Walker v. State

Moylan, J., delivered the opinion of the Court. The review of the four convictions in this case is routinely unremarkable; the review of the four sentences, however, presents a series of intriguing problems involving the merger of offenses, the legitimacy of the open-ended common law sentence, the tangled relationship between the common law crime of attempt and the statutory aggravated assaults, and finally the impact of those statutory aggravated assaults upon common law assault. The appellant, Ricky Arvin ¹⁷⁴ Walker, was convicted by a Baltimore City jury, presided over by Judge Peter D. Ward, of (1) attempted first-degree rape, (2) burglary, (3) common law assault, and (4) openly carrying a dangerous and deadly weapon. Judge Ward sentenced the appellant to four consecutive terms: (1) life imprisonment for the attempted first-degree rape, (2) twenty years for the burglary, (3) twenty years for the assault, and (4) three years for carrying a deadly weapon, for a total of life plus forty-three years.

The Convictions The three appellate contentions dealing with the legitimacy of the convictions are easily disposed of: (1) That the testimony of two eye-witnesses was so contradictory as to warrant a dismissal of the charges; (2) That there was no probable cause to justify the warrantless arrest of the appellant and that, as a result, all evidence seized as an incident of that arrest should have been suppressed; (3) That the trial judge improperly responded to a question from the jury. A. The Effect of Contradictory Testimony (If Any) The appellant’s contention with respect to the testimony of two State’s witnesses being so contradictory as to render it completely unworthy of belief, is a contention raised at his express request. It is clear that he is seeking to rely upon Kucharczyk v. State, 235 Md. 334 , 201 A.2d 683 (1964), although he does not mention Kucharczyk by name or cite any other case as authority for his proposition of law. The contention is clearly without merit.

A brief discussion of the State’s evidence, nonetheless, will serve to provide a factual setting for the other contentions (including the more significant contentions involving the sentencing) that follow. The initial witness for the State was the victim herself, Norva Lee Burroughs. On the evening of March 14, 1981, ¹⁷⁵ she checked to see that her children were asleep, locked the doors of her home at 2738 Loyola Southway, and then fell asleep in her own bedroom while watching the 11 p.m. news. She was prodded awake by a man wearing a green and yellow ski mask and a dark jacket.

He was standing over her with a knife in his hand. He ordered her to get out of bed and to remove her clothes. His pants were down and he was wearing green underwear. The only light available in the room was from the television set, which was still playing.

As the victim was in the act of taking off her nightgown, she grabbed for the knife and began to struggle with her assailant. He ordered her to shut up. She was beaten, kicked, and knocked to the floor. As she began to yell, he ordered her to shut up again.

She was beaten in the face and cut on the leg and hand. The resistance was, however, successful, because the assailant ultimately fled from the bedroom. The victim never saw her attacker’s face, since the ski mask remained on during the entire incident. She remembered finding a telephone and calling the police.

She suffered a laceration of the left hand, a fractured nose, and a fractured jaw. She also testified that there were two lights in the hallway outside her bedroom and that they both were on. She had been expecting a friend, Rolley Henry, but the door to her home was locked. The first State’s witness who could make a positive identification of the appellant was Washanna Washington, the thirteen-year-old daughter of the victim.

She was awakened by her mother calling her name. Initially, she tried to use the telephone but could not get a dial tone. At that moment, she heard the doorbell ring and went to answer the door. At the door was the friend whom her mother was expecting, Rolley Henry, known as "Tree.” Washanna alerted "Tree” to danger and told him to hurry upstairs.

She testified that a bright light was on over the stairwell. In a few moments, she observed "Tree” and the man she identified as the appellant struggling. She was standing approximately fifteen feet from the site of the struggle. She had known the appellant from earlier occasions when she had seen him in the neighborhood.

He lived across the street. She saw "Tree,” in ¹⁷⁶ the course of the struggle, pull the ski mask from the appellant’s face. She also observed that the appellant was wearing a dark pea jacket and dark pants. Washanna ran from the house to a nearby pay telephone and called the police.

