Newton v. State

• Decision Date: 05 May 1976
• Docket Number: No. 549,549
• Citation: 356 A.2d 274,31 Md.App. 344
• Parties: Odell NEWTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 344

31 Md.App. 344

356 A.2d 274

Odell NEWTON v. STATE of Maryland.

No. 549.

Court of Special Appeals of Maryland.

May 5, 1976.

James M. Smith, Assigned Public Defender, with whom were Gebhardt & Smith, Baltimore, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, and Sandra A. O'Connor, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MORTON, MELVIN and MASON, JJ.

MORTON, Judge.

In a non-jury trial conducted in the Criminal Court of Baltimore (Karwacki, J., presiding), appellant was convicted of murder in the first degree and the unlawful use of a handgun in the commission of a crime of violence under one indictment and of attempted armed robbery and unlawful use of a handgun in the commission of a crime of violence under a second indictment. A life sentence was imposed upon the murder conviction and a five year concurrent sentence on the handgun conviction. A sentence of twenty years was imposed on the conviction of attempted armed robbery and a five year concurrent sentence upon the handgun violation. These latter sentences were concurrent with the life sentence.

It appears from the record that appellant was visiting friends at an apartment in Baltimore City on the evening of December 19, 1973. During the course of the evening one of his friends, Anthony Stevenson, discharged a blank starter's pistol four times in the fact of another friend, Evelyn Gee. According to Miss Gee, appellant and Stevenson then discussed a 'stickup.' Appellant borrowed the revolver of another person in the apartment, Henry Allen, and he and Stevenson departed from the apartment about 10:30 p. m., purportedly intending to get something to eat from a 'sub shop' in nearby Edmondson Village.

Stevenson testified that they hailed a cab and appellant sat up front with the driver while he occupied the rear seat. After they had proceeded approximately a block, Stevenson told the driver to stop the cab, that this was a 'stickup' and appellant thereupon shot the driver four times with the .38 caliber revolver he had borrowed from Henry Allen. The driver was killed and both Stevenson and appellant fled in opposite directions and then returned to the apartment.

Appellant's testimony was in substantial agreement with that of Stevenson with the exception that he asserted it was Stevenson who shot the cab driver with Allen's gun which appellant had turned over to Stevenson shortly after they had left the apartment.

Evelyn Gee testified that when appellant returned to the apartment shortly after the shooting and before Stevenson arrived, 'he had this gun in his hand, like he was out of breath and he had been running and he's standing beside the wall. He started taking these bullets out of the gun. He said, 'These stopped a cab driver,' and that he had shot him. * * * He was taking the bullets out of the gun and he was saying, 'I shot him one, two, three times.' Then he said, 'No, I shot him four times,' and he pointed to his neck. 'Four times,' he said, 'I shot him right there.' That's when Anthony Stevenson got there and then they started arguing amongst themselves.'

Appellant testified that he and Stevenson returned to the apartment at the same time; that he gave the gun back to Allen and started to explain what had recently occurred when Allen told him to keep quiet.

In this appeal it is first contended that 'the conviction of the Appellant of both felony murder and the underlying felony of attempted robbery violated the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution.' Counsel for appellant 'concedes that the Maryland Courts have held previously that such convictions do not offend the doctrine of double jeopardy, nor trigger a merger of the two offenses,' but urges us to review 'past decisions in light of the developing Maryland law on merger and the reasoning and analysis contained in the recent Louisiana case of State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).'

While we can understand the appellant's desire to have a review of prior cases, ¹ his request for such a review would be better addressed to the Court of Appeals since this Court is bound by the decisions of that Court which have held that felony murder convictions do not violate the double jeopardy clause of the fifth amendment to the United States Constitution. Accordingly, we cannot subscribe to appellant's first contention.

It is also contended that 'The conviction and sentencing of the appellant on two different counts charging the same handgun violation for the same act of conduct arising out of the same incident impermissibly resulted in multiple punishment of the appellant for the same offense and accordingly violated the appellant's right to not be placed twice in jeopardy.'

Maryland Code, Art. 27, § 36B(d) (1976) provides:

'Unlawful use of handgun in commission of crime-Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five years nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.'

Maryland Code, Art. 27, § 441(e) (1976) provides:

'The term 'crime of violence' means abduction; arson; burglary, including common-law...