ELDRIDGE, J., delivered the opinion of the Court. MURPHY, C.J., and SMITH, J., dissent and MURPHY, C.J., filed a dissenting opinion in which SMITH, J., concurs at page 275 infra.
The issue in this criminal case is whether convictions of and sentences for both felony murder and the underlying felony, where both charges arose from the same act or transaction and were tried at the same time, violate the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, and applicable to state court proceedings by virtue of the Fourteenth Amendment.
The State presented evidence at the trial which, if believed, established the following facts. The defendant Newton and a companion, after borrowing a revolver, hailed a taxicab in Baltimore City during the evening of December 19, 1973. Newton sat in the front seat with the driver and the companion sat in the rear seat. After proceeding about one block the companion told the driver that he should stop the cab and that it was a "stick-up." The driver raised his hands but was shot four times with the revolver and killed. The companion testified at the trial that it was Newton who fired the revolver, and Newton testified that it was the companion.
At the conclusion of Newton's non-jury trial in the Criminal Court of Baltimore, the court found Newton guilty of first degree murder, stating that it was "murder in the course of the perpetration of an attempted robbery" of the cab driver. The court also found Newton guilty of attempted
On his appeal to the Court of Special Appeals, in addition to challenging the sufficiency of the evidence with respect to all charges, Newton argued that the Fifth Amendment to the United States Constitution precluded convictions and sentences for both felony murder and the underlying felony as well as for both of the handgun violations. He argued that, in light of Fifth Amendment double jeopardy principles, the underlying felony merged into the felony murder. The Court of Special Appeals, rejecting Newton's arguments, upheld all four convictions and sentences, Newton v. State, 31 Md.App. 344, 356 A.2d 274 (1976). This Court then granted Newton's petition for a writ of certiorari limited to the double jeopardy questions.
In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Fifth Amendment prohibition against placing a defendant twice in jeopardy for the same offense is applicable in state prosecutions. Federal double jeopardy principles, therefore, are controlling in determining whether a defendant has been placed twice in jeopardy in violation of the federal Constitution. See Thomas v. State, 277 Md. 257, 267 n. 5, 353 A.2d 240 (1976); Jourdan v. State, 275 Md. 495, 506, 341 A.2d 388 (1975); Neal v. State, 272 Md. 323, 327, 322 A.2d 887 (1974); Matter of Anderson, 272 Md. 85, 92, 321 A.2d 516, appeal dismissed sub nom Epps v. Maryland, 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35 (1974); Pugh v. State, 271 Md. 701, 704-705, 319 A.2d 542 (1974). The Fifth Amendment guarantee against double jeopardy prohibits both successive prosecutions for the same offense as well as multiple punishment for the same offense. United States v. Wilson, 420 U.S. 332, 342-343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
Cf. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915). See also Comment, Double Jeopardy, 75 Yale L.J. 262, 266 n. 13 (1965).
In the instant case, there has been but one prosecution and trial for the felony murder and the underlying felony so that no issue concerning successive trials for the same offense is presented. Cf. Bynum v. State, 277 Md. 703, 707-708, 357 A.2d 339, cert. denied, 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). However, both parties and the Court of Special Appeals have proceeded on the assumption that if both offenses are deemed the same under double jeopardy principles, so that both offenses merge upon conviction, separate sentences on both would constitute double punishment and the judgment of conviction and sentence on the lesser offense must be vacated. Even though the sentences on the felony murder conviction and the underlying felony of attempted robbery are concurrent, this assumption is valid in view of our prior Maryland cases in which the Court has reviewed the validity of all convictions and sentences challenged even though concurrent. Stewart v. Warden, 243 Md. 697, 699-700, 221 A.2d 709 (1966); Crowe and Williston v. State, 240 Md. 144, 146, 152-153, 213 A.2d 558 (1965). See the discussion of this question in Benton v. Maryland, supra, 395 U.S. at 787-793; see also United States v. Belt, 516 F.2d 873, 875 n. 7, 876 (8th Cir.1975).