The other identifying witness was Rolley "Tree” Henry. He testified that he rang the doorbell and was admitted by Washanna at sometime between 11 p.m. and midnight. As he rushed upstairs, he observed a man coming out of the victim’s bedroom, wearing a mask, a pea coat, and dark pants. As they began to struggle, the intruder yelled, "Do you want to die?” Rolley Henry had on earlier occasions seen the appellant’s brother, whom he knew, wearing the same ski mask that the intruder was wearing that night.

In the course of the struggle, the ski mask came off. Rolley Henry made a positive identification of the appellant as the intruder with whom he was struggling. At one point, Mr. Henry threw the appellant down the steps. The appellant ran outside and the struggle then continued on the porch.

After the appellant bit Mr. Henry’s hand, the appellant was able to break loose and run. Mr. Henry chased him into an alley but ultimately lost sight of him. The alleged inconsistency, relied upon by the appellant, was between Washanna Washington and Rolley Henry. Washanna Washington had testified that the lights in the hallway were on as Mr. Henry rushed upstairs.

Initially, Mr. Henry testified that the lights were not on as he rushed upstairs. On cross-examination, however, he remembered that they were, in fact, on. Under the circumstances, we do not even see a contradiction between the two State’s witnesses. In no event, would a contradiction on such a peripheral matter be fatal, even if it were there.

With respect to an arguable contradiction between Washanna Washington and Rolley Henry as to whether the light over the stairwell was on, Bailey v. State, 16 Md.App. 83, 96 , 294 A.2d 123 (1972), is controlling: "Nor does Kucharczyk apply where a State’s witness is contradicted by other State’s witnesses. Scott v. State, 2 Md.App. 709, 713-715 ; Tillery v. ¹⁷⁷ State, 3 Md.App. 142, 148 ; Gunther v. State, supra; Hunt v. State, supra.” As to an arguable contradiction between Rolley Henry’s testimony on direct examination and his amended testimony on cross-examination as to whether the light was initially on, Bailey v. State, supra, at 16 Md.App. 96 , is again controlling: "Nor does Kucharczyk apply where a witness’s trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant... . Nor does Kucharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction.” There is an additional answer to the appellant’s Kucharczyk-based claim. The appellant was arrested by the police at approximately midnight, minutes after the crime occurred, as he stood in a basement doorway of a house in the 2700 block of Loyola South way.

This was the very block where the victim resided and where the crime occurred. A hovering police helicopter had alerted the arresting officer to the presence of the suspect at that location. When the police arrested the appellant, he was wearing a dark-colored pea coat and dark pants. There were grass stains and sand on his clothing and a cut on his hand.

Following his arrest, his clothes, including his underclothes, were seized. The victim identified the clothing taken from the appellant as the clothing her assailant was wearing, right down to the green underwear. Once again, Bailey v. State, supra, at 16 Md.App. 96 -97, is controlling: "Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version.” The final response to the appellant’s claim is that even a classic Kucharczyk situation does not deal with the exclu ¹⁷⁸ sion of testimony but only with the ultimate legal sufficiency of the State’s entire case. The conclusion to our discussion of Kucharczyk in Bailey v. State, supra, at 16 Md.App. 97 , is apposite here: "In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness’s credibility and in weighing that witness’s testimony.

Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State’s total case and not in terms of the exclusion of the contradictory witness’s testimony.” It is clear that there was ample evidence in the case to permit a jury to be fairly convinced beyond a reasonable doubt of the appellant’s guilt. Williams v. State, 5 Md.App. 450, 459 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970). B. Probable Cause for the Appellant’s Warrantless Arrest The appellant’s second contention is that there was no probable cause to support the warrantless arrest of the appellant. In denying the appellant’s motion to suppress the clothing that was seized as an incident of that arrest, Judge Ward ruled: "Counsel, I have no question in my mind whatsoever that the officer had ample probable cause to make an arrest in this case.

