STATE of Maryland v. Theresa M. NORTH
No. 126, Sept. Term, 1998
Court of Appeals of Maryland
Oct. 13, 1999
739 A.2d 33
Craig S. Garfield, Baltimore, for appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW*, RAKER, WILNER and CATHELL, JJ.
* Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decisions and adoption of this opinion.
In Grill v. State, 337 Md. 91, 651 A.2d 856 (1995), we held that a person who purchases what he or she believes is a controlled dangerous substance, with the intent to purchase such a substance, but who receives instead a look-alike item that is not, in fact, a controlled dangerous substance, may be convicted of the common law crime of attempting to purchase a controlled dangerous substance. The principal defense raised by Ms. Grill, who purchased the item from an undercover police officer, was that of “legal impossibility“-that, because actual possession of a non-controlled dangerous substance is not a crime and because a criminal intent alone, unaccompanied by a criminal act, is not punishable, she incurred no criminal liability for merely intending to possess a substance that, under the circumstance, she never did or could possess.
We found it unnecessary to determine whether, under Maryland law, legal impossibility is a defense to a criminal attempt charge, for we concluded that, even if it was, the actual issue presented by the case was one of factual impossibility, not legal impossibility, and that factual impossibility is not a defense to a charge of attempt. We adopted the view expressed by Professor Perkins that a person may not escape responsibility by showing that, by reason of some fact unknown to him or her at the time of the criminal attempt, the person‘s intended scheme could not be fully carried into effect. See id. at 96, 651 A.2d at 858, citing ROLLINS M. PERKINS, CRIMINAL LAW, 2d ed. (1969) at 567. We thus concluded that Grill “entertained a specific intent, coupled with an overt act in furtherance of that intent, to purchase actual CDS, failing only to effectuate her intention by a fact unknown to her, i.e., that what she purchased was not heroin but rather a noncontrolled ‘look-alike’ substance,” and that such conduct sufficed to establish a common law attempt to purchase actual CDS. Id. at 97, 651 A.2d at 859.
Ms. Grill raised a second issue before us. Noting the enactment in 1991 of
This case squarely presents that issue. Much like Peggy Sue Grill, appellee, Theresa North, purchased from an undercover police officer, for $10, what she reasonably believed was a bag of heroin. In fact, the substance sold to her was not a controlled dangerous substance, but an imitation. When stopped moments later, she ate the bag, with the substance in it. North was arrested and charged with attempt to purchase a controlled dangerous substance. She moved to dismiss the charge, claiming that her conduct fell squarely within
DISCUSSION
As we indicated in Grill, the issue before us is one of legislative intent-whether, through its enactment of
This view, generally disfavoring repeal of the common law by implication, has a long history in Maryland. In Hooper v. Mayor & C.C. of Balto., 12 Md. 464, 475 (1859), we quoted with approval from DWARRIS ON STATUTES at 695 that “it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required,” but that “[t]he law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.” (Emphasis in original.) In Anderson v. State, 61 Md. App. 436, 449, 487 A.2d 294, 300 (1985), Judge Moylan explained the jurisprudential underpinning for that view, namely, the fact that, by Article 5 of the Declaration of Rights, the common law is Constitutionally guaranteed to the inhabitants of the State. Although that common law may be altered or repealed through statutes duly enacted by the General Assembly, given the Constitutional underpinning, its erosion is not lightly to be implied.
Under Maryland common law, the attempt to commit a crime is, itself, a separate misdemeanor. Lane v. State, 348 Md. 272, 283, 703 A.2d 180, 185 (1997). It is, however, an “adjunct crime” that “cannot exist by itself, but only in connection with another crime.” Cox v. State, 311 Md. 326, 330-31, 534 A.2d 1333, 1335 (1988). The attempt thus attaches itself to the substantive offense and is committed when a person, with the intent to commit that substantive offense “engages in conduct which constitutes a substantial step toward the commission of that crime, whether or not his [or her] intention is accomplished.” Lane v. State, supra, 348 Md. at
Neither
The bill that enacted
During the legislative process, the bill was substantially recast. Rather than criminalize in statutory form the attempt to purchase a controlled substance, subsection (a) was amended in the House of Delegates to proscribe the possession or purchase of a non-controlled substance that the person reasonably believes to be a controlled substance. Conforming amendments were made to subsection (b), and language was added defining the term “noncontrolled substance” and providing statutory guidance for determining whether the defendant reasonably believed the substance to be a controlled one. As the bill was enacted, therefore, the crime was a substantive one dealing with the purchase or possession of non-controlled substances, not a replacement of the existing common law offense of attempting to possess a controlled substance.
There is little in the files of the Department of Legislative Services dealing with the bill, but the documents that are available provide ample evidence of the legislative purpose. The Senate Judicial Proceedings Committee Bill Analysis and Floor Report note that the bill, as amended in the House of Delegates, was designed to facilitate reverse sting operations, in which law enforcement officials pose as street-level drug dealers and attempt to sell controlled dangerous substances, in an effort to suppress open-air drug markets and deter casual users from purchasing drugs. The Committee recounted that law enforcement officials had found those operations to be an effective deterrent but noted two problems with using real drugs: “the appearance of impropriety when law enforcement officials sell real drugs“; and the fact that, sometimes, the purchaser manages to get away or use the drug before an arrest can be made. To overcome those problems, the police had resorted to using imitations in their sting operations, but some district court judges “have dismissed charges in these cases, applying the theory of legal impossibility.” To avoid the prospect of dismissal, the police were forced to return to the use of real controlled dangerous substances. The bill “would permit law enforcement officers to use noncontrolled
Much of the information that led to these legislative findings came from a formal position paper submitted by the Department of Public Safety and Correctional Services. The department noted the success, from a police point of view, of reverse sting operations in suppressing open air drug markets but also pointed out that “when many of these cases were adjudicated, the court ruled that it was not an offense under current law to attempt to possess a substance which was only believed by the defendant to be a controlled dangerous substance, but which in fact was a placebo.” The department observed that the bill would provide a specific statute under which drug users could be prosecuted and would place law enforcement agencies “in the more ethical position of not having to sell CDS, no matter how diluted the quantity, in order to disrupt street-level drug sales.”
