Lewis v. State

• Citation: 285 Md. 705,404 A.2d 1073
• Decision Date: 27 August 1979
• Docket Number: No. 104,104
• Parties: Lon Alec LEWIS v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 705

285 Md. 705

404 A.2d 1073

Lon Alec LEWIS v. STATE of Maryland.

No. 104.

Court of Appeals of Maryland.

Aug. 27, 1979.

Thomas J. Saunders and Bradford C. Peabody, Asst. Public Defenders (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Arrie W. Davis, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ., and ALAN M. WILNER, Special Judge.

ELDRIDGE, Judge.

The defendant in this criminal case, Lon Alec Lewis, was convicted as an accessory before the fact to the first degree murder of his wife and the second degree murder of his child. He was also convicted on two counts of solicitation to murder and three counts of conspiracy to murder. Several significant legal issues were raised on his appeal to the Court of Special Appeals. We issued a writ of certiorari prior to any proceedings in the intermediate appellate court.

The prosecution's evidence showed that the defendant Lewis arrived at an agreement with a friend, Gene Meyer, whereby Meyer would kill the defendant's wife and infant daughter in exchange for a payment of $3,000.00. In addition, Lewis agreed to kill Meyer's wife and was to be compensated for that act. On September 23, 1977, Lewis returned home in the evening to find the dead bodies of his wife and daughter lying in a pool of blood on the kitchen floor. The police were summoned to the home, and an investigation commenced.

As the result of a search of the defendant's home several days after the crimes, a poem was found, suggesting to the police the possibility of the defendant's involvement in the killings. Upon intensive questioning, the defendant ultimately confessed to his role in the murders. After his conviction by a jury in the Circuit Court for Prince George's County, Lewis was sentenced to life imprisonment on the first degree murder count, a consecutive thirty-year term on the second degree murder conviction, concurrent twenty-year terms on the solicitation to murder counts, and a concurrent ten-year term on each of the conspiracy charges.

The defendant's principal contentions on appeal are that:

(1) An accessory before the fact cannot be tried prior to the conviction and sentencing of the principal.

(2) A delay in presentment to a judicial officer following arrest violated Maryland District Rule 723 a.

(3) The State violated his Fourth Amendment rights in searching his house without obtaining either valid consent or a warrant.

(4) He was coerced into confessing in violation of his Fifth Amendment right against compulsory self-incrimination.

(5) Under both double jeopardy principles and Maryland merger law, one cannot be convicted and sentenced for solicitation to murder where he is also convicted and sentenced on a charge of being an accessory before the fact to the same murder.

(6) An instruction to the jury, directing it that all of the other instructions are only advisory, and not mandatory, was erroneous under the circumstances here.

I.

At the trial, in the course of his argument upon a motion for judgment of acquittal, Lewis's counsel contended that the State had failed to adduce proof that "there was a guilty principal . . . and that he was convicted. This is an essential element of accessory before the fact." The prosecuting attorney conceded that "technically we do not have a conviction as to Mr. Meyer. He is not truly convicted until he is sentenced. And then it becomes a conviction." There was no formal proof during Lewis's trial that the principal in the two murders involved, Gene Meyer, had been tried. However, it appears to be undisputed that he was tried and verdicts of guilty had been rendered prior to Lewis's trial. On the other hand, it is clear that the principal was not sentenced until after Lewis was tried and found guilty.

In this Court, Lewis reiterates his contention that his two murder convictions were improper because, under the common law rule in force in this State, an accessory cannot be tried before a final judgment in the principal's case, which means a verdict of guilty and sentence upon that verdict.

The State, at the outset, concedes that the defendant correctly sets forth the strict common law requirement concerning the trial of accessories. Referring to the "hypertechnical nature of the common-law requirement" and asserting that the common law rules on accessoryship "have become legal anachronisms which should be brought into line with the realities of the administration of criminal justice today," the State advances three alternate positions. Broadly, it argues that we should abolish the distinction between principals and accessories before the fact and "concomitantly dispense with the hypertechnical rules incident thereto." As a middle ground, the State contends that mere evidence of the principal's guilt should be sufficient to permit the conviction of the accessory. The State's narrow position is that, at the very least, we should hold that a verdict of guilty returned against a principal is all that is needed before an accessory can be tried, and that a final judgment in the principal's trial is not required.

