Williams v. State

ELDRIDGE, Judge. This criminal case presents the question of whether a conviction for assault with intent to murder should merge into a conviction for attempted murder in the first degree when both convictions are based on the same act or acts. Thomas Emmit Williams was charged in the Circuit Court for Prince Georges County with two counts of attempted murder in the first degree, two counts of assault with intent to murder, tv/o counts of assault with intent to disfigure, one count of arson, two counts of simple assault and one count of causing a burning while perpetrating a crime. ³¹⁵ The evidence presented at his nonjury trial established the following. The defendant had known Carla Scott for about two years, and a child was born as a result of their relationship.

In August 1987, the relationship ended. After repeated unsuccessful attempts to reconcile with Ms. Scott, the defendant became depressed and, on three different occasions, contemplated suicide. On one occasion, approximately four days before the incident which is the subject of this case, he took an overdose of a painkiller known as Darvocet and washed the pills down with an insect repellant. According to Ms. Scott’s testimony, the defendant repeatedly threatened her.

On one particular occasion he allegedly told her: “You think you’re so good, you’re too good for me. I’ll just kill you. I’ll just burn you, and that way if you don’t die, nobody else would ever want you.” Thereafter, the defendant went to a motel in College Park, which was Ms. Scott’s place of employment. He entered the office of the motel carrying a container of gasoline.

When Ms. Scott’s co-worker, Craig Conin, attempted to prevent the defendant from getting near Ms. Scott, a straggle ensued. The defendant proceeded to drench both Ms. Scott and Mr. Conin with gasoline and ignited the liquid with a cigarette lighter. Eventually Ms. Scott and her coworker were able to put out the flames and to telephone for help. As a result of the incident, Ms. Scott received second degree burns over 15% of her body, and Mr. Conin received second and third degree burns over 30% of his body.

The defendant was convicted on both counts of attempted first degree murder and on both counts of assault with intent to murder. He also was convicted of arson and causing a burning while perpetrating a crime. The trial judge imposed ten year concurrent sentences for each conviction of attempted murder and ten year concurrent sentences for each conviction of assault with intent to murder. The two concurrent sentences for assault with intent to murder, however, were consecutive to the two concurrent ³¹⁶ sentences for attempted murder.

For the convictions of arson and causing a burning while perpetrating a crime, the defendant received sentences of five and two years respectively to run concurrently with each other but consecutively to the sentences upon the other convictions. Consequently, the defendant was sentenced to a total of twenty-five years imprisonment. The Court of Special Appeals, in an unreported opinion, held that the conviction for causing a burning while perpetrating a crime merged into the arson conviction under the rule of lenity. Therefore, the appellate court vacated the judgment on the count charging burning while perpetrating a crime.

Otherwise, the appellate court affirmed. The Court of Special Appeals specifically rejected the defendant’s argument that the convictions of assault with intent to murder and attempted first degree murder should merge. The defendant filed in this Court a petition for a writ of certiorari, raising the single question of whether a conviction for attempted first degree murder and a conviction for assault with intent to murder should merge when both are based on the same act or acts. After the petition for a writ of certiorari was filed, but before this Court ruled on the petition, the Court of Special Appeals in another case held that, under the rule of lenity, a conviction for assault with intent to murder should merge into a conviction for attempted first degree murder where both convictions were based on the same act or acts.

Green v. State, 79 Md.App. 506, 511-512 , 558 A.2d 441, 443-444 , cert. denied, 317 Md. 356 , 563 A.2d 784 (1989). Thereafter we granted the defendant Williams’s petition for a writ of certiorari. Under settled Maryland common law, the usual rule for deciding whether one criminal offense merges into another or whether one is a lesser included offense of the other, as well as the usual rule for determining whether two offenses are deemed the same for double jeopardy purposes, when both offenses are based on the same act or acts, is the so-called “required evidence test.” See, e.g., ³¹⁷ Snowden v. State, 321 Md. 612, 616-617, 583 A.2d 1056, 1058 (1991); Monoker v. State, 321 Md. 214 , 217 n. 2, 219, 582 A.2d 525 , 526 n. 2, 527 (1990); Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795, 797 (1990); Middleton v. State, 318 Md. 749, 757 , 569 A.2d 1276, 1279-1280 (1990); White v. State, 318 Md. 740, 742-743 , 569 A.2d 1271, 1272 (1990); Hagans v. State, 316 Md. 429, 449 , 559 A.2d 792, 801 (1989); State v. Ferrell, 313 Md. 291, 295, 297 , 545 A.2d 653, 655-656 (1988); Nightingale v. State, 312 Md. 699, 702-703, 542 A.2d 373, 374-375 (1988); State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465, 473 (1986); Simms v. State, 288 Md. 712, 718-719 , 421 A.2d 957, 960-961 (1980); Brooks v. State, 284 Md. 416, 420-422 , 397 A.2d 596, 597-599 (1979); Thomas v. State, 277 Md. 257, 262-267 , 353 A.2d 240, 244-247 (1976); Flannigan v. State, 232 Md. 13, 19 , 191 A.2d 591, 593-594 (1963); Veney v. State, 227 Md. 608, 611-614 , 177 A.2d 883, 885-887 (1962); Gilpin v. State, 142 Md. 464, 466-467 , 121 A. 354, 355 (1923). The required evidence test, or “same evidence test” or “elements test” as it is sometimes called, applies to both common law offenses and statutory offenses.