The issue in this case, then, is whether felony murder and the underlying felony upon which the murder conviction is founded are to be deemed the same offense under federal double jeopardy principles. In Thomas v. State, supra, 277 Md. 257, we considered for the first time since Benton v. Maryland, supra, the federal standard for determining whether two offenses arising from the same act or
As to the proper application of the required evidence test, we said (Thomas v. State, supra, 277 Md. at 267):
To the same effect, see Bynum v. State, supra, 277 Md. at 706, and Cousins v. State, 277 Md. 383, 388-389, 354 A.2d 825,
As we pointed out in both Thomas v. State, supra, 277 Md. at 266-267, and Cousins v. State, supra, 277 Md. at 395-396, this Court prior to Benton v. Maryland, supra, had also employed the required evidence test to determine whether multiple punishment or successive trials violated the common law prohibition against double jeopardy. Thus, in Veney v. State, 227 Md. 608, 611-614, 177 A.2d 883 (1962), the Court observed that while the common law doctrine of merger was no longer followed in Maryland, a more modern concept of merger based upon double jeopardy principles had been recognized and cited Gavieres v. United States, supra, to the effect that "`[a] single transaction may be an offense against two statutes if each statute requires proof of a fact which the other does not.'" Applying the required evidence test, the Court in Veney held that the offense of carrying a concealed weapon does not merge into either the offense of assault with intent to murder or attempt to rob with a deadly weapon. The Court reasoned that the concealed weapon offense requires proof of the fact that the accused was carrying a weapon concealed, a fact not necessary to sustain a conviction on either the assault or attempted robbery charges. Conviction on the assault and attempted robbery charges would require proof of facts not necessary to sustain a conviction on the concealed weapon charge.
Similarly, in Bennett v. State, 229 Md. 208, 212-214, 182 A.2d 815 (1962), the Court, citing Blockburger v. United States, supra, stated that under the required evidence test the offenses of contributing to the delinquency of a minor and statutory rape would merge as only statutory rape required proof of an additional fact to secure a conviction.
Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.
Applying the required evidence test, it would seem clear that the felony murder and the underlying felony must be deemed the same for double jeopardy purposes. Maryland Code (1957, 1976 Repl. Vol.), Art. 27, §§ 407-410 provide that certain types of murder shall be murder in the first degree. All murder not provided for in §§ 407-410 is murder in the second degree (Art. 27, § 411). These sections do not create any new statutory crimes, but rather divide the crime of murder, as known at common law, into degrees. Gladden v. State, 273 Md. 383, 389-390, 330 A.2d 176 (1974); Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958).
Section 407 provides, inter alia, that "[a]ll murder which shall be perpetrated ... by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree." To establish first degree murder under this section it must be proven that the homicide was wilful, deliberate, and premeditated, which also establishes the element of malice. Dorsey v. State, 278 Md. 221, 362 A.2d 642 (1976); Gladden v. State, supra. However, under § 410, murder committed in the perpetration of certain enumerated felonies, including attempted robbery, is first degree murder. Under common law principles, a killing in the perpetration of a robbery is murder. Stansbury v. State, supra; Wood v. State, 191 Md. 658, 666-667, 62 A.2d 576 (1948); Evans v. State, 28 Md.App. 640, 686 n. 23, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976). By proving every element of the underlying felony, the element of malice necessary for murder is
Therefore, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction. The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder merge. If, on the other hand, the murder conviction is premised upon independent proof of wilfulness, premeditation and deliberation under § 407, or if the evidence is sufficient for a jury to find those elements, the offenses would not merge. Each offense would then require proof of facts which the other did not, and convictions on both would be proper. Robinson v. State, 249 Md. 200, 207-211, 238 A.2d 875, cert. denied, 393 U.S. 928, 89 S.Ct. 259, 21 L.Ed.2d 265 (1968).
