White v. State

• Decision Date: 28 February 1990
• Citation: 318 Md. 740,569 A.2d 1271
• Parties: Donna Lynn WHITE v. STATE of Maryland. 154 Sept. Term 1987
• Court: Maryland Court of Appeals

Page 740

318 Md. 740

569 A.2d 1271

Donna Lynn WHITE v. STATE of Maryland.

154 Sept. Term 1987

Court of Appeals of Maryland.

Feb. 28, 1990.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL ^*, JJ.

COLE, Judge.

Donna Lynn White (White) was convicted by a jury in the Circuit Court for Washington County of first-degree murder and of child abuse in violation of Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 35A. She received consecutive sentences of life imprisonment for first degree murder and fifteen years for child abuse. The Court of Special Appeals affirmed the convictions in an unreported opinion. We granted White's petition for a writ of certiorari to determine whether a conviction of child abuse should merge into a murder conviction where both convictions are based on the same act or acts. For reasons set forth below we hold that the convictions do merge.

The evidence adduced at trial established that four-year-old Brandy Lynn White (Brandy) died as a result of physical injuries inflicted by White and her boyfriend, Bruce Sarver (Sarver). Brandy had taken a wallet containing money orders and food stamps from her mother's purse, and had hidden it in a nearby wooded area. After Brandy unsuccessfully tried to lead Sarver to the place where the wallet was hidden, White and Sarver proceeded to beat Brandy over the next five days resulting in 40 to 50 separate blows to her entire body. Some of the bruises were inflicted with a straight-edged object, while others were apparently caused by fists and kicks. Sarver admitted to losing his temper and hitting Brandy with a leather belt.

Petitioner testified that both she and Sarver became furious when Brandy hid the wallet but that her own participation was limited to slapping Brandy in the face with her open hand and three or four blows to the child's legs with a belt. Testimony by White's eight-year-old son revealed that Brandy was "hit and thrown around and kicked" by White and Sarver. By Saturday, May 17, 1986, Brandy was comatose and unable to speak. The mother did not seek medical care because she thought Brandy "would come out it" and because she feared Sarver would go to jail. On Sunday, May 18, 1986, Brandy was transported by ambulance and helicopter from her home to a hospital where she died several days later. The jury found White guilty of both first degree murder and child abuse. White does not contest her murder conviction; rather, she contends that her conviction of child abuse should merge into the murder conviction.

Under Maryland law, the normal standard for determining whether two offenses merge is the "required evidence test." State v. Ferrell, 313 Md. 291, 297-98, 545 A.2d 653, 656 (1988); Nightingale v. State, 312 Md. 699, 542 A.2d 373 (1988); State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980); Brooks v. State, 284 Md. 416, 397 A.2d 596 (1979); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977).

In Jenkins we explained that

[t]he normal test for determining whether one offense merges into another is the so-called "same evidence test" or "required evidence test" or, as it is often labeled, the "Blockburger test." This test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter.

307 Md. at 517, 515 A.2d at 473 (footnote omitted). As to the application of the required evidence test, we have stated:

The required evidence is that which is minimally necessary to secure a conviction for each ... 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.

Ferrell, 313 Md. at 298, 545 A.2d at 656 (quoting Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246-47 (1976)). See also State v. Frye, 283 Md. 709, 714-15, 393 A.2d 1372, 1375 (1978); Johnson v. State, 283 Md. 196, 203-04, 388 A.2d 926, 930 (1978).

This Court has ordinarily applied the required evidence test in deciding the permissibility of successive trials and multiple punishments. See, e.g., Ferrell, 313 Md. at 297-98, 545 A.2d at 656-57; Jenkins, 307 Md. at 517-18, 515 A.2d at 473; Whack, 288 Md. at 142-43, 416 A.2d at 271; Lewis v. State, 285 Md. 705, 722-23, 404 A.2d 1073, 1083 (1979).

