Petition — Raley v. Maryland

FILED.

FEB 28 1977

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

xo. %§-1187

THOMAS JOHN RALEY,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

RICHARD W. MOORE

Moore, Libowitz & Thomas

Suite 30

Central Savings Bank Building

3 E. Lexington Street

Baltimore, Maryland 21202

Attorney for Petitioner.

alata

The Paul M. Harrod Company, Baltimore, Maryland 21234

ST RE LT eT

INDEX

TABLE OF CONTENTS

Page

i been ae unwe Ws de eee enki eee 2

Wiech bes ods ee bees es ewer eed ee ewen 2

ee Fe rr eee 2

Constitutional Provisions Involved .................. 3

Statutory Provisions Involved ............ccccccee: 4

rr Or rr rr | Vee aA shh ed ee beds eden 4

es Ge ee We WE a, 8S eee ee wee be ewe 9

SD ho Gewcs Saar devee dees CREE oe CUUNK 21

Appendix A

Opinion of Maryland Court of Special Appeals

of October 11, 1976, No. 800, 32 Md. App.

Pe, Se ED I OU Uc 0 0 oo 604006 066008 A. 1

Appendix B

ee go 6 os Ged b Wee twseweene A. 16

| Appendix C

Decree entered by Maryland Court of Appeals

Op Sy Sek, GUD 0 0 hb ew sde cloe Geswee A. 27

Mandate, Court of Special Appeals of Maryland

No. 800, September Term, 1975, Issued

GN Gain SP on 6 66 be Sb Ss Se woes sdes A. 28

ii

TABLE OF CITATIONS

Cases Page

Agnew v. United States, 165 U.S. 36 (1897) ......... 16

Ashe v. Swenson, 397 U.S. 436 (1970) ........... 10,11

Bird v. United States, 165 U.S. 36 (1897) ......... 16,17

Bird v. State, 231 Md. 432, 190 A.2d 804

Ee oe ee ek wa. oh bie ey 18

Bollenbach v. United States, 326 U.S. 607 (1946) ..... 18

Burton v. United States, 196 U.S. 283 (1904) ........ 17

Cannon v. Gladden, 203 Or. 629, 281 P.2d

a i a ee eee an Ed ake gk ed a 20

Dunn v. United States, 284 U.S, 390 (1932) .......... 9

Ford v. State, 274 Md. 546, 337 A.2d 81 (1975) ...... 8

Giles v. State, 229 Md. 370, 183 A.2d 359 (1961)..... 15

Hobbs v. State, 253 Ind. 195, 252 N.E. 2d 498....... 20

Larkin v. State, 183 Md. 274, 37 A.2d 340 (1944) ....16

People v. Schuern, 111 Cal. Rptr. 129,

i a a ove ol oe 20

Roberts v. Collins, 404 F. Supp. 119 (1975) ......... 18

Roberts v. Warden, 242 Md. 459, 219 A.2d 254 (1966)18,20

Sealfon v. United States, 332 U.S. 575 (1948) ........ 10

Simpson v. Florida, 403 U.S. 384 (1971) ......... 10,11

Williams v. State, 204 Md. 55, 102 A.2d 714

_ Spee ers oevrrre fae Ter eee eee Cee eee 9

Statutes

Maryland Code (1957, i971 Rep. Vol.), .

ee ee 4,6,9,11,12,13,15

Maryland Code (1957, 1971 Rep. Vol.),

pT Se | | ree 4,11,15

Maryland Code (1957, 1971 Rep: Vol.),

es Dn ks Cn cig oe dba Wiewee 8s ceed 4

Maryland Code (1957, 1971 Rep. Vol.), roy)

FERED BT, TOU BOO vin oc cere gccsccveccecces 19

‘ Maryland Code (1957, 1971 Rep. Vol.),

t,o + ohh ee biee 6 sb beh b oes 19

Maryland Code (1957, 1971 Rep. Vol.),

es a ee abu es eae 19

Maryland Code (1957, 1971 Rep. Vol.),

RT Seer ye eer eee

Maryland Code (1957, 1971 Rep. Vol.)

Rule 756

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO.

THOMAS JOHN RALEY,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS

OF MARYLAND

Petitioner Thomas John Raley prays that a Writ of

Certiorari issue to review the opinion and judgment of the

Court of Special Appeals of Maryland filed in the above

entitled case on October 2, 1976 and for which a mandate

was issued on October 11, 1976.

2

OPINIONS BELOW

The opinion of the Court of Special Appeals of Maryland

is reported Citation at 32 Md. App. 575, 363 A.2d 261 and

appears at Appendix A to this Petition, infra pp. A.1. The

Court of Appeals of Maryland denied Petitioner’s Petition for

a Writ of Certiorari to the Court of Special Appeals on

November 30, 1976.

JURISDICTION

The judgment of the Court of Appeals of Maryland

sought to be reviewed was filed on October 2, 1976 and a

Mandate was issued on October 11, 1976. The Order of the

Court of Appeals of Maryland denying the Petition for a Writ

of Certiorari was entered on November 30, 1976. The

jurisdiction of the Court is invoked under 28 U.S.C.

§ 1257(3).

QUESTIONS PRESENTED

1. Whether when the jury acquitted Petitioner of two

counts of felonious crimes, thus removing from the case one

of the essential elements of the corpus delicti required to

establish a violation of another count, the use of a handgun in

the commission of a felony or crime of violence under which

Petitioner was charged, the Court’s failure to find the jury’s

guilty verdict for the handgun violation repugnant to its

verdict of acquittal to the first counts was in violation of the

Doctrine of Collateral Estoppel as provided by the Fifth

Amendment of the United States Constitution.

3

2. Whether the Trial Court violated the Petitioner’s due

process rights and guaranty of equal protection of the law by

refusing to instruct the jury, as required by Petitioner,

concerning the proper and necessary basis for a conviction

under the law of the State of Maryland for a handgun

violation as provided in Article 27, Section 36B(d) of the

Annotated Code of Maryland.

3. Whether the Trial Court’s exercise of discretion in

imposing for a common law misdemeanor, simple assault, a

lesser included offense, a sentence of twenty years,

constituting a penalty more severe than the statutory

maximum of fifteen years required for the greater offense of

assault with intent to murder, a more dangerous crime and a

felony requiring more elements of proof and of which

Petitioner was acquitted, violated the prohibition against cruel

and unusual punishment provided by the Eighth Amendment

of the Constitution of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth Amendment to the

Constitution of the United States which provides in pertinent

part:

“...nor shall any person be subject for the

same offense to be twice put in jeopardy of life or

limb;”

This case also involves Section 1 to the Fourteenth

Amendment of the Constitution of the United States, said

section in pertinent part reads as follows:

4

“...mnor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

In addition, the case involves the Eighth Amendment to

the Constitution of the United States which reads as follows:

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.”

