SELBY v. STATE

ROBERT M. BELL, Judge.

Erik O'Brien Selby, appellant, was found guilty at bench trial in the Circuit Court for Montgomery County of attempted first degree murder, robbery with a dangerous and deadly weapon, and wearing and carrying a deadly weapon openly with intent to injure. Having been sentenced to consecutive terms of imprisonment totaling life plus twentyone years, he has appealed, presenting two questions for our resolution:

The facts underlying this appeal are clear. They are gleaned from the statement appellant gave the police and from his testimony at trial. Having left his house at about 5:00 o'clock in the morning of the day of the incident and having taken loose change and marijuana from a gym bag that he found in a convertible automobile, appellant went to a 7 Eleven store where he purchased a newspaper, a pack of cigarettes and some rolling papers. He then proceeded to an office building on Fenton Street and, for a time, stood in front of the building reading the paper and smoking cigarettes. When the door to the building was left unlocked by an occupant who had left to mail a letter, he entered. It was then about 6:30 a.m. Once inside the building, he went to an upper floor stairwell and read the paper, smoked marijuana, and waited, thinking all the time of "[t]rying to get some money from the first person I seen, really". At some point while waiting, he unscrewed light bulbs in the corridor and then returned to the steps where he continued to wait. After having heard someone in the corridor, appellant went into the bathroom; he stayed there for about 15 minutes. As he was about to leave, he first heard, and then saw, a female downstairs. She was carrying a "few bags". When she reached the floor on which appellant was waiting, because it was "nearly dark" in the hallway, she turned on a light in the restroom and then started to unlock the door to the office where she worked. Appellant described what happened next: "Then at the instance — I don't know how you say it, but at the spur of the moment, it just seemed like I charged up to her from behind, and I stuck her with the knife." He took her purse and, after removing about $40.00 from it, threw it into a trash can. Appellant then returned home. He stated that "I didn't really intend to really hurt nobody. I just most likely was thinking of a snatch rob", which he clarified as "pocketbook snatching".

The victim was severely injured in the attack. The wound, at least six inches deep, sliced through several major back muscles, lacerated blood vessels within the abdominal cavity, and amputated the lower portion of her left kidney. It was made by a large butcher knife. According to the testimony at trial, the victim almost died on several occasions during surgery.

1.

The focus of appellant's trial was on his conduct prior to the commission of the crimes and his intent at the time of their commission, rather than upon his criminal agency. Appellant contended that, since attempted murder requires a specific intent to kill, in the absence of a motive to kill, where the circumstances reveal that the apparent purpose is to rob, the trier of fact could not find beyond a reasonable doubt that appellant had a specific intent to kill. He argued that, in the absence of an intent to kill, "appellant could not be convicted of attempted murder, much less attempted premeditated murder".

The State, on the other hand proffered alternative theories upon which a finding of attempted first degree murder could be made. First, it proffered that the evidence was sufficient to support a finding beyond a reasonable doubt that appellant possessed a premeditated intent to kill when he stabbed the victim. Alternatively, the State argued that, whether or not appellant had a premeditated intent to kill, he could be found guilty of attempted first degree murder so long as the trier of fact found beyond a reasonable doubt that appellant was lying in wait for some purpose and had at least the intent to inflict grievous bodily harm upon the victim when he stabbed her. This latter argument was premised upon Maryland Code Ann., art. 27 § 407, which provides:

The court accepted the State's alternative theory, that attempted first degree murder may be found if, even though there is no proof of a specific intent to kill, the court finds that the attempt was made by a person lying in wait with some specific intent to do grievous bodily harm. The court ruled:

In Maryland, murder is a common law crime, the proof of which requires a showing that a criminally responsible human being, with malice,1 killed another human being. Campbell v. State, 293 Md. 438, 441-42, 444 A.2d 1034 (1982); Jackson v. State, 286 Md. 430, 435-36, 408 A.2d 711 (1979); State v. Ward, 284 Md. 189, 194-96, 396 A.2d 1041 (1978); Smith v. State, 41 Md.App. 277, 280-82, 398 A.2d 426, cert. denied, 284 Md. 748 (1979). The concept of "malice", in addition to a mental element, encompasses two additional related, but separate elements: the absence of justification or excuse and the absence of mitigatory circumstances. Gilbert and Moylan, § 1.4-3; Glenn v. State, 68 Md.App. 379, 385, 404, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986). See also Evans v. State, 28 Md.App. 640, 705, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976). The mental element is "the intention to do a particular act or thing", Gilbert and Moylan, supra, which includes four varieties of intent:

Smith, 41 Md. App. at 281, 398 A.2d 426. See Glenn, 68 Md. App. at 384-85, 511 A.2d 1110. Each of these intents, in turn, is an element of a particular kind of murder. Id., 68 Md. App. at 384, 511 A.2d 1110. Consequently, there are four basic kinds of murder: (1) intent-to-kill murder; (2) intent to commit grievous harm murder; (3) felony murder; and (4) depraved-heart murder. Id., 68 Md. App. at 385, 511 A.2d 1110. Id., 68 Md. App. at 388, 511 A.2d 1110.

