Snowden v. State

548 A.2d 165, 76 Md. App. 738, 1988 Md. App. LEXIS 202

Opinions

ALPERT, Judge.

Elmer Maurice Snowden, the appellant, was convicted in a court trial in the Circuit Court for Anne Arundel County (Lerner, J.), of first degree murder, armed robbery, and assault and battery. He was sentenced to consecutive terms of life for the murder conviction and twenty years each on the remaining convictions to run consecutively to any sentence then being served. On appeal, the appellant contends that:

1. The court erred in denying his motion to suppress, and

2. His convictions for assault and battery should have merged into the conviction for armed robbery.

According to the record, on Sunday, March 2, 1986, near midnight, the appellant and another man approached Romano’s Restaurant in Anne Arundel County, intending to rob the restaurant. Two employees opened a back door to take trash out to a dumpster, and the appellant and an accomplice entered the restaurant’s kitchen. One employee, Arthur Ernest Bucklew, struggled with the appellant in an effort to obtain a rifle that the appellant was carrying. During the struggle, Bucklew was shot and killed.

The appellant and the other assailant proceeded into an office in back of the restaurant where the manager, Framouzis Stanidis, appeared. The appellant shot Mr. Stanidis in the arm. Subsequently, appellant and the other assailant demanded and were given money by Mr. Stanidis. Then, they left the restaurant.

I. Motion to Suppress

Appellant contends that the court erred in denying his motion to suppress his statement to the police during a custodial interrogation. He argues that his request for a lawyer was ignored and that his statement was not voluntary. Appellant points to his young age (17) and weakened physical condition from being in custody, as well as alleged police misconduct as evidence of the involuntariness of his statement.

At the suppression hearing, the testimony of two police officers contradicted appellant’s complaints.

The test to determine whether a statement obtained from a juvenile was voluntary and admissible is an inquiry into the totality of the circumstances. McIntyre v. State, 309 Md. 607, 526 A.2d 30 (1987). The trial court, after hearing extensive testimony, concluded that appellant was not coerced. The court determined that the appellant was intelligent and understood what was going on. The court noted that the appellant had been fed two meals, given an opportunity to sleep, and permitted to make phone calls. The trial court found that the statement was voluntary and denied the motion to suppress. Our independent review of the record confirms the fact that the appellant was aware of his rights and did freely and voluntarily make the statement. Hence, it was admissible. Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988).

II. Merger

A. The Required Evidence Test

Appellant contends that his convictions for assault and battery should have been merged into his conviction for armed robbery. We do not agree. The test to determine whether two offenses merge is “the required evidence test”; i.e., whether each offense requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Brooks v. State, 284 Md. 416, 397 A.2d 596 (1979). Armed robbery requires the use of a weapon; battery does not. Common law assault and battery requires a completed unlawful application of force to the person of the victim; armed robbery requires a taking from a person “by force, violence or placing in fear,” but the application of force to the body of the victim (i.e., the battery) is not a requisite. See R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure, Chapter 12; Anderson v. State, 61 Md. App. 436, 440, 487 A.2d 294, cert. denied, 303 Md. 295, 493 A.2d 349 (1985). As this court explained in Wilkins v. State, 5 Md.App. 8, 21-22, 245 A.2d 80 (1968), assault is an essential ingredient of armed robbery, but battery is not. See also Loud v. State, 63 Md.App. 702, 493 A.2d 1092 (1985), where we held that convictions for robbery with a deadly weapon and assault with intent to murder did not merge.

But our discussion cannot end here. The Court of Appeals recently recognized that statutory crimes expressed in the disjunctive require an additional step of analysis. Judge Adkins, speaking for the Court, explained:

[T]he court must construct from the alternative elements within the statute the particular formulation that applies to the case at hand. It should rid the statute of alternative elements that do not apply. It must, in other words, treat a multi-purpose statute written in the alternative as it would treat separate statutes. The theory behind the analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would.

Nightingale and Myers v. State, 312 Md. 699, 706-707, 542 A.2d 373 (1988) (citing Pandelli v. United States, 635 F.2d 533, 537 (6th Cir.1980)). The Court concluded:

If, when we look at the applicable alternative elements, a lesser offense in effect becomes one of the elements of another offense, the Bloekburger test is met. It is met because, by virtue of that fact, all the elements of the lesser offense must be established to prove the other; only the other offense has any additional elements.

Id. at 707, 542 A.2d 373.

