Thomas v. State

• Decision Date: 01 September 1992
• Docket Number: No. 20,20
• Citation: 333 Md. 84,634 A.2d 1
• Parties: George THOMAS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 84

333 Md. 84

634 A.2d 1

George THOMAS v. STATE of Maryland.

No. 20, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 6, 1993.

Reconsideration Denied Jan. 11, 1994.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for appellant.

David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

McAULIFFE, Judge.

George Thomas was convicted in the Circuit Court for Caroline County of two counts of common law battery, reckless endangerment, unlawful use of a telephone, and violation of an order to vacate the family home. Judge J. Owen Wise sentenced him to consecutive terms of 20 and 30 years in prison for the two battery convictions, 60 days for violating the order to vacate, six months for unlawful use of the telephone, and a concurrent five-year term for reckless endangerment; a total of 50 years and eight months imprisonment.

The defendant appealed to the Court of Special Appeals. We issued a writ of certiorari prior to consideration of the case by that Court, to resolve the following questions:

1. Were the 30- and 20-year sentences for common law battery illegal, disproportionate under the common law, or unconstitutional?

2. Was the evidence sufficient to sustain defendant's conviction for telephone misuse?

I.

The defendant and his wife, Shirlene Thomas, lived together in Ridgely, Maryland, with Shirlene's daughter, 12-year-old Martisha Stansbury. At the end of March, 1991, George and Shirlene received a $284 tax refund check made out to them jointly. George insisted that the check was his to cash, and on March 29, a fight ensued. When Shirlene found out on April 1 that George had indeed cashed the refund check at a nearby liquor store, she confronted him about the money. "That day," Shirlene testified, "was just push and shoving and getting like iron pipes and aluminum bats...." Although each party threatened to injure the other with a baseball bat, neither resorted to violence at that time.

Later that evening George and Shirlene argued in their bedroom. At one point, Shirlene left the bedroom, entered Martisha's room, and instructed her daughter to call the police. Chief Cropper, of the Ridgely Police Department, arrived at the Thomas house at approximately 1:50 a.m. on April 2, broke up the fight between George and Shirlene, and removed the baseball bats that were brandished earlier. After Chief Cropper departed, the argument resumed and at some point George slapped Shirlene across her face, ¹ leaving a temporary mark on her cheek.

After this incident, Shirlene obtained a two-day protective order, and on April 5 she obtained an order requiring George to vacate the family home for 30 days.

On April 8, George violated the protective order and returned to the Ridgely property. He approached Shirlene outside the house and accused her of committing adultery in the home two days earlier. She ran up the steps to the house and he followed her into the kitchen. At the height of the altercation, George grabbed a steam iron and hit Shirlene on the top of her head with it. He then hit her twice in the back with the iron. Shirlene was taken to a hospital, where an 8 cm. laceration of her scalp was sutured. She remained hospitalized for two days for observation. A paramedic testified that there were lacerations on the back of her head and two bruises in the center of the upper area of her back. Immediately after the assault, the defendant turned himself in to the Denton Police Department. According to Chief of Police William C. Davis, the defendant admitted hitting Shirlene on the head with the iron and said he feared that he may have killed her.

Various charges brought against the defendant were consolidated for trial in the Circuit Court for Caroline County. The defendant elected to be tried by the court, and Judge Wise found him guilty of battery for slapping his wife on April 2 guilty of battery but not guilty of assault with intent to murder for striking her with the iron on April 8, guilty of reckless endangerment for swinging the iron, ² guilty of unlawful use of a telephone, and violation of an order to vacate. Judge Wise imposed the sentences we have set forth above, and in so doing stated that the purpose of the long sentences was not to send a "message" to the defendant, "but to send him away as long as is necessary to protect [his wife,] which essentially is the balance of her life, not his."

II.

The defendant challenges the consecutive sentences of 20 years and 30 years imposed for the batteries of April 2 and April 8. He contends that the sentences violate the prohibition against cruel and unusual punishment established by the federal and state constitutions; violate a Maryland common law requirement of proportionality; and, because they are to run consecutively, result from an abuse of discretion on the part of the trial judge. Additionally, he contends the 30-year sentence is illegal because it exceeds the 10-year sentence that would have been the maximum possible sentence if the victim had died and the defendant had been convicted of manslaughter.

The defendant bases his claim of illegality of sentence on the principles of Simms v. State, 288 Md. 712, 421 A.2d 957 (1980), and upon the statement made by the trial judge that if the victim had died the defendant could have been convicted of no more serious offense than manslaughter. In Simms, this Court held, as a matter of Maryland common law, that:

[W]hen a defendant is charged with a greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convicted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge.

Id. at 724, 421 A.2d 957. In the case before us, the only "greater offense" with which the defendant was charged as a result of the April 8 incident was assault with intent to murder. He was found not guilty of that offense, and applying the Simms principle to that set of facts results in the conclusion that the trial judge could not lawfully impose a sentence for the lesser included battery that exceeded the maximum sentence then prescribed for the greater offense. The maximum sentence for assault with intent to murder was, at the time of the offense, and is now, 30 years. Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 12. It is therefore clear that the mandate of Simms does not operate to bar the sentence of 30 years that was imposed for the April 8 battery.

The defendant points out, however, that in finding him not guilty of assault with intent to murder, the trial judge stated that if the victim had died, the defendant could have been convicted of no more serious offense than manslaughter. He argues that because 10 years imprisonment is the maximum penalty for manslaughter, we should extend the Simms principle so as to create a limitation of 10 years on the sentence for battery. We decline to do so. Simms has direct application only when a greater offense has been charged and jeopardy has attached with respect to that greater offense. See Johnson v. State, 310 Md. 681, 531 A.2d 675 (1987) (a nolle prosequi of an aggravated assault after jeopardy attaches is the same as an acquittal for Simms purposes, and the cap for the nolle prossed charge applies); Gerald v. State, 299 Md. 138, 472 A.2d 977 (1984) (defendant's 15-year term for assault was illegal under Simms in light of the 10-year maximum for the accompanying charge of robbery); Turner v. State, 45 Md.App. 168, 411 A.2d 1094, cert. denied, 288 Md. 745 (1980) (12-year assault sentence legal even though the maximum for robbery was 10 years because the defendant was not charged with robbery). See also Sutton v. State, 886 F.2d 708 (4th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 628 (1990) (limitation established by Simms not applicable where greater offense not charged). Were we to apply the Simms rule anytime a greater offense might have been charged, we would in effect create a binding hierarchy of offenses and sentences, a task that is truly a legislative one. We will, however, refer again to the philosophy of Simms when considering the defendant's claims that the sentences are impermissibly disproportionate.

III.

A.

We turn to the defendant's contention that the sentences imposed for the two convictions of battery offend constitutional protections against cruel and unusual punishment. The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article 25 of the Maryland Declaration of Rights, directed at action by the courts, contains similar language. It provides:

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.

Article 16 of the Maryland Declaration of Rights, directed toward legislative action, provides:

That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.

The defendant argues that each sentence here challenged is grossly disproportionate when measured against the offense and relevant surrounding circumstances, and is therefore invalid under either the federal or state constitution. Alternatively, he suggests that if the Court does not agree that the sentences violate the Eighth Amendment to the federal constitution this Court should take a more expansive...