Henry v. State

Davidson, J.,

concurring and dissenting:

I agree with the majority that unauthorized use of an automobile is a lesser included offense in the greater crime of larceny of the automobile itself and that guilty verdicts on *312 both counts are not inconsistent and can be merged. Therefore, I concur in the majority’s affirmance of appellant’s conviction for larceny of the automobile. I also concur in the majority’s affirmance of appellant’s conviction for receipt of stolen goods. However, I disagree with the majority’s view that this record establishes that Judge Sodaro, in sentencing, considered appellant’s conduct before, during, and after the armed robbery and murder “only in terms of its aggravating effect upon the larceny” and regarded the murder and robbery “simply as conduct bearing upon the other two charges, thereby adding significantly to their gravity.” Therefore, I dissent from the majority’s holding that the trial judge did not err in this case in imposing the maximum sentences of fifteen years for larceny of the automobile and three years for the receipt of stolen goods.

In Baker v. State, 3 Md. App. 251, 256-57 , 238 A. 2d 561, 565-66 (1968), this Court said:

“It is well settled that imposition of a sentence in a criminal case in this State is a matter peculiarly within the province of the trial judge who hears the case and sees the witnesses and the accused. The length of the sentence is therefore not ordinarily reviewable on appeal, if it is within the statutory limit and not dictated by passion, prejudice, ill will or any other unworthy motive. The sentencing judge may, of course, after verdict, inquire into the past criminal record of the defendant and hear evidence and receive reports in aggravation or mitigation of punishment; the inquiry of the judge is not limited by the strict rules of evidence and he is invested with wide discretion in determining the sentence to be imposed. In other words, to aid the sentencing judge in exercising this discretion intelligently, the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a *313 judge ought to have before him in determining the sentence that should be imposed, so that he may consider information obtained outside the courtroom and from persons whom the defendant has not been permitted to confront or cross-examine.

“But nothing in these rules immunizes the procedure pursuant to which an accused is sentenced after verdict from scrutiny under the due process clause of the Fourteenth Amendment to the Federal Constitution. So, in Costello v. State, supra, where it was contended that the procedure in the determination of the sentence violated due process of law, the court held at page 469 that such contention would be reviewable on appeal ‘as an exception to the general principle.’ ” (Citations omitted.)

I believe that the sentencing procedure utilized in this case constitutes an exception to the general principle.

It is elemental that in our system of jurisprudence a sentencing judge can impose sentence only for offenses for which a person has been lawfully convicted. Ruckle v. Warden, Maryland Penitentiary, 335 F. 2d 336, 338 (4th Cir.), cert. denied, 379 U. S. 934 , 85 S. Ct. 330 (1964); Skinker v. State, 239 Md. 234, 243 , 210 A. 2d 716, 722 (1965); Duppins v. State, 17 Md. App. 464, 467 , 302 A. 2d 717, 718-19 (1973); Bartlett v. State, 15 Md. App. 234, 241 , 289 A. 2d 843, 846 (1972), aff'd, 267 Md. 530 , 298 A. 2d 16 (1973). A sentencing judge overreaches the limits of his authority and power when he imposes a sentence upon an individual on the basis of his refusal to give information to a grand jury, Heyward v. State, 161 Md. 685, 696-97 , 158 A. 897, 901 (1932), or his intention to file an appeal. Mahoney v. State, 13 Md. App. 105, 112-13 , 281 A. 2d 421, 425-26 (1971), cert. denied, 264 Md. 750 , cert. denied, 409 U. S. 978 , 93 S. Ct. 306 (1972). A similar transgression occurs when sentence is imposed on the basis of an unwarranted assumption, bottomed on insufficient or on unreliable, inaccurate or false information that a person is guilty of offenses of which he was not lawfully convicted. *314 Carroll v. State, 19 Md. App. 179, 183-84 , 310 A. 2d 161, 163 (1973); Moore v. State, 17 Md. App. 237, 241-42 , 300 A. 2d 388, 390-91 (1973); Towers v. Director, 16 Md. App. 678, 681-82 , 299 A. 2d 461, 464 (1973); Baker v. State, supra, 3 Md. App. at 258 , 238 A. 2d at 566 . In my view due process is equally offended when a judge imposes sentence on the basis of his determination that a person is guilty of offenses of which he was acquitted. See United States v. Metz, 470 F. 2d 1140, 1143 (3d Cir. 1972), cert. denied, 411 U.S. 919 , 93 .S. Ct, 1558 (1973); United States v. Eberhardt, 417 F. 2d 1009, 1015 (4th Cir. 1969), cert. denied, 397 U. S. 909 , 90 S. Ct. 907 (1970).

