Spencer v. State

• Citation: 30 A.3d 891,422 Md. 422
• Decision Date: 25 October 2011
• Docket Number: 2009.,Sept. Term,No. 87,87
• Parties: Erick Leroy SPENCERv.STATE of Maryland.
• Court: Maryland Court of Appeals

422 Md. 422

30 A.3d 891

Erick Leroy SPENCER

v.STATE of Maryland.

No. 87

Sept. Term

2009.

Court of Appeals of Maryland.

Oct. 25, 2011.

Juan P. Reyes, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.Michelle W. Cole, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.Argued before BELL, C.J., HARRELL, GREENE, ^* MURPHY, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.JOHN C. ELDRIDGE (Retired, Specially Assigned), J.

Petitioner Erick Leroy Spencer was charged and convicted of robbery, theft over $500, and second degree assault. Spencer was sentenced to imprisonment for robbery, and, for purposes of sentencing, the other two convictions were merged. On appeal, he has challenged the sufficiency of the evidence to sustain his robbery conviction. The State in this case presented evidence showing that Spencer entered an automobile service center and stated to the cashier: “Don't say nothing.” We shall hold, however, that the State failed to prove an essential element of the crime of robbery. There was no evidence that Spencer conducted himself in a manner that could cause apprehension in a reasonable person that the petitioner was about to apply force. When the State fails to produce any evidence of one of the elements of the offense charged, the conviction cannot stand. Accordingly, we shall reverse the robbery conviction.

I.

The facts in this case are uncontested. On December 26, 2006, at around 3:20 in the afternoon, Spencer entered the Jiffy Lube automobile service center located on Baltimore National Pike. He walked up to the cashier, a man named Tyrone Stinnette, and stated: “Don't say nothing.” At Spencer's trial before the Circuit Court for Baltimore County, Mr. Stinnette testified as follows:

State's Attorney: “[D]o you recall something out of the ordinary occurring during that day?

Stinnette: “Yeah. We got robbed.

State's Attorney: “When you say ‘you got robbed,’ explain where you were and what exactly in your mind you saw happen?

Stinnette: “I was ringing up customers and got robbed.

State's Attorney: “Again you said you were robbed. What was done? When you say ‘robbed,’ explain what you mean by ‘robbed’?

Stinnette: “Money was took.

State's Attorney: “How was it taken from you? Were you working the register?

Stinnette: “Yes.”

* * *

State's Attorney: “What did Mr. Spencer say or do when he walked up to you?

Stinnette: “He said, ‘Don't say nothing.’ Once he say that, I knew what was going on.

State's Attorney: “Did he point anything at you or imply anything?

Stinnette: “No.

State's Attorney: “Did you believe he had a weapon at that time?

Stinnette: “I wasn't taking no chances.

State's Attorney: “You said you weren't taking no chances. What did you do when he said that?

Stinnette: “I handed him the cash register drawer.”

Stinnette testified that after he handed the cash register drawer to Spencer, Spencer “just left.” Stinnette also testified that another man had accompanied Spencer into the shop and that the other man simply “sat in the lounge” and left after Stinnette had handed the cash register drawer to Spencer. Stinnette did not call the police and, when asked by the State's Attorney if he attempted to “persuade the individual, chase him or anything,” Stinnette replied that he did not. Stinnette's testimony concluded with the following exchange:

State's Attorney: “Mr. Stinnette, after the individual left the location, can you explain to Judge Daniels how you felt when you first came in that day? How did you feel when he did that to you, when he approached the counter?

Stinnette: “Like I said, I wasn't taking no chances.”

The record does not include any description of the Spencer's clothing on the day of the incident, and the only physical description of the petitioner included in the record is Stinnette's recollection that the petitioner was “five nine” and “had a tear drop [tattoo] underneath his eye.”

As earlier mentioned, Spencer was charged with robbery, theft over $500, and second degree assault. After the nonjury trial, he was found guilty of robbery and the theft and assault convictions were, for the purposes of sentencing, merged with the robbery conviction. Although the robbery statute provides that the penalty shall not exceed 15 years, Spencer was sentenced to 25 years without parole as a subsequent violent offender with two previous robbery convictions. See Maryland Code (2002, 2011 Supp.), § 14–101(d) of the Criminal Law Article.

Spencer appealed to the Court of Special Appeals, arguing that the evidence at trial was insufficient to support his robbery conviction. He specifically claimed that the record did not show any evidence of force or a threat of force during his exchange with the cashier, a crucial component of a robbery charge. In an unreported opinion, the Court of Special Appeals affirmed Spencer's robbery conviction, stating that the “fact finder had before it sufficient evidence upon which it could reasonably conclude that the constructive force element of robbery was satisfied because the governing objective standard does not require a showing of actual fear, nor is the actual display of a weapon necessary.”

