STATE OF MARYLAND v. EUGENE SHAW FRYE
No. 133, September Term, 1977
WILLIE LEE JONES, JR. v. STATE OF MARYLAND
No. 173, September Term, 1977
Court of Appeals of Maryland
November 16, 1978
283 Md. 709 | 393 A.2d 1372
*
*
Decided November 16, 1978.
of both the federal and State principles of due process applied by this Court in Barry Properties v. Fick Bros., 277 Md. 15, 353 A. 2d 222 (1976). Since this appeal can be disposed of on nonconstitutional grounds, we do not reach this issue. Our action in this regard is supported by the longstanding principle that courts will not “anticipate a question of constitutional law in advance of the necessity of deciding it.” Steamship Co. v. Emigration Commissioners, 113 U. S. 33, 39, 5 S. Ct. 352, 28 L. Ed. 899 (1885); see A & H Transp. Inc. v. Baltimore, 249 Md. 518, 531, 240 A. 2d 601, 608 (1968); State v. Cherry, 224 Md. 144, 155, 167 A. 2d 328, 333 (1961); Jeffers v. State, 203 Md. 227, 230, 100 A. 2d 10, 11 (1953). By disposing of the constitutional issue in this manner we are, of course, not to be understood as intimating any opinion as to whether an attachment on original process proceeding comports with constitutional due process. Further, we express no view on the question of whether these appellees, as distinguished from the Friedmans, have standing to raise this issue.
In No. 133, Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellant.
In No. 173, George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Martha G. Villmoare, Assistant Public Defender, on the brief, for appellant.
In No. 173, Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
ELDRIDGE, J., delivered the opinion of the Court. MURPHY, C. J., concurs in the judgments and filed a concurring opinion at page 725 infra.
This Court in Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), held that when a defendant is charged with both murder and a felony arising from the same transaction, and is convicted of murdеr based upon the felony murder doctrine, the underlying felony merges into the murder conviction. The two cases now before us involve the application of the Newton holding under circumstances where we do not know whether the jury‘s finding of murder was premised upon the felony murder doctrine.
I.
Before turning to the facts of the instant case, it would be useful to briefly review the applicable legal background. It is provided in
In Newton v. State, supra, the defendant was charged with murder of a taxicab driver and attempted armed robbery of the driver, both charges growing out of the same transaction. The evidence established that the defendant Newton and a companion, after borrowing a revolver, hailed a taxicab. After proceeding one block, the companion told the driver that it was a “stick-up” and that he should stop the cab. The driver complied and raised his hands; nevertheless he was shot and killed. The testimony was in sharp conflict as to which one did the shooting. Newton testified that it was the companion who shot the driver, and the companion testified that it was Newton. Newton had elected a non-jury trial, and at the end of the trial, the court found him guilty of first degree murder expressly on the basis that the killing was “in the course of the perpetration of an attempted robbery.” In addition, the court found Newton guilty on the attempted armed robbery charge, and sentences were imposed on both convictions. After the Court of Special Appeals upheld both convictions and sentences, we granted a writ of certiorari to consider Newton‘s contention that separate sentences for both felony murder and the underlying felony constituted double punishment in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
We initially stated in Newton that whether a separate sentence for attempted robbery violated the Double Jeopardy Clause depended upon “whether felony murder and the underlying felоny upon which the murder conviction is founded are to be deemed the same offense under federal double jeopardy principles.” 280 Md. at 265. We then pointed
“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U. S. 299, 304 (1932):
‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....’
This test emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....’ Iannelli v. United States, 420 U. S. 770, 785 n. 17 (1975).”
And, as explained in Thomas v. State, 277 Md. 257, 267, 353 A. 2d 240 (1976):
“The required evidence is that which is minimally necessary to secure a conviction for each statutory
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 purposes even though 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 purposes.”
Applying the required evidence test in Newton, we held that felony murder and the underlying felony must be treated as one offense for double jeopardy purposes. After discussing the requirements for proving first degree murder under the felony murder doctrine (
“Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other dоes not, under the required evidence test the underlying felony and the murder [constitute the same offense for double jeopardy purposes and] merge.”
