State v. Frye

• Decision Date: 16 November 1978
• Docket Number: 173,Nos. 133,s. 133
• Citation: 393 A.2d 1372,283 Md. 709
• Parties: STATE of Maryland v. Eugene Shaw FRYE. Willie Lee JONES, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 709

283 Md. 709

393 A.2d 1372

STATE of Maryland v. Eugene Shaw FRYE.

Willie Lee JONES, Jr. v. STATE of Maryland.

Nos. 133, 173.

Court of Appeals of Maryland.

Nov. 16, 1978.

Deborah K. Handel, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on brief), for appellant in No. 133.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellee in No. 133.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender and Martha G. Villmoare, Asst. Public Defender, Baltimore, on brief), for appellant in No. 173.

Kathleen M. Sweeney, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on brief), for appellee in No. 173.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ^* ELDRIDGE, ORTH and COLE, JJ.

ELDRIDGE, Judge.

This Court in Newton v. State, 280 Md. 260, 373 A.2d 262 (1977), held that when a defendant is charged with both murder and a felony arising from the same transaction, and is convicted of murder based upon the felony murder doctrine, the underlying felony merges into the murder conviction. The two cases now before us involve the application of the Newton holding under circumstances where we do not know whether the jury's finding of murder was premised upon the felony murder doctrine.

I.

Before turning to the facts of the instant case, it would be useful to briefly review the applicable legal background. It is provided in Maryland Code (1957, 1976 Repl.Vol.), Art. 27, §§ 407-410, that certain types of murder shall be murder in the first degree. Under Art. 27, § 411, all murder not provided for in §§ 407-410 is murder in the second degree. Section 407 states that "(a)ll murder which shall be perpetrated . . . by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree." To establish first degree murder under this section it must be proven that the homicide was wilful, deliberate and premeditated, which also establishes the element of malice. Newton v. State, supra, 280 Md. at 268, 373 A.2d 262, 266; Dorsey v. State, 278 Md. 221, 362 A.2d 642 (1976); Gladden v. State, 273 Md. 383, 330 A.2d 176 (1974). Under § 410, however, murder committed in the perpetration of certain enumerated felonies, including robbery and kidnapping, is first degree murder. To prove first degree murder under § 410, there is no need to prove wilfulness, deliberation, and premeditation as would be required by § 407. Instead, to secure a first degree murder conviction under § 410, the State must prove only the elements of the underlying felony and the death occurring in the perpetration of the felony. Newton v. State, supra, 280 Md. at 269, 373 A.2d 262; Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), Cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969); Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958).

In Newton v. State, supra, the defendant was charged with murder of a taxicab driver and attempted armed robbery of the driver, both charges growing out of the same transaction. The evidence established that the defendant Newton and a companion, after borrowing a revolver, hailed a taxicab. After proceeding one block, the companion told the driver that it was a "stick-up" and that he should stop the cab. The driver complied and raised his hands; nevertheless he was shot and killed. The testimony was in sharp conflict as to which one did the shooting. Newton testified that it was the companion who shot the driver, and the companion testified that it was Newton. Newton had elected a non-jury trial, and at the end of the trial, the court found him guilty of first degree murder expressly on the basis that the killing was "in the course of the perpetration of an attempted robbery." In addition, the court found Newton guilty on the attempted armed robbery charge, and sentences were imposed on both convictions. After the Court of Special Appeals upheld both convictions and sentences, we granted a writ of certiorari to consider Newton's contention that separate sentences for both felony murder and the underlying felony constituted double punishment in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

We initially stated in Newton that whether a separate sentence for attempted robbery violated the Double Jeopardy Clause depended upon "whether felony murder and the underlying felony upon which the murder conviction is founded are to be deemed the same offense under federal double jeopardy principles." 280 Md. at 265, 373 A.2d at 265. We then pointed out, Id. at 265-266, 373 A.2d 262, 265 as we have on several other occasions recently, ¹ that the federal standard for determining whether two offenses arising from the same transaction are to be deemed the same offense for double jeopardy purposes is the so-called "required evidence" test as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), and originally adopted from Morey v. Commonwealth, 108 Mass. 433 (1871). This was recently reiterated by the Supreme Court in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977):

"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .'

This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975)."

And, as explained in Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 247 (1976):

"The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes."

Applying the required evidence test in Newton, we held that felony murder and the underlying felony must be treated as one offense for double jeopardy purposes. After discussing the requirements for proving first degree murder under the felony murder doctrine (Art. 27, § 410), we reasoned in Newton (280 Md. at 269, 373 A.2d at 267):

"Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder (constitute the same offense for double jeopardy purposes and) merge."

Two months after our decision in Newton, the Supreme Court reached the same conclusion in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), namely that felony murder and the underlying felony are to be deemed the same offense under the Double Jeopardy Clause of the Fifth Amendment. In Harris, the defendant and an accomplice were engaged in the robbery of a grocery store when the accomplice shot and killed a store clerk. The defendant Harris was convicted of murder, based upon the felony murder doctrine, in an Oklahoma court. Harris was then convicted and sentenced on a charge of robbery with firearms, and the Oklahoma appellate court affirmed. Harris v. State, 555 P.2d 76 (Okl.Cr.App. 1976). The United States Supreme Court reversed the robbery conviction, saying (433 U.S. at 682, 97 S.Ct. at 2912 ):

"When, as here, conviction for a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one." ²

See also Brown v. Ohio, supra, 432 U.S. at 168, 97 S.Ct. 2221.

Although we held in Newton that felony murder and the underlying felony are to be considered one offense for purposes of multiple punishment, and therefore the underlying felony would merge into the felony murder conviction, we also emphasized that if a first degree murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under Art. 27, § 407, then the murder, even though committed in the course of a felony, would not be deemed the same offense as the felony and there would be no merger. "Each offense would then require proof of facts which the other did not, and convictions on both would be proper." Newton v. State, supra, 280 Md. at 269, 373 A.2d at 267. The two cases at bar, to which we now turn, involve this reservation.

II.

The defendant in...