Snowden v. State, supra, 321 Md. at 617, 583 A.2d at 1059 ; State v. Ferrell, supra, 313 Md. at 297-298 , 545 A.2d at 656 . 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.’ ” Snowden v. State, supra, 321 Md. at 617, 583 A.2d at 1059 , quoting from State v. Jenkins, supra, 307 Md. at 517 , 515 A.2d at 473 . The test was explained in Thomas v. State, supra, 277 Md. at 267 , 353 A.2d at 246-247 , 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 [and merger] purposes, even though ³¹⁸ 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 [and merger] purposes.” Where two offenses are based on the same act or acts, and the two offenses are deemed to be the same under the required evidence test, merger follows as a matter of course. The only exception was recently set forth by Judge Orth for the Court in Frazier v. State, 318 Md. 597, 614-615 , 569 A.2d 684, 693 (1990): “[E]ven if offenses are deemed the same under the required evidence test, the Legislature may punish certain conduct more severely if particular aggravating circumstances are present, by imposing punishment under two separate statutory offenses.” This exception applies where the two sentences are imposed after a single trial and where the legislative intent to authorize the imposition of cumulative sentences is clear. See, e.g., Randall Book Corp. v. State, 316 Md. 315, 323-324 , 558 A.2d 715, 719-720 (1989); Whack v. State, 288 Md. 137, 143-150 , 416 A.2d 265, 268-271 (1980), appeal dismissed and cert. denied, 450 U.S. 990 , 101 S.Ct. 1688 , 68 L.Ed.2d 189 (1981); Newton v. State, 280 Md. 260 , 274 n. 4, 373 A.2d 262 , 269 n. 4 (1977). Before considering the application of the required evidence test to attempted first degree murder and assault with intent to murder, it would be useful to compare common law attempted murder with assault with intent to murder.

The elements of attempted murder at common law, which would also be the elements of attempted second degree murder today, are “a specific intent to murder” and “some overt act in furtherance of the intent that goes beyond mere preparation.” State v. Earp, 319 Md. 156, 162-163 , 571 A.2d 1227, 1230-1231 (1990). See, e.g., Bruce v. State, 317 Md. 642, 646 , 566 A.2d 103, 104 (1989); Cox v. State, 311 Md. 326, 330-331 , 534 A.2d 1333, 1335 (1988); State v. Holmes, 310 Md. 260, 272 , 528 A.2d 1279 , 1284- ³¹⁹ 1285 (1987); Hardy v. State, 301 Md. 124, 128-130 , 482 A.2d 474, 476-477 (1984). The mens rea element of assault with intent to murder is identical to that of attempted murder, namely a specific intent to murder. State v. Earp, supra, 319 Md. at 164-165 , 571 A.2d at 1231-1232 ; Franklin v. State, 319 Md. 116, 124-126 , 571 A.2d 1208, 1212 (1990); State v. Jenkins, supra, 307 Md. at 510-515 , 515 A.2d at 469-472 ; Glenn v. State, 68 Md.App. 379 , 511 A.2d 1110 , cert. denied, 307 Md. 599 , 516 A.2d 569 (1986).

Also, like attempted murder, the offense of assault with intent to murder requires that the murderous intent be coupled with an overt act. The difference in elements between the two offenses, however, is that the overt act required for assault with intent to murder is an assault. Therefore, assault with intent to murder has an additional element, i.e., an assault. But, because only one of the offenses has a distinct element, under the required evidence test attempted second degree murder and assault with intent to murder are deemed to be the same offense for purposes of merger.

Since every assault with intent to murder will include an attempted second degree murder, and since only the former offense has a distinct element, attempted second degree murder is the lesser included offense and will merge into assault with intent to murder under the required evidence test. 1 See Hardy v. State, supra, 301 Md. at 129-134 , 482 A.2d at 477-480 ; R. Perkins and R. Boyce, Criminal Law, 643-644 (3d ed. 1982) (“It follows that an assault with intent to commit a certain crime generally includes an attempt to commit that crime, but an attempt to commit the crime does not include an assault with intent to commit it”). On the other hand, attempted murder in the first degree and assault with intent to murder would not be deemed the ³²⁰ same offense under a strict application of the required evidence test. The reason, as explained in State v. Holmes, supra, 310 Md. at 271-272 , 528 A.2d at 1284-1285 , is that the offense of attempted murder in the first degree contains the additional elements of premeditation and deliberation. Although assault with intent to murder requires proof of a specific intent to murder, it does not require proof of premeditation and deliberation.

Furthermore, as pointed out above, attempted murder does not require proof of an assault. “In sum, each of the offenses ... requires an element that the other does not. * * * Accordingly, these crimes do not merge under the required evidence test____” State v. Holmes, supra, 310 Md. at 272 , 528 A.2d at 1285 . 2 Although attempted first degree murder and assault with intent to murder are not deemed the same offense under the required evidence test, this conclusion does not resolve the issue in the present case. While the required evidence test is the normal and the threshold standard for determining whether there should be a merger when two offenses are based on the same act or acts, it is not the exclusive standard under Maryland law. Monoker v. State, supra, 321 Md. at 222-224, 582 A.2d at 529 ; White v. State, supra, 318 Md. at 744-748, 569 A.2d at 1273-1275; Hunt v. State, 312 Md. 494, 510-511 , 540 A.2d 1125, 1133 (1988); State v. ³²¹ Jenkins, supra, 307 Md. at 518-521 , 515 A.2d at 473-475 , and cases there cited. When two offenses do not merge under the required evidence test, we have applied as a principle of statutory construction the “rule of lenity,” which “provides that doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction ‘ “will be resolved