Newton v. State, 66

• Citation: 373 A.2d 262,280 Md. 260
• Decision Date: 05 May 1977
• Docket Number: No. 66,66
• Parties: Odell NEWTON v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 260

280 Md. 260 373 A.2d 262 Odell NEWTON
v.
STATE of Maryland. No. 66. Court of Appeals of Maryland. May 5, 1977.

[373 A.2d 263]

Page 262

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

ELDRIDGE, Judge.

The issue in this criminal case is whether convictions of and sentences for both felony murder and the underlying felony, where both charges arose from the same act or transaction and were tried at the same time, violate the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, and applicable to state court proceedings by virtue of the Fourteenth Amendment.

The State presented evidence at the trial which, if believed, established the following facts. The defendant Newton and a companion, after borrowing a revolver, hailed a taxicab in Baltimore City during the evening of December 19, 1973. Newton sat in the front seat with the driver and the companion sat in the rear seat. After proceeding about one block the companion told the driver that he should stop the cab and that it was a 'stick-up.' The driver raised his hands but was shot four times with the revolver and killed. The companion testified at the trial that it was Newton who fired the revolver, and Newton testified that it was the companion.

At the conclusion of Newton's non-jury trial in the Criminal Court of Baltimore, the court found Newton guilty of first degree murder, stating that it was 'murder in the course of the perpetration of an attempted [373 A.2d 264] robbery' of the cab driver. The court also found Newton guilty of attempted

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robbery. Finally, Newton was convicted on two charges of using a handgun in the commission of a crime of violence, one crime of violence being the felony murder and the other being the attempted robbery. Newton was sentenced to life imprisonment on the murder conviction, twenty years on the attempted robbery conviction, and five years on each handgun conviction. All sentences were concurrent.

On his appeal to the Court of Special Appeals, in addition to challenging the sufficiency of the evidence with respect to all charges, Newton argued that the Fifth Amendment to the United States Constitution precluded convictions and sentences for both felony murder and the underlying felony as well as for both of the handgun violations. He argued that, in light of Fifth Amendment double jeopardy principles, the underlying felony merged into the felony murder. The Court of Special Appeals, rejecting Newton's arguments, upheld all four convictions and sentences, Newton v. State, 31 Md.App. 344, 356 A.2d 274 (1976). This Court then granted Newton's petition for a writ of certiorari limited to the double jeopardy questions.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Fifth Amendment prohibition against placing a defendant twice in jeopardy for the same offense is applicable in state prosecutions. Federal double jeopardy principles, therefore, are controlling in determining whether a defendant has been placed twice in jeopardy in violation of the federal Constitution. See Thomas v. State, 277 Md. 257, 267 n. 5, 353 A.2d 240 (1976); Jourdan v. State, 275 Md. 495, 506, 341 A.2d 388 (1975); Neal v. State, 272 Md. 323, 327, 322 A.2d 887 (1974); Matter of Anderson, 272 Md. 85, 92, 321 A.2d 516, appeal dismissed sub nom. Epps v. Maryland, 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974); Pugh v. State, 271 Md. 701, 704-705, 319 A.2d 542 (1974). The Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the same offense. United States v. Wilson, 420 U.S. 332, 342-343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.

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2072, 2076, 23 L.Ed.2d 656 (1969). In Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1873), the Supreme Court emphasized that the common law prohibition against multiple punishment upon a single conviction for the same offense was inherent in the constitutional prohibition against double jeopardy (id. at 168, 173):

'If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

'For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had, and on a second conviction a second punishment inflicted?

[373 A.2d 265]

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'The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.'

Cf. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915). See also Comment, Double Jeopardy, 75 Yale L.J. 262, 266 n. 13 (1965).

In the instant case, there has been but one prosecution and trial for the felony murder and the underlying felony so that no issue concerning successive trials for the same offense is presented. Cf. Bynum v. State, 277 Md. 703, 707-708, 357 A.2d 339, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). However, both parties and the Court of Special Appeals have proceeded on the assumption that if both offenses are deemed the same under double jeopardy principles, so that both offenses merge upon conviction, separate sentences on both would constitute double punishment and the judgment of conviction and sentence on the lesser offense must be vacated. Even though the sentences on the felony murder conviction and the underlying felony of attempted robbery are concurrent, this assumption is valid in view of our prior Maryland cases in which the Court has reviewed the validity of all convictions and sentences challenged even though concurrent. Stewart v. Warden, 243 Md. 697, 699-700, 221 A.2d 709 (1966); Crowe and Williston v. State, 240 Md. 144, 146, 152-153, 213 A.2d 558 (1965). See the discussion of this question in Benton v. Maryland, supra, 395 U.S. at 787-793, 89 S.Ct. 2056; see also United States v. Belt, 516 F.2d 873, 875 n. 7, 876 (8th Cir. 1975).

The issue in this case, then, is whether felony murder and the underlying felony upon which the murder conviction is founded are to be deemed the same offense under federal double jeopardy principles. In Thomas v. State, supra, 277 Md. 257, 353 A.2d 240, we considered for the first time since Benton v. Maryland, supra, the federal standard for determining whether two offenses arising from the same act or

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transaction are treated as the same for double jeopardy purposes. We noted that the test employed by the Supreme Court in determining whether two offenses are deemed the same for double jeopardy purposes is the required evidence test as formulated in Morey v. Commonwealth, 108 Mass. 433 (1871), and adopted by the Court in Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), in determining whether separate sentences could be imposed for separate counts of an indictment charging various statutory narcotics violations arising from the same transaction, the Court set forth the required evidence test as follows:

'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'

As to the proper application of the required evidence test, we said (Thomas v. State, supra, 277 Md. at 267, 353 A.2d at 246):

'Certain principles concerning the required evidence or same evidence test emerge from the cases. The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purpose.' (Emphasis supplied.)

To the same effect, see Bynum...