Maryland Code Ann. art. 27, § 407 and its statutory cousins, §§ 408-410, do not create new statutory crimes or affect, in any way, the definition of the crime of murder; they merely divide the common-law crime into degrees. See Campbell, 293 Md. at 441, 444 A.2d 1034; Jackson, 286 Md. at 435-36, 408 A.2d 711; State v. Frye, 283 Md. 709, 712-13, 393 A.2d 1372 (1978); Davis v. State, 39 Md. 355, 374 (1874). See also Lindsay v. State, 8 Md.App. 100, 104 n. 6, 258 A.2d 760 (1969), cert. denied, 257 Md. 734 (1970). By their enactment, the legislature spelled out a number of aggravating circumstances, the presence of which in the perpetration of a murder will constitute that murder one in the first degree. Smith, 41 Md. App. at 282, 398 A.2d 426. Thus, a killing committed during the perpetration, or attempted perpetration, of certain enumerated felonies (§§ 408-410), by the use of poison (§ 407), by "lying in wait" (§ 407) or willfully, deliberately, and premeditatedly (§ 407) is murder in the first degree. "All other kinds of murder shall be deemed murder in the second degree." § 411.

But we are not here called upon to resolve an issue concerning the consummated crime of murder; rather, the question before us involves attempted murder in the first degree. Query: Which of the four intents, proof of which would support the completed crime of murder would also sustain a conviction for attempted murder either in the first or second degree? We seek the answer by reviewing the law of attempts.

The Court of Appeals recently summarized the law of attempts in Cox v. State, 311 Md. 326, 534 A.2d 1333 (1988):

Id., 311 Md. at 330-31, 534 A.2d 1333. A necessary element of an attempted crime, then, is the specific intent to commit the substantive crime. In the case of attempted murder, the specific intent must be to commit the crime of murder.

In this respect, attempted murder, although a different crime than assault with intent to murder, see State v. Holmes, 310 Md. 260, 272, 528 A.2d 1279 (1987), shares a common element with assault with intent to murder. The latter crime consists of an assault, committed with the intent to murder. Jenkins v. State, 59 Md.App. 612, 616, 477 A.2d 791 (1984), aff'd in part and rev'd in part, State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986). Its intent element requires proof of "a specific intent to kill", which need only be "such that, if the offense had been completed, it would have been either first or second degree murder." Holmes, 310 Md. at 272, 528 A.2d 1279; See also Jenkins, 307 Md. at 515, 515 A.2d 465; Glenn, 68 Md. App. at 388, 511 A.2d 1110. The intent element of attempted murder also requires proof of a specific intent to kill; however, in the case of attempted murder in the first degree, the specific intent to kill must, in addition, be willful, deliberate, and premeditated. Holmes, 310 Md. at 272, 528 A.2d 1279. The common element shared by attempted murder and assault with intent to murder is, therefore, the specific intent to kill.

Given this common element, what we said in Glenn concerning the intent necessary to sustain a conviction for assault with intent to murder is equally applicable to attempted murder:

68 Md. App. at 388-89, 389-390, 511 A.2d 1110. In other words,

68 Md. App. at 397, 511 A.2d 1110.

The decision of the Court of Appeals in Cox upholding the accused's conviction and sentence for the crime of attempted voluntary manslaughter is consistent. The Court held that "when an individual, engaged in an altercation, suddenly attempts to perpetrate a homicide caused by heat of passion in response to legally adequate provocation, and where the attempt results in something less than the actual wrongful killing, that person may be convicted of attempted voluntary manslaughter under the common law of Maryland." 311 Md. at 334, 534 A.2d 1333. By that holding, which was premised on the definition of voluntary manslaughter as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool," (emphasis in original), 311 Md. at 331, 534 A.2d 1333, the Court implicitly recognized that even attempted voluntary manslaughter requires a specific intent to kill.

