Young v. State

³⁰⁰ ORTH, Judge. A crime is a wrong, or breach of duty, which subjects the person guilty thereof to punishment at the suit of the public. The policy of the law is to treat as criminal conduct which affects injuriously the public police and economy, the general interests, peace and security of the community. As a general rule whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs the public order, or is injurious to public morals, or is a wilful breach of official duty, is punishable as a crime at common law.

L. Hochheimer, The Law of Crimes and Criminal Procedure § 1 (2d ed. 1904). Not all crimes have their origin in the common law, evolving from the experiences of society. Many crimes have been created by legislative enactment. See Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Art. 27.

Since crimes are public wrongs, “against the peace, government and dignity of the State,” and, if statutory, are also “contrary to the form of the Act of Assembly in such case made and provided,” those who commit crimes are prosecuted by the public in the name of the State. The rationale of the State’s seeking redress for a criminal offense is that the person who has committed it has acted contrary to the public interest. He has demonstrated that he is a danger to the public good; he should be deterred from indulging in further criminal activities and reformed so that he will not be inclined to do so again. Thus, the purpose of prosecution for a criminal act is basically preventive.

Usually a criminal conviction is predicated upon the completion of the crime; the conduct of the accused has satisfied the elements necessary to establish the offense and he has .actually committed the act as proscribed. But what if the conduct of the accused has not progressed to the point where a crime has been committed, that is, he has tried to commit the offense but for some reason he has not been successful? ³⁰¹ [T]here is just as much need to stop, deter and reform a person who has unsuccessfully attempted or is attempting to commit a crime than one who has already committed such an offense. W. LaFave & A. Scott, Handbook on Criminal Law § 59 at 426 (1972), quoting Stuart, The Actus Reus in Attempts, 1970 Crim.Law.Rev. 505, 511. This is why the law of attempts exists.

The notion that an attempt to commit a crime is itself a crime came relatively late into Anglo-American jurisprudence. The Court of Special Appeals set out its history in Gray v. State, 43 Md.App. 238 , 403 A.2d 853 , cert. denied, 286 Md. 747 (1979): [The crime of attempt] had its origins in the Court of Star Chamber, during Tudor and early Stuart times. Its crystallization into its present form, however, is generally traced to the case of Rex v. Scofield, Cald. 397, in 1784.... The doctrine was locked into its modern mold by 1801 with the case of Rex v. Higgins, 2 East 5....

In the wake of Scofield and Higgins, it was clear that an attempt to commit any felony or misdemeanor, of common law origin or created by statute, was itself a misdemeanor. Id. at 239 (emphasis added; footnotes omitted). The offense of criminal attempt has long been accepted as a part of the criminal law of Maryland. 1 We recognized a criminal attempt as a common law misdemeanor in Mitchell v. State, 82 Md. 527, 534 , 34 A. 246 (1896). We have had surprisingly little to say, however, about the nature of the offense.

Mitchell concerned an attempted rape, but the appeal was dismissed for procedural reasons and the Court had no occasion to elaborate on the crime. Almost 70 years later, in Wiley v. State, 237 Md. 560 , 207 A.2d 478 (1965), we defined criminal attempt without citation to a prior decision of this Court. We said: ³⁰² An attempt to commit a crime consists of an intent to commit it, the performance of some act toward its commission, and failure to consummate its commission. Id. at 563-564 , 207 A.2d 478 .

The offense was defined in terms of these same three elements in Franczkowski v. State, 239 Md. 126, 127 , 210 A.2d 504 (1965) with Wiley cited as authority. We ultimately discovered, however, that the definition set out in Wiley and accepted in Franczkowski was not entirely accurate. In Lightfoot v. State, 278 Md. 231, 232-238 , 360 A.2d 426 (1976), this Court declared that the failure to consummate the commission of a crime attempted was not an essential element of the offense of criminal attempt. We found that the language in Wiley and Franczkowski to the contrary was dicta and we disapproved it. 2 It was also in 1976 that the Legislature prescribed the punishment for criminal attempts generally.

Prior to that time, except for statutory designation of attempts to commit certain specified crimes, see note 1, supra, the offense of criminal attempts had no statutorily authorized sentencing limit. The penalty upon conviction was within'the discretion of the trial court subject to the constitutional prohibitions against cruel or unusual punishment. See Mitchell [82 Md]. at 534, 34 A. 246 . Acts 1976, Ch. 453, now codified as § 644A of Art. 27, Md.Code (1957, 1982 Repl.Vol.) tempered the discretion of the trial judge by providing: ³⁰³ 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.

This legislation led to the question presented in Hardy v. State, 301 Md. 124 , 482 A.2d 474 (1984): whether the maximum punishment for attempted murder was determined by the maximum punishment for assault with intent to murder. Holding that it was not, we recognized that Maryland has retained the crime of attempt as a common law misdemeanor. Id. at 128 , 482 A.2d 474 . We said that the offense is “generally defined as the intent to commit a crime coupled with some overt act beyond mere preparation in furtherance of the crime,” id., citing Lightfoot and Wiley .

