Broadway v. State

• Decision Date: 15 October 1974
• Docket Number: No. 877,877
• Citation: 326 A.2d 212,23 Md.App. 68
• Parties: Walter Edward BROADWAY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 68

23 Md.App. 68

326 A.2d 212

Walter Edward BROADWAY v. STATE of Maryland.

No. 877.

Court of Special Appeals of Maryland.

Oct. 15, 1974.

Certiorari Denied Jan. 29, 1975.

James P. Salmon, Assigned Public Defender, Upper Marlboro, with whom was Edward P. Camus, Dist. Public Defender, Riverdale, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., Prince George's County and Richard P. Arnold, Asst. State's Atty., Prince George's County, on the brief, for appellee.

Argued before ORTH, C. J., and POWERS and DAVIDSON, JJ.

ORTH, Chief Judge.

On 9 January 1973 an indictment was filed in the Circuit Court for Prince George's County against Walter Edward Broadway ¹ charging him in the first count with robbery with a deadly weapon and in eight other counts with related offenses, including under the ninth count that he unlawfully used a handgun in the commission of a crime of violence. When the indictment came on for trial on 10 April 1973, Broadway filed a motion to dismiss it. The ground for the motion was that he was 17 years of age on 6 December 1972, the date of the commission of the crimes. He claimed that the juvenile court had original jurisdiction over him, and had not waived it. Upon a hearing on the motion, at which it was stipulated that Broadway was born on 10 November 1955, the motion was denied. Broadway noted an appeal from the denial, but dismissed it on 11 May 1973. He was tried before a jury and on 14 September 1973 was found guilty under the first and ninth counts. Upon receipt of a pre-sentence report he was sentenced on 16 October to 11 years on the robbery conviction and to a consecutive sentence of 5 years on the handgun violation. He filed a timely appeal.

I

Broadway's first two contentions attack the propriety of the denial of his motion to dismiss the indictment.

Chapter 514, Acts 1972, § 1, effective 1 July 1972, codified as Code, Art. 26, § 70-2(d)(3), designated an additional exemption in the general law to the exclusive original jurisdiction of a juvenile court. It provided that the court does not have jurisdiction over 'A proceeding involving a child who has reached his sixteenth birthday, alleged to have done an act in violation of § 488 of Article 27 concerning the crime of robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.' Chapter 772, Acts 1973, effective 1 July 1973, amended the exemption to read:

'A proceeding involving a child who has reached his sixteenth birthday, alleged to have done an act which, if committed by an adult, would be punishable by § 488 of Article 27 as robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.' ²

The exemption now appears in the Courts and Judicial Proceedings Article (Courts Art.) as § 3-808(4) in these words 'The court does not have jurisdiction over:

(4) A child 16 years or older alleged to have committed the crime of robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.'

The Revisor says in his note: 'Paragraph (4) reflects the change made by ch. 772, Acts of 1973, clarifying the language concerning jurisdiction over the crime of robbery with a deadly weapon.'

(i)

Broadway first argues, as he argued below, that the exemption as in effect at the time he was indicted was 'so uncertain, incomplete, or conflicting' that it cannot be executed and must be 'declared inoperative and void.' The premise of this argument is that Code, Art. 27, § 488 does not create a substantive crime but only authorizes a penalty for the common law crime of robbery more severe when the robbery is committed with a deadly weapon than when it is not. ³ He cites as authority for the premise the decisions on this Court-McChan v. State, 9 Md.App. 311, 315, 264 A.2d 130; Parker v. State, 7 Md.App. 167, 197, 254 A.2d 381; Barnes v. State, 5 Md.App. 144, 146, 245 A.2d 626; Jones v. State, 3 Md.App. 608, 613, 240 A.2d 347; Darby v. State, 3 Md.App. 407, 413, 239 A.2d 584. Therefore he posits, he could not have been 'alleged to have done an act in violation of § 488 of Article 27' because the statute creates no offense to be violated. It follows that the exemption is meaningless and the juvenile court had exclusive original jurisdiction over him which it did not waive. Thus, he claims the indictment was improperly returned, he cannot be tried under it, and it should have been dismissed.

