Hardy v. State

• Citation: 482 A.2d 474,301 Md. 124
• Decision Date: 01 September 1983
• Docket Number: No. 9,9
• Parties: Lawrence HARDY v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 124

301 Md. 124

482 A.2d 474

Lawrence HARDY v. STATE of Maryland.

No. 9, Sept. Term, 1983.

Court of Appeals of Maryland.

Oct. 22, 1984.

Joel D. Worshtil, Landover (Hendershot, Koester, Worshtil & Malament, Landover, on brief), for appellant.

Stephanie J. Lane, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, ^* RODOWSKY and COUCH, JJ.

COLE, Judge.

The issue we must decide in this case is whether an indictment charging a juvenile with attempted murder vests exclusive original jurisdiction in the Circuit Court to try the juvenile as an adult. Fundamental to our decision is a determination of the maximum penalty for the crime of attempted murder.

The facts giving rise to this issue may be summarized as follows. Lawrence Hardy, a juvenile, was indicted by a Montgomery County Grand Jury on December 10, 1981, on two counts of attempted common law murder, ¹ assault with intent to rob, and related offenses. Two months later, the Grand Jury returned a second indictment charging Hardy with two counts of attempted murder in the first degree. ² The State entered a nolle prosequi concerning the two counts set forth in the first indictment, leaving in their stead the two counts of attempted first degree murder.

The State sought to try Hardy as an adult pursuant to Md.Code (1974, 1984 Repl.Vol.), § 3-804(d)(1), Courts and Judicial Proceedings Article, which provides that a juvenile court does not have jurisdiction over "[a] child 14 years old or older alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment[.]" The State's theory was that Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 412(b) authorizes a punishment of death or life imprisonment for first degree murder, and § 644A of Article 27 provides that the punishment for attempt may not exceed the punishment for the completed crime; therefore, because the crime of attempted murder is punishable by life imprisonment, Hardy is subject to adult court jurisdiction.

Hardy moved to dismiss the indictment on the ground that the adult court lacked jurisdiction. He argued that the crime of attempted murder is identical to the crime of assault with intent to murder, which is punishable by a maximum of thirty-years imprisonment under § 12 of Article 27. Therefore, according to Hardy, the charge of attempted murder should be treated as a charge of assault with intent to murder, which does not expose a juvenile offender to adult court jurisdiction under § 3-804(d)(1) of the Courts Article because it is not punishable by death or life imprisonment. He also argued, in the alternative, that all murder is presumed to be murder in the second degree punishable by a maximum of thirty years. Thus, a charge of attempted murder is tantamount to a charge of attempted second degree murder, and does not fall within § 3-804(d)(1).

The Circuit Court agreed with Hardy's contentions and granted his motion to dismiss the indictment. The State appealed immediately to the Court of Special Appeals, which reversed and reinstated the indictment. State v. Hardy, 53 Md.App. 313, 452 A.2d 1299 (1982). We granted certiorari to consider the important question presented.

I

Hardy's basic contention is that a charge of attempted murder is not punishable by life imprisonment, and is therefore not within § 3-804(d)(1)'s jurisdictional grant. Our first step, therefore, is to ascertain the statutorily prescribed punishment for the crime of attempted murder. Hardy argues that this step is not as clear cut as it appears, because of the presence of the similar statutorily created crime of assault with intent to murder, which carries its own maximum penalty of thirty-years' imprisonment. Because the jurisdictional grant in § 3-804(d)(1) is predicated on the maximum sentence allowable for a given offense, we shall compare these two crimes.

Maryland has retained the common-law crime of attempt, which is generally defined as the intent to commit a crime coupled with some overt act beyond mere preparation in furtherance of the crime. See, e.g., Lightfoot v. State, 278 Md. 231, 360 A.2d 426 (1976); Wiley v. State, 237 Md. 560, 207 A.2d 478 (1965). Attempt is a common-law misdemeanor, which, prior to 1976, had no statutorily prescribed sentence limit; the sentence for attempt was solely within the discretion of the trial judge. See Mitchell v. State, 82 Md. 527, 34 A. 246 (1896). In 1976, however, the legislature enacted § 644A of Article 27, which limited the sentence for attempt to the maximum sentence for the completed crime.