Just last year, we pointed out in State v. Ward, 284 Md. 189, 191, 396 A.2d 1041, 1043 (1978): "Maryland is one of the few, if not the only state, which has retained this doctrine (of accessoryship applicable to felonies) in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time." We further observed in Ward that England and Every American jurisdiction except Maryland had abolished or modified the doctrine by legislative act, 284 Md. at 191 n. 3, 396 A.2d 1041. Apparently no jurisdiction has done so by judicial decision absent any type of legislative basis.

Under orthodox common law principles, not modified by statute, it is clear that a final judgment of conviction in the principal's case, which includes sentence of the principal, is an absolute prerequisite to trial of an accessory. In fact, an accessory could not even be arraigned until the attainder of the principal, which followed the final judgment. ¹ As stated in Blackstone, Commentaries on the Law of England, p. 232 (1st ed. 1769), quoted by Judge Orth for the court in State v. Magliano, 7 Md.App. 286, 296, 255 A.2d 470, 475-476 (1969):

" 'By the old common law the accessary could not be arraigned till the principal was attainted, unless he chose it: for he might waive the benefit of the law; and therefore principal and accessary might, and may still, be arraigned and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these cases could not be arraigned; for Non constitit whether any felony was committed or no, till the principal was attainted; . . . ' "

And as set forth in 1 Hale's Pleas of the Crown, pp. 623-624 (1st American ed. 1847):

"If A. B. and C. be indicted as principals, and D. is indicted as accessary to them all, D. shall not be arraigned till all the principals be attaint or outlawed . . . .

"If the principal be attainted and hath his clergy, or be pardoned after attainder, the accessary shall be put to answer; but if the principal be only convict and hath his clergy, or be pardoned, or stand mute, or die in prison before judgment . . . the accessary shall not be put to answer, for the principal was never attainted . . . . "

See also 1 J. Bishop, Bishop on Criminal Law, p. 483 (9th ed. 1923); 3 J. Biship, Bishop's New Criminal Procedure, pp. 1228-1229 (2d ed. 1906); 1 Encyclopaedia of the Laws of England, p. 84 (2d ed. 1906); Foster, A Report of Some Proceedings, 362-363 (1762); 1 E. McClain, The Criminal Law, p. 180 (1897); R. Perkins, Perkins on Criminal Law, p. 673 (2d ed. 1969); 2 J. F. Stephen, A History of the Criminal Law of England, p. 235 (1883).

Courts also have recognized the common law principle that an accessory cannot be tried until final judgment of conviction in the principal's case. E. g., Daughtrey v. State, 46 Fla. 109 35 So. 397, 398 (1903); Ex-parte Mack Bowen, Habeas Corpus, 25 Fla. 214, 221, 6 So. 65 (1889); Simmons v. Georgia, 4 Ga. 465, 471 (1848); Baron v. The People, 1 Parker Cr.R. 246, 250 (N.Y.1851); State v. Duncan, 28 N.C. (6 Ired.) 98, 104-105 (1845); Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565, 567 (1915); State v. Sims, 18 S.C.L. (2 Bailey) 29, 31 (1830); Kingsbury v. State, 37 Tex.Cr.R. 259, 266, 39 S.W. 365 (1897). Contra, Jones v. The People, 20 Hun (N.Y.Sup.Ct.) 545 (1880).

In State v. Duncan, supra, the defendant was indicted as an accessory before the fact to murder. Prior to the trial of the defendant, the principal had been tried and found guilty by a jury, but had not yet been sentenced. At the accessory's trial, the conviction of the principal was admitted into evidence over the defendant's objection that such evidence was improper because judgment had not been entered on the verdict. On appeal the Supreme Court of North Carolina agreed with this position and reversed the conviction, declaring: "Where the trials (of a principal and accessory) are separate, the attainder of the principal must precede not only the sentence of the accessory, but his trial." As a basis for its holding the court quoted Lord Coke, 4 Rep. 43:

" 'That, if principal and accessory are, and the principal pardoned, or has his clergy, the accessory cannot be arraigned, for the maxim of the law is Ubi factum nullum, ibi fortia nulla; et ubi non est principalis, non potest esse accessorius. Then, before it appears there is a principal, one cannot be charged as accessory. But none can be called principal, before he is so...