By analogy, when, as here, an offense such as common law robbery (with a deadly weapon) includes alternate elements such as (1) force or (2) the threat of force to the person of the victim, we should abandon, for analytical purposes, the elements that do not apply. Here, the threat of force does not apply with respect to the act of shooting; the shooting being clearly the case of force to the person of the victim. Thus, when considering the one remaining element, “force,” it would, at first blush, appear the “force” (the battery) is merely an element of robbery (consequently armed robbery) and that the Blockburger test is met. At this juncture, we must distinguish the case at bar from cases like Nightingale & Myers. There the lesser offense was in furtherance of (or inclusive in) the greater. Here it was not, according to the implicit finding of the trial judge.¹ Where, as here, the battery may or may not have been necessary to or in furtherance of the armed robbery, we defer to the trial judge for determination. He obviously determined that the battery was not in furtherance of the armed robbery. Under the facts, sub judice, he was not clearly erroneous.

B. The Rule of Lenity

In Walker v. State, 58 Md.App. 171, 452 A.2d 1284 (1982), we noted that there are nevertheless times when two crimes arising out of a single act will not be punished separately. As Judge Moylan explained:

It is purely a question of reading legislative intent. If the Legislature intended two crimes arising out of a single act to be punished separately, we defer to that legislated choice. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bremer v. State, 18 Md.App. 291, 343-345, 307 A.2d 503 (1973). If the Legislature intended but a single punishment, we defer to that legislated choice. If we are uncertain as to what the Legislature intended, we turn to the so-called “Rule of Lenity,” by which we give the defendant the benefit of the doubt. Simpson v. United States, 435 U.S. 6, 13-16, 98 S.Ct. 909, [913-914] 55 L.Ed.2d 70 (1978); United States v. Gaddis, 424 U.S. 544, 547-548, 96 S.Ct. 1023, [1025-1026] 47 L.Ed.2d 222 (1976); Ladner v. United States, 358 U.S. 169, 173-178, 79 S.Ct. 209, [211-214] 3 L.Ed.2d 199 (1958); Prince v. United States, 352 U.S. 322, 327, 77 S.Ct. 403, [406] 1 L.Ed.2d 370 (1957); Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, [622] 99 L.Ed. 905 (1955).

Id. at 201, 452 A.2d 1234.

If the subject offenses were statutory in origin, which they are not, it would be reasonable to assume that the Legislature intended more than one punishment. Battery is not always necessary to the commission of robbery with a deadly weapon and, therefore, need not be subsumed within that offense. If, as in the case sub judice, the commission of the battery inflicts an additional injury upon the victim for a purpose not necessarily in furtherance of the robbery, it may warrant separate and additional punishment.

The record in the case sub judice discloses that the appellant shot Mr. Stanidis on sight. Stanidis and another employee were then ordered to lay face down on the floor. At trial, Stanidis described the events that followed:

After I—he laid me—told me to lay down and told also Michael to lay down, he asked me where my gun was and he was keep repeating on where’s your gun, where’s your gun, and pointing with his gun to my back, and I say I don’t have a gun. And he keep on insisting where my gun was, so I said I don’t have a gun and then Michael said to me, Saki, give him a gun if you have one. I said Michael, you know I don’t have a gun, and then he asked me where the money was.

So he says, where’s the money, I say it’s on the desk. He says give me the money, he’s keep on hollering, give me the money, I say the money’s on the desk and then he told me to get up and give him the money. So I got up and I went into the other office which is connected with the first office ... where I had the money out, so I walk into the second office and then when I notice the second person came in, and as I reach over to get the money this other guy came up and got the money from my hand.

It is clear that although the battery—the shooting of Mr. Stanidis—occurred during the perpetration of an armed robbery, it was not essential to effectuate the robbery. Thus, the rifle was used not only to accomplish the armed robbery, but also to shoot Mr. Stanidis. Although there was only one event, two crimes were committed. See Whitehead v. State, 144 Ga.App. 836, 242 S.E.2d 754 (1978). Therefore, we hold the offenses do not merge and the “Rule of Lenity” does not apply. See Wilkins, supra, Davis v. State, 4 Md.App. 492, 243 A.2d 616 (1968); Cottrell v. State, 1 Md.App. 520, 231 A.2d 919 (1967).

JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.

Footnotes

1

. For example, in Wilkins, supra, we noted that:

The record discloses that the victim, Sam Pellerito, was knocked to the floor, forced to open the safe at gunpoint, and physically beaten by the appellant. There was, therefore, no merger of the assault and battery conviction into the armed robbery conviction.

We find the law of our sister state, Pennsylvania, to be instructive: A robbery can be carried out by the infliction of serious injury, but it can also be accomplished by mere threats of force or simple

assault---- The merger of aggravated assault and robbery in cases such as the one sub judice would act as an open invitation to violent assailants to compound the injuries they inflict and then escape liability for additional crimes under the guise that the crimes were all part of the same criminal act____ By making the infliction of bodily harm an element of robbery, the legislature could not have intended to prevent sentencing courts from directly punishing those who commit vicious prolonged assaults.

Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987), allocatur denied, 516 Pa. 640, 533 A.2d 712. There, appellant entered victim’s apartment, attacked her from behind by pulling a cord around her, and when she became unconscious, appellant stabbed her several times. He then took jewelry and a camera box from the apartment.