Jones v. State

Decision Date01 September 1984
Docket NumberNo. 40,40
Citation493 A.2d 1062,303 Md. 323
PartiesDana Eugene JONES v. STATE of Maryland. ,
CourtMaryland Court of Appeals

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

Opinion by MURPHY, Chief Judge.

This case involves a constitutional challenge to the legal sufficiency of the statutory form of charging document for the crime of theft, as authorized by Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 344(a).

I

By chapter 849 of the Acts of 1978, codified as §§ 340-344 of Art. 27, the General Assembly of Maryland, effective July 1, 1979, consolidated a number of theft-related offenses (not involving force or coercion) into a single newly created statutory offense known as theft. Section 341 specifies that "[c]onduct designated as theft" under the Act's provisions "constitutes a single crime embracing, among others, the separate crimes heretofore known as larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen property." Section 342 enumerates five different types of criminal conduct as constituting theft under the statute, i.e., (a) obtaining or exerting unauthorized control; 1 (b) obtaining control by deception; 2 (c) possession of stolen property; 3 (d) obtaining control of lost, mislaid or mistakenly delivered property; 4 and (e) obtaining services by deception. 5

Various of the operative terms contained in the Act are defined with specificity in § 340, e.g., "deception," "deprive," "exerts control," "knowingly," "obtain," "owner," "property," and "service." Section 341 provides that the offense of theft "may be proved by evidence that it was committed in any manner that would be theft under this subheading, notwithstanding the specification of a different manner in the information, indictment, warrant, or other charging document, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise." Section 344(a) sets forth an approved form of charging document for the offense of theft; it provides that it shall be "sufficient to use a formula substantially to the following effect:

'that A--B on the ...... day of ........, 19...., in the County (City) aforesaid, did steal (here specifying the property or services stolen) of C--D, having a value of (less than $300 or greater) in violation of Article 27, § 342, of the Annotated Code of Maryland; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.' "

The Act was drafted by the General Assembly's Joint Subcommittee on Theft Related Offenses. In its October 1978 Report, the Subcommittee made clear that it was the statute's purpose "to eliminate [the] technical and absurd distinctions that have plagued the larceny related offenses and produced a plethora of special provisions in the criminal law (p. 2)"; that in creating a single offense designated as "theft," it was the legislative purpose "that previously existing larceny-related theft offenses are consolidated into this one offense (p. 29)"; that the consolidation made possible the use of a simplified indictment form, as contained in § 344(a), with the result that "[p]etty distinctions which formerly provided the basis of separate and distinct crimes have been abolished (p. 30)"; that various subsections of § 342 present "set[s] of circumstances" which constitute the offense of theft (p. 31); that since theft is a single offense "and all aspects of that offense are encompassed in Section 342 ..., only that Section need be cited (p. 57)"; that in view of "the wide diversity of the aspects which are included within the crime of theft, the prosecution will undoubtedly be required to furnish the defendant with a bill of particulars," thereby insuring a fair trial by avoiding prejudice to the defendant due to lack of fair notice or surprise (p. 57).

II

Appellant Jones was indicted on April 8, 1982 by the Grand Jury for Montgomery County for the crime of theft. In conformity with the statutory form of indictment prescribed by § 344(a), it was alleged that Jones

"on or about August 24, 1981, in Montgomery County, Maryland, unlawfully did steal a watch, rings, silver dollars, and other personal property, of David Weinstein, having the value of Three Hundred Dollars ($300.00) or greater, in violation of Article 27, Section 342 of the Annotated Code of Maryland, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

Jones moved to dismiss the indictment. He claimed that as the State failed to allege the elements of the substantive offense in the indictment, including the requisite specific intent or the applicable subsection of the theft statute, it was fatally defective for failing to apprise him of the specific offense with which he was charged. Jones also demanded a bill of particulars, alleging that theft under § 342 could be committed "in at least five major methods," each of which was separate and distinct, requiring separate and distinct elements of proof. Jones asserted in his demand for particulars that in order for him to properly plead to and defend against the charge, the State must provide particulars indicating the subsection of § 342 under which he was charged, together with the manner in which he was alleged to have committed the crime.

Answering the motion to dismiss, the State claimed that the indictment was in full compliance "with the statutorily required charging language for the crime." Moreover, the State declined to supply the particulars sought by Jones. It asserted that, in effect, Jones was improperly demanding the State's theory of proof and its legal conclusions by requiring that it make an election to prosecute under a specified subsection of § 342; that the facts contained in the indictment were sufficient to permit Jones to properly defend himself and to avoid a second prosecution for the same offense; and that the State had previously provided Jones with full open file discovery.

The Circuit Court for Montgomery County denied the motion to dismiss. The record does not disclose the court's action with regard to the bill of particulars but the parties agree that Jones never received the response which he sought. Jones was convicted of theft by a jury and appealed. The Court of Special Appeals in an unreported opinion, relying upon its earlier decision in Whitehead v. State, 54 Md.App. 428, 458 A.2d 905, cert. denied, 296 Md. 655 (1983), affirmed the judgment. It reasoned that § 342 specified five different acts through which the crime of theft could be committed; that the effect of charging the offense in the approved language of § 344(a) was to incorporate by reference those elements of the crime which were enumerated in § 342; that there is no requirement that the specific means by which the offense was committed be set forth in the indictment; that Jones was not unaware of which act the State sought to prove, since full discovery had been provided to him; and that Jones had adequate notice through the language of the indictment of the acts that he had allegedly committed. By certiorari petition, which we granted, 299 Md. 492, 474 A.2d 917 (1984), Jones raised a single issue for our review: whether use of the statutory short form indictment for theft prescribed by § 344(a) violated his "constitutional rights to a charging document that sufficiently advised him of the alleged misconduct and set out the essential elements of the offense."

III

Jones attacks the constitutionality of his theft indictment in several able and well-crafted arguments. He asserts that because of the wide diversity of elements which comprise the crime of theft under § 342, a charging document which merely states that the defendant "did steal" specified property of the named victim in violation of the statute does not sufficiently inform him of the essential elements of the crime with which he is charged. Thus, he contends, the charging document was not in compliance with the constitutional standards of Art. 21 of the Maryland Declaration of Rights and the Sixth and Fourteenth Amendments to the Federal Constitution. 6

With numerous citations to our cases, Jones maintains that as the primary purpose of a charging document is to satisfy the constitutional right to fair notice of the charges, it must (a) characterize the offense by setting forth its essential elements and (b) advise the accused of the particular criminal conduct allegedly committed. Neither of these constitutionally mandated requirements, Jones says, is met by charging the offense of theft in the language of § 344(a). He argues that the indictment did not specify how and with what intent he "stole" the victim's property, thereby leaving him uninformed as to which subsection of § 342 was allegedly violated. Thus, Jones says that he was improperly required in preparing his defense to anticipate evidence that might, for example, show that he unauthorizedly:

"took the property perhaps intending to keep it, perhaps only to use it temporarily and then return it (Section 342(a)); that he swindled [the victim] to obtain the property (Section 342(b)); that he acquired it by altering a label (Section 342(b)); that he possessed it knowing it had previously been stolen (Section 342(c)); and that he found it, knew it was [the victim's] and at some point intended to keep it permanently (Section...

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