STATUTORY PROVISIONS INVOLVED

FE Oe EO

5

burglary, including common-law and all statutory

and storehouse forms of burglary, offenses; escape;

housebreaking; kidnapping; manslaughter, excepting

involuntary manslaughter; mayhem; murder, rape,

robbery; and sodomy or an attempt to commit any

of the aforesaid offenses; or assault or intent to

commit any other offense punished by

imprisonment for more than one year.”

Article 27, Section 12, ... “every person

convicted of the crime of an assault with intent to

murder shall be guilty of a felony and shall be

sentenced to confinement in the Maryland

Penitentiary for not less than two years nor more

than fifteen years... ;”

This case involves four statutory provisions of the State

of Maryland which are quoted in pertinent part below. The

full text of the below cited sections appear in Appendix B.

pp. 16.

Rule 756. Advisory Instructions, subsection b

-~ How Given. “The court may and at the request

of any party shall, give such advisory instructions to

Article 27, Section 36B, subsection d of the

Annotated Code of Maryland — Unlawful Use of a

Handgun in a Crime of Violence — Any person who

shall use a handgun in the commission of any

felony or any crime of violence as defined in

Section 441 of this Article, shall be guilty of a

separate misdemeanor and on conviction thereof

shall, in addition to any other sentence imposed by

virtue of commission of said felony or

misdemeanor, be sentenced to the Maryland

PO AE CONS EAR ION Het eet — =

ee

the jury as may correctly state the applicable law;

the court may give its instructions either orally or

in writing. The court need not grant any requested

instruction if the matter is fairly covered by the

instructions actually given. The court shall in every

case in which instructions are given to the jury,

instruct the jury that they are the judges of the law

and that the court’s instructions are advisory only.”

STATEMENT OF THE CASE.

Division of Correction for a term of not less than Petitioner was charged with Murder, Assault with Intent

five nor more than fifteen years, and it is to Murder, Assault and the Use of a Handgun in a Crime of

mandatory upon the Court to impose no less than Violence.

the minimum sentence of five years.”

Article 27, Section 441, subsection e — “The

term crime of violence means abduction; arson;

6

Petitioner entered pleas of not guilty to all charges and

requested a jury trial. On July 9, 1975, the jury returned a

verdict of not guilty to the charges of murder and assault

with intent to murder but guilty to the charges of assault and

the use of a handgun in a felony or crime of violence. The

Court denied Petitioner’s Motion for a New Trial and

sentenced him to twenty years in the custody of the

Maryland Division of Correction for assault and fifteen years

for the handgun violation.

Before the jury retired, the Court instructed the jury

regarding the nature of the charges against Petitioner and the

burden of proof. As to the charge of the use of a handgun in

a felony or crime of violence, the Court advised the jury that,

“under the law, Article 27, Section 36B(4), any person who

uses a handgun in the commission of any felony or crime of

violence shall be guilty of a separate misdemeanor. That is, a

separate crime. A handgun shall include any pistol of revolver,

or any firearm capable of being concealed on the person, and

a crime of violence, of course, will include murder, robbery,

rape, or an attempt to commit any of these offenses. The

felony charge in this count is murder.” (T. 251).

Following the Court’s instructions to the jury, both the

State and Defendant made closing arguments. Petitioner’s

counsel argued inter alia that regarding the handgun offense

the law specifically says involuntary manslaughter is an

exception as well as common law assault.

The jury retired to consider its verdict and returned

approximately three hours later with a question to the Court,

7

ie. “description of charges to be considered.”” The Court

reread its earlier instructions as to the nature of the charges

against the Petitioner and burden of proof.

Before the jury again retired, Petitioner requested that

the jury be advised that assault, a misdemeanor, is not a crime

of violence and therefore not a basis for conviction under the

handgun violation. The Court refused to so instruct.

Approximately two hours later, the jury returned the

above stated verdict.

On Appeal to the Court of Special Appeals of Maryland,

Petitioner argued that his rights were prejudiced by the Trial

Court’s failure to grant supplemental instructions to the jury

as requested. In addition, Petitioner argued that the Doctrine

of Collateral Estoppel barred the Trial Court’s acceptance of

the guilty verdict for the handgun offense after the acquittal

on ooth felonious counts and that the logical fallacy of the

inconsistent verdicts amounted to a denial of Petitioner’s Due

Process of Law and Equal Protection of the law.

The Petitioner also argued that the Trial Court subjected

him to cruel and unusual punishment by sentencing him to a

period of twenty years in the custody of the Maryland

Division of Correction for common law assault. In addition,

this punishment for common law assault, a lesser included

offense of the statutory assault of intent to murder of which

Petitioner was acquitted and under which at that time a

conviction in the State of Maryland carried a maximum

penalty of fifteen years incarceration, was beyond the bounds

of just discretion and providence of the Trial Court.

;

;

'

'

:

—<_<_$_§$<_§<$§<§<§<_$_$_§_§<_§<_§<_§$<_$$<_<_<__ O_O |

~ '

The Court of Special Appeals of Maryland found that

the Trial Court’s instructions fairly covered the nature of the

charges and did not mislead the jury in spite of its

inconsistent verdict. The Court of Special Appeals also refused

to review an earlier decision of the Maryland Court of

Appeals, Ford v. State, 274 Md. 546, 337 A.2d 81 (1975)

which, despite the express wording of the handgun statute

referring to a conviction of a felony or crime of violence,

determined the statute was a separate and distinct offense

from the felony or crime of violence during the commission

of which the handgun was used. Thereupon, the Court of

Special Appeals, like the Maryland Court of Appeals in Ford

v. State, concluded that not only was there no inconsistency

in the verdict when a jury returned verdicts of acquittal for

the two felony charges and guilty for the handgun offense but

that an individual could be on trial for the handgun charge

without even being accused of the commission of a felony or

crime of violence and guilty of assault, a misdemeanor, and

not defined as a crime of violence according to Maryland

Law. .

According to the Court of Special Appeals, no Eighth

Amendment rights were violated by the Trial Judge to impose

a lengthly sentence for a crime under which he has no

limitation by statute or common law and dismissed the

illegality of imposing a more severe sentence for a common

law offense, assault, than that set by statute for a greater

offense, assault with intent to murder, as being without

substantive merit.

9

REASONS FOR GRANTING THE WRIT

Petitioner first argues that the Court’s failure to find the

jury’s verdict of guilty for the handgun violation repugnant to

its verdict of acquittal to the two felony charges was used in

violation of the Doctrine of Collateral Estoppel as provided

by the Fifth Amendment of the Constitution of the United

States.

The jury in Petitioner’s trial returned a verdict of

acquittal for both felonies under which Petitioner was

charged. It found Petitioner guilty, however, of unlawful use

of a handgun in the commission of a felony or crime of

violence. Petitioner contends that a conviction of the handgun

offense must be predicated on a conviction of a felony or

crime of violence as provided by Article 27, Section 36B(d)

of the Maryland Annotated Code and since the jury

eliminated one of the elements necessary for a conviction of

the handgun offense by its verdict of acquittal for both

felonious charges, a conviction for the handgun offense was

thereby barred.