Two months after our decision in Newton, the Supreme Court reached the same conclusion in Harris v. Oklahoma, 433 U. S. 682, 97 S. Ct. 2912, 53 L.Ed.2d 1054 (1977), namely that felony murder and the underlying felony are to be deemed the same offense under the Double Jeopardy Clause of the
“When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.”2
See also Brown v. Ohio, supra, 432 U. S. at 168.
Although we held in Newton that felony murder and the underlying felony are to be considered one offense for purposes of multiple punishment, and therefore the underlying felony would merge into the felony murder conviction, we also emphasized that if a first degree murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under
The defendant in one of the instant cases, Eugene Shaw Frye, was charged in two separate indictments with four violations of the criminal law which are here relevant. In one indictment, he was charged in the first count with murder and in the second count with using a handgun in the commission of a crime of violence (i.e., the murder). In the other indictment, he was accused in one count of robbery with a dangerous аnd deadly weapon and in another count of using a handgun in the commission of a crime of violence (i.e., the robbery). He was brought to trial, before a jury, in the Criminal Court of Baltimore. With respect to the murder count, the State proceeded both on the theory of wilful, deliberate and premeditated murder and on the theory of felony murder. The evidence presented by the State tended to establish that on November 29, 1975, Frye entered a grocery store and ordered some luncheon meat. As the proprietor was slicing the meat, Frye went behind the counter and drew a handgun on him. After a brief affray, Frye shot the shopkeeper, removed money from the cash register, and proceeded to flee. This account of the shooting was directly contradicted by Frye, who claimed that the gun fell out of his pocket and accidentally discharged.
At the conclusion of Frye‘s trial, the jury was instructed on felony murder, on wilful, deliberate and premeditated murder, and on robbery with a dangerous and deadly weapon. No instruction was given or requested tеlling the jury that if it decided that Frye was guilty of murder, it should then state whether such verdict rested upon the theory of felony murder or upon a finding of wilful, deliberate and premeditated murder. Moreover, no alternative instruction was given or requested such as advising the jury that, if it based a murder verdict upon the felony murder doctrine, it should not then consider the underlying robbery charge or the handgun charge associated with the robbery charge. The jury found the defendant guilty of first degree murder and robbery with a dangerous and deadly weapon. Due to the general verdict of first degree murder, and the lack of direction in the instructions, there is no basis to determine
Frye took an appeal to the Court of Special Appeals, arguing that Newton v. State, supra, required merger of the underlying felony into the murder conviction. Although the issue was not raised at the trial level, the Court of Special Appeals invoked its discretionary authority under
“The trial judge, when confronted with a murder case involving a ‘felony murder,’
Md. Ann. Code art. 27, § 410 , should instruct the jury that they are to indicate by their verdict whether, from all the evidence, they have found the accused guilty of a felony murder under§ 410 , or they have found the requisite intent of ‘wilfulness, premeditation and deliberation’ independent of the underlying felony so that the accused is guilty of a§ 407 murder. The jury should also be instructed that they are to render a verdict on each of the other counts of the indictment be the murder a violation of§ 407 or§ 410 . When the jury finds the accused guilty of a§ 410 murder, the underlying felony should be deemed to be merged into the murder and a separate sentence should not be imposed for the underlying felony violation. On the other hand, if the jury returns a
verdict of guilty of murder under
§ 407 and the underlying felony, the trial judge is at liberty to impose sentences on both the murder and the underlying felony.“As we have indicated, in the absence of such jury instructions and in light of the resultant verdicts, we are unable to state which of the permissible inferences the jury drew in arriving at its verdict in the case sub judice. We resolve the doubt in favor of the appellant, and we vacate the judgments entered on the robbery with a deadly weapon and the related handgun charge.”
