Snowden v. State

• Decision Date: 01 September 1988
• Docket Number: No. 117,117
• Citation: 321 Md. 612,583 A.2d 1056
• Parties: Elmer Maurice SNOWDEN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 612

321 Md. 612

583 A.2d 1056

Elmer Maurice SNOWDEN v. STATE of Maryland.

No. 117, Sept. Term, 1988.

Court of Appeals of Maryland.

Jan. 14, 1991.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, Jose Felipe Anderson, Asst. Public Defender, all on brief), Baltimore, for petitioner.

Beverly Peyton Griffith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY and McAULIFFE, JJ., and COLE, ^** ADKINS ^* and BLACKWELL ^* (retired), Court of Appeals Judges, Specially Assigned.

COLE, Judge.

In this case we must determine whether separate convictions for assault and battery and robbery with a dangerous and deadly weapon of one victim arising out of the events of one evening are proper, or whether the lesser offense of assault and battery merges into the greater robbery offense.

The Petitioner, Elmer Maurice Snowden, was convicted in the Circuit Court for Anne Arundel County of first degree murder, ¹ robbery with a dangerous and deadly weapon, and assault and battery for an incident that occurred on March 2, 1986. On that night, Snowden and an accomplice approached the Romano's Restaurant in Glen Burnie with the intent to steal. One of the restaurant employees, Pete Bucklew, opened the back door to take the trash to the dumpster, and Snowden entered through the open door, holding Bucklew and Michael Generette, another employee, at gunpoint. Bucklew struggled for the gun and was shot and killed. Upon hearing noises in the kitchen, the restaurant manager, Framouzis Stamidis, came from the office to the kitchen where he was immediately shot in the left arm by Snowden. Stamidis and Generette were then told to lie down on the floor. Snowden, while pointing his rifle at the two men, asked repeatedly where Stamidis' gun was, but after several denials by Stamidis of the existence of a gun in the restaurant, Snowden ordered Stamidis to take him to the money. Still at gunpoint, Stamidis led Snowden to the office where the money was located, and Snowden and his accomplice then left with $3000 taken from the restaurant. Snowden was apprehended several days later.

Snowden does not contest his conviction for the murder of Bucklew. He argues, however, that the separate conviction for assault and battery of Stamidis should have been merged into the greater offense of armed robbery. Snowden contends that the two offenses arose from the same transaction and that all of the elements of assault and battery that occurred here were also required to prove the robbery. Therefore, he argues, the lesser offense should merge into the greater.

The State counters by stating that there were in fact two separate crimes perpetrated against Stamidis, one being the shooting (battery) as soon as Stamidis approached the kitchen (before the robbery began) and the other being the robbery itself with the requisite element of force or threat of force provided by the rifle constantly pointed at Stamidis' back while Snowden demanded money. The State also avers that separate convictions for two offenses are proper if the lesser offense is not essential to effectuate the greater offense. The State reasons that an assault (a threat of force) can support a robbery conviction and that a battery (a harmful or offensive touching) is not necessary to effectuate a robbery. Therefore, separate convictions for battery and robbery of one victim during one criminal episode can coexist.

The judgment of the trial court was affirmed by the Court of Special Appeals. Snowden v. State, 76 Md.App. 738, 548 A.2d 165 (1988). We granted certiorari to decide the important issue of whether the offenses should merge.

This Court has made clear that under both federal double jeopardy principles and Maryland merger law, the usual test for determining whether two offenses are the same is the required evidence test. White v. State, 318 Md. 740, 569 A.2d 1271 (1990); State v. Ferrell, 313 Md. 291, 545 A.2d 653 (1988); Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988); Dillsworth v. State, 308 Md. 354, 519 A.2d 1269 (1987); State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980); Brooks v. State, 284 Md. 416, 397 A.2d 596 (1979); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977). The required evidence test is often labelled the Blockburger test based on the Supreme Court's holding and analysis in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ²