The scope of a sentencing judge’s inquiry in imposing sentence is sufficiently broad to permit him to consider information concerning the convicted person’s background and other, relevant matters, such as the gravity of the offense for which the person was convicted. While a sentencing judge’s inquiry is not limited by the strict rules of evidence, and evidence of less probative value than is required for a determination of guilt may be considered, Bartholomey v. State, 267 Md. 175, 193-94 , 297 A. 2d 696, 706 (1972), the judge may not consider evidence which possesses such a low degree of reliability that it raises a substantial possibility that his judgment may be influenced by inaccurate or false information. Consideration of such information leads to unwarranted assumption of guilt. For this reason it has been recognized that when they stand alone, bald accusations of criminal conduct for which a person either has not been tried or has been tried and acquitted may not be considered by the sentencing judge. Purnell v. State, 241 Md. 582, 584 , 217 A. 2d 298, 299 (1966); Walker v. State, 186 Md. 440, 443 , 47 A. 2d 47, 48 (1946); Baker v. State, supra, 3 Md. App. at 257-58 , 238 A. 2d at 566 . 1 However, in assessing such factors as the background *315 of the individual and the gravity of the offense, sentencing judges are permitted to consider reliable evidence of conduct which may be opprobrious although not criminal, as well as the details and circumstances of criminal conduct for which the person has not been tried. Purnell v. State, supra, 241 Md. at 585 , 217 A. 2d at 300 ; see Brown v. State, 11 Md. App. 27, 34 , 272 A. 2d 659, 662 , cert. denied, 261 Md. 722 (1971); Turner v. State, 5 Md. App. 332, 334-36 , 247 A. 2d 412, 413-15 (1968). Because an acquittal does not have the effect of conclusively establishing the untruth of all of the evidence introduced against the defendant, United States v. Sweig, 454 F. 2d 181, 184 (2d Cir. 1972); Bell alias Kimball v. State, 57 Md. 108, 116-17 (1881), I am persuáded that for the same purposes a sentencing judge also may properly consider reliable evidence concerning the details and circumstances surrounding a criminal charge of which a person has been acquitted.

An acquittal does determine that a person is not guilty beyond a reasonable doubt of the crimes of which he was acquitted and this determination is conclusive on the issue of his guilt. Slansky v. State, 192 Md. 94, 108 , 63 A. 2d 599, 605 (1949); State v. Coblentz, 169 Md. 159, 166-67 , 180 A. 266, 269-70 (1935); State v. Shields, 49 Md. 301, 303-04 (1878); see Turner v. Arkansas, 407 U. S. 366, 368-70 , 92 S. Ct. 2096, 2098-99 (1972); Harris v. Washington, 404 U. S. 55, 56 , 92 S. Ct. 183, 184 (1971); Ashe v. Swenson, 397 U. S. 436, 446 , 90 S. Ct. 1189, 1195-96 (1970). See also Boblits v. State, 7 Md. App. 391, 393-94 , 256 A. 2d 187, 188-89 (1969), cert. denied, 256 Md. 743 (1970). Therefore, in my view, a sentencing judge may not consider even reliable evidence of the details and circumstances surrounding criminal conduct of which a person has been acquitted for the purpose of imposing *316 additional or enhanced punishment for the commission of those crimes. A determination of guilt beyond a reasonable doubt is a requisite condition precedent to the imposition of punishment. A sentencing judge cannot determine that an individual is guilty of a crime once a conclusive verdict of acquittal has been returned.

Scott v. State, 238 Md. 265, 276 , 208 A. 2d 575, 581 (1965), does not compel a contrary result. The holding in Scott , that a trial judge properly may consider reliable evidence of criminal conduct of which a person has been acquitted, was strictly limited to revocation of probation proceedings and was further confined in its application to a situation in which the trial judge considered evidence of the alleged criminal conduct other than that considered by the jury. 2 The Court’s conclusion there is bottomed on an express recognition of the unique nature of probation and of revocation of probation proceedings, which require nothing more than a determination that an agreement has been breached. A finding of criminal conduct is not required for such a determination, and, therefore, a finding of guilt beyond a reasonable doubt is not a prerequisite. Scott neither holds nor implies that when the purpose of a judge in a sentencing proceeding is to impose punishment for a crime, any standard less than that of proof beyond a reasonable doubt is applicable. Nor does it hold or imply that once a conclusive verdict of acquittal has been rendered by the jury, a sentencing judge can, upon the same evidence considered by the jury, determine that the accused was guilty of the crime charged and punish him for its commission. Scott stands only for the proposition that a trial judge is not bound by the verdict of a jury when he is considering reliable evidence of criminal conduct of which a *317 person has been acquitted for the purpose of taking an action which does not necessitate a finding of guilt of criminal conduct as a prerequisite.

