Spitzinger v. State

• Decision Date: 01 September 1994
• Docket Number: No. 58,58
• Citation: 340 Md. 114,665 A.2d 685
• Parties: Steven Lane SPITZINGER v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 114

340 Md. 114

665 A.2d 685

Steven Lane SPITZINGER v. STATE of Maryland.

No. 58, Sept. Term, 1994.

Court of Appeals of Maryland.

Oct. 4, 1995.

Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Mary Ellen Barbera, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

The defendant Steven Spitzinger was convicted of felony theft of property to the value of $300 or greater under Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 342, which carries a statutory maximum penalty of 15 years imprisonment. He was sentenced to 12 years for the offense. The issue before the Court is whether the maximum penalty for felony theft must be reduced to 10 years because the jury that convicted Spitzinger of felony theft also acquitted him of robbery with a deadly weapon and simple robbery of the same property, and the maximum penalty for simple robbery under Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 486 is 10 years. We must determine whether the legislature intended that the legislatively established maximum penalty for felony theft should be lowered to the maximum penalty for robbery when the defendant is convicted of theft but acquitted of robbery involving the same property.

I. FACTS

Steven Lane Spitzinger was indicted by a grand jury in Prince George's County for robbery with a deadly weapon (armed robbery), robbery, theft of property having a value of $300 or greater (felony theft), theft of property having a value under $300 (misdemeanor theft), and related offenses. He elected a trial by jury. At his trial in the Circuit Court for Prince George's County, (Femia, J.) the jury was presented with the following facts. Terry Butler testified that he was driving his employer's Pontiac Sunbird when he stopped for a red light at the intersection of Decatur Street and Kenilworth Avenue in Prince George's County. While waiting for the light to change, a white male approached his car on the driver's side. The man produced a small chrome automatic pistol and told Mr. Butler to get out of the car. Mr. Butler complied, and the man got into the vehicle and drove off. Within minutes after the crime, a police car approached the intersection, Mr. Butler "waived him down," and reported the robbery. Three days later, Spitzinger was found in possession of the stolen vehicle. Shortly after the car was recovered, Mr. Butler identified a photograph of Spitzinger as the person who committed the armed robbery, but at trial Mr. Butler could not make an in-court identification of Spitzinger as his assailant. Edwin Stone, Jr., Mr. Butler's employer, testified that he was the owner of the Pontiac Sunbird and that its value was $3,500.

Spitzinger took the stand in his own defense and denied being the armed robber. Spitzinger did, however, admit theft of the vehicle. He claimed he found the vehicle in a nearby Mobil gas station with the keys in the ignition and the motor running, and that he got in the unattended vehicle and drove away.

The jury was asked to return verdicts on the charge of armed robbery and the lesser included offense of robbery as well as on the charge of felony theft of property valued at $300 or greater and the lesser included offense of misdemeanor theft of property valued at under $300. The trial judge told the jury:

"This case comes down to whether Spitzinger committed a robbery, armed or otherwise, as opposed to a theft. We all heard Spitzinger on the witness stand."

The trial judge also gave the jury instructions on merger. The judge instructed the jury that robbery would merge into armed robbery if the defendant was guilty of armed robbery, and that if the defendant was guilty of theft of $300 or greater, the misdemeanor theft count would merge into the felony theft count. Although the jury was told which counts would merge, separate verdicts were sought on the robbery counts and on the theft counts. There were several possible verdict combinations on the several counts, three of them are particularly relevant to the issue before this Court. The jury could have convicted Spitzinger of armed robbery or robbery and still have acquitted him of felony theft if it did not find that the vehicle was worth $300 or more. The jury could have acquitted Spitzinger of the armed robbery and lesser included robbery but convicted him of felony theft. They also could have convicted Spitzinger of both felony theft and armed robbery or robbery. The second is the verdict ultimately returned by the jury. Spitzinger was acquitted of armed robbery and robbery but convicted of felony theft. Spitzinger apparently had an extensive prior record and the trial judge sentenced him to 12 years incarceration. Spitzinger appealed to the Court of Special Appeals contending that his acquittal on the robbery count limited his sentence on the conviction for felony theft to a maximum of 10 years. In a per curiam opinion the intermediate appellate court affirmed Spitzinger's conviction and sentence.