Turning to the case sub judice, the first question that we must address is just what finding did the trial court make with regard to the intent with which appellant committed the instant offense. The State contends that "implicit in the trial court's comments is its conclusion that Appellant did harbor an intent to kill when he decided to stab Mrs. Choi — a conclusion manifestly in accord with the evidence. The only question, the court continued, was premeditation." Appellant, on the other hand, argues that, although the court did not exclude the possibility that appellant intended to kill the victim, neither was it able to exclude a reasonable possibility that appellant's intent was other than a specific intent to kill. Accordingly, appellant asserts that the trial court entertained a reasonable doubt as to whether appellant had a specific intent to kill, the intent required to convict him of attempted murder in either degree.

We note at the outset that the trial court's comments on this point are almost as ambiguous as appellant's criminal agency is clear. The State is correct, the court could have entertained a reasonable doubt on the question of premeditation and still found that appellant possessed the requisite specific intent to kill. See Ferrell v. State, 304 Md. 679, 688, 500 A.2d 1050 (1985). The problem with the State's argument is that the court's comments demonstrate that this is simply not what the court did. The court had no difficulty concluding that appellant planned the crime and waited for his victim; its difficulty was in determining the intent that appellant harbored at that time. Thus, the court posed the question, "What purpose can reasonably be inferred?" Immediately thereafter, the court noted that "but for the knife, it's hard to get to the specific intent to kill" and then concluded, albeit referring to "necessary premeditation", that "the problem with the facts in the end is that the knife was there, but the Court still has some doubt as to whether the knife was there as a potentially threatening instrument that could cause grievous bodily harm, as opposed to an instrument that was being carried directly for the purpose of killing somebody." (Emphasis added). We think it is clear that the court's doubt was as to appellant's intent, rather than premeditation.

Having concluded that the court did not find that appellant possessed a specific intent to kill when he stabbed the victim, it follows that, unless the court's alternative basis for finding him guilty of attempted murder in the first degree is viable, that finding precludes appellant's being found guilty of attempted murder in either degree. We now address the alternative finding.

In reaching its verdict, the court found that appellant clearly had the intent to do grievous bodily harm to the victim and that appellant laid in wait to effectuate the crime. These findings are sufficient to support a conviction for attempted murder in the first degree, the court reasoned, because proof of lying in wait is an alternative method of proving premeditated murder. Assuming the court is correct, that proof of lying in wait is effectively an alternative to, rather than an example of, premeditated murder2, the question remains whether such proof suffices when the crime is attempted first degree murder, rather than the consummated crime. We hold that it does not.

The intent element of attempted murder, as we have seen, requires proof that the perpetrator intended to commit the crime of murder, i.e., had the specific intent to kill. Thus, it is a specific intent crime, the object of the intent being the accomplishment of the necessary result of completing the substantive crime, i.e., the death of the victim. The intent element of the consummated crime of murder, on the other hand, includes, in addition to the intent to kill, three additional intents, any one of which would support a conviction for the completed crime. In short, the mental element of attempted murder, like that of assault with intent to murder, is more restrictive than the mental element of the consummated crime, see Glenn, 68 Md. App. at 388, 511 A.2d 1110; see also Finnegan v. State, 33 Md.App. 251, 255-56 n. 1, 364 A.2d 124 (1976); Blake v. State, 29 Md.App. 124, 127 n. 1, 349 A.2d 429 (1975); murder may be committed even though the perpetrator had no intent to kill. Thus, we observed, again in Glenn that:

68 Md. App. at 394-95, 511 A.2d 1110.

An attacker lying-in-wait for a victim may have any one of the four intents, previously set out, which would support a conviction for murder, and, if the victim died as a result of the attack, the attacker is guilty of murder in the first degree. This is so because the legislature has so decreed; by enacting § 407, it has determined that such conduct is so atrocious and blameworthy as to warrant the more severe penalty provided for murder in the first degree. In such a case, it is the conduct of the attacker and the result of that conduct, rather than the attacker's specific intent to bring about the result, that is dispositive.3 However, in such a case, the character of the crime of murder is not changed. In the case in which the victim does not die, on the other hand, the attacker may be guilty of attempted murder in the first degree, but only if he or she had the premeditated intent to kill. This is true because that intent is a necessary element of the crime. See Holmes, 310 Md. at 272, 528 A.2d 1279. The legislature has not prescribed that the aggravating factors which elevate murder to the first degree will also serve to elevate attempted murder to the first degree. Thus, when the victim survived, application of the aggravating factors no longer was possible. Indeed, were such factors applicable the nature and character of the crime of attempted murder would be changed; were they to apply, the critical element of attempted murder would no longer be the intent to murder.