We granted the State‘s petition for a writ of certiorari, limited to the question whether the Court of Special Appeals had misapplied our decision in Newton v. State, supra.4
The defendant in the other case now before us, Willie Lee Jones, Jr., was charged by the State with three counts of murder, four counts of kidnapping, and four counts of unlawful use of a handgun in the commission of a felony. The evidence presented by the prosecution at Jones‘s jury trial shоwed that he, along with two other men, kidnapped four individuals at gunpoint and took them to a wooded area in Prince George‘s County. The reason for the abductions was that the four victims were suspected of having stolen cocaine belonging to Jones‘s sister. After purporting to ascertain that three of the kidnapped victims were involved in the theft, these three were shot and killed.
At the close of Jones‘s trial, the jury was instructed on felony murder, on wilful, deliberate and premeditated murder, on kidnapping, and on the unlawful use of a handgun in the commission of a felony. As in Frye, the court was not asked to and did not of its own accord give the jury any instructions designed to reveal the basis of a murder verdict. The State expressly argued to the jury that Jones was guilty
Jones took an appeal to the Court of Special Appeals, arguing, among other things, that under Newton v. State, supra, the kidnapping and murder convictions merged. The Court of Special Appeals, as it did in its Frye decision two months earlier, considered the question on its merits despite the defendant‘s failure to raise the issue at trial. On the merits, however, the Court of Special Appeals reached a conclusion exactly opposite from its earlier conclusion in Frye, and it affirmed the felony and associated handgun convictions, saying (Jones v. State, 38 Md. App. 288, 304, 380 A. 2d 659 (1977)):
“The appellant‘s final contention is that since the conviction for murder in the first degree might have rested upon
Article 27, § 410 , providing, inter alia, that all murder committed in the perpetration of a kidnapping shall be murder in the first degree, the underlying felony of kidnapping must, in three of the indictments at least, merge into the ensuing felony-murders. The appellant relies upon Newton v. State, 280 Md. 260, 373 A. 2d 262. Newton, of course, does not stand for such a proposition at all. It rather holds that if the only credible evidence before a fact finder which could justify finding that the highest degree of blameworthiness existed in a homicide case was the fact that one of the felonies spelled out
in
§§ 408-409 or410 was being perpetrated, or attempted, then and only then would the undergirding felony, or its attempt, merge of necessity into the conviction for homicide. If, on the other hand, there was legally sufficient independent evidence of wilfulness, deliberation and premeditation underArticle 27, § 407 , then the merger would not be compelled.’ ”5
The defendant Jones then petitioned this Court for a writ of certiorari, raising solely the matter of the proper application of Newton to the underlying felony and associated handgun convictions. We granted the petition and heard the case along with Frye.
III.
The State‘s argument in these two cases is the same as the position adopted by the Court of Special Appeals in Jones. The State contends that under the Newton holding, an underlying felony would merge into a murder conviction only if the sole evidentiary basis for the murder verdict is the felony murder doctrine, but that if there is any legally sufficient evidence of wilfulness, deliberation and premeditation, there would be no merger. This interpretation of our decision in Newton is patently incorrect. The facts of Newton itself show the State and the Court of Special Appeals in Jones to be in error. Newton was not a case where the only credible evidence justifying a murder finding was evidence establishing felony murdеr. The testimony of Newton‘s companion, contradicting Newton‘s version of the shooting and stating that Newton himself intentionally and deliberately shot the taxicab driver, was clearly legally sufficient evidence of wilfulness, premeditation and deliberation.6
The effect of the position taken by the State and by the Court of Special Appeals in Jones, is to assume that the jury rested its murder verdict on a finding of wilful, deliberate and premeditated killing instead of on the felony murder theory in every case where there is any evidence of wilfulness, deliberation and premeditation. But in cases like Newton, Frye and Jones, there would be no justification for such an assumption. If Newton had been a jury trial, and if the jury had believed the testimony of the defendant Newton that the killing of the taxicab driver was solely the work of his companion, the basis of the jury‘s murder verdict would have been felony murder. In the Frye case, if the jury believed the defendant‘s account that the gun fell out of his pocket and accidentally discharged, the murder verdict would not rest on the evidence оf wilfulness, deliberation and premeditation. The prosecuting attorney in Jones extensively argued the felony murder theory to the jury as an alternative basis of conviction if the jury found an absence of wilfulness, deliberation and premeditation. To infer in these cases that the basis for the first degree murder verdict was a finding of wilfulness, deliberation and premeditation, would be sheer speculation.