We did not elaborate on this definition. Our opinions leave much unanswered. The application of particular facts to the law of criminal attempts frequently gives rise to problems in one or more of three aspects: (1) The determination of the overt act which is beyond mere preparation in furtherance of the commission of the crime. (2) At what point may the attempt to commit the intended crime be abandoned so as to escape liability.

(3) What is the effect on culpability of impossibility to commit the intended crime. This Court has addressed only the abandonment aspect. Wiley v. State, 237 Md. at 564-565 , 207 A.2d 478 . The Court of Special Appeals has been exposed to the offense of criminal attempt in a number of cases.

See note 2 supra. Gray v. State, 43 Md.App. at 239 , 403 A.2d 853 rephrased the Wiley definition of attempt in terms of Lightfoot to read that a criminal attempt consists of “1) a specific intent to do a criminal act and 2) some act in furtherance of that intent going beyond mere preparation.” The intermediate appellate court dealt with the impossibility aspect of criminal attempts in two cases, In Re Appeal No. 568, Term 1974, 25 Md.App. 218, 220-223 , 333 A.2d 649 , cert. denied, 275 Md. 751 (1975) and Waters v. State, 2 Md.App. 216, ³⁰⁴ 226-228, 234 A.2d 147 (1967), cert. denied, 259 Md. 737 (1970). It discussed the aspect of “the overt act beyond mere preparation” in Frye v. State, 62 Md.App. 310 , 489 A.2d 71 (1985). As yet we have not indicated our approval or disapproval of the views expressed in those cases.

Such was the posture of the law of Maryland regarding criminal attempts when Raymond Alexander Young, also known as Morris Prince Cunningham and Prince Alexander Love, was found guilty by a jury in the Circuit Court for Prince George’s County of two crimes: (1) the attempted armed robbery of the manager of the Fort Washington, Md. branch of the First National Bank of Southern Maryland (the Bank) and (2) transporting a handgun. He was sentenced to 20 years on the attempt conviction and to a consecutive three year sentence on the handgun conviction. 3 The Court of Special Appeals affirmed the judgments in an unreported per curiam opinion, Young v. State, No. 1429, September Term, 1983, filed 14 August 1984. Upon Young’s petition we ordered that the record and proceedings be certified to us, but we limited our review to the sole question of whether the evidence was legally sufficient to prove that Young had committed the crime of attempted armed robbery 485 A.2d 269 . 4 ³⁰⁵ There is no dispute as to the circumstances which led to the indictment of Young. Several banks in the Oxon Hill-Fort Washington section of Prince George’s County had been held up.

The Special Operations Division of the Prince George’s Police Department set up a surveillance of banks in the area. In the early afternoon of 26 November 1982 the police team observed Young driving an automobile in such a manner as to give rise to a reasonable belief that he was casing several banks. They followed him in his reconnoitering. At one point when he left his car to enter a store, he was seen to clip a scanner onto his belt.

The scanner later proved to contain an operable crystal number frequency that would receive Prince George’s County uniform patrol transmissions. At that time Young was dressed in a brown waist-length jacket and wore sunglasses. Around 2:00 p.m. Young came to rest at the rear of the Fort Washington branch of the First National Bank of Southern Maryland.

Shortly before, he had driven past the front of the Bank and parked in the rear of it for a brief time. He got out of his car and walked hurriedly beside the Bank toward the front door. He was still wearing the brown waist-length jacket and sunglasses, but he had added a blue knit stocking cap pulled down to the top of the sunglasses, white gloves and a black eyepatch. His jacket collar was turned up.

His right hand was in his jacket pocket and his left hand was in front of his face. As one of the police officers observing him put it, he was “sort of duck[ing] his head.” It was shortly after 2:00 p.m. and the Bank had just closed. Through the windows of his office the Bank Manager saw Young walking on the “landscape” by the side of the Bank toward the front door. Young had his right hand in his jacket pocket and tried to open the front door with his left hand.

When he realized that the door was locked and the Bank was closed, he retraced his steps, running past the windows with his left hand covering his face. The Bank Manager had an employee call the police. ³⁰⁶ Young ran back to his car, yanked open the door, got in, and put the car in drive “all in one movement almost,” and drove away. The police stopped the car and ordered Young to get out. Young was in the process of removing his jacket; it fell over the car seat and partially onto the ground.

The butt of what proved to be a loaded .22 caliber revolver was sticking out of the right pocket of the jacket. On the front seat of the car were a pair of white surgical gloves, a black eyepatch, a blue knit stocking cap, and a pair of sunglasses. Young told the police that his name was Morris P. Cunningham. As Young was being taken from the scene, he asked “how much time you could get for attempted bank robbery.” A criminal attempt requires specific intent; the specific intent must be to commit some other crime. 5 The requisite intent need not be proved by direct evidence.