In Blockburger, the Petitioner was convicted of three counts of illegal sale of morphine hydrochloride to the same purchaser on two different days. The third count of the indictment charged a sale of the drug not from the original stamped package in contravention of the then prevailing Harrison Narcotic Act; the fifth count charged that the same sale was not made pursuant to a written order of the purchaser as required by another provision of the Harrison Act. One of the Petitioner's principal contentions was that the sale charged in the third count constituted the same sale that was the basis for the fifth count, and therefore that sale should only have amounted to one offense with a single penalty. Id. at 301, 52 S.Ct. at 181. The Supreme Court did not agree. The Court held that a single act may be an offense against two statutes, and if each statute requires proof of a fact which the other does not, there are two separate offenses. Id. at 304, 52 S.Ct. at 182. In Blockburger, each statute required proof of different elements of the illegal sale of narcotics, and as such two offenses were committed. Id.

Although Blockburger involved statutory offenses, as stated above, the required evidence test is also the applicable standard under the common law Maryland merger doctrine. The required evidence test "focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter." State v. Jenkins, 307 Md. at 517, 515 A.2d 465. If the offenses merge and are thus deemed to be one crime, separate sentences for each offense are prohibited. Newton v. State, 280 Md. at 268, 373 A.2d 262. What we are called upon to do, then, is scrutinize the elements of robbery and assault and battery to determine whether all the elements of assault and battery were relied upon to find a robbery. If so, and the offenses occurred during one criminal act, Snowden's two convictions on those charges cannot stand.

Assault has been defined as either "(1) an attempt to commit a battery or (2) an intentional placing of another in apprehension of receiving an immediate battery." Dixon v. State, 302 Md. 447, 457, 488 A.2d 962 (1985), quoting Perkins on Criminal Law 114 (2d ed. 1969). Battery, another common law offense, is the unlawful application of force to the person of another. "Robbery" is also a common law crime and refers to the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear. West v. State, 312 Md. 197, 202, 539 A.2d 231 (1988); Williams v. State, 302 Md. 787, 792, 490 A.2d 1277 (1985).

Robbery is a compound larceny. It is a larceny from the person accomplished by either an assault (putting in fear) or a battery (violence). Therefore, either combination produces a robbery. When such a "multi-purpose" crime is involved, we refine it by examining the alternative elements relevant to the case at issue.

The State contends that the shooting was a separate act giving rise to a separate criminal offense. We assume, for the sake of argument, that the fact finder had a basis for concluding either that the shooting was a separate act or that it was part of the robbery. Here it did neither and we need not venture a guess as we believe the rationale applied in Nightingale dictates a clear result.

In Nightingale, we were faced with a similar situation. There the issue was whether separate convictions and sentences for both child abuse and sexual offenses were proper when the State relied upon and proved the sexual offense to sustain the child abuse conviction. According to the State, the abuse charge was not based on physical harm; the sex offenses themselves constituted the abuse. The judge instructed the jury on the elements of all the offenses, and the prosecutor told the jury that the abuse consisted of the sexual offenses. The Petitioner was convicted of both child abuse and the sexual offenses.

We held that under the circumstances, the jury could have found the defendant guilty of child abuse based solely on evidence of some sexual offense. If that were the case, then the sex offense would have become a lesser included offense of child abuse. The problem, however, was that we could not determine whether the general verdict of guilty of abuse was based on the sex offense as a lesser included offense or on other reasons. Therefore, we resolved the ambiguity in favor of the defendant and set aside the sex offense counts. See, id., 312 Md. at 708-9, 542 A.2d 373.

We are faced with a similar ambiguity here. We do not know whether the robbery charged was based on battery as a lesser included offense or on assault as a lesser included offense with the battery considered separate. Snowden's was a court trial; had it been a jury trial we could have looked to the judge's instructions in hope of illuminating the rationale behind the verdicts. Because the case was tried by the court, we must look to the judge's rationale for the convictions. That rationale is not readily apparent to us, so, as in Nightingale, we are constrained to give the Petitioner the benefit of the doubt and merge his sentence for and conviction of assault and battery into those for the robbery charge. The fundamental principle of fairness in meting out...