The convictions and sentences for the underlying felonies in the present cases are supportable if the juries found wilful, deliberate and premeditated killings but are not supportable if the murder verdicts rested upon the felony murder theory, and it is impossible to tell which basis was chosen by the juries
“In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 291-292; Cramer v. United States, 325 U. S. 1, 36, n. 45.”
See also Leary v. United States, 395 U. S. 6, 31-32, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969).
Whеre there is more than one ground for a verdict on a criminal charge, but where the ramifications of a guilty verdict on that charge will be different depending upon the ground chosen by the jury, the obvious way to deal with the situation is, as indicated by the court below in Frye, to give the jury adequate advisory instructions. See United States v. Quicksey, 525 F. 2d 337 (4th Cir. 1975), cert. denied, 423 U. S. 1087, 96 S. Ct. 878, 47 L.Ed. 2d 97 (1976); Brown v. United States, 299 F. 2d 438 (D.C. Cir. 1962). In cases like the present ones, the court should, in advising the jurors as to the form of their verdict, give them appropriate instructions so that the basis of a first degree murder verdict will be revealed.7
In the normal situation where a defendant is charged both with a greater сrime and with a lesser included offense, and where a guilty verdict with regard to the greater crime will
The Court of Special Appeals in Frye, because of the ambiguity in the jury‘s verdict due to the absence of adequate instructions, “resolve[d] the doubt in favor of the appellant, and... vacate[d] the judgments entered on the robbery with a deadly weapon and the related handgun charge.” 37 Md. App. at 480. Although we agree with this result in Frye because of an unusual aspect of the appeal in that case, we believe that the relief to be granted in Jones should be somewhat different.
If there had been appropriate jury instructions in Jones, the jury might have based its murder verdicts on a finding of wilful, deliberate and premeditatеd homicide. It would have considered the underlying felony charges and the associated handgun charges, and guilty verdicts on those felony counts could properly have resulted in sentences. It was not in any manner the State‘s fault that such instructions were not given. Under these circumstances, we believe that the State may, if it is so inclined, elect to re-try Jones on the murder, underlying felony and associated handgun charges. In such event, the jury should be instructed as indicated in this
However, the State may not have such an election in the Frye case because the defendant Frye, unlike Jones, did not take an appeal from the murder conviction. For the State to try him again for murder would violate the prohibition against double jeopardy. Benton v. Maryland, 395 U. S. 784, 796-797, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); Green v. United States, 355 U. S. 184, 188-194, 78 S. Ct. 221, 2 L.Ed.2d 199 (1957).
Judgment in No. 133 affirmed.
Costs to be paid by the Mayor and City Council of Baltimore.
Judgment in No. 173 reversed, and case remanded to the Court of Special Appeals for the entry of a new judgment not inconsistent with this оpinion.
Costs to be paid by Prince George‘s County.
Murphy, C. J., concurring:
I dissented in Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), on the ground that convictions and the imposition of separate punishments thereon at a single trial of the distinct offenses of murder in the perpetration of an attempted robbery (felony murder) and the attempted robbery itself did not, under the applicable required evidence test, violate the double jeopardy clause of the federal constitution. I expressed the belief in Newton that the weight of authority supported that view. The subsequently decided Supreme Court cases of Brown v. Ohio, 432 U. S. 161, 166, 97 S. Ct. 2221, 53 L.Ed.2d 187 (1977), and Harris v. Oklahoma, 433 U. S. 682, 97 S. Ct. 2912, 53 L.Ed. 2d 1054 (1977), which the majority cites in suрport of the contrary view which it took in Newton deal with successive prosecutions and not, as here, with a single