Spencer petitioned this Court for a writ of certiorari, which was granted. Spencer v. State, 410 Md. 559, 979 A.2d 707 (2009). In his petition, Spencer again challenged the sufficiency of the evidence to sustain his robbery conviction.¹ While the Court of Special Appeals correctly stated the principle that the constructive force element of robbery may be satisfied without a showing of actual fear, that court failed to acknowledge that a review of the evidence in this case makes it clear that the State failed to produce any evidence showing that the petitioner conducted himself in a way that a reasonable person would construe as creating the apprehension that force was threatened. Without evidence to this effect, the State did not prove all elements of the robbery charge.

II.

Robbery in Maryland is governed by a common law standard. Maryland Code (2002, 2011 Supp.), § 3–401(e) of the Criminal Law Article, provides that “ ‘[r]obbery’ retains its judicially determined meaning.” From its earliest days in Maryland law, fear has been a central component in distinguishing the crime of larceny or theft from robbery. A 1724 English treatise, quoted by Chief Judge Murphy in West v. State, 312 Md. 197, 203, 539 A.2d 231, 233 (1988), stated:

“Larceny from the Person of a Man either puts him in Fear, and then it is called Robbery; or does not put him in Fear, and then it is called barely, Larceny from the Person.” William Hawkins, Treatise of the Pleas of the Crown.

The treatise continued to explain that “[r]obbery is a felonious and violent Taking away from the Person of another, Goods or Money to any Value, putting him in Fear.” Ibid.

An early Maryland treatise, John Latrobe, Justice's Practice under the Laws of Maryland (1826) likewise noted:

“Open and violent larceny from the person, or robbery, is the felonious and forcible taking from the person of another, of goods or money to any value, by violence, or putting him in fear. The putting in fear distinguishes it from other larcenies. 4 Blac. Comm. 242.”(Quoted in West v. State, supra, 312 Md. at 203, 539 A.2d at 233–234.)

More recently, this Court commented that: “The hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation.” Coles v. State, 374 Md. 114, 123, 821 A.2d 389, 395 (2003).

In West v. State, supra, 312 Md. at 203, 539 A.2d at 234, the Court encountered the “question of the degree of violence or putting in fear that is requisite” to distinguish a theft, or larceny, from a robbery. In West, the defendant snatched a woman's purse. The woman later testified at the defendant's trial that “just [as he] snatched my purse from my hand and he ran, that's when I noticed my pocketbook was gone....” 312 Md. at 199, 539 A.2d at 232. West was convicted of robbery, and, in this Court, he challenged the conviction, arguing that the evidence was insufficient to support the robbery conviction because the purse snatching “was not accompanied by sufficient force to constitute robbery.” 312 Md. at 201, 539 A.2d at 233. The West Court overturned the robbery conviction for insufficient evidence, highlighting the fact that the record demonstrated that the victim in West was “never placed in fear; she did not resist; she was not injured.” 312 Md. at 206, 539 A.2d at 235.

In so holding, the Court in West, 312 Md. at 203, 539 A.2d at 233, traced the “ancient origins” of common law robbery, closely examining the “requirement that the larceny be accompanied by violence or putting in fear” to constitute robbery. We discussed several English cases where courts had refused to uphold robbery convictions when the incidents involved only snatching items from victims without force or threat of force. See The King v. Macauley, 168 Eng. Rep. 246 (1783); The King v. Baker, 168 Eng. Rep. 247 (1783); see also Steward's Case, 168 Eng. Rep. 247–248, discussed in n. 3 (1690).

The West Court also examined cases in the Court of Special Appeals with facts that mirrored the situation in West. See Raiford v. State, 52 Md.App. 163, 447 A.2d 496 (1982); Cooper v. State, 9 Md.App. 478, 265 A.2d 569 (1970); Williams v. State, 7 Md.App. 683, 256 A.2d 776 (1969). The Court in West relied particularly on Cooper v. State, supra, 9 Md.App. 478, 265 A.2d 569, a case in which a conviction of robbery was overturned when the defendant reached into another man's pocket, “ startled” him, and took his wallet. The Cooper opinion set forth the applicable law:

“Where, as here, it is clear that the victim was neither intimidated [n]or put in fear, there must be evidence of actual violence preceding or accompanying the taking. * * *[T]he mere...