Smith v. State
Decision Date | 18 October 1974 |
Docket Number | No. 90,90 |
Parties | Robert Wesley SMITH et al. v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Henry J. Monahan, Asst. Pub. Defender, Rockville, for appellants.
Francis B. Burch, Atty. Gen., Martin M. Mrozinski, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Joseph C. Sauerwein, Deputy State's Atty. for Prince George's County, for appellee.
Argued before ORTH, C. J., and MOYLAN and GILBERT, JJ.
On 13 March 1973 five men engaged in a holdup at the Canteen Corporation in Landover, Maryland. A silent alarm was actuated and the police arrived, surprising the robbers on the premises flagrante delicto. A gun battle ensued. One of the felons was killed and the other four, Robert Wesley Smith, Robert John Young, Guy Thurston Marshall, and Fred Graves, also known as Samuel Edward Brown, were apprehended.
The apprehended felons were jointly indicted by the Grand Jury for Prince George's County. The true bill returned presented charges in 117 counts. There were twenty-six victims of the holdup-twenty-five individuals and the Canteen Corporation, which was the subject of a grand larceny. According to the charges set out, all the individuals were assaulted with the intent to murder them, twenty-four were assaulted and beaten, twenty-three were robbed at gun point and falsely imprisoned, twelve were assaulted with an intent to maim them, and seven were kidnapped. Two of the counts charged violations of the handgun law set out in Code, Art. 27, § 36B. As a result of plea bargaining, each accused pleaded guilty in the Circuit Court for Prince George's County under certain counts. The pleas were accepted and convictions rendered. The judgments were as follows:
SMITH:
Count 22-robbery of Howard Dillard with a deadly weapon; 20 years Count 7-assault upon Nancy Weaver with intent to murder; 15 years consecutive to sentence under count 22;
Count 37-false imprisonment of Gwendolyn Post; 10 years consecutive to sentence under count 7;
Count 117-use of a handgun in the commission of a crime of violence; 15 years consecutive to the sentence under count 37.
YOUNG:
Count 1-robbery of Edward Foley with a deadly weapon; 20 years;
Count 28-robbery of Leonard Kirk with a deadly weapon; 20 years consecutive to the sentence under count 1;
Count 76-false imprisonment of John Ray; 10 years consective to the sentence under count 28.
MARSHALL:
Count 11-robbery of Raymond Johnson with a deadly weapon; 20 years;
Count 78-robbery of John Robinson with a deadly weapon; 20 years consecutive to the sentence under count 11;
Count 87-false imprisonment of Paul Taylor; 10 years consecutive to sentence under count 78.
GRAVES:
Count 94-robbery of Constantin Ionescu with a deadly weapon; 20 years;
Count 44-robbery of Eleanor Miller with a deadly weapon; 20 years consecutive to the sentence under count 94;
Count 63-false imprisonment of William Dove; 10 years consecutive to the sentence under count 44.
The counts remaining as to each accused were disposed of by the entry of a nolle prosequi. Each appealed.
None of the appellants attacks on appeal the judicial confessions he made by his guilty pleas. Thus, there is no need to repeat in detail the violent acts perpetrated in the commission of the crimes. The facts were recounted to the trial court and provided the basis for the pleas. We do note, however, some of the remarks the prosecutor made at the penalty stage of the proceedings:
He characterized the incident as 'a vicious blood bath'. On the evidence proffered, the characterization was not unfair.
Young, Marshall and Graves claim that the trial court abused its discretion in imposing consecutive sentences on the armed robbery convictions. The general rule is that the imposition of sentence in a criminal case is within the discretion of the trial judge and, if within the statutory limits, will not be disturbed on appeal in the absence of a showing that it was dictated, not by a sense of public duty, but by passion, ill will, prejudice or other unworthy motive. Johnson v. State, 9 Md.App. 37, 40, 262 A.2d 325, cert. denied 258 Md. 728; Love and Matthews v. State, 6 Md.App. 639, 644, 252 A.2d 493. Cf. State ex rel. Sonner v. Shearin, Md., 325 A.2d 573, Misc. No. 3 (Adv.), September Term, 1974, filed 1 October 1974. Further, it is firmly established that punishment is not cruel and unusual because sentences are imposed to run consecutively. Bieber v. State, 8 Md.App. 522, 548, 261 A.2d 202.
Appellants take a different tack. They rely on United States v. Alexander, 152 U.S.App.D.C. 371, 471 F.2d 923 (1973) to support their claim. They quote the holding of the court, 471 F.2d at 933-934:
The fact of the matter is, however, that Alexander, concerned not with robbery but with assault, does not say what appellants would have it say. Alexander and two companions were involved in a shooting fray in which two members of the opposing party were killed and four survived. It was established that, although Alexander brandished a pistol during the fracas, he did not fire it. He was separately convicted of four counts of assault with a dangerous weapon for assaulting each of the four survivors, and the trial judge made the sentences on three of the four counts consecutive to one another. Alexander claimed that the evidence did not justify a finding that he assaulted each of the four survivors individually, and that, accordingly, he could have been convicted of but one offense of assault. It was on this factual posture that the court ruled.
Even if we found the rationale of the Alexander holding persuasive, it would not govern the case here. In reaching the decision in Alexander, the court found it necessary to distinguish the holding in Barringer v. United States, 130 U.S.App.D.C. 186, 399 F.2d 557 (1968), cert. denied 393 U.S. 1057, 89 S.Ct. 697, 21 L.Ed.2d 698 (1969). In Barringer consecutive sentences for robbery of a store owner and his wife at the same time, in the same place, were upheld. The majority opinion in Alexander 1 pointed out, 471 F.2d at 932, that the Barringer court justified its holding by stating
There is another theme under which the imposition of consecutive sentences is justified. Ebeling v. Morgan, supra, cited in Barringer, pointed toward it. The opinion of the court in Alexander, discussed it, 471 F.2d at 932:
'Ebeling pleaded guilty to six counts of tearing or cutting mail bags of the United States used in conveyance of the mails, with intent to steal the contents. Each count concerned a separate bag, and Ebeling received consecutive sentences on five of the counts; the Supreme Court affirmed. Although the Court said '(I)t was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation,' it immediately continued:
Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described with the intent charged.
This theme of distinct, successive offenses is consistent with the result in Barringer, for separate acts were necessary in that case to take different amounts of money from the owner and then from his wife.'
See United States v. Hodges, 436 F.2d 676 (10th Cir. 1971); Vera v. Beto, 422 F.2d 1052 (5th Cir. 1970). It is clear that Alexander does not support appellants' contention. Although robbery is a crime in Maryland under the common law with the penalty fixed by statute, Darby v. State, 3 Md.App. 407, 413, 239 A.2d 584, its origins in the common law indicate that the significance of making the act of stealing of personal property from a person by violence a crime was for the protection of the private property of individual victims. 2 But in any...
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