It is true that, from proof of lying-in-wait and of an intent on the part of the perpetrator to cause grievous bodily harm, an evidentiary inference that the perpetrator harbored an intent to kill the victim may arise. See Jenkins, 307 Md. at 513-15, 515 A.2d 465. In this case, however, such an inference is not available in light of the trial judge's finding that he had a reasonable doubt as to appellant's intent to kill. Indeed, given the nature of attempted murder, his finding that appellant's intent was to do grievous bodily harm, itself, demonstrates the court's error. Its judgment must be reversed.

2.

Finally, appellant challenges the propriety of his conviction and sentence, pursuant to Maryland Code Ann. art. 27, § 36(a), for wearing and/or carrying a concealed weapon, or carrying a weapon openly with intent to injure. Apparently conceding that application of the "required evidence test", see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Jenkins, 307 Md. 501, 517, 515 A.2d 465 (1986), does not result in its merger into the offense of robbery with a dangerous or deadly weapon, appellant nevertheless argues that the weapon conviction and the robbery conviction should merge by application of the "Rule of Lenity". See Dillsworth v. State, 308 Md. 354, 361, 519 A.2d 1269 (1987). Specifically, he contends:

In Johnson v. State, 56 Md.App. 205, 215, 467 A.2d 544 (1983), cert. denied, 299 Md. 136, 472 A.2d 999 (1984), we reviewed various cases in the Supreme Court, the Court of Appeals, and our own Court involving the application of the Rule of Lenity and determined:

Applying these factors to the facts sub judice makes it clear that this is not an appropriate case for application of the Rule of Lenity. See also Dillsworth, 308 Md. at 361-67, 519 A.2d 1269.

JUDGMENT AS TO ATTEMPTED MURDER IN THE FIRST DEGREE, REVERSED; JUDGMENT AS TO THE CARRYING OF A DEADLY WEAPON, AFFIRMED.

COSTS TO BE PAID ONE-HALF BY APPELLANT AND ONE-HALF BY MONTGOMERY COUNTY.

GARRITY, Judge, dissenting.

I respectfully dissent from the majority opinion as to Count # 1.

The appellant's victim was Chung Sook Choi, a Korean widow who worked in the dental lab on the third floor. Because the hallway was "really dark," Mrs. Choi turned on a light in the restroom, then started to unlock the door to her lab. At that instant, the appellant plunged a large butcher knife deep into Mrs. Choi's back at her waist, about two inches to the left of her spine. The knife sliced through several major back muscles, lacerated blood vessels within the abdominal cavity, and amputated the lower portion of her left kidney.1

Mrs. Choi fell to the floor. She looked up and saw a knife on the floor and a man standing over her. The man stepped on her, grabbed her purse and ran.

A passerby saw her almost immediately, and a rescue team arrived within "a matter of seconds." She was at the hospital in approximately seven minutes. Her doctor testified that during surgery, Mrs. Choi almost died on several occasions.

It has been consistently held in Maryland that a finding either that a killing was wilful, deliberate or premeditated, or that it was in perpetration of a robbery, would support a verdict of first degree murder. Parker v. State, 7 Md.App. 167, 254 A.2d 381 (1969), cert. denied, 402 U.S. 984, 91 S.Ct. 1670, 29 L.Ed.2d 150 (1971). While lying-in-wait epitomizes a cold-blooded attack devoid of any warning to the victim and serves as an extreme example of wilfulness, deliberateness, and premeditation, it is also an aggravating factor in its own right. Evans v. State, 28 Md.App. 640, 686, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976).

But for the tenacious refusal of the victim to die, this case would have presented a classic example of first degree murder. Due to her survival, it is clearly one of attempted first degree murder.

Although the trial judge's loquacious explanation of his thoughts may have given rise to the appellant's "reasonable doubt" argument, I interpret the court's comments differently.

In summation of his findings, the trial judge stated:

I believe that the trier of fact determined that the appellant's act of lying-in-wait sufficiently evidenced his premeditated intent to murder, when coupled with the actual use of the butcher knife to cause the type of wound which could have resulted in death as a natural consequence.

I would conclude, therefore, beyond any reasonable doubt, that the evidence was sufficient to prove attempted murder in the first degree. I would affirm the finding of the trial court.