In the case, Dunn vy. U.S., 284 U.S. 390, 52 S. Ct. 189,

76, L.Ed. 356 (1932), the Supreme Court stated that

“Consistency in the verdict is not necessary. Each count in an

indictment is regarded as if it were a separate indictment.” To

this statement, the Maryland Court of Appeals in Williams v.

‘State, 204 Md. 55, 102 A.2d 714 (1954) added that not only

is each count of an indictment to be regarded as if it were a

separate indictment but “the inquiry must be whether the

10

evidence is sufficient to support the conviction on that count,

without regard to the disposition of the other counts.”

It is Petitioner’s argument that Ashe v. Swenson, 397

U.S. 436, 90 S. Ct. 1189, 21 L. Ed. 2d 469 (1970) and

Simpson v. Florida, 403 U.S. 385, 41 S. Ct. 1801, 29 L. Ed.

2d 469 (1971) have introduced new light to this thinking. In

Petitioner’s case, the evidence is not sufficient to convict him

of the handgun offense alone, without proof of a crime of

violence or a felony which is one of the elements of the

offense, as provided by the statute. Without that element, a

conviction on the handgun offense cannot stand. There can be

no confidence in the verdict of guilty of the handgun offense

when the jury, by its acquittal of the Petitioner of one crime,

appeared to have rejected the only evidence that would

support a conviction of another.

In the case, Sealfon v. U.S., 332 U.S. 575, 68 S. Ct. 237,

92 L. Ed. 2d 180 (1948) an acquittal by a jury on a charge

of conspiracy to defraud the United States by presenting false

invoices and making false representations to a ration board

was held to preclude a subsequent prosecution for commission

of the substantive offense, aiding and abetting the uttering

and publishing of false invoices, which were introduced in the

conspiracy trial.

Petitioner argues that his case is such a situation where

reversible inconsistency should result because of the

repugnancy of the verdict of guilty in view of the facts as

determined from the verdicts for acquittal. Both verdicts were

based on the same incident and proof of the exact same facts.

11

In both Ashe v. Swenson, supra and Simpson v. Florida,

supra, it was held that the Doctrine of Collateral Estoppel

constitutionally foreclosed the relitigation of an issue tried in

another trial. Treating the fourth count, the handgun offense,

in the Petitioner’s indictment upon which he was found

guilty, as a separate indictment on which he might have been

entitled to a trial separate from the trial on the murder and

assault with intent to murder counts, it would follow, under

the holdings of Ashe v. Swenson, supra, and Simpson v.

Florida, supra, that Petitioner’s acquittal on the murder and

assault with intent to murder counts would have collaterally

estopped the State from thereafter trying him, upon the same

evidence, for using the handgun in the commission of the

same felonies, as charged in a count, as if it were a separate

indictment.

Furthermore, the history of the statute under which

Petitioner was convicted for the handgun offense shows the

clear intent of the Legislature to be that the offense

prohibited by Article 27, Section B(d) of the Maryland

Annotated Code, the use of a handgun or the commission of

a crime was chargeable only when combined with a charge of

having also committed one of the delineated crimes, i.e., the

commission of a felony or one of the defined crimes of

violence as specified in Article 27, Section 441 (e). That

Section of Article 27 is applicable only when a person is also

charged and convicted of committing a felony or one of the

enumerated crimes of violence.

When the Maryland General Assembly, by Chapter 13 of

the Acts of 1972, enacted a completely new handgun law, it

12

set forth in its declaration of policy that there had been an

alarming increase in the number of violent crimes perpetrated

in Maryland, and a high percentage of those crimes involved

the use of handguns; that the result had been a substantial

increase in the number of persons killed or injured which is

traceable, in large part, to the carrying of handguns on the

streets and public ways by persons inclined to use them in

criminal activity; that the laws currently in force have not

been effective in curving the most frequent use of handgun

and perpetrating crimes; and that further regulation on the

wearing, carrying and transporting of handguns are necessary

to preserve the peace and tranquility of the State and protect

the rights and liberties of its citizens. See Maryland Code

(1957, 1971 Repl. Vol., 1974 Cum. Supp.) Article 27,

Section 36B(a)(i).

The law which grew from. the Legislators’ concern,

Article 27, Section B(d) is captioned “Unlawful use of

handgun in commission of crime.” It provides that it is a

separate misdemeanor for any person to use a handgun in a

felony or a crime of violence. The statute further provides

that “in addition to any other sentence imposed by virtue of

commission of said felony or misdemeanor” one adjudged

guilty shall be sentenced mandatorily to a minimum sentence

of five years.

The statute provides for a mandatory, not discretionary

sentence and one expressly in addition to that imposed for

the perpetration of the felony or misdemeanor, as described,

not for any other offenses.

13

Petitioner concludes that by the way the statute is

defined, there is no way the punishment it provides, as a

count, could be viable as a separate indictment or treated as

such, The Legislature clearly and unambiguously has limited

the statute’s use and application to particular situations and it

is beyond the power.of the court, without further legislative

action, to alter its content, purpose or function.

Secondly, the Petitioner contends that the failure of the

Trial Court to give, at Petitioner’s request, supplemental

instructions to the jury was a denial of due process and equal

protection of the law, as provided by the Constitution of the

United States.

Briefly stated, the facts from which the issue arose that

the Petitioner now contends are that in his trial after the jury

had received advisory instructions and retired to consider its

verdict (T. 245), the jury returned with a question to’ the

Court, ie. “description of charges to be considered”. The

Court reread its earlier instructions as to the nature of the

charges against the Petitioner and Burden of Proof.

In regard to the fourth count of the indictment which

charged the Petitioner with the handgun offense, the Court

advised the jury that “under our law, Article 27, Section

36B(d), any person who uses a handgun in the commission of

any felony or a crime of violence, shall be guilty of a separate

misdemeanor. That is, a separate crime. A handgun shall

include any pistol or revolver, or any firearm capable of being

concealed on the person, and a crime of violence, of course,

14

would include murder, robbery, rape or an attempt to commit

any of these offenses. The felony charge in this Court is

murder (T. 251)”.

The Court refused Petitioner’s request for a supplemental

instruction that assault under which Petitioner also had been

charged was a misdemeanor and not a crime of violence and

therefore not a predicate for conviction under the handgun

violation.

The jury returned verdicts of not guilty on the two

felony counts under which Petitioner was charged but found

Petitioner guilty of common-law assault, a misdemeanor, and

the handgun violation referred to above.

Petitioner contends that the requested instruction was

proper and concerned a point of law essential to the crime

charged which had not been covered adequately by the Judge.

The fact that the jury requested additional instructions was

evidence of the fact that the jury was not certain regarding

the nature of the charges and was confused concerning their

ability to reach a verdict on the charges. The Judge’s

repetition of what he had said to these twelve individuals only

three hours earlier would not have been of much assistance.

The Judge resisted any suggestion of additional assistance by

denying Petitioner’s request for supplemental instructions.