II. LEGISLATIVE INTENT

Legislative intent controls our determination of the validity of Spitzinger's sentence because it is for the legislature to define criminal offenses and their punishments. The dissent states "in merger cases ... legislative intent is only one of several relevant considerations." 340 Md. 114, 132, 665 A.2d 685, 693 (1995). We disagree. It is quite clear that the legislature may provide for cumulative sentences or multiple punishments for separate crimes, even crimes that might constitute the same offense under the "same elements" test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ¹ As this Court noted in Randall Book Corp. v. State, 316 Md. 315, 558 A.2d 715 (1989) "[W]hen dealing with the question of multiple punishments imposed after a single trial, and based on the same conduct, a critical question is one of legislative intent. The Blockburger test is helpful in such cases as an aid in determining legislative intent, but is not dispositive."

316 Md. at 324, 558 A.2d at 720. See also Ohio v. Johnson, 467 U.S. 493, 500 n. 8, 104 S.Ct. 2536, 2541 n. 8, 81 L.Ed.2d 425, 433 n. 8 (1984) ("Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end.").

Spitzinger contends that, as a matter of statutory interpretation, the legislature intended that a conviction for felony theft of $300 or greater is punishable by up to 15 years, except when the State adds armed robbery and robbery counts for which the defendant is acquitted. He suggests that a defendant's acquittal of armed robbery and robbery was intended by the General Assembly to reduce the maximum punishment for felony theft from 15 years to 10 years. We do not believe that the legislature intended such an illogical result. It seems more likely that when the legislature established a 15-year penalty for felony theft it meant for that maximum penalty to be applicable to everyone convicted of the crime regardless of whether the State chose to additionally prosecute for possibly related robberies.

III. MERGER OF OFFENSES

Spitzinger has two contentions as to why the 15-year maximum sentence for felony theft should be reduced to the 10-year maximum sentence for robbery. His first contention is that the two offenses must merge and that the offense of felony theft must merge into the offense of robbery. His second contention is that, even if the offenses do not merge, cumulative or successive sentences were not intended by the legislature, and the sentences must merge with the sentence for felony theft merging into the potential sentence for robbery.

As previously indicated, even if felony theft was a lesser included offense of robbery, thus requiring a merger under the Blockburger required evidence test, the legislature could still authorize cumulative or successive punishments. The Blockburger test is simply an aid in determining whether the legislature may have intended to preclude cumulative punishment. See Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535, 543 (1983); Newton v. State, 280 Md. 260, 274 n. 4, 373 A.2d 262, 269 n. 4 (1977). See also Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275, 282 (1981); Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715, 723 (1980) (categorizing the Blockburger test as a "rule of statutory construction" in the single prosecution/multiple punishment context).

The two statutory felonies we must analyze in the instant case clearly do not even merge under the required evidence test because each contains an element which the other does not. Robbery requires a taking of property of any value whatsoever which is accomplished by violence or putting in fear. Snowden v. State, 321 Md. 612, 617, 583 A.2d 1056, 1059 (1991). Felony theft requires a taking of property that has a value of $300 or greater and that value must be charged and proved to the trier of fact. Wadlow v. State, 335 Md. 122, 129-30, 642 A.2d 213, 216 (1994); Hagans v. State, 316 Md. 429, 441-42, 559 A.2d 792, 798 (1989). Value of $300 or greater is an element of the felony theft, but not robbery; violence or putting in fear is an element of robbery, but not felony theft. It seems patently obvious that the legislature did not intend that these two separate felonies should merge, and their distinctions are apparent in the instant case. Spitzinger obviously could have been and was acquitted of the robbery offenses but convicted of felony theft. He also could have been acquitted of felony theft but convicted of the robbery offenses if the jury disbelieved the testimony about the value of the automobile...