Price v. State

• Citation: 277 A.2d 256,261 Md. 573
• Decision Date: 16 April 1971
• Docket Number: No. 343,343
• Parties: Willie Davis PRICE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 573

261 Md. 573

277 A.2d 256

Willie Davis PRICE v. STATE of Maryland.

No. 343.

Court of Appeals of Maryland.

April 16, 1971.

Paul A. Smith, Sr., Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Howard L. Cardin, Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Argued Before HAMMOND, C. J., and FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

Appellant Price was convicted in a nonjury trial of arson (Maryland Code (1971 Repl.Vol.), Art. 27, sec. 408), and murder in the first degree (Code (1971 Repl.Vol.) Art. 27, sec. 408), and sentenced to concurrent terms of life for the murder and ten years imprisonment for the arson. He contends on appeal that his confession was involuntary and its admission into evidence over his objection constituted reversible error, and that his conviction on the arson count merged into the felony murder count, thereby precluding separate sentences for the two offenses.

The evidence at trial showed that as the result of the fire bombing of a restaurant during the April 6, 1968 riots in Baltimore, one Lewis Albrecht was trapped in the building and died of carbon monoxide asphyxia. Appellant was arrested under a warrant on April 29, 1968, by Sergeant Robert Clarke of the Baltimore City Police Department and was charged with the crime. He was immediately subjected to interrogation by Captain James Cadden, in the presence of Clarke. Capt. Cadden and Sgt. Clarke both testified on direct examination that the appellant was given the full panoply of Miranda warnings, that he stated that he understood them, signed a waiver thereof, and within an hour after the interrogation began, signed a statement admitting his involvement in the crime. Both police officers testified that there were no threats, promises, or inducements made to the appellant to obtain his confession. Sgt. Clarke testified on direct examination that neither he nor anybody in his presence told the appellant that the court would go easier on him if he made a statement, and that he was present during the entire interrogation except for a short time when he went to secure the services of a police stenographer to record the appellant's statement.

The appellant testified only for the limited purpose of attacking the voluntariness of the confession. He particularly emphasized in his testimony that he had been denied his right to counsel and that his confession had been obtained as a result of an inducement, thereby violating the dictates of Miranda v. Arizona, 384 U.S. 436, 467-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After reviewing the evidence, the trial judge found the confession to have been voluntarily made and admitted it in evidence. Specifically, the court found as a fact that the Miranda rights had been given to the appellant, that he understood them, signed a waiver thereof, and thereafter gave a signed statement. The court stated that it did not believe the appellant's testimony that he could not read or write. The trial judge also stated that while the appellant had testified that 'somebody told him that if he would make a statement, it would be easier for him', this statement, of itself, would not destroy the voluntariness of the confession. ¹

Price appealed to the Court of Special Appeals, and in an unreported per curiam opinion filed June 22, 1970 (No. 352, September Term, 1969), the court affirmed the judgments and sentences of the trial court. We granted the appellant's petition for a writ of certiorari on October 15, 1970, 269 A.2d 606.

We are asked to determine in this appeal (1) whether the arson conviction should merge into the conviction for felony murder, and (2) whether there was legally sufficient evidence indicating that the appellant's confession was voluntary.

I. MERGER

The question of merger of offenses has arisen in a prodigious number of cases in Maryland and throughout the country in a wide variety of factual situations. The general principles have been discussed at diverse times in terms of merger of offenses, former jeopardy, and divisibility of offenses in the same transaction. See Veney v. State, 227 Md. 608, 611-612, 177 A.2d 883 (1962). Somewhat curiously, there are comparatively few arson-murder cases to be found in which the defendant was convicted of both offenses, and almost none in which the question of the merger of the two offenses has been raised or discussed on appeal. ²

The modern test generally applied in Maryland to the question of merger of offenses is 'whether one crime necessarily involves the other.' Parker v. State, 7 Md.App. 167, 195, 199, 254 A.2d 381, 397 (1969). In Parker, when faced with a question of whether or not a conviction of robbery merged into a conviction of felony murder, the Court of Special Appeals said:

'We think that the doctrine of merger is not applicable here because murder and robbery are separate and distinct offenses. Murder is homicide committed with malice aforethought, Perkins, Criminal Law, (1957) ch. 2, § 1, p. 30; it is malice which distinguishes murder from manslaughter. Stansbury v. State (218 Md. 255), 260, 146 A.2d 17. As 'murder in the first degree' is not a crime as such but merely a classification of murder, that the status of a first degree classification may be attained by proof that the murder was committed during the perpetration of a robbery, does not make robbery an essential element of murder and it follows that murder does not necessarily involve robbery.' 7 Md.App. 199, 254 A.2d 398.