Therefore, the arrest was lawful and that any evidence seized reasonably contemporaneously with the arrest was lawfully seized and may be admitted during the trial of the case.” We hold that Judge Ward was correct in that ruling. In making our constitutionally mandated, reflective, independent judgment on the mixed question of law and fact called probable cause, Walker v. State, 12 Md.App. 684, 691-695 , ¹⁷⁹ 280 A.2d 260 (1971), we have no difficulty in finding that it was there. Officer Allen Wharton of the Baltimore City Police Department responded within minutes to a radio alert involving a rape at 2738 Loyola Southway (we do not find significant the fact that the emergency alert in the excitement of the moment referred to "rape,” whereas the crime actually perpetrated may have been "attempted rape” or "assault with intent to rape”). The description that was broadcast of the rape suspect was that of a black male, wearing a dark-colored pea coat and dark pants.

As he began to search the immediate vicinity, Officer Wharton received a follow-up broadcast from the police helicopter hovering overhead. It was to the effect that a subject fitting the description of the suspect was in the alley in the rear of a house in the 2700 block of Loyola Southway. Officer Wharton then observed the appellant standing on the back steps of a house in that block, in a basement doorway, wearing a navy blue pea coat and black pants. He had grass stains and sand on his clothing.

The officer observed a cut on the person’s hand. When Officer Wharton demanded identification, the person gave his name as "Ricky Walker.” By portable radio, Officer Wharton was advised by Officer Knight, who was then in the victim’s home, that the assailant’s name was Ricky Walker. Under the circumstances, the probable cause was unassailable. Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949); Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959).

The appellant now raises for the first time a subissue he did not address at trial — not that there was lacking probable cause to believe that the appellant was the person involved but that there was no probable cause for the police to believe that a crime had occurred. Even if preserved for appellate review, the point is disingenuous. From the fact that both the attack victim herself and her daughter called the police, who responded to the scene, and from the fact that Officer Knight was in their home with them, presumably taking a full report and unquestionably learning the name ¹⁸⁰ of the attacker as Ricky Walker, we have no difficulty reasonably in inferring that sufficient details of the criminal attacks were communicated to the police team to establish that a crime had, indeed, occurred. C. The Judge’s Response to the Jury’s Question While the jury was deliberating on the verdict, it sent the following note out to Judge Ward: "Were there any fingerprints on the screw driver, knives or comb or any other object?

If so, could they be positively identified with Mr. Walker’s? Mr. Walker had a wound on his hand, was it big enough to leave blood on either knife and was the blood his type?” Judge Ward’s response was, "You must decide the case on the basis of the evidence before you. That’s all and you may retire to continue your deliberations.” Although we cannot imagine a more appropriate response, the short answer to the contention is that appellant’s counsel made no comment about this response and certainly entered no objection to it. Under the circumstances, there is nothing preserved for appellate review.

Md. Rule 757 f and h; Md. Rule 1085; Huff v. State, 23 Md.App. 211, 220 , 326 A.2d 198 (1974). The Sentences The propriety of the. twenty-year sentence for burglary, to be served consecutively with any other sentences in the case, is not disputed. The other three sentences, however, raise a number of perplexing problems. A. Life Imprisonment for Attempted Rape The challenge to the sentence of life imprisonment for attempted rape in this case is mounted in several different ways.

There is first the question of whether such a life sentence is unconstitutional, under the Federal and/or State Constitutions, because it represents cruel and unusual punishment. There is secondly the question of whether the life ¹⁸¹ sentence for attempted rape violates the common law of Maryland. That second question, in turn, breaks out into two subquestions. The first is whether a life sentence for attempted rape, as an abstract principle, violates the common law of Maryland per se.

There is the distinct question of whether it does so in the procedural posture of this particular case. 1. The Constitutional Question Amendment VIII of the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Its virtually verbatim Maryland counterpart, Article 25 of the Maryland Declaration of Rights, provides: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.” A final provision of the Maryland Constitution, apparently aimed more at the Legislature that makes the laws than at the courts which impose the penalties, Article 16 of the Declaration of Rights, provides: "That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.” In looking first at the Maryland constitutional provisions, a long line of cases from the Court of Appeals reveals its disinclination to apply the provisions to restrict the length of a sentence. In a scholarly analysis in Delnegro v. State, 198 Md. 80 , 81 A.2d 241 (1951), Judge Delaplaine observed that, "The term 'cruel and unusual punishment’ has usually been understood to mean barbarous punishment by torture.” ¹⁸² 198 Md. at 88 . After examining the early Maryland case law and the Commentaries of Justice Story, Judge Delaplaine cited with approval the Supreme Court of Indiana, at 198 Md. 89 : "The Supreme Court of Indiana observed that the word 'cruel,’ considered in reference to the time when it was included in the Bill of Rights, meant such punishment as the whipping post, the pillory, burning at the stake, and breaking on the wheel, and that the term 'cruel and unusual punishment’ does not forbid legislation providing imprisonment for life or for years, or the penalty of death by hanging or electrocution.