That the jury was not clear concerning the law of the

State of Maryland and the charges against the Petitioner is

further evidenced by the verdicts rendered. The jury found

15

the Petitioner not guilty of two felony counts under which he

was charged and yet guilty of a handgun violation. According

to the statute, a conviction of this handgun offense must be

based upon the commission of a felony or crime of violence.

Petitioner was not convicted of any felony or such crime of

violence as defined by statute. Petitioner contends that one of

the tests for determining the prejudicial character of error in

instruction is the correctness of the result.

_ Article 27, Section 36B(d) of the Annotated Code of

Maryland prohibits the use of a handgun in the commission of

any felony of any crime of violence, as defined in Article 27,

Section 441 of the Annotated Code of Maryland (Appendix

A. 16 ). Since commonaw assault is a misdemeanor and

since it is not listed as a crime of violence, it cannot be the

basis for a conviction under the handgun offense. The denial

of an instruction to this effect by the Court was in violation

of the Court’s obligation to the Petitioner as provided by

state law, and was plain and reversible error, clearly material

to his defense and prejudicial to his rights.

Under Rule 756 of the Maryland Rules of Procedure,

“the Court may and at the request of any parties, shall give

such advisory instructions to the jury as may correctly state

the applicable law.”’ In Giles v. State, 229 Md. 370, 183 A.2d

359 (1961), the Maryland Court of Appeals held that “Rule

756(b) makes it mandatory upon the Trial Court to advisorily

instruct the jury. Section F of the Rule further provides that

_@ party may object to the failure to give any instruction or to

an inadequate one.”

16

Petitioner concedes that, in this instance, the request

concerned supplemental jury instructions, and not advisory

instructions given prior to the time the jury retires to consider

its verdict. The Petitioner first requested that the jury be

instructed that assault could not serve as the basis for a

conviction for the handgun charge when the jury returned to

receive additional instructions. However, the Maryland Court

of Appeals has applied the same standards to supplemental

jury instructions as original instructions. In the case, Larkin v.

State, 183 Md. 274, 37 A.2d 340 (1944), the jury retired and

then returned to ask for further instructions, just as in the

Petitioner’s trial. The Court held that there is “no more

restriction upon the right of the Court to instruct then, than

there is upon his right to instruct before the jury retires for

the first time.”

Petitioner recognizes the Supreme Court’s determination

in the case Agnew v. United States, 165 U.S. 36, 17 S. Ct.

235, 41 L. Ed. 624 (1897) that the Trial Court is not bound

to accept language which counsel employ in framing

instructions. However, Petitioner here refers to the case, Bird

v. United States, 180 U.S. 356, 21 S. Ct. 403, 45 L. Ed. 570

(1901), where the Supreme Court stated that, “It is well

settled that the Defendant has a right to a full statement of

the law from the Court, and that a neglect to give such full

statement when the jury consequently fell into error is

sufficient for reversal.” The exception to the Trial Court’s

instructions to the jury in Bird v. United States, supra, was

taken because the remarks concerning the offense of homicide

made no mention concerning the question of self-defense

which was the fundamental issue in the case.

17

Petitioner contends that the right to a full statement of

the law from the Court to the jury as stated in Bird v. United

States, supra, is one provided by the Constitution of the

United States, and that to deny a Defendant of this right is a

denial of the fundamental rules and forms of due process

established to guarantee the rights of individuals in legal

proceedings. To allow a jury to be misinstructed or

inadequately instructed is to obstruct the deliberations of the

jury in reaching a verdict and giving the Defendant the full

benefit of the law.

Furthermore, it is a denial of the equal protection of the

laws for a Court to arbitrarily prevent statements or

explanations. of the law to reach the jury without

consideration to past precedents and the significance of jury

instructions as applied to other Defendants.

In the case, Burton v. United States, 196 U.S. 283, 25 S.

Ct. 243, 49 L. Ed. 482 (1904), the Supreme Court said such

situations where the jury is confused and unable to agree are

where the most extreme care and caution are necessary in

order that the legal rights of the Defendant can be preserved.

‘The Court further stated that, “Considering the attitude of

the case as it existed when the jury returned into Court for

further instructions, we think the Defendant was entitled, as a

matter of legal right, to the charge asked for in regard to the

previous requests to charge.”

The importance of the Court’s instructions to the jury

and its role in administering assistance to the jury so it can

reach 2 just and proper verdict was further emphasized in

18

Bollenbach v. United States, 326 U.S. 607, 66 S. Ct. 402, 90

L. Ed. 180 (1946), whether the Supreme Court said, “The

influence of the Trial Judge on the jury is necessarily and

properly of great weight, and jurors are ever watchful of the

words that fall from him. Particularly in a criminal trial, the

Judge’s last word is apt to be the decisive word.”

Finally, the Petitioner contends that the Trial Court

violated his Constitutional guarantee against cruel and unusual

punishment by imposing a twenty-year sentence for simple

assault, a commondaw misdemeanor and here, a lesser

included offense, after the Trial jury acquitted him of the

greater offense of assault with intent to murder, a statutory

felony with a maximum punishment of fifteen years as of

that time. (The maximum penalty has since been raised to

thirty years.) Simple assault, as a common-law misdemeanor,

has no statutory maximum. Sentencing is left to the

discretion of the Trial Judge, with the only restriction being

that the sentence cannot be cruel or unusual in violation of

the Eighth Amendment of the United States Constitution. To

sustain a conviction for assault, it is only necessary to prove

that an assault occurred. To sustain a conviction for the

statutory crime of assault with intent to murder, it is

necessary to show not only an assault, but also the additional

element of malice. Bird v. State, 231 Md. 432, 190 A.2d 804

(1963).

The Court of Special Appeals of Maryland, in upholding

the Petitioner’s twenty year sentence for simple assault, relied

conclusively on Roberts v. Warden, 242 Md. 459, 219 A.2d

254 (1966). In deciding a Writ of Habeas Corpus, the United

States District Court for the District of Maryland determined

19

that Roberts’ twenty year sentence for simple assault was

unconstitutional. 404 F. Supp. 119 (1975). Factors

considered were the nature and gravity of the offense,

legislative purpose behind the penalty, comparison of

maximum penalty for simple assault in Maryland against the

maximum in other states and comparison with other

maximum sentences in the state for comparable crimes. As to

the seriousness of the offense, a twenty-year sentence could

not be justified in that “the greatest offense charged by the

prosecution — assault with intent to murder — was deemed by

the Legislature of the State of Maryland to warrant a

maximum penalty of fifteen years confinement’. Legislative

content “cannot be divined”’ by the Court, in that Maryland

establishes statutory penalties for a wide range of assaults but

makes no mention of simple assault. A comparison of

Maryland’s penalty for simple assault with other states only

reveals that Maryland’s “virtually unlimited sentencing power

for simple assault places it at the upper extremes in this

Country”. As to other maximum sentences for comparable

state crimes, Article 27 of the Annotated Code of Maryland

1971 Replacement Volume provides the following offenses

and penalties:

Section 384 Mayhem, eighteen months to ten years;

Section 385 Malicious Injury with Intent to

Disfigure, two to ten years;

Section 386 Unlawful Shooting with Intent to Maim

Disfigured, Disabled, two to ten years;

Section 387 Manslaughter, ten years;

20

Section 12 Assault with Intent to Have Carnal

Knowledge of Female Child under Fourteen Years,

two to ten years; Assault with Intent to Rob, two

to ten years; Assault with Intent to Murder, two to

fifteen years; Assault with Intent to Rape, two to

twenty years or life imprisonment.