Petitioner concedes that the offenses of murder and child abuse each require proof of facts which the other does not, and that, therefore, they do not merge under the required evidence test. She correctly argues, however, that this is not dispositive of the matter. As pointed out in Jenkins, 307 Md. at 518, 515 A.2d at 473, "we have recognized on several occasions that the required evidence test, while the normal standard, is not the exclusive standard for determining merger of offenses."

Another standard for determining merger of offenses has become known as the "rule of lenity." Originally formulated by the United States Supreme Court as a principle of statutory construction, the rule provides that doubt or ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction " 'will be resolved against turning a single transaction into multiple offenses.' " Simpson v. United States, 435 U.S. 6, 15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70, 78 (1978) (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905, 910-11 (1955)). " 'This policy of lenity means that the Court will not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended.' " Simpson, 435 U.S. at 15, 98 S.Ct. at 914, 55 L.Ed.2d at 78 (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199, 205 (1958)).

The Supreme Court has applied the rule of lenity where the same act constitutes an offense under two different statutory provisions (e.g., Simpson, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70; Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957)); where the same act could arguably result in multiple convictions and sentences under a single statutory provision (e.g., Ladner, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199; Bell, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905); and where there are different penalty provisions which arguably are applicable to a single offense (e.g., Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205, 211 (1980)). On the other hand, where the Supreme Court has concluded, based on the statutory language and/or legislative history, that the legislative intent is clear, it has pointed out that the rule of lenity, being merely a principle of statutory construction, "simply has no application." Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284 (1981).

This Court has recognized and applied the rule of lenity as formulated by the Supreme Court. See, e.g., Hunt v. State, 312 Md. 494, 510, 540 A.2d 1125, 1133 (1988); Jenkins, 307 Md. at 518-21, 515 A.2d at 473-75. See also Brooks, 284 Md. at 423-24, 397 A.2d at 600. Recently in Hunt, 312 Md. at 510, 540 A.2d at 1133, we applied the rule in holding that the offense of unlawfully carrying, wearing, and transporting a handgun, in violation of Art. 27, § 36B(b), merges into the greater offense of using a handgun in the commission of a felony or crime of violence, in violation of Art. 27, § 36B(d).

A few cases have attempted to formulate fixed criteria for deciding whether to apply the rule of lenity, and have indicated that unless two offenses merge under either the required evidence test or under these fixed criteria, there can be no merger. See Johnson v. State, 56 Md.App. 205, 215-16, 467 A.2d 544, 548-49 (1983), cert. denied, 299 Md. 136, 472 A.2d 999 (1984). See also Dillsworth v. State, 308 Md. 354, 366-67, 519 A.2d 1269, 1275-76 (1987). In our view, however, there should not be any rigid or fixed criteria for applying the rule of lenity. Rather, as a principle of statutory construction, it should be used like other principles of statutory construction as an aid in ascertaining legislative intent with respect to a statutory offense. See Kaczorowski v. City of Baltimore, 309 Md. 505, 512, 525 A.2d 628, 631 (1987).

In addition, like other canons of statutory construction, the rule of lenity is neither absolute nor exclusive. Other considerations may also be applicable in arriving at a principled decision. Kaczorowski, 309 Md. at 512-16, 525 A.2d at 631-33. For example, in deciding merger questions, we have examined the position taken in other jurisdictions. We have also looked to whether the type of act has historically resulted in multiple punishment. See Jenkins, 307 Md. at 518-21, 515 A.2d at 473-75; State v. Boozer, 304 Md. 98, 497 A.2d 1129 (1985). The fairness of multiple punishments in a particular situation is obviously important. See State v. Oliver, 302 Md. 592, 611 n. 12, 490 A.2d 242, 251 n. 12 (1985); Brooks, 284 Md. at 423, 397 A.2d at 599-600. Cf. Cousins v. State, 277 Md. 383, 397, 354 A.2d 825, 833, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976).

There is another reason that the rule of lenity should not be the sole principle for...