Hobbs v. State, 133 Ind. 404 , 32 N.E. 1019, 1021 , 18 L.R.A. 774 .” He concluded that the constitutional prohibition went essentially to the means or quality of punishment and not to its quantity. 1 In any event, the Maryland constitutional provisions provide a less-than-firm point of departure in view of the interpretation given them by the Court of Appeals in Kirschgessner v. State, 174 Md. 195, 197-198 , 198 A. 271 (1938): "No standard was fixed by the two sections invoked as to what is cruel and unusual, so that Legislatures and courts can only regard these provisions as advisory. What may be cruel and unusual in one case may be mild punishment in another.” (Emphasis supplied.) ¹⁸³ We are provided a firm constitutional starting point, however, by the Eighth Amendment of the United States Constitution. It is, in the first instance, in pari materia with Article 25 of our Declaration of Rights, all the more so because both of them were taken virtually verbatim from the English Bill of Rights of 1689. Phipps v. State, 39 Md.App. 206, 211 , 385 A.2d 90 (1978).

The Eighth Amendment, moreover, is now deemed to be incorporated into the due process clause of the Fourteenth Amendment, and is, therefore, binding on the States. Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962). In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), the Supreme Court acknowledged that the early history of the Eighth Amendment had been concerned primarily with proscribing torture and other barbarous methods of punishment but that it had evolved into a protection with a dual purpose. The first of these purposes was to avoid barbarous and wanton punishment and the second was to deal with the proportionality between the punishment imposed and the severity of the crime.

The Supreme Court held, at 428 U.S. 173 : "[T]he inquiry into 'excessiveness’ has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain.. .. Second, the punishment must not be grossly out of proportion to the severity of the crime.” Actually, several of the early Maryland cases had dealt with the issue of proportionality in a constitutional setting. They make it clear that proportionality — the constitutionality of the length of a sentence — cannot be resolved in the abstract but depends upon the unique facts of each particular case.

The Maryland case that Delnegro relied on most heavily was Mitchell v. State, 82 Md. 527 , 34 A. 246 (1896). There, the defendant had been acquitted of the first and third counts of a three-count indictment, charging statutory rape and simple assault. He was convicted, however, under the second count, charging attempted statutory rape, and received a sentence of fifteen years. The defendant ¹⁸⁴ there claimed that this violated his Maryland constitutional right against "cruel and unusual punishment” because it exceeded the ten-year maximum provided by statute for the crime of assault with intent to commit statutory rape (which had not been charged in the defendant’s case).

Judge Bryan discussed the constitutional provisions and concluded that "it was not their purpose to dispense with punishments of great severity.” 82 Md. at 533 . He observed that under the open-ended sentencing provisions of the common law, even a severe sentence will not be unconstitutionally disproportionate if the facts of the case reveal that the crime was unusually aggravated or atrocious. He said for the Court of Appeals, at 82 Md. 533 -534: "Severity is not cruelty. The punishment ought to bear a due proportion to the offence.

Crimes of great atrocity ought to be visited with such penalties as would check, if not prevent their commission. It is impossible in the abstract to mark the boundaries which separate cruelty from just severity. If the circumstances accompanying a crime are of unusual aggravation, the punishment ought to be unusually severe.” 2 (Emphasis supplied.) In making that two-pronged inquiry, we observe that the first of the constitutional subquestions is not remotely involved. The appellant here was not sentenced to any wanton or barbarous infliction of pain but only to the ordinary incidents of prison life.

With respect to the second of the constitutional subquestions — proportionality — that, as the case law makes clear, is a question which can never be ¹⁸⁵ answered in the abstract but depends upon the facts of each individual case. The circumstances of this crime were unusually aggravated. The appellant attempted to perpetrate a crime upon his victim which, if consummated, carried a possible penalty of life imprisonment. He did so as a burglar, invading the very sanctuary of her home and her bedroom in the dead of night.

