Grimes v. State

• Decision Date: 11 January 1980
• Docket Number: No. 557,557
• Citation: 409 A.2d 767,44 Md.App. 580
• Parties: Garett Nicholas GRIMES a/k/a Steven Capilango v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 580

44 Md.App. 580

409 A.2d 767

Garett Nicholas GRIMES a/k/a Steven Capilango v. STATE of Maryland.

No. 557.

Court of Special Appeals of Maryland.

Jan. 11, 1980.

Alan H. Murrell, Public Defender and Martha Weisheit, Asst. Public Defender, for appellant.

Stephen H. Sachs, Atty. Gen., Valerie A. Leonhart, Asst. Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Mark Binstock, Asst. State's Atty. for Montgomery County, for appellee.

Submitted to GILBERT, C. J., and MOYLAN and WILNER, JJ.

WILNER, Judge.

While on patrol late in the evening of May 22, 1978, police officer John Becraft observed two young males exiting a barber shop in the Wildwood Manor Shopping Center. Suspecting that their business at that hour of the evening was non-tonsorial in nature, he directed them to halt; and, when they declined to do so, he pursued them onto the parking lot. The lads were too swift for Officer Becraft, who soon gave up the chase. He broadcast a "lookout" for the two and requested the assistance of the canine corps. He described the suspects as white males, 16-20 years of age, one dressed in blue jeans and a blue jean jacket, the other wearing dark, possibly dark green clothing.

About 10 minutes later, Officer Garner Smith arrived with a police dog. This noble beast tracked the suspects into a nearby residential area, but then lost the scent. The scent did not remain lost for very long, however. Mrs. Evelyn Jerome's dog picked it up and started barking. This led Mrs. Jerome to look outside, observe a young man wearing a dungaree jacket standing by a tree just outside her window, and call the police. Officer Smith, and his dog, responded to the call. Mrs. Jerome directed them to her back yard, where the police dog located appellant hiding under some shrubbery.

Appellant came out willingly. Officer Smith asked his name, to which he responded "Steven Capilango." This, it turns out, was Not appellant's name. A flashlight, screwdriver, and pair of wire grips were found in his hip pocket.

Officer Hosinski also responded to Mrs. Jerome's call. He handcuffed appellant, escorted him to the police car, and began to advise him of his Miranda rights when appellant stated, "You can't charge me with burglary . . . I was standing in the hallway just acting as a lookout. I didn't go into the store."

Appellant was charged with storehouse breaking with intent to commit a felony (Md.Ann.Code art. 27, § 32) and with the attempt to commit that crime. Following a ruling on his pretrial motion to suppress the various statements he made to the police, he was tried on these charges before a jury in the Circuit Court for Montgomery County. At the conclusion of the case, and over appellant's objection, the court instructed the jury that the charge of storehouse breaking with intent to commit a felony included within it, as a lesser included offense, the crime of storehouse breaking with intent to steal goods worth less than $100. Thus, the court said, although that lesser crime, a misdemeanor, was not specifically charged, the jury could convict of that if it found that appellant's intent was to steal goods worth less than $100. The jury so found, appellant was so convicted, and we are asked to determine whether this was proper. We are also asked to determine whether appellant's untruthful answer to Officer Smith's request for his name was admissible.

We shall answer both questions in the affirmative.

(1) "Lesser Included Offense "

As noted, appellant was charged under art. 27, § 32, with "breaking a storehouse . . . with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another Of the value of one hundred dollars ($100.00) or more therefrom . . . ." (Emphasis supplied.) This is a felony and subjected the perpetrator to 10 years in prison. Appellant's conviction, however, pursuant to the court's instructions, was not under § 32, but under § 342. That section made it a misdemeanor, subject to 18 months imprisonment, for a person to break into a storehouse "with intent to steal any money, goods or chattels Under the value of one hundred dollars . . . ." (Emphasis supplied.) ¹ His complaint is that he was convicted of a crime with which he was not charged. The State argues that this is permissible because, as the trial court concluded, the § 342 misdemeanor is a lesser included offense and is therefore subsumed in the § 32 felony.

The concept of inclusive and included offenses is one aspect or emanation of the more general doctrine of merger. As with the underlying doctrine, it becomes operative when a criminal defendant faces prosecution, reprosecution, or punishment for two or more separate offenses as the result of the same incident or conduct. The most common effect of a merger, mandated first by common law and then by application of the double jeopardy clause of the Fifth Amendment, is to preclude a multiple conviction and sentence. The lesser "included" offense merges into the greater "inclusive" offense, and judgment may be entered only upon the greater.

