), Roberts entered pleas of guilty to a number of the charges, including simple assault. Based upon these pleas, he was convicted on the two assault charges and was sentenced to consecutive terms of 20 years on each conviction — a total of 40 years. 1 Had he been tried and convicted of the two ¹⁷¹ assaults with intent to murder charges, his maximum sentence would have been 15 years. 2 Roberts contended in the Federal proceeding that the 40-year sentence imposed on the simple assault convictions was cruel and unusual.

The District Court applied the four factors set forth in Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), and one more relied on in Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), concluding, as to each, that (1) because the Maryland legislature had established 15 years as the maximum sentence for assault with intent to murder — a much more serious offense than simple assault — the imposition of 20 years on the simple assault charge was, in effect, a circumvention of the legislative judgment; (2) it could discern no legislative purpose in not prescribing a maximum penalty for simple assault; (3) there being no maximum, it was not possible to compare the Maryland situation with that in other States; (4) 20 years was a relatively long sentence in comparison with punishments authorized for comparable crimes in Maryland; and (5) because it was unable to find any other reported instance of a 20-year sentence being meted out for simple assault, this was “rare and severe.” 3 Upon those findings, it concluded that such a sentence, in light of the lesser maximum for assault with intent to murder, was cruel and unusual, and therefore unconstitutional. The Fourth Circuit Court of Appeals affirmed for the reasons set forth by the District Court, and also because “[wjhen, to relieve the state of the burden of proving all elements of the greater offense of assault with intent to murder, a defendant tenders a plea to the lesser included offense of simple assault, he ought not to be held to have exposed himself constitutionally to greater punishment----” 544 F.2d at 170 . ¹⁷² We note first, for appellant’s edification, that even if these Federal decisions were applicable here, they would require no more than a remand for resentencing within the 10-year maximum for robbery. They would not affect the convictions. See 544 F.2d at 170 .

More significant, however, is the fact that, in arguing that we adopt and apply the reasoning (and conclusion) of the Federal decision, appellant overlooks the fact that the Maryland Court of Appeals reached an exactly opposite result in the same case. See Roberts v. Warden, 242 Md. 459 (1966), cert. den. 385 U.S. 876 . 4 That decision has never been overruled by the Court of Appeals, or by the Supreme Court; and it therefore remains binding on this Court, to the exclusion of the contrary Federal decisions. See Brown v. State, 38 Md. App. 192 (1977). Quite apart from that, we perceive a subtle, but nonetheless significant, distinction between the Roberts situation and that sub judice.

In Roberts, the defendant had actually been charged with the greater inclusive offense. The maximum possible exposure was clear and measurable throughout the case and at the time of sentence. Such exposure is not so clear and measurable when the heavier charge is never brought; nor, in that instance, is the logic applied by the Federal courts quite so compelling. The State may have all sorts of valid reasons for charging one offense rather than another — a lesser offense rather than a greater.

It acts upon the evidence available to it — known to it — at the time; and that evidence may be quite different from what unfolds at trial. The State may decline to charge a more serious offense because, at the time of charging, the evidence only indicates a lesser offense, or suggests circumstances calling for compassion. This is part of the discretion accorded to State’s Attorneys. See Murphy v. Yates, 276 Md. 475 (1975); Brack v. Wells, 184 Md. 86 (1944).

At trial, evidence may appear that puts the defendant (his actions and character) in a much different light. Is the judge, ¹⁷³ in sentencing, to be bound to statutory maxima for every conceivable crime with which the defendant could have been charged based on the evidence actually revealed? If so, we perceive a great deal of confusion, second-guessing, and error. The Federal decisions in Roberts are not controlling upon us, and the rationale for them is wholly inapplicable to the circumstances here.

Appellant’s sentences were lawful ones. This Court, since Roberts, has sustained 20-year sentences for assault. Brown v. State, supra, 38 Md. App. 192 ; Raley v. State, 32 Md. App. 515 (1976), cert. den. 278 Md. 731 , cert. den. 431 U.S. 965 (1977). See also Wilkins v. State, 5 Md. App. 8 (1968); Adair v. State, supra, 231 Md. 255 .

The twelve-year sentence was not unlawful, nor the eighteen months for larceny. (1) “Misadvisement” By the Court At the conclusion of the State’s case, it is fair to say that appellant was in deep trouble. The evidence