Young v. State

• Decision Date: 01 September 1984
• Docket Number: No. 128,128
• Citation: 493 A.2d 352,303 Md. 298
• Parties: Raymond Alexander YOUNG v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 298

303 Md. 298

493 A.2d 352

Raymond Alexander YOUNG v. STATE of Maryland.

No. 128, Sept. Term, 1984.

Court of Appeals of Maryland.

June 11, 1985.

Victoria S. Keating, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

ORTH, Judge.

A crime is a wrong, or breach of duty, which subjects the person guilty thereof to punishment at the suit of the public. The policy of the law is to treat as criminal conduct which affects injuriously the public police and economy, the general interests, peace and security of the community. As a general rule whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs the public order, or is injurious to public morals, or is a wilful breach of official duty, is punishable as a crime at common law. L. Hochheimer, The Law of Crimes and Criminal Procedure § 1 (2d ed. 1904).

Not all crimes have their origin in the common law, evolving from the experiences of society. Many crimes have been created by legislative enactment. See Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.) Art. 27.

Since crimes are public wrongs, "against the peace, government and dignity of the State," and, if statutory, are also "contrary to the form of the Act of Assembly in such case made and provided," those who commit crimes are prosecuted by the public in the name of the State. The rationale of the State's seeking redress for a criminal offense is that the person who has committed it has acted contrary to the public interest. He has demonstrated that he is a danger to the public good; he should be deterred from indulging in further criminal activities and reformed so that he will not be inclined to do so again. Thus, the purpose of prosecution for a criminal act is basically preventive.

Usually a criminal conviction is predicated upon the completion of the crime; the conduct of the accused has satisfied the elements necessary to establish the offense and he has actually committed the act as proscribed. But what if the conduct of the accused has not progressed to the point where a crime has been committed, that is, he has tried to commit the offense but for some reason he has not been successful? [T]here is just as much need to stop, deter and reform a person who has unsuccessfully attempted or is attempting to commit a crime than one who has already committed such an offense. W. LaFave & A. Scott, Handbook on Criminal Law § 59 at 426 (1972), quoting Stuart, The Actus Reus in Attempts, 1970 Crim.Law.Rev. 505, 511.

This is why the law of attempts exists.

The notion that an attempt to commit a crime is itself a crime came relatively late into Anglo-American jurisprudence. The Court of Special Appeals set out its history in Gray v. State, 43 Md.App. 238, 403 A.2d 853, cert. denied, 286 Md. 747 (1979):

[The crime of attempt] had its origins in the Court of Star Chamber, during Tudor and early Stuart times. Its crystallization into its present form, however, is generally traced to the case of Rex v. Scofield, Cald. 397, in 1784.... The doctrine was locked into its modern mold by 1801 with the case of Rex v. Higgins, 2 East 5.... In the wake of Scofield and Higgins, it was clear that an attempt to commit any felony or misdemeanor, of common law origin or created by statute, was itself a misdemeanor. Id. at 239 (emphasis added; footnotes omitted).

The offense of criminal attempt has long been accepted as a part of the criminal law of Maryland. ¹ We recognized a criminal attempt as a common law misdemeanor in Mitchell v. State, 82 Md. 527, 534, 34 A. 246 (1896). We have had surprisingly little to say, however, about the nature of the offense. Mitchell concerned an attempted rape, but the appeal was dismissed for procedural reasons and the Court had no occasion to elaborate on the crime. Almost 70 years later, in Wiley v. State, 237 Md. 560, 207 A.2d 478 (1965), we defined criminal attempt without citation to a prior decision of this Court. We said:

                An attempt to commit a crime consists of an intent to commit it, the performance of some act toward its commission, and failure to consummate its commission.   Id. at 563-564, 207 A.2d 478
                