Her child was asleep in an adjoining room. The appellant attempted to threaten his victim into submission at the point of a knife. When she did not initially submit, he beat her repeatedly. In the course of the attack, she was cut; she suffered a broken nose; and she suffered a broken jaw.

Under all of the circumstances, we cannot say that a sentence of life imprisonment was so disproportionate to the gravity of the crime as to render it unconstitutionally excessive or disproportionate. 3 The life sentence for attempted first-degree rape did not offend the constitutional prohibitions, state and federal, against cruel and unusual punishment. 2. The Sub-constitutional Question There remains to be resolved the question of whether a sentence of life imprisonment for attempted rape is permitted under the statutory and the common law of Maryland. This also is a double-barrelled issue: (a) Is life imprisonment for attempted rape permitted as an abstract proposition?; and (b) Even if it is, is it nevertheless forbidden in the procedural posture of this particular case? a. The Life Sentence as an Abstract Proposition Since the mid-1500’s, the common law has recognized the misdemeanor known as criminal attempt. 4 It is, fur ¹⁸⁶ thermore, clear that the common law misdemeanor, notwithstanding its post-Revolutionary final crystallization, has always been recognized as part of the common law of Maryland.

Hochheimer, Crimes and Criminal Procedure 297-298 (2d ed. 1904); Franczkowski v. State, 239 Md. 126, 127 , 210 A.2d 504 (1965); Wiley v. State, 237 Md. 560, 563-564 , 207 A.2d 478 (1965); Lightfoot v. State, 278 Md. 231 , 360 A.2d 426 (1976); Lightfoot v. State, 25 Md.App. 148 , 334 A.2d 152 (1975); Fisher v. State, 1 Md.App. 505 , 231 A.2d 720 (1967). Attempt is, moreover, a common law crime that still carries the common law penalty. The common law penalty is anything in the discretion of the sentencing judge, provided only that it not be "cruel or unusual.” Apple v. State, 190 Md. 661, 668 , 59 A.2d 509 (1948); Heath v. State, 198 Md. 455, 459 , 85 A.2d 43 (1951). That broad discretion constrained by that single limitation says, in effect, "Unless otherwise provided, anything is legal that is not unconstitutional.” Since we have already determined that there is nothing unconstitutional about a sentence of life imprisonment for attempted rape, either in the abstract or under the facts of this case, there is, ipso facto, nothing illegal about it. ¹⁸⁷ There is in the special case of attempt and conspiracy, 5 moreover, an at-least implicit legislative imprimatur (as well as explicit upper limit) not present in the cases of other crimes carrying the common law punishment.

With respect to attempts, Md. Code Ann. Art. 27, § 644A (1982 Repl. Vol.) provides: "The sentence of a person who is convicted of an attempt to commit a crime may not exceed the maximum sentence for the crime attempted.” We read into that explicit legislative prohibition against exceeding certain limits, an implicit legislative approval of going up to those limits. The object of the attempt in this case was "to commit rape in the first degree.” Md. Code Ann. Art. 27, § 462 (b) (1982 Repl. Vol.) provides: "Any person violating the provisions of this section [first-degree rape] is guilty of a felony and upon conviction is subject to imprisonment for no more than the period of his natural life.” We read § 462 (b) and § 644A in combination both as setting the upper limit of life imprisonment as a penalty for attempted first-degree rape and also as constituting legislative recognition of such a sentence as within that legal limit. b.

The Life Sentence in the Procedural Posture of the Case When the object is rape (generally or in the first degree), there are at least two frequently overlapping inchoate crimes that may be involved — assault with intent to rape 6 and attempted rape. Initially, it is well settled that the promulgation of the statutory aggravated assault did not preempt the field and thereby displace the common law crime. "In Maryland, assault with intent to rape and ¹⁸⁸ attempted rape are retained as separate and distinct crimes.” Christensen v. State, 33 Md.App. 635, 640 , 365 A.2d 562 (1976). 7 As we observed in Gray v. State, supra, at 43 Md.App. 241 : "For inchoate, not fully-consummated crime, society has long had available in its arsenal both the statutory offense of 'assault with intent to .. .’ and the common law offense of criminal attempt. Although these two offenses have a significant overlap, they are nonetheless distinct and each addresses certain pockets of inchoate criminal activity not covered by the other.” It is, moreover, well settled that the prosecution is under no obligation to tailor the configuration of charges to the advantage of the defendant.