It may be inferred as a matter of fact from the actor’s conduct and the attendant circumstances. See R. Perkins & R. Boyce, Criminal Law at 637-640 (3d ed. 1982); A Treatise on the Law of Crimes (Clark & Marshall) § 4.08 (M. Barnes, 7th Ed.1967); 4 Wharton’s Criminal Law § 743 (C. Torcía, 14 Ed.1981 & Supp.1985); W. LaFave & A. Scott, Handbook on Criminal Law § 59 at 428-431 (1972); A. Loewy, Criminal Law in a Nutshell, § 9.02 at 152 (1975). Young concedes that “evidence is present ... from which it is possible to infer that [he] may have intended to commit a crime inside the bank____” He suggests, however, that this evidence is not “compelling____” We think that it is most compelling. We believe that it is more than legally sufficient to establish beyond a reasonable doubt ³⁰⁷ that Young had the specific intent to commit an armed robbery as charged.

We noted supra that in Wiley v. State, 237 Md. 560 , 207 A.2d 478 , this Court addressed the abandonment aspect of criminal attempts. We observed in Wiley that there was agreement among the text writers and the cases that if one who has intended to attempt a crime freely and voluntarily abandons the idea before it has progressed beyond mere preparation, he has not committed the crime of attempt; but a voluntary abandonment of an attempt which has proceeded beyond mere preparation into a direct act or acts in furtherance of the commission of the attempt does not expiate the guilt of, or forbid punishment for, the crime already committed. 237 Md. at 564 , 207 A.2d 478 . Compare Model Penal Code (Proposed Official Draft 1962) § 5.01(4) and State of Maryland Comm’n on Criminal Law, Proposed Criminal Code (1972) § 110.15. The Wiley rule precludes renunciation after the conduct of a person has reached the stage of an indictable offense, that is when he has performed the overt act toward the culmination of his commission of the crime intended so as to render the offense of attempt complete.

Of course, if the person’s conduct has not progressed beyond mere preparation, in other words, he has not performed the requisite overt act, he would not be culpable in any event. It follows that when the renunciation occurs before the offense of attempt is completed, the reasons for the renunciation are immaterial. Whether the abandonment at that stage was motivated by increased fear of failure, detection, or arrest or simply by a change of heart is of no matter. The short of it is that if the requisite overt act has not yet occurred, there is nothing to forgive; if the act has occurred, it is too late to renounce and abandon what has become a punishable offense.

Such is the teaching of Wiley , and Young recognizes that “Maryland has specifically held that there can be no abandonment once the ‘overt act’ has been committed.” Thus, the thrust ³⁰⁸ of Young’s argument that the evidence was not sufficient to sustain his conviction of attempted armed robbery goes to that aspect of criminal attempts which requires the performance of some overt act which is more than mere preparation for the commission of the intended crime. 6 The determination of the overt act which is beyond mere preparation in furtherance of the commission of the intended crime is a most significant aspect of criminal attempts. If an attempt is to be a culpable offense serving as the basis for the furtherance of the important societal interests of crime prevention and the correction of those persons who have sufficiently manifested their dangerousness, the police must be able to ascertain with reasonable assurance when it is proper for them to intervene. It is not enough to say merely that there must be “some overt act beyond mere preparation in furtherance of the crime” as the general definition puts it. It is true that this definition is in line with the observation of Justice Holmes that [ijntent to commit a crime is not itself criminal.

There is no law against a man’s intending to commit a murder the day after tomorrow. The law deals only with conduct. An attempt is an overt act. 0. Holmes, The Common Law 65 (1923).

But more is needed. It has been suggested that an answer to the question of what overt act is required, couched in terms of “mere preparation,” will not suffice. It does not “resolve the problem; it simply restates it.” Loewy, supra. § 9.03, at 154 (1975). The definition does, however, highlight the problem as to what “proximity to completion [a ³⁰⁹ person] must achieve before he can be deemed to have attempted [to commit] a crime.” Id.

In solving this problem the interest of society and the rights of the individual must be kept in balance. Thus, the importance of the determination of the point at which the police may properly intervene is readily apparent. There is no dispute that there must be some overt act to trigger police action. As we have seen, bad thoughts do not constitute a crime, and so it is not enough that a person merely have intended and prepared to commit a crime. “There must also be an act, and not any act will suffice.” LaFave & Scott, supra, § 59, at 431.

What act will suffice to show that an attempt itself has reached the stage of a completed crime has persistently troubled the courts. They have applied a number of approaches in order to determine when preparation for the commission of a crime has ceased and the actual attempt to commit it has begun. It is at the point when preparation has been completed and perpetration of the intended crime has started that a criminal attempt has been committed and culpability for that misdemeanor attaches. A number of text writers have discussed and evaluated the different approaches employed by the courts to resolve the problem.

We find the exposition of these approaches by LaFave and Scott to be the clearest, and what follows is taken largely from their comments on “The Act” at pages 431-438 of their Handbook on Criminal Law, supra. In the “Proximity Approach” the act must be sufficiently proximate to the intended crime. But how proximate? The strictest approach is that the