Lynch v. State, 9 Md.App. 441, 265 A.2d 283 (1970) was a related case in which one of the appellant's codefendants had been convicted of felony murder arising out of the burning of the same building in the same incident which forms the basis of the case at bar. ³ In Lynch, the Court of Special Appeals specifically adopted the rationale of Parker v. State and paraphrased the statement found in Parker as follows:

'* * * Murder and the burning of a storehouse are separate and distinct offenses. That the status of a first degree classification may be attained by proof that the murder was committed during the commission of a burning of a storehouse does not make the burning an essential element of murder and it follows that murder does not necessarily involve the burning.' 9 Md.App. 446, 265 A.2d 286.

The Court of Special Appeals, in its per curiam opinion in the case at bar relied exclusively on the reasoning set forth in Lynch v. State, id., and declared that the two offenses do not merge. We agree, but not for the reasons set forth in Lynch v. State.

Appellant contends that 'the same alleged act constitutes both offenses', that act consisting of 'throwing a bucket of gasoline into the already burning building.' He notes that there is 'an identity of time, place, and circumstances' and that 'the facts necessary to prove arson are essential ingredients in establishing felony murder.'

Because of the somewhat unique facts before us, we cannot agree with the Court of Special Appeals' reasoning in Lynch that the murder, because it was committed during the burning of a storehouse, 'does not make the burning an essential element of murder and it follows that murder does not necessarily involve the burning.' 9 Md.App. 446, 265 A.2d 286. That reasoning, although applicable to the robberymurder in Parker v. State, supra, does not apply equally well to an arson-murder, where the burning of the building was the only act involved. Indeed, in Parker v. State, the Court of Special Appeals stated '* * * Nor do murder and robbery arise from the same act; the act of taking property from a person by means of force and fear is separate and distinct from the act of firing shots that kill him, even though each is a part of one general transaction and even though evidence as to the robbery is admissible as to the murder.' 7 Md.App. 199, 254 A.2d 399.

Were we of the opinion that the only consideration legitimately to be discussed in merger questions is whether or not the two offenses stem from a single act, we might then have to agree with the appellant and rule that the two offenses merged. However, we think that there exists an additional consideration, and that the doctrine of merger is not meant to prevent separate convictions for felony murder and the underlying felony of arson. The generally accepted test for merger of offenses might appear to dictate that the offenses in the case at bar be merged. However, the test as normally set forth leaves unstated a very basic consideration, which may be termed the 'thrust' of the offenses being considered. In a very real sense, there was more than one victim affected by the appellant's single criminal act of throwing a bucket of gasoline on a burning building.

Accordingly, in the instant case, we hold that in order for there to have been a merger of the two crimes, there would have had to have been more than just a single criminal adventure. There would have had to have been a single, indivisible criminal act in which the elements essential to the proof of the greater offense necessarily include those required to establish the lesser offense, and the alleged criminal act would have had to have been directed either at a person or at property, but not both at the same time, and having been against both, the offenses do not merge.

Thus, where the offenses in question consist of separate and distinct acts (e. g., robbing and shooting), even though part of a single 'transaction' or criminal adventure conviction on both counts is proper. McChan v. State, 9 Md.App. 311, 316, 264 A.2d 130 (1970); Parker v. State, supra. Compare Melville v. State, 10 Md.App. 118, 126, 268 A.2d 497 (1970). And, where the elements essential to proof of the greater offense (e. g., assault with intent to murder) do not necessarily include the elements required to establish the lesser...