Cooper v. State

• Decision Date: 07 November 1979
• Docket Number: No. 141,141
• Citation: 44 Md.App. 59,407 A.2d 756
• Parties: Dennis Gary COOPER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 59

44 Md.App. 59

407 A.2d 756

Dennis Gary COOPER v. STATE of Maryland.

No. 141.

Court of Special Appeals of Maryland.

Nov. 7, 1979.

John W. Sause, Jr., District Public Defender, for appellant.

Valerie A. Leonhart, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Donaldson C. Cole, Jr., State's Atty., for Cecil County and Paul S. Podolak, Asst. State's Atty., for Cecil County on the brief, for appellee.

Argued before GILBERT, C. J., and MORTON and WILNER, JJ.

GILBERT, Chief Judge.

The appellant, Dennis Gary Cooper, in this Court assails the judgment of the Circuit Court for Cecil County in an effort to have that judgment reversed. To accomplish that end, Cooper has raised half a dozen issues, ranging from a defective criminal information in the first instance to erroneous advisory jury instructions.

THE FACTS.

Cooper was tried before a jury on a four-count indictment filed March 20, 1978, charging larceny of goods "of the value of One Hundred Dollars and upwards." The indictment was in the normal form and as such contained the usual counts of receiving, petit larceny and receiving goods under the value of one hundred dollars. Additionally, the State's Attorney for Cecil County, lodged a Criminal Information ¹ against Cooper. It was filed on July 18, 1978 and contained two counts. The first charged Cooper with the common law offense of misprision of felony. ² The second count, which is the subject of this appeal, asserted that:

"COOPER . . . willfully, unlawfully and knowingly did aid, harbor and assist Roy Dean Duncan after the commission of two felonies, (1) Grand Larceny, and (2) Receiving Stolen goods over $100.00, and did so with full knowledge of said crimes. . . ."

The jury found verdicts of not guilty as to each count of the indictment and as to the first count of the Information. Cooper was found guilty, however, of the second count of the Information, aiding and abetting Duncan, "after the commission of two felonies." The trial judge imposed a sentence of eight years imprisonment but suspended the last year of that term and ordered that Cooper be placed on probation for a period of five years. Of course, the probationary period would not commence until the expiration of the period of incarceration. ³

From the record it is apparent that Cooper pleaded guilty to the unrelated offense of forgery. That plea was entered some three months after trial in the instant case. The sentence imposed was exactly the same as that in the matter now before us and was made concurrent therewith. No appeal was entered from that sentence.

Even if Cooper were to win, yet he would lose, because, as applied to him, our striking down of one identical concurrent sentence would leave Cooper substantially where he is, Viz, incarcerated for a period of eight years with the last year suspended, and Cooper's then being placed on probation for an additional five-year period. ⁴ Thus, Copper's "victory," if achieved, would be akin to that of Pyrrhus, King of Epirus (319-272 B.C.) ⁵ and, consequently, no victory at all except possibly to allow parole to be more favorably considered. Under the circumstances, our subsequent discussion is largely academic as applied to Cooper.

From the record it is apparent that Roy Dean Duncan stole certain personal property belonging to James R. West, from a "furniture type truck" which was also owned by West. The property, described as "stuff" by West, consisted in part of "Rogers Stainless Steel Silverware (Sic ), knives, forks and spoons," some "sets of steak knives," Corningware, ladies' wallets, an FM-AM radio, two deep fryers, a hot plate, costume jewelry, an electric clock, lawn chairs, and a "hot dog cooker." West's cost of the items taken totaled $588.

Duncan pleaded guilty to the theft and was sentenced to a term of two years. ⁶

Apparently, after the burglary, Duncan went to Cooper's home, a trailer. There he talked to Cooper's wife, Wanda, and obtained Wanda's permission to stay in the trailer provided he gave "her half the things that . . . (he) got out of the truck." Duncan denied that he talked to Cooper before the crime. Duncan did not, according to his testimony, tell Wanda how he had obtained the items. He said that he went to Cooper's trailer "because . . . where I was staying the man told me I'd have to move out because he was going to do something." Duncan testified that he gave some of the items to Lou Ann Bakeoven, a friend with whom he had been living. Cooper went with him when he took the items to Lou Ann's. Duncan denied that he sold any of the stolen property, but he gave "it all away." Cooper was not living in the trailer according to him and Duncan, although his wife did reside there. Duncan stayed in the trailer for "about a month and a half." Cooper was in and out of the trailer as he and his wife were "breaking up or getting back together, or something."