The prosecutor could charge both attempted rape and assault with intent to rape or could charge either of them alone as suits his tactical purpose. The architecture of the charging document is in the total control of the State. As Judge Wilner well analyzed the situation in Turner v. State, 8 45 Md.App. 168, 172-173 , 411 A.2d 1094 (1980): "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. ¹⁸⁹ 475 (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, 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.” A very different situation prevails, however, once the State has brought a defendant to trial on multiple, overlapping charges. The tightly reasoned opinion of Judge Eldridge for the Court of Appeals in Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), dealt with the sentencing limitations which the State imposes on itself, advertently or inadvertently, when it charges two offenses which can be deemed "the same offense” within the contemplation of double jeopardy language. As long as there is neither multiple conviction nor multiple punishment, the double jeopardy clause itself is not engaged.

Under Maryland common law, however, the State is deemed to have established the graver of the two offenses as the "flagship” crime, thereby setting the upper limit for punishment purposes. In Simms , the defendant was found not guilty under a count charging assault with intent to rob (carrying a maximum penalty of ten years) and guilty of simple assault, for which he was sentenced to twelve years imprisonment. The Court held that "When the State decided to charge assault with intent to rob as well as simple assault based on the same acts, and to proceed to trial on both charges, the State was, as a matter of legal necessity ..., seeking a conviction carrying a maximum possible sentence of ten years’ imprisonment.” 288 Md. at 724 . The Court elaborated: "Under these circumstances, it is unfair to permit the State to exact a more severe and unanticipated penalty than that which could have been imposed if the prosecution had been wholly successful. ¹⁹⁰ Accordingly, we hold that when 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.

(Emphasis supplied.) The Simms Court then had to come to grips with the anomalous circumstances where one of the two charges has more required elements but the other carries a more severe penalty. Which is then the greater and which is the lesser? The Court held unequivocally that required elements and not the possible sentence was the criterion for determining "greater” versus "lesser.” And see Johnson v. State, 283 Md. 196 , 388 A.2d 926 (1978). The "required elements” test is reasonably simple to administer when comparing a greater inclusive offense with a lesser included offense (such as comparing assault with intent to murder to simple assault).

A far more perplexing problem is that of comparing two closely related crimes which possess the same number of required elements, but where one is more specific and the other is general. Johnson v. State, supra, was a case comparing false pretenses and welfare fraud. Each crime involved the same elements, except that false pretenses required the victim to part with something of value generally, whereas welfare fraud required the victim to part with welfare services specifically. Flannigan v. State, 232 Md. 13 , 191 A.2d 591 (1963), compared false pretenses with passing a bad check.

Each required a false representation, but in the latter case, that false representation had to be a bad check specifically. In Slye v. State, 42 Md.App. 520 , 401 A.2d 195 (1979), this Court compared larceny generally with shoplifting specifically. In Henry v. State, 273 Md. 131 , 328 A.2d 293 (1974), the Court of Appeals compared larceny generally with automobile larceny. Leaving to philosophers ¹⁹¹ the semantic subtleties of whether a specific versus an alternative general element is, indeed, an additional element, it is enough to observe that the results are the same.

All of these cases held that the more specific crime will control the more general crime fof purposes of determining which merges into the other. The more specific crime, therefore, determines the upper limit on punishment when there is a merger and even in a non-merger situation, as in Simms , where jeopardy attaches on both the general and the specific crimes. The appellant argues that the Simms situation is upon us in this case. Among the many charges upon which the appellant went to trial was assault with intent to rape, with a fifteen-year maximum penalty.

That charge was dropped from the case as part of the State’s logistical housecleaning in preparing a trimmed-down package to go to the jury. Notwithstanding the absence of anything remotely resembling an acquittal on the merits (as in Simms), the