Our conclusion is in accord with that reached by several other jurisdictions, which, applying the required evidence test, have held that the underlying felony and the felony murder merge. United States v. Greene, 489 F.2d 1145 (D.C. Cir.1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42
Most of the cases which hold that murder and the underlying felony are different offenses seem to reason that both contain different elements. While this is true where first degree murder such as that provided for in § 407, requiring proof of wilfulness, premeditation and deliberation, is concerned, it is not true where felony murder is involved. As previously discussed, where first degree murder is established under the felony murder doctrine, proof of the underlying felony is an essential element which would not otherwise be required if the conviction were obtained by independent proof of wilfulness, premeditation and deliberation. As the court in State v. Thompson, supra, 185 S.E.2d at 675, explained:
The dissent in the instant case argues that this reasoning focuses upon "the actual evidence adduced at trial" to determine the elements of the crime rather than the evidence required to establish the elements of each offense and therefore represents an application of the so-called "actual evidence test" rather than the required evidence test. Under the actual evidence test, offenses are deemed the same if the evidence actually produced at trial on both offenses is substantially the same. This test was rejected by the Supreme Court in Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959), and by this Court in Thomas v. State, supra.
In Harris v. United States, supra, the defendant was convicted of the offenses of the purchase of heroin in an unstamped package and of receiving and concealing the drug knowing it to have been unlawfully imported. The conviction
In conclusion, the defendant's separate convictions and sentences for the felony of attempted robbery and murder committed in the perpetration of that felony constitute, under the required evidence test, double punishment for the
Additionally, because the attempted robbery conviction merges, there is only one conviction of a crime of violence, murder. In view of the fact that, as a matter of law, only one felony has been committed, there can be only one judgment of conviction of use of a handgun in the commission of a crime of violence. Accordingly, the conviction and sentence for use of a handgun during the commission of an attempted robbery are also vacated.
Judgment reversed and case remanded to the Court of Special Appeals with instructions to reverse the judgment of the Criminal Court of Baltimore on Indictment No. 57304373 (attempted robbery and use of a handgun in the commission of a crime of violence).
Costs to be paid by the Mayor and City Council of Baltimore.
The Court holds that convictions for murder committed in the perpetration of a felony, and the underlying felony, where both charges arise from the same act or transaction, violate the constitutional prohibition against being twice placed in jeopardy for the same offense. While I agree with the majority that the "required evidence test" is controlling, I think the better reasoned cases, representing the clear weight of authority in the country, support the conclusion that the felony murder and the underlying felony do not constitute the same offense for federal double jeopardy purposes.
Under the required evidence test, if each offense requires proof of a fact which the other does not, the offenses are not the same; but if only one offense requires proof of a fact which the other does not, the offenses are deemed the same. In applying this rule, the majority has in effect held that because proof of murder requires only one fact, i.e. death, in addition to that necessary to prove the underlying felony, that felony is an "essential ingredient" of the murder conviction and thus the murder and the felony constitute the same offense when applying double jeopardy principles. In so concluding, the majority has ignored the requirement that the evidence distinguishing the two offenses must be that demanded by the definition of the offense "and not merely evidence adduced at trial." Thomas v. State, 277 Md. 257, 264, 353 A.2d 240, 245 (1976).
Murder is, of course, a common law crime traditionally
The necessary elements of murder and robbery are manifestly different and distinct; each crime can be proved independently of the other. That the facts supporting each offense may overlap, or that both offenses may arise from the same activity, does not implicate double jeopardy principles, since identity of offenses requires that they be the same both in law and in fact. See Rouse v. State, 202 Md. 481, 97 A.2d 285 (1953).
The majority has focused on the actual evidence adduced at trial to establish the murder, rather than on the elements generally required to establish that crime. This approach amounts to the application of an "actual evidence" test, rejected by the Supreme Court in Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959). There the defendant was convicted of (1) purchase of heroin in an unstamped package and (2) receiving and concealing it, knowing it to have been unlawfully imported. The statutory provision making the first act unlawful provided that possession of heroin in an unstamped package was prima facie evidence of purchase. The statutory provision making the second act unlawful provided that possession of the narcotic drug was sufficient evidence to show receiving and concealing. The defendant, claiming that the sole evidence in the case was the act of possession, challenged the multiple convictions. Although the same evidence, aided by the statutory presumptions, supported both offenses, each had different elements. Thus, "the violation, as distinguished from the direct evidence offered to prove that violation, was distinctly different under each of the respective statutes." 359 U.S. at 23, 79 S.Ct. at 564, 3 L.Ed.2d at 600.