Assault with intent to murder is a statutory aggravated assault set forth in § 12 of Article 27. The statute does not define the crime, but we have defined it as an assault upon the victim coupled with an intent to murder, which can be shown by proof that the crime would have been murder if the victim had died. See, e.g., Taylor v. State, 238 Md. 424, 209 A.2d 595 (1965); Bird v. State, 231 Md. 432, 190 A.2d 804 (1963). Common-law assault, an element of the crime, has been defined in various ways, but the essence of the crime is "an attempt by force to injure the person of another." Yantz v. Warden, 210 Md. 343, 351, 123 A.2d 601, 606, cert. denied, 352 U.S. 932, 77 S.Ct. 236, 1 L.Ed.2d 167 (1956); see Taylor v. State, 52 Md.App. 500, 450 A.2d 1312 (1982), cert. denied, 295 Md. 691 (1983).

Because the overt act necessary for an attempt is frequently an assault, the two crimes have a significant overlap. But the overlap is not complete, because an overt act can qualify as an attempt and yet not rise to the level of an assault. For example, an attempted poisoning would qualify as attempted murder, but it would not be an assault, especially if the poison did not come in contact with the victim. See Bittle v. State, 78 Md. 526, 28 A. 405 (1894). An aborted attempt to bomb an airplane would not be an assault, but it would be attempted murder. See People v. Grant, 105 Cal.App.2d 347, 233 P.2d 660 (1951). Lying in wait can be sufficient to establish attempt, but it would not constitute an assault. A person who fires a shot at an empty bed where he mistakenly believes the victim is sleeping has committed attempted murder, but not an assault. State v. Mitchell, 170 Mo. 633, 71 S.W. 175 (1902). If a defendant procures the services of a "feigned accomplice"--someone who pretends to go along with a criminal undertaking--the defendant's acts in furtherance of the crime may constitute attempted murder, but not assault. See, e.g., State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); People v. Parrish, 87 Cal.App.2d 853, 197 P.2d 804 (1948); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971).

Professor Perkins has explained the difference between attempted murder and assault with intent to murder as follows:

The so-called "assaults with intent" require special attention in connection with the law of attempt. Assault with intent to murder, assault with intent to rob, assault with intent to rape, and assault with intent to inflict great bodily injury are found quite frequently in the codes. Others are not uncommon, and sometimes a section provides a special penalty for an assault to commit any felony not otherwise provided for by statute.

No more is needed here than a bare reference to what was said above in regard to proximity. Since an attempt to commit a battery is an assault, and since every murder includes a battery, logic suggests that every attempted murder includes an attempted battery and hence an assault. If this were true an attempt to commit murder and an assault with intent to commit murder would be merely different ways of expressing the same result. Logical as this may seem, however, it fails to give a true picture of the common law because of peculiarities in the history of its development. The law of assault crystallizing at a much earlier day than the law of criminal attempt in general, is much more literal in its requirement of "dangerous proximity to success" (actual or apparent) than is the law in regard to an attempt to commit an offense other than battery.

Apart from this, the two are almost identical unless a statute defines assault in terms of "present ability." Such a statutory provision, as mentioned above, is interpreted to require an actual present ability rather than the common-law requirement of an apparent present ability, and will apply to an aggravated assault the same as to any other. Hence an assault with intent to commit a particular crime is, in general, the same as an attempt to commit that crime except for two additional requirements,--(1) a greater degree of proximity, and (2) actual present ability to commit a battery (the latter being limited chiefly to states in which this has been added by the statutory definition of assault).

R. Perkins, Criminal Law 578 (2d ed. 1969) (footnote omitted).

The Model Penal Code's treatment of inchoate crimes illustrates the wide range of acts that would be sufficient to establish an attempt but would not be assaultive. Section 5.01(2) of the Code lists seven different actions as potential "substantial steps" that can qualify as attempts. These include lying in wait, enticing the victim to go to the planned site of the crime, reconnoitering, unlawful entry, possession of materials and soliciting an agent. Model Penal Code § 5.01(2) (Proposed Official Draft 1962). None of these activities involves an assault. Also under the code, a person commits an attempt when he engages in conduct designed to aid another in the commission of a crime, even if the crime is not consummated. Id. § 5.01(3).

The analytical difference between attempted murder and assault with intent to murder is important here because it bears on the issue of whether the enactment of § 12 preempted the common-law crime of attempted murder. Section 12 of Article 27, first enacted in 1...