Rice v. State

• Decision Date: 05 November 1987
• Docket Number: No. 23,23
• Parties: , 75 A.L.R.4th 73 Anthony Andrew RICE v. STATE of Maryland. Sept. Term 1987.
• Court: Maryland Court of Appeals

Page 116

311 Md. 116

532 A.2d 1357, 75 A.L.R.4th 73

Anthony Andrew RICE v. STATE of Maryland.

No. 23 Sept. Term 1987.

Court of Appeals of Maryland.

Nov. 5, 1987.

W. Gary Kohlman (Kohlman & Fitch, on the brief), Washington, D.C., for appellant.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

Maryland's consolidated theft statute, Maryland Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.) Article 27, §§ 340-344, enumerates in five subsections of § 342 alternate methods by which the crime of theft can be committed. ¹ This appeal presents the question whether a defendant, charged with theft, is entitled to a jury instruction that a conviction for this offense could not be obtained unless the jury agreed unanimously on all elements of at least one subsection of the statute. To resolve this question we must address issues both of the proper interpretation of the theft statute and of the statute's constitutionality under Articles 5 and 21 of the Maryland Declaration of Rights. ²

I

In April 1985, at the conclusion of a jury trial in the Circuit Court for Montgomery County, appellant Anthony Rice was convicted of burglary, two counts of robbery with a dangerous and deadly weapon, two counts of use of a handgun in a crime of violence, and theft of property having a value of more than $300. Rice was subsequently sentenced to imprisonment for eighty years, including fifteen years on the theft count. The charges against him stemmed from a burglary and armed robbery on the night of January 17, 1984, of Harold and Cynthia Resnick at their residence in Montgomery County.

The circumstances attending this crime and Rice's subsequent arrest and conviction are not in dispute. The Montgomery County Police were conducting surveillance in the Resnick neighborhood because numerous armed robberies had recently occurred in the area. On the evening of January 17, the police noticed a white Cadillac parked not far from the Resnick residence. Shortly before 11 p.m. that same night the police observed the Cadillac being operated by two men. The driver was wearing a bulky jacket, had facial hair, and appeared to be a black male. At 11:20 p.m. the Resnicks reported that they had been the victims of an armed robbery that had begun shortly after 9 p.m. They described the robbers as two black males, armed, wearing ski masks, approximately thirty years old, six feet tall, thin, and with facial hair.

On learning of the robbery, the police traced the ownership of the Cadillac to Annabelle Postell, known to the police as an associate of Rice and his twin brother. Early on January 18 the vehicle was located outside a pool hall in Prince George's County and placed under surveillance. About 6:30 a.m. police observed a black male--described at trial as "six feet tall, beard, long three-quarter length blue winter coat on, like a ski parka type thing, and [he] had a hat on"--come out of the pool hall, open the trunk of the car, remove something from the trunk, and return to the building. At approximately 8 a.m., as the man drove the car from the pool hall, he was arrested by the police. He identified himself as Anthony Rice.

The Cadillac was impounded and searched, pursuant to a warrant. The Resnicks had reported that furs, jewelry, and cash were taken in the robbery. The Cadillac contained two handguns, tools, some jewelry, and several fur coats. The fur coats, jewelry, and a chain worn by Rice when he was arrested were identified by the Resnicks as their property. Many other items taken from the Resnicks, including $1,800 in cash, antiques, and other fur coats and jewelry, were never recovered. Neither of the Resnicks identified appellant as one of the robbers.

On the basis of this evidence the trial judge instructed the jury as follows with respect to the theft count:

"The Maryland Theft Statute indicates that a Defendant may be guilty of violating either Subsection A or Subsection C of the statute or guilty of violating both subsections....

....

"In order for you to find the Defendant guilty, all of you must find that the Defendant violated Subsection A or Subsection C or both....

.... "Now, in order to reach a verdict in this case, each of you must agree upon it. Your verdict must be unanimous and it must be based entirely upon the evidence you have heard and seen in the courtroom and the laws given in these instructions."