There is another, almost reverse, product of this doctrine, however, that proceeds with equal logic. The very element of inclusiveness the theory that the greater offense necessarily incorporates within it the lesser offense also means that a conviction of the greater presupposes a finding of guilt on the lesser included offense as well. In algebraic terms, if A is the sum of B and C, the establishment of A of necessity also establishes both B and C. This applies not only to a conviction, but also to a charge. An allegation of A is deemed to include an allegation of B and C, its constituent parts. Thus, upon that rationale, courts have rather consistently held that a charging document is effective to charge and, upon proper proof to permit conviction of, not only the particular offense specifically alleged but, in addition, all lesser offenses necessarily included within it, whether or not they are themselves separately stated. See in general 42 C.J.S. Indictments and Informations, §§ 271, 272. We concluded directly in Johnson v. State, 38 Md.App. 100, 109, 379 A.2d 436, 440 (1977): "The clear weight of authority is that conviction of a necessarily included lesser offense is permissible under a document charging a greater offense. . . . " Compare, however, Bennett v. State, 229 Md. 208, 217, 182 A.2d 815 (1962); Davis v. State, 39 Md. 355 (1874).

The theory underlying this secondary product of merger is not that it is permissible to convict a person of a crime that has not been charged, but rather that the greater charge includes the lesser. Thus, when a defendant stands trial on the greater, inclusive, charge, he in fact and in law stands trial at the same time on all of the lesser, included, charges as well. See Burnett v. State, 122 N.E.2d 468 (Ind.1954).

The question initially before us, then, is whether the § 342 misdemeanor is a lesser offense included within the § 32 felony. It is not.

In Green v. State, 243 Md. 75, 80, 220 A.2d 131, 135 (1966), the Court of Appeals commented that "(m)ost jurisdictions, including Maryland, have abolished the common law doctrine of merger and the true test under the modern concept of merger of offenses, Is whether one crime necessarily involves the other." (Emphasis supplied.) In applying that test to determine whether one offense is included within another, this Court has added an explanatory supplement. In Pinkett v. State, 30 Md.App. 458, 472, 352 A.2d 358, 367 (1976), for example, we said: "The test under the modern doctrine of merger is whether one crime necessarily involves the other, That is, when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense." (Emphasis supplied.) See also Moore v. State, 23 Md.App. 540, 548, 329 A.2d 48 (1974), Cert. den. 274 Md. 730 (1975); Stewart v. State, 4 Md.App. 565, 569, 244 A.2d 452 (1968). Compare Tender v. State, 2 Md.App. 692, 699, 237 A.2d 65 (1968), Cert. den. 250 Md. 732 (1968), 393 U.S. 1096, 89 S.Ct. 885, 21 L.Ed.2d 787 (1969), merely reciting the test as stated in Green. Compare Washington v. United States, 366 A.2d 457, 461 (D.C.1976): "A lesser offense must be such that the greater offense cannot be committed without also committing the lesser."

In Wersten v. State, 232 Md. 164, 165, 192 A.2d 286 (1963), the Court of Appeals viewed the two offenses now before us as "complementary and mutually exclusive." One requires an intent to steal goods worth $100 or more; the other requires an opposite intent, to steal goods worth less than $100. As the Court necessarily observed, a person cannot have both intents at the same time that is what makes the offenses "mutually exclusive" and thus a person cannot be convicted of both crimes as the result of the same storehouse breaking. See Wersten, 232 Md. at 166, 192 A.2d 286.

When we compare this Exclusivity with the test used to determine Inclusivity, it becomes immediately apparent that what the Court of Appeals has said is Ex clusive cannot at the same time be In clusive. To prove the lesser offense, the State must prove an intent to steal less than $100; but once it does that, it has precluded a conviction under § 32. To that extent, the facts necessary to prove the lesser offense are Not essential ingredients in establishing the greater offense but, as shown, actually prevent establishment of the greater offense.

This does not mean, however, that appellant's conviction under § 342 was improper, or that the court's instructions, though technically erroneous, were prejudicially so. There is a relationship between the two statutes, but it is not one of inclusiveness.

We traced the history of these two provisions in Prevatte v. State, 40 Md.App. 623, 392 A.2d 1170 (1978). We there pointed out that the original storehouse breaking...