Hagans v. State, 41

CourtCourt of Appeals of Maryland
Citation316 Md. 429,559 A.2d 792
Docket NumberNo. 41,41
PartiesAntonio Calvin HAGANS v. STATE of Maryland. Derek Darnell ALLEN v. STATE of Maryland. ,
Decision Date01 September 1988

Nancy S. Forster, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for petitioners.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.


Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.


The two criminal cases before us were entirely separate prosecutions, for unrelated offenses, in different counties, at different times, and involving different defendants. Nevertheless, the only issue presented in the Hagans case, and the principal issue presented in the Allen case, are identical. It is whether, as a matter of Maryland common law, a defendant ordinarily can be convicted of an offense which is not charged but which is a lesser included offense of one that is charged. Because of this common issue, we shall decide both cases in one opinion.


The facts in each case relevant to the lesser included offense issue can be briefly stated.

A. Hagans v. State

According to the Agreed Statement of Facts, during the night of January 17, 1986, a man knocked on an apartment door in Montgomery County, Maryland, and announced: "It's the cops." Through a peephole, the resident of the apartment saw a man wearing a cap with a silver badge on it. She did not believe that he was a police officer because he had referred to himself as a "cop." Consequently, she called the police.

In response to the call, seven plain clothes police officers went to the apartment complex where the incident occurred. They saw three men in a station wagon that was being driven without its lights on. The car stopped, and a man later identified as the defendant, Antonio Calvin Hagans, got out, walked around, picked up a long silver object, and returned to the car. The police cars followed the station wagon as it left the complex. The station wagon was pulled over and searched. Under the seat where Hagans was sitting, the police found a large knife and a baseball cap with a silver badge. The three men in the car were then arrested. At the subsequent line-up, the resident of the apartment identified one of the men, but not Hagans, as the man standing outside the door.

Hagans was charged in the Circuit Court for Montgomery County with attempt to commit common law burglary and nine other offenses all based on the incident described above. He was not, however, expressly charged with attempted breaking and entering a dwelling house of another in violation of Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 31A. Hagans elected a jury trial.

At the trial, after the presentation of evidence by both sides, and during argument on the defendant's motions for judgment of acquittal, the trial judge indicated that he intended to submit to the jury, as a lesser included offense of burglary, the offense of attempted breaking and entering a dwelling house of another. Defense counsel objected to the submission of the attempted breaking and entering offense to the jury, but the prosecuting attorney argued in favor of the submission. Thereafter, the trial judge instructed the jury on attempted breaking and entering a dwelling house of another.

All but two of the numerous charges against the defendant Hagans were disposed of by nolle prosequis, by the grant of motions for judgments of acquittal, and by jury acquittal. Hagans was convicted by the jury of attempted breaking and entering a dwelling house of another and carrying a concealed weapon. He was sentenced to three years imprisonment on the former conviction and two years imprisonment, to be served consecutively, on the latter. The Court of Special Appeals affirmed in an unreported opinion.

This Court then granted the defendant's petition for a writ of certiorari. In the petition and in his brief, Hagans concedes that attempted breaking and entering a dwelling house of another is a lesser included offense of attempted common law burglary. The defendant presents a single question for our review, stating: "The issue in this case is whether or not a defendant who is charged with one offense can be convicted of a lesser included offense which is not contained in the charging document." (Petitioner's brief, p. 5).

B. Allen v. State

Derek Darnell Allen was tried before a jury in the Circuit Court for Talbot County on a seven count information charging storehouse breaking (Art. 27, § 32), storehouse breaking and stealing (Art. 27, § 33), storehouse breaking and entering (Art. 27, § 31B), malicious destruction of property (Art. 27, § 111), trespassing on school property (Code (1978, 1989 Repl.Vol.), § 26-102(d)(1) of the Education Article), willfully damaging school property (§ 26-102(d)(3) of the Education Article), and theft of $300 or more (Art. 27, §§ 340-344). The charges were based on the theft of a twelve-year-old color television set, a seven-year-old tape recorder, a cassette player and a set of headphones from a public school in Talbot County. According to a school official, the original cost of the television was $318, the tape recorder $66, the cassette player $52, and the headphones $116.

At trial, the testimony was inconsistent in regard to the extent of Allen's involvement. In addition, the defendant took the position that the value of the goods taken was less than $300.

As previously mentioned, the defendant was expressly charged with theft over $300, but he was not expressly charged with theft under $300. 1 After the evidentiary phase of the trial, during a discussion concerning jury instructions and the jury verdict sheet, a question arose concerning an instruction on theft under $300. The prosecuting attorney urged that the court instruct on, and that the verdict sheet contain a choice for, theft under $300 on the theory that it "is a lesser included offense." He argued:

"Your Honor, as I stated in Chambers I--the law of theft is if the jury is able to find that a theft was committed, and the value of the items stolen was $300 or more, then they can find the defendant guilty of felony theft. If however, they find that the State did not [meet] its burden on the value of the items that were stolen, but they believe all the other elements of the crime of theft occurred, namely, that the defendant stole something, then they can find the defendant guilty of theft under $300. It is a lesser included offense of the--of the offense of theft."

The defense attorney objected, saying:

"And second of all, the jury verdict sheet as proffered provides--although the charging document only charged theft over $300, it provides a means by which they could find the defendant guilty of theft under $300, and I would object to that. If we weren't charged with theft under, I don't think it should be on the verdict sheet."

The trial court, agreeing with the prosecution, submitted to the jury the option of convicting Allen of theft under $300.

The jury acquitted Allen of storehouse breaking and stealing, acquitted him of theft over $300, and acquitted him of malicious destruction of property. The jury convicted Allen of theft under $300. The jurors were unable to agree as to the remaining charges, and those charges were subsequently nolle prossed. Allen was sentenced to the maximum eighteen months imprisonment on the conviction of theft under $300. The judgment was affirmed by the Court of Special Appeals in an unreported opinion.

Allen filed in this Court a petition for a writ of certiorari, arguing that the case presented the identical issue as the Hagans case, namely "whether the trial court can send a lesser included offense to the jury if that offense is not charged in the charging document." (Petition, p. 3). We granted the petition.


Before addressing the issue presented by both petitioners, we shall deal with a threshold matter raised by the State in the Allen case. The State argues that the Allen case does not present the same issue as the Hagans case because, according to the State, theft under $300 should not be treated as a lesser included offense of theft over $300. In the State's view, theft over $300 and theft under $300 are to be regarded as the identical offense for all purposes prior to the sentencing phase of the trial. It is contended that the value of the goods need not be decided by the jury but should be determined by the judge at sentencing. The State thus asserts (Response to Certiorari Petition, p. 2):

"There is no lesser included offense, and thus no issue similar to that of Hagans.

"Theft is a single offense for purposes of both charging documents and jury instructions.... The value of the goods stolen is not an element of the offense and is relevant only to sentencing.... Thus, an allegation of value is mere surplusage in a charging document which charges theft; it has no effect on the offense to be submitted for the jury's consideration. When the State charged Allen with theft of goods valued at over $300.00, he could be convicted of theft regardless of whether the evidence showed that the goods were worth more than $300.00."

We agree that, generally, theft in violation of Art. 27, §§ 340-344, is to be regarded as a single offense. Nevertheless, we cannot subscribe to the State's theory concerning the limited relevance of value. Furthermore, for purposes of the principles concerning lesser included offenses, theft under $300 should be treated as a lesser included offense of theft of $300 or more.

Art. 27, §§ 340-344, known as the consolidated theft statute, and enacted by Ch. 849 of the Acts of 1978, was thoroughly reviewed by...

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