The offense was defined in terms of these same three elements in Franczkowski v. State, 239 Md. 126, 127, 210 A.2d 504 (1965) with Wiley cited as authority. We ultimately discovered, however, that the definition set out in Wiley and accepted in Franczkowski was not entirely accurate. In Lightfoot v. State, 278 Md. 231, 232-238, 360 A.2d 426 (1976), this Court declared that the failure to consummate the commission of a crime attempted was not an essential element of the offense of criminal attempt. We found that the language in Wiley and Franczkowski to the contrary was dicta and we disapproved it. ² It was also in 1976 that the Legislature prescribed the punishment for criminal attempts generally. Prior to that time, except for statutory designation of attempts to commit certain specified crimes, see note 1, supra, the offense of criminal attempts had no statutorily authorized sentencing limit. The penalty upon conviction was within the discretion of the trial court subject to the constitutional prohibitions against cruel or unusual punishment. See Mitchell [82 Md]. at 534, 34 A. 246. Acts 1976, Ch. 453, now codified as § 644A of Art. 27, Md.Code (1957, 1982 Repl.Vol.) tempered the discretion of the trial judge by providing:

The sentence of a person who is convicted of an attempt to commit a crime may not exceed the maximum sentence for the crime attempted.

This legislation led to the question presented in Hardy v. State, 301 Md. 124, 482 A.2d 474 (1984): whether the maximum punishment for attempted murder was determined by the maximum punishment for assault with intent to murder. Holding that it was not, we recognized that Maryland has retained the crime of attempt as a common law misdemeanor. Id. at 128, 482 A.2d 474. We said that the offense is "generally defined as the intent to commit a crime coupled with some overt act beyond mere preparation in furtherance of the crime," id., citing Lightfoot and Wiley. We did not elaborate on this definition.

Our opinions leave much unanswered. The application of particular facts to the law of criminal attempts frequently gives rise to problems in one or more of three aspects:

(1) The determination of the overt act which is beyond mere preparation in furtherance of the commission of the crime.

(2) At what point may the attempt to commit the intended crime be abandoned so as to escape liability.

(3) What is the effect on culpability of impossibility to commit the intended crime.

This Court has addressed only the abandonment aspect. Wiley v. State, 237 Md. at 564-565, 207 A.2d 478. The Court of Special Appeals has been exposed to the offense of criminal attempt in a number of cases. See note 2 supra. Gray v. State, 43 Md.App. at 239, 403 A.2d 853 rephrased the Wiley definition of attempt in terms of Lightfoot to read that a criminal attempt consists of "1) a specific intent to do a criminal act and 2) some act in furtherance of that intent going beyond mere preparation." The intermediate appellate court dealt with the impossibility aspect of criminal attempts in two cases, In Re Appeal No. 568, Term 1974, 25 Md.App. 218, 220-223, 333 A.2d 649, cert. denied, 275 Md. 751 (1975) and Waters v. State, 2 Md.App. 216 Such was the posture of the law of Maryland regarding criminal attempts when Raymond Alexander Young, also known as Morris Prince Cunningham and Prince Alexander Love, was found guilty by a jury in the Circuit Court for Prince George's County of two crimes: (1) the attempted armed robbery of the manager of the Fort Washington, Md. branch of the First National Bank of Southern Maryland (the Bank) and (2) transporting a handgun. He was sentenced to 20 years on the attempt conviction and to a consecutive three year sentence on the handgun conviction. ³ The Court of Special Appeals affirmed the judgments in an unreported per curiam opinion, Young v. State, No. 1429, September Term, 1983, filed 14 August 1984. Upon Young's petition we ordered that the record and proceedings be certified to us, but we limited our review to the sole question of whether the evidence was legally sufficient to prove that Young had committed the crime of attempted armed robbery 485 A.2d 269. ⁴

                226-228, 234 A.2d 147 (1967), cert. denied, 259 Md. 737 (1970).   It discussed the aspect of "the overt act beyond mere preparation" in  Frye v. State, 62 Md.App. 310, 489 A.2d 71 (1985).   As yet we have not indicated our approval or disapproval of the views expressed in those cases
                

There is no dispute as to the circumstances which led to the indictment of Young. Several banks in the Oxon Hill-Fort Washington section of Prince George's County had been held up. The Special Operations Division of the Prince George's Police Department set up a surveillance of banks in the area. In the early afternoon of 26 November 1982 the police team observed Young driving an automobile in such a manner as to give rise to a reasonable belief that he was casing several banks. They followed him in his reconnoitering. At one point when he left his car to enter a store, he was seen to clip a scanner onto his belt. The scanner later proved to contain an operable crystal number frequency that would receive Prince George's County uniform patrol transmissions. At that time Young was dressed in a brown waist-length jacket and wore sunglasses.

Around 2:00 p.m. Young came to rest at the rear of the Fort Washington branch of the First National Bank of Southern...