State v. Sowell

• Decision Date: 29 April 1999
• Docket Number: No. 98,98
• Citation: 353 Md. 713,728 A.2d 712
• Parties: STATE of Maryland v. Brian Lamont SOWELL.
• Court: Maryland Court of Appeals

728 A.2d 712

353 Md. 713

STATE of Maryland v. Brian Lamont SOWELL.

No. 98, Sept. Term, 1998.

Court of Appeals of Maryland.

April 29, 1999.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for petitioner.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ CATHELL, Judge.

Respondent Brian Lamont Sowell was convicted by a jury in the Circuit Court for Prince George's County of armed robbery, robbery, two counts of use of a handgun in the commission of a crime of violence, and first degree assault for his involvement along with three other men in the robbery of his employer, Recycling Incorporated.¹ He appealed to the Court of Special Appeals. That court reversed respondent's convictions, holding that the evidence presented to the jury was not sufficient to support a finding that respondent was present at the scene of the crime, either constructively or actually. Therefore, under the common law rules relating to principals and accessories, that court held that the respondent should not have been convicted as a principal in the second degree.

We granted a writ of certiorari to consider whether the common law distinction between principals and accessories remains viable in Maryland. We hold that it does. Accordingly, we shall affirm.

I. Facts

On the date of the underlying crimes, October 17, 1995, respondent was employed by Recycling Incorporated. The company paid its employees' wages in cash, and the money normally was distributed by DeLisa Holmes, the office manager. Around 11:30 a.m., respondent called Recycling Incorporated's office to inquire when the payroll would be ready. Ms. Holmes told respondent the payroll would be ready at 12:00 p.m. Respondent then asked how the employees were going to be paid. Ms. Holmes replied that they would be paid in cash, to which respondent replied, "good." Respondent picked up his pay in cash at around 12:30 p.m.

About an hour later, three men wearing dark clothing and carrying guns entered the Recycling Incorporated office. One man walked directly to Brian Fowler, the vice-president of the company, and held a gun on him. A second man put a gun to Ms. Holmes' head and told her to get the cash. She placed all of the cash, $14,600, in a bag provided by one of the men and the three men left. Ms. Holmes testified that the man who held the gun to her head seemed familiar with the office and knew where the money was located.

Testimony by other witnesses indicated that respondent was the mastermind behind the robbery. Anthony Williams testified that prior to the robbery, respondent told Williams he knew where they could get some easy money and that he had it "all planned out." Respondent targeted the recycling company because it paid its employees in cash and he knew how someone could get in and out quickly. Williams further testified that respondent had a map of the recycling center detailing where the employees would be standing, who should be grabbed, and who might have a gun. Respondent told the others that the robbery should occur between 11:30 a.m. and 12:30 p.m. and that while the robbery was in process, he would be on his route for the recycling company. The men arranged to meet later to split up the money. Williams further testified that he saw the men involved in the robbery the next day. Respondent said that "it was easy, just like he had planned."

II. Discussion and Analysis

A. Common Law Doctrine of Accessoryship

The question for which we issued the writ of certiorari and as phrased in the State's brief is: "Was the evidence sufficient to establish that [respondent] was an accomplice either because constructive presence is not required to establish accomplice liability or because he was constructively present?"

The underlying issue argued by both parties is whether Maryland should retain the common law distinction between principals and accessories before the fact. The Court of Special Appeals, although criticizing the long-standing Maryland common law rule that distinguishes an accessory before the fact from a principal in the second degree by the requirement that the principal be actually or constructively present, nonetheless reversed respondent's convictions as a principal in the second degree. That court held:

There is, of course, a major legal hurdle regarding the State's request [to dispense with the distinction between accessories before the fact and principals]. The argument, in Lewis [v. State, 285 Md. 705, 404 A.2d 1073 (1979) ], to change the rule mandating that an accessory cannot be tried before the principal is sentenced, was presented to the Maryland Court of Appeals, the State court of last resort authorized to set policy. It may well be that that Court would be favorably disposed to dispense with the distinction between accessories and principals, particularly principals in the second degree. Until and unless the Court of Appeals effectuates such a change, we hold that the evidence before the jury neither directly nor inferentially permitted a finding that [respondent] was constructively or actually present at the scene of the crime. Therefore, he could have been convicted only of being an accessory before the fact, rather than a principal in the second degree. Accordingly, we must reverse the judgements of conviction of [respondent] Sowell.

Sowell v. State, 122 Md.App. 222, 238, 712 A.2d 96, 103-04 (1998).

This Court described the common law distinction between principals and accessories in State v. Ward, 284 Md. 189, 197, 396 A.2d 1041, 1046-47 (1978):

A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. An accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. An accessory after the fact is one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.

The main difference between an accessory before the fact and a principal in the second degree is that the latter must be actually or constructively present at the scene of the crime.

As noted by the Court of Special Appeals in its opinion below, the distinction has not been without criticism. In State v. Williamson, 282 Md. 100, 112-14, 382 A.2d 588, 594-95 (1978), Judge Levine, concurring, took issue with the majority's failure to abandon the accessory before the fact distinction:

Since accessories and principals at common law were deemed to be equally culpable and therefore subject to the same punishment, Agresti v. State, 2 Md.App. at 281, ; 1 J. Chitty, A Practical Treatise on the Criminal Law *267 (1819); Clark & Marshall, A Treatise on the Law of Crimes § 8.05, at 522 (7th ed.1967), the classification of parties as principals and accessories had little, if any, substantive significance.

On the other hand, the common law doctrines of accessoryship did give rise to several highly technical procedural rules which, as one recent commentator has stated, "tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance." W. LaFave & A. Scott, Handbook on Criminal Law § 63, at 498-99 (1972)....

....

The reason for the development of these rules is obscure at best. Professor Perkins has speculated that they were devised by 14th and 15th century English common law courts as a means of alleviating the harshness of the death penalty in felony cases. R. Perkins, Criminal Law 669 (2d ed.1969); and see W. LaFave & A. Scott, Handbook on Criminal Law § 63, at 499 (1972). If this theory of the historical provenience of the common law categories and procedures be correct, it is now beyond question that the rules have outlived their purpose, in light of the universal rejection of capital punishment for any but the most heinous felonies and the manifold constitutional restrictions placed upon application of the death penalty in recent years. See, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)

; Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).[²]

The common law principles of aceomplicity and their procedural counterparts, in my opinion, have injected a most undesirable hypertechnicality into the law of accomplice responsibility, which not infrequently operates to thwart justice and reduce judicial efficiency. See Note, 19 Wash. & Lee L.Rev. 96 (1962). As this Court candidly stated in Watson v. State, 208 Md. at 218, :

"`This distinguishing of the accessory before the fact from the principal is a pure technicality. It has no existence either in natural reason or the ordinary doctrines of the law. For in natural reason the procurer of a crime is not chargeable differently from the doer; and a familiar rule of the common law is that what one does through another's agency is regarded as done by himself.... Likewise in morals, there are circumstances wherein we attach more blame to the accessory before the fact than to his principal;....'" (Quoting 1 J. Bishop, Criminal Law § 673, at 486-87 (9th ed.1923)).

The time has come in my opinion to discard the common law distinction between principals and accessories before the fact and to replace these categories with an all-encompassing doctrine which would treat all those who knowingly procure, command, counsel, encourage, aid or abet a felon in the commission of a crime as principals regardless

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