In Roberts, supra, the District Court concluded that “the

twenty-year sentence for the lesser-included offense of simple

assault where the maximum penalty for the more aggravated

offense of assault with intent to murder was fifteen years is

cruel and unusual punishment prohibited by the Eighth and

Fourteenth Amendments”.

Other states have considered the question of sentencing

on a lesser included offense which allows a more severe

penalty than the greater offense charged. These states seem to

uniformly agree that a Trial Court cannot impose on such a

lesser offense a sentence greater than allowable under the

greater offense. [See People v. Schuern, 111 Cal. Rptr. 129,

516 P. 2d 833 (1973); Hobbs v. State, 253 Ind. 195, 252

N.E. 2d 498; Cannon v. Gladden, 203 Or. 629, 281 P. 2d 283

(1955).]

Maryland’s view, imposing no correlation limit on a lesser

offense as opposed to a greater offense, can result in arbitrary

injustice. In the Petitioner’s case, such injustice did in fact

occur. The Petitioner was penalized by successfully defending

his case before the jury as to the additional required element

of “‘malice” as to assault with intent to murder. Because he

was acquitted of the greater offense, the Petitioner received

twenty years, even though he could have admitted guilt to the

21

greater offense and received only fifteen years. The result of

Maryland’s view is a decided chilling effect in which an

accused is deterred from asserting his basic trial rights for fear

of a greater punishment. Similarly, the opportunity for

prosecutorial misconduct is obvious in that the State can

easily circumvent Legislative intent by proceeding under a

common-law misdemeanor with an open-ended sentencing

perogative as opposed to being limited by Legislative

enactments.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petitioner for a Writ of Certiorari should be granted.

Richard W. Moore

Attorney for Petitioner.

A. 1

APPENDIX A

OPINION OF MARYLAND COURT

OF SPECIAL APPEALS

OF OCTOBER 11, 1976

NO. 800, 32 MD. APP. 575, 363 A.2d 1261

On March 24, 1975, the appellant, Thomas John Raley,

was indicted by the Grand Jury of Baltimore County. The

four-count indictment charged that on February 17, 1975,

the appellant 1) murdered one Joseph Stephen LeFevre;

2) assaulted his wife, Linda Agnes Raley, with intent to

murder her; 3) assaulted Linda Agnes Raley; and

4) unlawfully “used a handgun in the commission of a

felony or a crime of violence as defined in Section 441, of

Article 27, of the Annotated Code of Maryland, to wit:

murder;....”

The events leading to the indictment can be briefly

stated: At about 4:15 A.M. on February 17, 1975,

appellant telephoned the Baltimore County Police

Department to say that two people had been shot at his

home in Baltimore County. After the telephone call was

received, Officer Fisher called back to the Raley residence

and was told by Raley that he had shot his wife in the

chest and a man in the chest. Officer Beatty was dispatched

to the address given by Raley, arriving there at 4:27 A.M.

Upon arrival, he saw Raley standing in the doorway with a

gun in his hand. Raley told Officer Beatty, “I am the one

that called you, I shot them both”. Upon entering the

house, the officer found the victims, LeFevre and Mrs.

Raley, lying on the floor, both fully clothed. LeFevre was

dead with a bullet hole in his chest. Mrs. Raley had a bullet

wound in her throat but was alive and eventually recovered.

Officer Glos arrived at the scene shortly after Officer Beatty

arrived. Raley gave to Officer Gios two spent revolver

casings and three unspent bullets. Officer Glos heard Raley

A. 2

say, “They both came out of the kitchen” and that he

“shot them both’, and, “They didn’t belong there like

that”. These statements were not elicited from Raley by

any questions put to him by anyone and were made in the

kitchen of the home shortly after Officer Glos’ arrival. A

baby-sitter whom Mrs. Raley had engaged for the evening

testified that Raley and his wife had been separated for

about four weeks prior to February 17, 1975, but that

Raley had been out with his wife and spent the night with

her February 14, 1975.

Mrs. Raley was called as a witness for the state but

refused to testify against her husband; Raley elected not to

testify in his own defense. |

On July 9, 1975, after three days of trial before a jury

in the Circuit Court for Baltimore County (Judge John N.

Maguire presiding), appellant was found guilty on Count III

(assaulting his wife) and Count IV (using a handgun in the

commission of a crime of violence), but was acquitted of

Count I (murder of LeFevre) and Count II (assault with

intent to murder his wife). On July 31, 1975, Judge

Maguire sentenced appellant to the custody of the Division

of Correction for twenty years as to Count III and for

fifteen consecutive years as to Count IV.

In this appeal, appellant seeks reversal of both

convictions of several grounds. We conclude there is merit in

none and shall affirm both convictions.

The first five grounds alleged are related to the

property of the handgun conviction under Count IV of the

indictment.

A. 3

(a)

In his advisory instructions to the jury concerning

Count IV of the indictment, the trial judge said:

“The fourth count of the indictment charges

the Defendant with the Use of a Handgun. Under

our law, Article 27, section 36B, subsection d, any

person who uses a handgun in the commission of

any felony or crime of violence, shall be guilty of

a separate misdemeanor. That is a separate crime.

A handgun shall include any pistol or revolver, or

any firearm capable of being concealed on the

person, and acrime of violence, of course, would

include Murder, Robbery, Rape, or an attempt to

commit any of those offenses. The felony alleged

in this Count is Murder.”’ (Emphasis Added)

No exceptions were taken to this instruction. After

deliberating for nearly three hours, the jury sent out a

question to the court concerning a “description of charges

to be considered”. After conferring with counsel, the jury

was brought back to the courtroom and the judge “re-read”

to the jury “all the charges with respect to this case of

Thomas Raley”, including a word-for-word repetition of his

advisory instruction concerning Count IV. When the judge

completed the re-instruction, appellant’s counsel said to the

judge:

“.... They asked for charges, and the Court

defined as the fourth count Use of the Handgun.

The law specifically says Involuntary Manslaughter

is an exception as well as Common Law Assault.

It was covered in argument. I would ask that the

Court indicate that Involuntary Manslaughter and

Assault are specifically excepted from the crime of

Handgun Violation.”

A. 4

The judge declined to supplement the advisory

instruction as requested.