Prior Maryland cases recognize that it is only when the required evidence of the two offenses, not the actual evidence, is the same that the lesser offense is merged into the greater or that double jeopardy applies. In State v. Coblentz, 169 Md. 159, 180 A. 266 (1935), the defendant, a bank officer, was acquitted of charges of accepting a deposit when he knew the banking institution to be insolvent. Subsequently, he was indicted for fraudulently signing a statement misrepresenting the bank's financial status. He contended that res judicata prevented the State from relitigating the issue of the bank's financial status. Our predecessors disagreed, holding that insolvency was an element of the first case only and that insolvency did not need to be proven in the second case, "even though that may be the effect of the evidence." 169 Md. at 168, 180 A. at 270. The Court thus looked to the evidence required to establish the elements of each offense, not to the evidence actually adduced at trial.
In Williams v. State, 205 Md. 470, 109 A.2d 89 (1954), the defendant challenged consecutive sentences imposed for breaking and entering a warehouse with intent to steal and for larceny. He claimed that the lesser crime merged into the greater and only a single punishment was appropriate. The Court implicitly recognized that both offenses arose out of the same transaction and that, under the facts of the
More recently, in Thomas v. State, supra, we held that a conviction for driving a motor vehicle without the consent of its owner [Code (1957, 1970 Repl. Vol.), Art. 66 1/2, § 4-102] precluded a subsequent prosecution for unauthorized use of a vehicle [Code (1957, 1976 Repl. Vol.), Art. 27, § 349] under certain circumstances. The elements required to establish a § 4-102 offense include (1) driving another's vehicle, (2) without consent of the owner, and (3) with intent temporarily to deprive the owner of possession. Elements of a § 349 offense include either (1) entry upon another's property, (2) taking vehicle away, (3) without owner's consent, and (4) with intent temporarily to deprive the owner of possession or (1) taking a vehicle from wherever it may be located, (2) without owner's consent, and (3) with intent temporarily to deprive the owner of possession. If both § 4-102 and the former aspect of § 349 are charged, we held that double jeopardy would not apply because each offense requires proof of an element that the other does not: § 4-102 requires driving and § 349 requires entry. If, however, both § 4-102 and the latter aspect of § 349 are charged, "the same evidence necessary to convict on the § 4-102 offense would always be sufficient to establish a § 349 offense...." (Emphasis supplied.) 277 Md. 257, 270, 353 A.2d 240, 248. The bar of double jeopardy would operate because the evidence required to establish one offense is also the same evidence required to establish another.
We have recently considered whether a felony conviction merges into the felony murder conviction. Although the appropriate test for merger is worded differently than the required evidence test, the principles are the same. In Price v. State, 261 Md. 573, 277 A.2d 256 (1971), the defendant was convicted of arson and felony murder. He claimed that "`the facts necessary to prove arson are essential ingredients in establishing felony murder.'" 261 Md. at 578, 277 A.2d at
We found it unnecessary, however, to apply the Parker rationale in Price. Instead, we noted that since the single act of throwing a bucket of gasoline into a building was the operative act underlying both offenses, one offense was directed at property and the other at the person and hence the offenses were sufficiently separate so as not to merge.
As heretofore indicated, robbing and shooting are separate and distinct offenses. Neither necessarily involves the other. Whereas, in Price, both offenses arose from a single act but did not merge, here since there are two acts, the offenses surely cannot merge. Double jeopardy is simply inapplicable.
Numerous other states representing the great weight of authority (footnote 1, supra) recognize that convictions for both felony murder and the underlying felony do not violate the prohibition against double jeopardy on the ground that murder and the underlying felony are different offenses.
New York, for example, has repeatedly held that, in a felony murder case, an underlying felony such as burglary
Similarly, the Supreme Court of Missouri has recognized that the elements of the felony murder and the underlying felony are dissimilar. In discussing the relationship between the offenses, it said:
Thus, the reasoning and authority of our sister states and Maryland law convincingly demonstrate that, according to the better reasoned view, felony murder and the underlying felony are separate and distinct offenses, the elements of