Clarence J. Sutton v. State of Maryland Maryland House of Correction

HARRISON L. WINTER, Circuit Judge,

dissenting:

For the reasons set forth in the majority panel opinion, Sutton v. State, 865 F.2d 608 (4 Cir.1989), I think that the judgment of the district court should be affirmed. From a contrary holding I respectfully dissent.

I.

Two comments about the majority in banc opinion are warranted:

First, the majority is factually incorrect in characterizing “[t]he present case [as] one of those special cases Maryland had in mind when it provided no statutory maximum for common law assault and left it to the discretion of the trial judge to fashion a proper and adequate punishment.” As the trial judge who tried Sutton in the Criminal Court of Baltimore stated — and the majority quotes his language — Sutton committed assault with intent to murder although he was charged and prosecuted only for simple assault so that the prosecutor was not required to prove the special intent which is an element of the aggravated crime. Having committed assault with intent to murder, Sutton also committed assault with intent to maim. This is thus not one of those cases in which the accused is guilty of criminal conduct constituting common law assault, but not amounting to any form of statutory aggravated assault.

Second, a major premise of the majority opinion is that “[cjommon law assault is only a lesser included offense when two assault offenses are charged on the same set of facts.” As a proposition of law, this statement is directly contrary to controlling precedent. As I wrote in the majority panel opinion “[t]he nature of the criminal offense must be determined by the facts of the case and the elements of the crime to be proved, not by the simple election of the prosecutor to bring a single or multiple count indictment.” 865 F.2d at 614 n. 5. Two Supreme Court decisions support the correctness of this statement: Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (crime of joyriding is a lesser included offense of auto theft so that plea of guilty to former when only joyriding is charged bars finding of guilt of latter on double jeopardy grounds); Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980) (conviction of failure to reduce speed to avoid a vehicular accident resulting in death of two children when separately charged will bar subsequent prosecution for manslaughter by automobile based on theory of failure to reduce speed on double jeopardy grounds because former is lesser included offense of latter). Of course these two cases arose in the context of double jeopardy, but I see no reason why the determination of what is a lesser included offense for purposes of the proportionality requirement of the Eighth Amendment should be different from what is a lesser included offense for purposes of determining if an accused has *714 been or will be subjected to double jeopardy.

II.

To summarize I think that Sutton’s crime, even though singly charged as simple assault, was a lesser included offense of aggravated assault so that the principle of proportionality in sentencing embodied in the Eighth Amendment is fully applicable. Under principles of proportionality, his sentence was excessive and the district court correctly shortened it.

Chief Judge ERVIN, Circuit Judge PHILLIPS, Circuit Judge MURNAGHAN and Circuit Judge SPROUSE authorize me to say they join in this dissenting opinion.