Dixon v. State
| Decision Date | 14 May 2001 |
| Docket Number | No. 93,93 |
| Citation | 772 A.2d 283,364 Md. 209 |
| Parties | Thomas Dalton DIXON v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Mark Colvin, Asst. Public Defender (Stephen E. Harris, Public Defender, and Richard K. Jacobsen, Asst. Public Defender, on brief), Baltimore, for petitioner.
Shannon E. Avery, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
Argued before ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.
On 12 December 1997, in the Circuit Court for Prince George's County, a jury convicted Thomas Dalton Dixon, Petitioner, of attempted voluntary manslaughter, first degree assault, and the use of a handgun in the commission of a crime of violence. The trial judge sentenced Petitioner to twenty years imprisonment for first degree assault, ten years for attempted voluntary manslaughter (to be served concurrent with the sentence for first degree assault), and twenty years for the use of a handgun in the commission of a crime of violence (to be served consecutively to the sentence for first degree assault). On appeal, in an unreported opinion, the Court of Special Appeals reversed the judgments and remanded the case for a new trial. Dixon v. State, No. 203, Sept. Term, 1998, unreported, 123 Md.App. 797, filed 30 October 1998, cert. denied, 352 Md. 619, 724 A.2d 21 (1999) (Dixon I).
On remand, trial was commenced anew on the same charges, but presided over by a different trial judge. At the conclusion of the evidence, the State was permitted, over Petitioner's objection, to enter a nolle prosequi1 of the attempted voluntary manslaughter count. A jury again convicted Petitioner of first degree assault and the use of a handgun in the commission of a crime of violence. The judge sentenced Petitioner to twenty years imprisonment for the first degree assault and twenty years for the handgun violation, to be served consecutive to the sentence on the assault conviction. The Court of Special Appeals, on direct appeal, affirmed. Dixon v. State, 133 Md.App. 325, 755 A.2d 560 (2000) (Dixon II).
We granted Petitioner's petition for writ of certiorari, Dixon v. State, 361 Md. 433, 761 A.2d 932 (2000), to consider the following question:
Was Petitioner illegally sentenced to twenty years for first degree assault where in a prior trial he was convicted of attempted voluntary manslaughter and first degree assault and sentenced to concurrent terms of ten and twenty years, respectively, and the Court of Special Appeals, upon reversing the convictions, concluded for the trial court's guidance on remand that first degree assault should have merged into attempted voluntary manslaughter, and on retrial the State was allowed, over objection, to nol pros the attempted voluntary manslaughter charge?
The crime in this case occurred during the early morning hours on 23 May 1997. According to the evidence, the victim, Edward Johnson, and his friend, Senee Paquita Waiters, after consuming their supply of crack cocaine, went in search of more. At approximately 2:00 a.m., they drove to the intersection of Virginia Avenue and Forest Terrace in Prince George's County. Johnson had purchased drugs in this area before. Johnson pulled the car over to where two men were standing with Petitioner and asked the group if they had any drugs. Petitioner responded affirmatively and told Johnson to drive the car to the other side of the street. Johnson complied and, after exiting the car, began talking with Petitioner. An altercation ensued, and Petitioner fired five shots, striking Johnson four times in the lower back and hip, and striking a bystander, Michael Prioleau, once in the eye. All of the charges upon which Petitioner was tried in the present case related to the acts against Johnson.
A jury, on 12 December 1997, convicted Petitioner of attempted voluntary manslaughter, first degree assault, and the use of a handgun in the commission of a crime of violence. At the same time, the jury found Petitioner not guilty of attempted first degree murder, attempted second degree murder, and reckless endangerment. At sentencing, Petitioner's attorney argued that the first degree assault conviction merged into the attempted voluntary manslaughter conviction.2 The trial judge apparently disagreed3 and ordered separate sentences for each of Petitioner's convictions—twenty years imprisonment for first degree assault, ten years concurrent for voluntary manslaughter, and twenty years for the use of a handgun in the commission of a crime of violence conviction, to be served consecutive to the assault conviction sentence.
The intermediate appellate court's unreported opinion of 30 October 1998, directed vacation of the Circuit Court's judgments and remanded the case for a new trial. The Court of Special Appeals considered five questions in its opinion. With regard to the third question, the holding as to which served as the reason the intermediate appellate court vacated the trial court's judgments, the court determined that the Circuit Court failed to make a sufficient inquiry into a reported violation during trial of its sequestration order. The appellate court, however, proceeded to volunteer to address the remaining four questions presented by Petitioner "for the court's guidance on remand."
(1986), aff'd, 311 Md. 326 (1988).
An examination of the first prong of the first degree assault crime makes clear that there are no elements present which cannot be found as elements of attempted voluntary manslaughter. A conviction based on the first prong of first degree assault, therefore, would merge into a conviction for voluntary manslaughter under the required evidence test. The second prong of first degree assault, however, contains at least the additional element of the use of a firearm. Thus, ... to determine whether [Petitioner's] first degree assault conviction should merge into the voluntary manslaughter conviction, we must know which prong of the first degree assault crime was used to convict [Petitioner]. (Footnote omitted).
The Court of Special Appeals concluded, however, that it was unable to make this latter determination as the record was ambiguous. The intermediate appellate court noted that the Circuit Court instructed the jury that it could convict Petitioner of first degree assault under either modality, (a)(1) or (a)(2), of the first degree assault statute (see supra note 6), and "the jury returned a verdict of guilty on the first degree assault charge without indicating which alternative it used to convict" Petitioner.
The Court of Special Appeals then turned to the legislative history of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 12A-1, but determined that it did not shed light on whether the Legislature intended the statutory crime to be separate from attempted voluntary manslaughter. The court next considered the "rule of lenity," which the court described as "provid[ing] that any ambiguity concerning whether the legislature intended multiple punishments for the same transaction will be resolved against creating multiple offenses out of the single transaction." (Citing White v. State, 318 Md. 740, 744, (1990)); see infra note 38. The intermediate appellate court explained further:
The Court of Appeals has applied the rule of lenity when one offense is statutory and the other common law. See White, 318 Md. at 745-47,
. That is the situation which confronts us. [Petitioner's] shooting of Johnson was a single transaction from which both first degree assault, a statutory offense, and attempted manslaughter, a common law offense, resulted.
The Court of Special Appeals concluded that under Snowden v. State, 321 Md. 612, 583 A.2d 1056 (1991), supra note 5, due to the ambiguity regarding the exact basis of the jury's verdict and the lack of guidance in the legislative history, the court must give Petitioner the benefit of the doubt and merge the sentence for first degree assault "into the greater sentence of attempted voluntary manslaughter."
On remand, Petitioner was tried again on the charges of attempted voluntary manslaughter, first degree assault, and the use of a handgun. At the conclusion of the evidence, the State was permitted, over objection by Petitioner's attorney, to enter a nolle prosequi as to the attempted voluntary manslaughter count.8
The jury found Petitioner guilty of first degree assault and of the use of a handgun. At the sentencing hearing on 19 May 1999, a trial judge different than the one who presided in Dixon I considered the import of the Court of Special Appeals's opinion in ...
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