(b)

Appellant contends the judge’s refusal constituted

reversible error. We disagree. Section 36B (d) of Article 27

of the Code provides:

“(d) Unlawful use of handgun in commission

of crime. — Any person who shall use a handgun

in the commission of any felony or any crime of

violence as defined in §441 of this article, shall

be guilty of a separate misdemeanor and on

conviction thereof shall, in addition to any other

sentence imposed by virtue of commission of said

.felony or misdemeanor, be sentenced to the

Maryland Division of Correction for a term of not

less than five nor more than fifteen years, and it

is mandatory upon the court to impose no less

than the minimum sentence of five years.”

Section 441 (e) of Article 27 provides:

“The term ‘crime of violence’ means

abduction; arson; burglary, including common-law

and all statutory and storehouse forms a burglary

offenses; escape; housebreaking; kidnapping;

manslaughter, excepting involuntary manslaughter;

mayhem; murder; rape; robbery; and sodomy or

an attempt to commit any of the aforesaid

offenses; or assault with intent to commit any

other offense punishable by imprisonment for

more than one year.”

Appellant argues, correctly of course, that “common

law assault is a misdemeanor and since it is not listed as a

crime of violence, it cannot serve as the basis for a

conviction under the handgun violation charged in the

indictment”. It does not follow, however, that it was error

A. 5

not to give the requested advisory instruction. Although it is

well settled that under Maryland Rule 756 a trial judge,

when requested in a criminal case, must give advisory

instructions on every point of law essential to the crime

charged and supported by the evidence, Christensen v. State,

274 Md. 133 (1975); Mumford v. State, 19 Md. App. 640

(1974); Byrd v. State, 16 Md. App. 391 (1972); Peterson v.

State, 15 Md. App. 478 (1972); Hardison v. State, 226 Md.

53 (1961), it is equally settled that a trial judge is not

obliged to give a requested instruction that is fairly covered

in the instructions actually given, and the jury was not

misled upon the subject. Bartholomey v. State, 260 Md. 504

(1971); Brown vy. State, 222 Md. 290 (1960); English v.

State, 21 Md. App. 412 (1974).

In the present case, under Count IV of the indictment

the appellant was charged with the “commission of a felony

or a crime of violence ...to wit: murder”. Thus charged, a

prerequisite to conviction thereon was proof beyond a

reasonable doubt that the appellant used a handgun during

the commission of a murder or the lesser included felony or

“crime of violence” of voluntary manslaughter. We think

this element of the handgun charged was fairly covered by

the trial judge’s advisory instruction actually given and that

the jury was not misled into believing that common law

assault. could serve as a basis for conviction under that

count of the indictment. Having advised the jury of the

essential elements of the handgun crime charged, it was not

necessary to advise it of elements not included in the

charge.'

1 We further observe that the requested instruction,

technically, is not a correct statement of the law, for

although involuntary manslaughter is not included within the

definition of a “crime of violence” under §441 (e) of

Article 27, it is a felony and therefore is not “excepted

from the crime of Handgun Violation”. See Wilson v. State,

A. 6

The appellant contends that the jury verdicts of guilty

as to Count IV and not guilty as to Count I (murder in the

first or second degree, or manslaughter) and Count Il

(assault with intent to murder) are fraught with such

inconsistency as to amount to a denial of due process of

law and equal protection of the law. The verdict as to

Count IV, he argues, should therefore be stricken. While we

recognize the logic of appellant’s argument, we think the

decision of the Court of Appeals, in Ford v. State, 274 Md.

546 (1975) is dispositive of the contention. In that case the

jury returned not guilty verdicts as to counts im an

indictment charging robbery with a dangerous and deadly

weapon, robbery, and assault, but guilty of a count charging

unlawful use of “a handgun in the commission of a crime

of violence”. Answering Ford’s argument that the conviction

was illegal because of the allegedly inconsistent verdicts, the

Court said, at pp. 550-551:

“We agree with the petitioner that section

36B (d) requires the trier of fact to determine

beyond a reasonable doubt, from the evidence,

that the accused used a handgun during the

commission of either a felony or a crime of

violence as a prerequisite to being convicted of

unlawfully using a handgun in the commission of

either. Nevertheless, in answering the petitioner’s

first contention, we think it to be plain from the

language of section 36B(d) that the offense

delineated in that statute is separate and distinct

from the felony or crime of violence during the

1 (Continued)

28 Md. App. 168, 179 (1975). And common law assault,

although not included within the definition of a crime of

violence, is not “specifically excepted from the crime of

Handgun Violation”. (Emphasis added). (ur decision,

however, is not based on this technicality.

A. 7

commission of which the handgun was used. Since

this is so, an individual on trial for the handgun

charge does not necessarily need to have been

separately accused of the commission of a felony

or crime of violence in an additional count or

indictment before he can be charged with or

convicted of the crime established in section

36B (d). And, when the trier of fact considers an

indictment containing both a section 36B(d)

handgun count and a felony or crime of violence

count, a conviction on the former can still be

sustained even if the trier of fact returns a finding

of not guilty on the latter — in fact, a finding of

guilt under both, since they are not inconsistent,

can each stand. A \ogical corollary then of each of

these statements is that when section 36B (d)

dictates that any person who is guilty of the

handgun offense shall be sentenced “in addition to

any other sentence imposed by virtue of

commission of said felony or misdemeanor,” it

directs that irrespective of the number of years, if

any, the defendant receives for the ‘said felony or

misdemeanor,’ the court must impose a penalty,

within the limitations for confinement contained

in the statute, for the independent handgun

offense.” (Emphasis supplied.)

(ec)

Appellant argues that the evidence was insufficient to

support the handgun violation because the State failed to

meet its burven of proving “beyond a reasonable doubt the

absence of Le heat of passion on sudden provocation when

the issue was properly presented in a homicide case”. As we

have seen, the fact that the jury found appellant not guilty

of murder, manslaughter, or assault with intent to murder,

does not affect the validity of its guilty verdict as to the

separate crime of unlawful use of “a handgun in the

A. 8

commission of a felony or crime of violence...to wit:

murder”, contained in Count IV of the indictment. There

must, nevertheless, be sufficient evidence from which the

jury could hzve found beyond a reasonable doubt that the

appellant used the handgun during the commission of a

felony or a crime of violence — in this case murder (in the

first or second degree) or voluntary manslaughter. Even if it

be assumed that an issue of mitigation was generated (and

we do not decide that it was), and that the State failed to

prove the absence of the mitigating circumstances (“heat of

passion on sudden provocation”), the effect would have

been merely to reduce the underlying crime, during the

commission of which appellant used a handgun, from

murder to the lesser included felony or crime of violence of

voluntary manslaughter. In short, our review of the record

convinces us that there is ample evidence from which the

jury could have found beyond a reasonable doubt that

appellant unlawfully used a handgun in the commission of,

at the very least, voluntary manslaughter. Such evidence is

legally sufficient to support a conviction under Count IV of

the indictment.