The argument gave the lower court no pause, and it gives us none. The court below found the clear legislative intent to have been that a child of 16 years or older, alleged to have committed the crime of robbery with a deadly weapon, is without the jurisdiction of the juvenile court. We are in complete agreement. It may be that the statute as originally enacted could have been more artfully drafted, but the legislative intent, as obviously demonstrated by the subsequent clarifying amendments, was clear and unambiguous. We note that all presumptions favor the constitutionality of a duly enacted statute, and it will not be declared unconstitutional unless it plainly contravenes the federal or state constitution. Woodell v. State, 2 Md.App. 433, 234 A.2d 890. We said in Bacheller v. State, 3 Md.App. 626, 632, 240 A.2d 623, 626: 'The formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity. Therefore, the enunciation of the meaning and ambit of a specific statute by judicial construction strives to ascertain and define the legislative intent and purpose, and upon making of a determination of the legislative meaning the efficacy of the statute is more clearly and precisely promulgated.' As indicated, we have no doubt here of the legislative intent and purpose. We hold that the statute was not unconstitutionally vague or indefinite. See Anderson v. State, 12 Md.App. 186, 278 A.2d 439.

(ii)

Broadway's second contention ⁴ follows the rationale of our decision in Matter of Trader, 20 Md.App. 1, 315 A.2d 528. Under the public general law an order waiving juvenile jurisdiction is interlocutory and not immediately appealable. Under the public local law applicable to Montgomery County such an order is final and immediately appealable. We held the public general law to be void because the differences between the public general law and the public local law mounted up to an invidious discrimination violative of the equal protection clause of the constitution. The Court of Appeals on grant of certiorari to this Court did not see it that way on the record submitted. It said: 'Since no evidence was adduced in the proceedings below to demonstrate the lack, of a reasonable basis for the statutory distinction, and since the difference in treatment is not so irrational as to be invidiously discriminatory on its face, we hold on the record in Trader's case that he was not denied equal protection of the laws by reason of the provisions of § 3-817 of the public general law declaring that a waiver is interlocutory.' Matter of Trader, Md. 325 A.2d 398, filed 13 September 1974. In its Trader opinion the Court of Appeals decided three other cases spinning off of our Trader holding. ⁵ One of them, State v. Stokes, is determinative of Broadway's contention. We give its factual posture in the words of the Court of Appeals, Matter of Trader, 325 A.2d at 404:

'Appellee Stokes was charged with armed robbery in the Criminal Court of Baltimore; he was then 16 years old. He moved to dismiss the indictment on the ground that § 3-808(4) of the public general law, excluding a child 16 years or older from the juvenile jurisdiction of the court, was unconstitutional because no similar provision exempted children from treatment as juveniles under the Montgomery County law. The court (Liss, J.), relying principally upon Matter of Trader, supra, granted the motion to dismiss, holding § 3-808(4) violative of the equal protection clause. * * * The court concluded as a matter of constitutional law 'that whenever any substantial or privilege is granted to a juvenile in Montgomery County, all other juveniles in the State are entitled to the same right or privilege.' The State appealed the dismissal of Stokes indictment to the Court of Special Appeals; we granted certiorari prior to decision by the Court of Special Appeals upon the State's petition seeking our review of the judgment of the Criminal Court of Baltimore.'

The Court of Appeals said, at _ _:

'As in Matter of Trader, the record before in Stokes contains no evidence to support the trial judge's conclusion that no state of facts conceivable exists to justify the treatment of a 16-year-old child who commits armed robbery as an adult offender under the public general law while requiring a similarly situated child under the Montgomery County law to be waived before becoming subject to criminal prosecution. Nothing in Long v. Robinson (316 F.Supp. 22 (D.Md.1970), affirmed in Long v. Robinson, 436 F.2d 1116 (4th Cir. 1971)) compels such a result and we reject the notion espoused by the trial judge in Stokes 'that whenever any substantial right or privilege is granted to a juvenile in Montgomery County, all other juveniles in the State are entitled to the same right or privilege.' The difference in treatment afforded 16-year-old armed robbers by the two laws is not, on its face, so irrational and invidiously discriminatory as to constitute a denial of the equal protection clause, particularly in view of the reverse waiver provisions contained in the public general law. In the absence of the requisite showing of unconstitutionality by the party attacking the legislative classification, it cannot be said that it does not rest upon any reasonable...