It is clear from these documents, and from the amendments made to the bill, that there was no intent on the part of the Legislature to circumscribe the existing crime of attempt. The problem, apart from the ethical ones noted, was that a number of courts, principally, it appears, district courts in Prince George‘s County, had concluded that the crime of attempt did not cover this kind of conduct. Until we decided Grill, in 1995, that was an open issue. It is not clear that all trial courts had reached the conclusion drawn by some of the judges in Prince George‘s County, but the fact that attempt charges had been routinely dismissed by one or more trial judges in a large county was of sufficient concern for the Legislature to act. The obvious intent was not to restrict or replace the law of attempt, especially in those areas where prosecutions were not being dismissed, but rather to provide an alternative offense that would not be subject to the “legal impossibility” defense being raised to attempt prosecutions. The Fiscal Note prepared for the bill by the Legislature‘s Department of Fiscal Services supports that proposition, for it assumes that more people will be convicted and sentenced.
In State v. Gibson, the issue was whether the enactment by the Legislature of
The court concluded that, in light of this uncertainty, the legislative intent behind
Forbes v. State merely confirmed the holding in State v. Gibson. While operating an automobile, Forbes struck and killed the victim; whether his conduct was intentional or negligent was in dispute. In a single-count indictment, Forbes was charged with murder. By virtue of
We recounted the analysis and holding in Gibson, noting that a contrary conclusion would have rendered
The legislative intent behind
On this record, we believe that the basic rule disfavoring repeal of the common law by implication, and not the exception to that rule, applies. We conclude that
JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS; APPELLEE TO PAY THE COSTS.
BELL, C.J., and ELDRIDGE, J., dissent.
ELDRIDGE, Judge, Dissenting:
I dissent. The majority‘s view is inconsistent with this Court‘s prior holdings in State v. Gibson, 254 Md. 399, 254 A.2d 691 (1969), affirming and adopting State v. Gibson, 4 Md. App. 236, 242 A.2d 575 (1968), and Forbes v. State, 324 Md. 335, 597 A.2d 427 (1991). Contrary to the majority, I find these cases controlling and not “distinguishable” from the case at bar.
Although the “rules of the common law are not to be changed by doubtful implication,” when it is clear that the survival of common law coverage “would in effect deprive [the statute] of its efficacy and render its provisions nugatory,” the statute abrogates the common law to the extent of its provisions. Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934), quoting 25 R.C.L. 1054. If the provisions of the statute are in conflict with the common law, then the statute controls, and if the statute covers an entire subject matter, the common law is replaced by the statute as to that subject. Ibid.
In State v. Gibson, supra, the defendant was charged with four counts of common law involuntary manslaughter and one count under
The situation in the case at bar is similar to that in Gibson and Forbes. Theresa North purchased a substance which she reasonably believed was heroin but which, in fact, was not a CDS at all. Like the question concerning common law misdemeanor-manslaughter in Gibson, in 1991 there was some question among trial courts as to whether a person in North‘s position could be found guilty of the common law offense of attempting to possess a CDS, or whether the defense of legal impossibility was applicable.1 In an effort to address these very limited circumstances within the larger subject of common law attempt to possess CDS, the General Assembly enacted
The penalty provision of
Once again, the legislative circumstances in the case at bar clearly parallel those involved in Gibson and Forbes. In Gibson, the defendant was facing a ten-year maximum imprisonment penalty under common law involuntary manslaughter, whereas the maximum penalty under the statute was limited to three years. In light of the disparate penalties, Chief Judge Murphy‘s opinion for the Court of Special Appeals in Gibson, adopted by this Court, stated (4 Md. App. at 247, 242 A.2d at 582):
“While the crime of manslaughter is not defined by statute in Maryland, it is, as heretofore stated, recognized by
Section 387 of Article 27 and provision made for its punishment. The rule is well settled that ‘where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a penalty for the same, or practically the same, offense, the later statute repeals the earlier one, and this is true whether the penalty is increased or diminished.‘”
This Court and the Court of Special Appeals in Gibson held that the clear intent of the “Manslaughter by Automobile”
The majority argues that the “obvious intent” of
If the statute and the common law were meant to co-exist in 1991, the new statute would have been nugatory in most counties of the State, and, after this Court‘s opinion in Grill v. State, supra, would have been nugatory throughout the entire State. Under the majority‘s holding, prosecutors will have no incentive to utilize
The General Assembly in 1991 carved out of the area of common law attempt to possess CDS the specific matter of attempt to possess noncontrolled substances reasonably believed to be CDS. It made a policy determination that the former offense should continue to be punishable by a maximum of four years imprisonment but that the latter offense should be punishable by a maximum of one year imprisonment. This policy decision makes sense in light of the obvious difference between CDS and noncontrolled substances. The majority today has overruled this legislative policy determination.
Chief Judge BELL concurs in this dissenting opinion.