(d)

Appellant next contends the trial judge erred in

“refusing to allow into evidence qualified psychiatric

testimony” from Dr. Charles Rafky. After his arrest on

February 17, 1975, appellant was ordered by a District

Court judge to seek psychiatric treatment as a condition for

pre-trial release on bail. He first saw Dr. Rafky on February

20, 1975, “for about one hour”. After obtaining his

“history” the doctor recommended that he be admitted to a

psychiatric hospital for treatment. Approximately a month

later he was released from the hospital and Dr. Rafky saw

him thereafter “on two occasions’’.

Appellant did not enter an insanity plea to the charges

against him.

A. 9

Appellant argues that the testimony of Dr. Rafky that

was rejected by the court would have shown that at the

time appellant shot LeFevre 1) he did so without the

premeditation required for murder in the first degree and

2) he acted in the “heat of passion” so as to reduce the

killing to manslaughter. Here again, even if the testimony

had been admitted into evidence and even if it had the

effect of reducing the underlying felony or crime of

violence from murder to voluntary manslaughter, it would

not have had the further effect of adversely affecting the

legal sufficiency of the evidence for conviction under Count

IV of the indictment. Thus, assuming without deciding that

the trial judge erred in rejecting the doctor’s testimony, the

error was harmless beyond a reasonable doubt. Dorsey v.

State, 276 Md. 638 (1976).

(e)

Appellant’s contention that the trial judge erred in

refusing to instruct the jury that “the burden of proof of

the State must be to prove beyond a reasonable doubt that

the Defendant did not act in heat of passion” is likewise

unavailing to him; for even if error (and we need not so

decide), the error was harmless beyond a reasonable doubt

so far as conviction under Count IV is concerned. Dorsey v.

State, supra.

Il.

Appellant contends the State failed to establish the

corpus delicti of the crime of assault, arguing that “no

medical records were entered into evidence describing any

injuries to Linda Raley”. The contention is devoid of merit.

In addition to appellant’s confession, there is in evidence

the uncontradicted testimony of Officer James Beatty

describing Mrs. Raley’s condition when he arrived on the

scene:

A. 10

“She was lying on her right side clutching at

her throat, had a bullet wound in the throat. Mr.

LeFevre, I tried to check him as soon as possible,

and I could detect no pulse and no breathing.”

After a hearing out of the presence of the jury, the

trial judge ruled that appellant’s unsolicited oral confession

to Officer Joseph Glos was admissible. Appellant contends,

for the first time on this appeal, that the judge made his

ruling “without affording the Appellant an opportunity to

present witnesses on his Motion or to testify himself” and

that “The Court’s action deprived the appellant of a full

and ample opportunity to assert his Constitutional

guarantees”. The contention is not supported by the record.

After Officer Glos had testified on direct examination

concerning the events leading up to the confession, and

after appellant’s counsel had completed his cross-examination

of the officer, the record shows the following:

“MR. LIBOWITZ (Defense Counsel): I have no

other questions.

THE COURT: Do you want to be heard? I have

to rule on the admissibility of the statement made

to the officer by Mr. Raley.

MR. SEIBERT (Assistant State’s Attorney): Yes,

THE COURT: I am ready to rule on it.

MR. SEIBERT: Your Honor, I would use

Richardson yv. State, where a police officer, 6

Maryland App., 448 —

we ee Ree ~ os

ee eee

A. 11

THE COURT: How about 2 Maryland App.,

Carswell v. State?

MR. SEIBERT: That is just as good. In this

particular case, after the Miranda rights were

read”.

After stating his reasons, the judge overruled appellant’s

objection to the admissibility of the confession. The court

then recessed for ten minutes, after which the following

occurred:

“THE COURT: Bring in the Jury. All right

Gentlemen.

MR. SEIBERT: I will restate the question. Q. The

question is this, Officer —

THE COURT: Mr. Libowitz will object and | will

rule again.

Q. Now, what if anything, did the Defendant, Mr.

Raley, say to you in the kitchen at the time you

were there looking for the chalk?

MR. LIBOWITZ: Objection.

THE COURT: Overruled. The reason is the same I

gave before, which is in the record.

A. (by the witness) When Mr. Raley stated to me

he just blurted it out. He said ‘they both came

out of the kitchen” and that he shot them both,

and “that they didn’t belong there like that.”

At no time did appellant or his counsel indicate in any

way that he wished to present any witnesses or testify

himself on the issue of the admissibility of the oral

A. 12

statement. Had he intended to do so, he should have made

his wishes known to the court. We think he had ample

opportunity to make his wishes known to the court. There

is, of course, no indication that had he done so he would

not have been allowed to testify himself or present

witnesses on his behalf on the issue then before the court.

We observe that even after the trial resumed in the presence

of the jury, appellant offered no evidence bearing on the

voluntariness of his confession, an issue ultimately for the

jury to resolve after the judge’s initial ruling on the matter.

We note further that appellant in this appeal gives us no

inkling of the nature or content of the testimony he claims

he was denied. In sum, we find no irregularity in the

proceeding about which the appellant has reason to

complain on appeal.

IV.

Appellant finally attacks his twenty year sentence for

assault and his fifteen year consecutive sentence for the

handgun violation as being an abuse of discretion and cruel

and unusual punishment and therefore violative of his rights

under both the Maryland Declaration of Rights and the

United States Constitution.

As we understand the argument it is two-pronged.

First, he contends the sentences were so disproportionate to

the offenses as to evidence an abuse of discretion and to

constitute cruel and unusual punishment forbidden by the

Maryland Declaration of Rights and the United States

Constitution. Second, he contends that having been found

not guilty of assault with intent to murder his wife, the

sentence for the lesser included offense of assault could not

legally exceed fifteen years, the maximum then provided by

law for the greater offense. We find no merit in either

contention. ;

es oe

ee : — ae

es mi Ata

Itc aA, AR WN Rea Pa sn AR my ROE fs Sm ho

A. 13

As to the first, the imposition of sentence in a criminal

case is a matter within the province of the trial judge,

Gleaton v. State, 235 Md. 271, 277 (1964); Reid v. State,

200 Md. 89, 92 (1952), cert. denied, 344 U.S. 848 (1952).

And if the sentence is within the limits prescribed by law,

it ordinarily may not be reviewed on appeal. Gleaton vy.

State, supra; Biles v. State, 230 Md. 537, 538 (1964).

Assault is a common law crime for which no statutory limit

governing punishment is prescribed and there was no

limitation at common law. Heat v. State, 198 Md. 455, 467

(1951). As indicated by the Court in Heath, quoting from 2

Bishop, Criminal Law (9th ed. p. 32), the determination of

the length of sentence for assault is left to the discretion of

the trial court and “it has been the judicial habit to look

upon assaults as more or less aggravated by such attendant

facts as appealed to the discretion for a heavy penalty.***

An assault is deemed to be more or less enormous according

to the facts of the particular case”. In the present case, we

think’ the circumstances were such as to bring the assault

well within the definition of “enormous” and “aggravated”’.