Rice appealed his conviction to the Court of Special Appeals, asserting that the trial judge's jury instructions were improper. In an unreported opinion the Court of Special Appeals, relying on Craddock v. State, 64 Md.App. 269, 494 A.2d 971, cert. denied, 304 Md. 297, 498 A.2d 1184 (1985), rejected this contention. We granted certiorari to consider the significant issue raised in the case.

II

Appellant contends that the trial judge erred in failing to instruct the jury "that it could convict the defendant of theft only if all twelve jurors agreed unanimously that the defendant had committed all the elements of larceny under subsection (a) [of § 342] or all the elements of possession of stolen property under subsection (c)." This error, appellant asserts, created the possibility that in the jury deliberations leading to his conviction the following occurred: six jurors believed Rice took the property from the Resnicks, and so thought him guilty of violating subsection (a); they did not believe he possessed the Resnick property as stolen property, and thus did not think him guilty of violating subsection (c). The other six jurors believed the opposite: they thought Rice guilty of possessing stolen property but not of taking it himself from the Resnicks. ³ As to each subsection, therefore, half the jurors were unconvinced of Rice's guilt. Yet, the appellant postulates, given no jury instruction requiring unanimity as to all elements of at least one subsection, the jury nonetheless returned a verdict of guilty.

While the result appellant condemns is theoretically possible, the question remains whether it is permissible. With considerable cogency appellant contends it is not. In support of his position, he points out that consolidated criminal statutes are of two classes. The first defines a single crime and, in enumerating subsection offenses, provides different ways the crime may be committed; the second, though cast in the form of a single statute or section, in enumerating subsection offenses actually states autonomous crimes. ⁴ According to Rice, to determine in which class the subsections of a particular consolidated statute belong requires a comparison of the statute's subsections with each other. He says that if the subsection offenses are conceptually distinct, then they are autonomous crimes and the right to jury unanimity applies to all essential elements. Rice urges that subsections (a) and (c) of § 342 are conceptually distinct (are separate crimes) because they contain different actus reus elements and are basically renovated versions of crimes, namely larceny and receiving stolen property, that have quite different common law origins.

We think appellant's argument requires that we first consider whether, as a matter of statutory construction, the jury unanimity appellant seeks is consonant with the language and purposes of the theft statute. Second, we must canvas the relevant case law in determining, as a matter of constitutional law, the proper scope of jury unanimity with respect to consolidated criminal statutes. And, third, we must apply the applicable law to Maryland's consolidated theft statute.

III Statutory Construction

This is not the first time we have considered whether the legislature intended that Maryland's theft statute be regarded as one crime or several. In Jones v. State, 303 Md. 323, 493 A.2d 1062 (1985), we confronted this question directly in rejecting a constitutional challenge to the short form charging document provided by § 342(c) of the theft statute. The appellant in Jones asserted that because of the wide diversity of elements which comprise the crime of theft under § 342, a charging document stating merely that the defendant "did steal" specified property of the named victim in violation of the statute failed to provide constitutionally adequate notice of the essential elements of the crime charged. Our decision in that case turned on whether the legislature had made "stealing" property or services of another a single criminal offense. We held that it had.

Jones thus focused on an earlier stage of a theft prosecution than that here involved. The predicate of our reasoning in Jones was "that Maryland's consolidated theft statute constitutes a single crime; [and] that the subsections of § 342 merely specify different acts or transactions through which theft can be proved...." 303 Md. at 338, 493 A.2d 1062.

Nothing in the language of the theft statute or its legislative history suggests that § 342 encompasses multiple crimes for jury instruction purposes. Indeed, the first sentence of § 341 flatly and unequivocally states: "Conduct designated as theft in this subheading constitutes a single crime...." As set forth in the October 1978 report of the General Assembly's Joint Subcommittee on Theft Related Offenses, the legislative history underlying enactment of the consolidated theft statute clearly posits a single offense. In the introduction to that report the subcommittee quotes with approval the following from Farlow v. State, 9 Md.App. 515, 516, 265 A.2d 578 (1970): "If a person unlawfully appropriates the personal property of another to his own use the path between proof of that fact and conviction of a crime should be straight and clear."

It may be true, as appellant has hypothesized, that, in jury deliberations, six jurors may think the defendant guilty of violating § 342(a) and six guilty of...