Trooper Robert Faul of the Maryland State Police received information in July 1977 from an unidentified individual about a larceny from a liquor store. Subsequent investigation led the trooper to believe that the informant was actually speaking of the theft from West's truck. Following up on the information he had, Faul spoke to Cooper who told the trooper that he, Cooper, had seen the "property which matched the description of the stolen property." Faul had spoken to Cooper "on numerous occasions" between September 1977 and the time Cooper was arrested in January 1978. "The topic of conversation," Faul said, "could very well have been points that I was investigating. I was charged with the investigation of the crime. He (Cooper) was a suspect at that time and was not charged with it."

The investigation obviously led Faul to conclude that Cooper was involved in the theft because he arrested Cooper on January 23, 1978, and charged him.

As we have already observed, the trier of fact, the jury, apparently did not share Faul's belief as it convicted Cooper only of aiding and abetting after the fact.

I.

THE CRIMINAL INFORMATION.

Cooper asserts that although his trial counsel did not raise the specter of the second count of the Criminal Information's not charging an offense cognizable under Maryland law, nevertheless, the issue can be raised at any time. Md.Rule 736 a 2.

That rule provides:

"a. Mandatory Motions.

A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:

2. A defect in the charging document, other than its failure to show jurisdiction in the court Or to charge an offense which defenses can be noticed by the court at any time." (Emphasis supplied.)

As used in Rule 736 a 2, the noun " 'Court' means the Circuit Court for any county . . .," but it does not mean this Court. Md.Rule 5 i. Notwithstanding the rule, the question of jurisdiction, it has been repeatedly held, may be raised at any time. Tate v. State, 236 Md. 312, 203 A.2d 882 (1968); Bowen v. State, 206 Md. 368, 111 A.2d 844 (1955); Berlinsky v. Eisenberg, 190 Md. 636, 59 A.2d 327 (1948); Carroll v. State, 19 Md.App. 179, 310 A.2d 161 (1973); Waldrop v. State, 12 Md.App. 371, 278 A.2d 619, Cert. denied, 263 Md. 722 (1971). Ergo, if the "failure . . . to charge an offense" is jurisdictional, then it too may be raised at any time, including on appeal, even though it was not raised and decided in the trial court. Carroll v. State, supra, 19 Md.App. at 181, 310 A.2d at 162.

We are required to focus our attention upon the charging instrument, the Criminal Information, in order to determine whether that writing charges an offense under the law of Maryland, and if the answer to that query is in the negative, we must then address ourselves to whether the defect is jurisdictional.

We begin our discussion by analyzing the second count of the Criminal Information, the count upon which the appellant was convicted. The essence of the offense charged in that count is that Cooper "willfully, unlawfully and knowingly did aid, harbor and assist . . . Duncan after the commission of two felonies, (1) Grand Larceny, and (2) Receiving Stolen Goods over $100.00, and did so with full knowledge of said crimes. . . ."

Appellant's assault on the phraseology of the charge is bimanous. On the one hand he asserts that the language of the count does not state an offense because it fails to allege the elements necessary to constitute the common law offense of accessory after the fact.

Sir William Blackstone, in IV Commentaries of the Law of England * 37 states:

"An accessary After The fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon(s). Therefore to make an accessary Ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessary." (Footnotes omitted.)

The more modern writers are in agreement that there are four necessary ingredients to constitute the crime of accessory after the fact:

1) A completed felony must have been committed by another prior to the accessoryship;

2) The accessory must not be a principal in the commission of the felony;

3) The accessory must have knowledge of the felony; and

4) The accessory must act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes.

R. M. Perkins, Criminal Law 667 (2d ed. 1969); Accord, Clark & Marshall, A Treatise on the Law of Crimes § 8.06 (M. F. Wingersky, 6th ed. 1958); 22 C.J.S. Criminal Law §§ 95-99 (1961); H. Ginsberg & I. Ginsberg, Criminal Law and Procedure in Maryland 13-14 (1940); 1 Hale, Historia Placitorum Coronae, (The History of the Pleas of the...