Here when the trial judge passed sentence on appellant, he was of course in possession of the reliable evidence presented at the trial concerning the details and surrounding circumstances relating to the murder of Mr. Rubin and the armed robbery and assault of Mrs. Rubin. Appellant’s theft of the automobile and his receipt of stolen goods were inextricably intertwined with those occurrences. In fixing sentence the trial judge was not obligated to ignore the evidence of these events which established among other things the consequences which resulted from the theft of the automobile and which led to the receipt of stolen goods. The consequences which flow from a given criminal act have evidentiary value in showing the gravity of the offense and, therefore, in determining the period of confinement required to effect the purposes of sentence.

However, the statements of the judge made prior to sentencing indicate that he disagreed with the verdict of the jury that appellant was not guilty of the murder, the armed robbery and the assault and that he considered appellant to be a motivating and active participant in the robbery, the assault and the ensuing murder. These statements, which were reinforced by his written comments at the time of the review of sentence, raise a substantial question in my mind as to whether the sentencing judge, in imposing the maximum sentences for the larceny and receipt of stolen goods convictions, believed that appellant, although acquitted of the murder, assault and armed robbery charges, was nevertheless guilty of those crimes and should be punished for their commission. If any part of the sentence is attributable to such impermissible considerations so that in effect the judge undertook to impose a penalty for the offenses of which appellant had been acquitted, appellant would have been denied due process of law in the sentencing process under the fourteenth amendment of the United States Constitution.

I agree with the majority that a maximum sentence such as here imposed easily could have come to us “silent as to its *318 motivating purpose, or couched in the beguiling language of indirection or hypocrisy; and it would have been, as a practical matter, immune to attack.” But the simple fact here is that the maximum sentences imposed did not come to us in that posture. Instead they came to us with clear and reiterated articulation of the trial judge’s belief that, notwithstanding the jury’s verdict of acquittal, the very evidence considered by the jury established that appellant was guilty of murder, armed robbery and assault, the very crimes of which he had been acquitted. I believe that meticulous care is necessary at all times to assure the preservation of an accused’s constitutional rights. Accordingly, I would remand this case for further consideration of the sentences so that the sentencing judge might determine whether the sentences should be reduced in the event that any part of the sentences was in fact attributable to an impermissible consideration.

. Other cases involving the same principle are legion. A judge may not consider evidence obtained outside a courtroom from persons whom the defendant has not been permitted to confront or cross-examine unless the information has been called to the defendant’s attention and an opportunity afforded him to refute or discredit it. Driver v. State, 201 Md. 25, 32 , 92 A. 2d 570, 573 (1952); Haynes v. State, 19 Md. App. 428, 433 , 311 A. 2d 822, 825 (1973); Baker v. State, supra. Hearsay evidence in cases involving violations *315 of the Controlled Dangerous Substances Act [Code (1957), Art. 27, § 298 (f)] may not be considered unless the credibility of the source and the underlying bases of the information are shown. Nickens and Rhodes v. State, 17 Md. App. 284, 289-90 , 301 A. 2d 49, 52-53 (1973). Information based solely on mere rumor may not be considered. See Driver v. State, supra, 201 Md. at 34 , 92 A. 2d at 574 . Neither a conviction on appeal nor a conviction obtained against an accused at a time when he was unrepresented by counsel can be considered. Carroll v. State, supra; Moore v. State, supra; Towers v. State, supra; Gatewood v. State, 15 Md. App. 450, 459-62 , 291 A. 2d 688, 693-94 .

. The majority states that in Scott a “jury acquitted the defendant there of certain criminal charges” and that “ [notwithstanding that acquittal, [the trial judge] revoked probation upon the basis of the same evidence, which persuaded him that the criminal conduct had occurred.” But the opinion in Scott sets forth in detail the repeated statements of the trial judge, all of which indicate that he was convinced of the defendant’s guilt by critical identification evidence showing that a hat found at the scene of the crime belonged to the defendant. This evidence, while proffered by the State, was never admitted into evidence. It could not have been and was not, in fact, ever considered by the jury.