In passing sentence the trial judge was not required to

remain oblivious to evidence of appellant’s obvious

involvement in the more serious crimes with which he was

charged, even though that involvement in the mind of the

jury was less than necessary to convict him of those

charges. See Henry v. State, 273 Md. 131, 149-151 (1974).

Nor is there any indication that in determining the

sentences the judge was motivated by passion, ill will,

prejudice, or any other motive than that of a sense of

public duty. Under all the circumstances we cannot say that

he abused his discretion or that the sentences were cruel

and unusual. See Smith v. State, 23 Md. App. 177, 180

(1974), holding that “it is firmly established that

punishment is not cruel and unusual because sentences are

imposed to run consecutively. Bieber v. State, 8 Md. App.

522, 548”. See also Wilkins v. State, 5 Md. App. 8, 22

(1968), and cases there cited, upholding against

constitutional attack twenty year sentences for assault and

battery.

A. 14

As to appellant’s second contention, concerning the

legality of the twenty year sentence for assault, we think

Roberts v. Warden, 242 Md. 461 (1966) is dispositive. In

that case the Court of Appeals specifically rejected an

identical contention as being “without substantive merit”.

Quoting from Gleaton v. State, supra, the Court said, at pp.

460-461:

“There is ***in this State no statutory limitation

on the penalty which may be imposed for simple

assault, and there was none at common law. Heath

v. State, 198 Md. 455, 467, 85 A.2d 43 (1951);

Apple v. State, 190 Md. 661, 668, 59 A.2d 509

(1948). Nor do we construe the penal limits

imposable for the statutory assaults as implying a

legislative policy to confine sentences for common

law assault to not more than those prescribed for

the statutory assaults. Statutes in derogation of

the common law are strictly construed, and it is

not to be presumed that the legislature by creating

statutory assaults intended to make any alteration

in the common law other than what has been

specified and plainly pronounced. Dwarris on

Statutes, 695. The matter of imposing sentences is

left to the sound discretion of the trial court, and

the only restraint on its power to fix a penalty is

the constitutional prohibitions against cruel and .

unusual penalties and punishment found in Articles

ote ae het aS

tre ah at 9 creed eet” inet. meee St

A. 15

16 and 25 of the Maryland Declaration of

Rights.” (Emphasis added.)

2

JUDGMENTS AFFIRMED.

2The record indicates that pursuant to Md. Rule 762

there is still pending before a three-judge Review Panel the

matter of appellant’s sentences. If this is so, our rejection

on this appeal of appellant’s contentions concerning his

sentences should not be construed as determinative of that

panel’s decision in the matter, for our scope of review is

limited by the general rule “that the imposition of sentence

is within the discretion of the trial judge and, if within the

statutory limits, will not be disturbed on appeal in the

absence of a showing that it was dictated, not by a sense of

public duty, but by passion, ill will, prejudice or other

unworthy motive”. Smith v. State, 23 Md. App. 177, 180

(1974). While such factors are properly to be considered by

the review panel, its scope of review is not so limited, the

application being addressed to the wide discretion of the

panel in determining the appropriateness of the sentences.

To modify a sentence, the review panel need not find that

the sentencing judge abused his discretion, only that it does

not agree that the sentence was appropriate under all the

circumstances, including the accused’s background and prior

criminal record.

A. 16

APPENDIX B

STATUTES INVOLVED

HANDGUNS

§36B. Wearing, carrying or transporting handgun; unlawful

use in commission of crime.

(a) Declaration of policy.-The General Assembly of

Maryland hereby finds and declares that:

(i) There has, in recent years, been an alarming

increase in the number of violent crimes perpetrated in

Maryland, and a high percentage of those crimes involve the

use of handguns;

(ii) The result has been a substantial increase in the

number of persons killed or injured which is traceable, in

large part, to the carrying of handguns on the streets and

public ways by persons inclined to use them in criminal

activity ;

(iii) The laws currently in force have not been effective

in curbing the more frequent use of handguns in

perpetrating crime; and

(iv) Further regulations on the wearing, carrying, and

transporting of handguns are necessary to preserve the peace

and tranquility of the State and to protect the rights and

liberties of its citizens.

(b) Unlawful wearing, carrying, or transporting of

handguns.—Any person who shall wear, carry, or transport

any handgun, whether concealed or open, upon or about his

person, and any person who shall wear, carry or knowingly

transport any handgun, whether concealed or open, im any

vehicle traveling upon the public roads, highways,

waterways, or airways or upon roads or parking lots

ant ele ea 28

A. 17

generally used by the public in this State shall be guilty of

a misdemeanor; and it shall be a rebuttable presumption

that the person is knowingly transporting the handgun; and

on conviction of the misdemeanor shall be fined or

imprisoned as follows:

(i) If the person has not previously been convicted of

unlawfully wearing, carrying or transporting a handgun in

violation of this section, or of unlawfully carrying a

concealed weapon in violation of §36 of this article, or of

unlawfully carrying a deadly weapen on public school

property in violation of §36A of this article, he shall be

fined not less than two hundred and fifty ($250.00) dollars,

nor more than twenty-five hundred ($2,500.00) dollars, or

be imprisoned in jail or sentenced to the Maryland Division

of Correction for a term of not less than 30 days nor more

than three years, or both; provided, however, that if it shall

appear from the evidence that the handgun was worn,

carried, or transported on any public school property in this

State, the court shall impose a sentence of imprisonment of

not less than 90 days.

(ii) If the person has previously been once convicted of

unlawfully wearing, carrying, or transporting a handgun in

violation of §36B, or of unlawfully carrying a concealed

weapon in violation of §36 of this article, or of unlawfully

carrying a deadly weapon on public school property in

violation of § 36A of this article, he shall be sentenced to

the Maryland Division of Correction for a term of not less

than 1 year nor more than 10 years, and it is mandatory

upon the court to impose no less than the minimum

sentence of 1 year; provided, however, that if it shall appear

from the evidence that the handgun was worn, carried, or

transported on any public school property in this State, the

court shall impose a sentence of imprisonment of not less

than three years.

(iii) If the person has previously been convicted more

than once of unlawfully wearing, carrying, or transporting a

handgun in violation of §36B, or of unlawfully carrying a

A. 18

concealed weapon in violation of §36 of this article, or of

unlawfully carrying a deadly weapon on public school

property in violation of §36A of this article, or any

combination thereof, he shall be sentenced to the Maryland

Division of Correction for a term of not less than three

years nor more than 10 years, and it is mandatory upon the

court to impose no less than the minimum sentence of

three years provided, however, that if it shall appear from

the evidence that the handgun was worn, carried, or

transported on any public school property in this State, the

court shall impose a sentence of imprisonment of not less

than 5 years.

(iv) If it shall appear from the evidence that any

handgun referred to in subsection (a) hereof was carried,

worn, or transported with the deliberate purpose of injuring

or killing another person, the court shall impose a sentence

of imprisonment of not less than five years.

(c) Exceptions.—(1) Nothing in this section shall

prevent the wearing, carrying, or transporting of a handgun

by (i) law-enforcement personnel of the United States, or of

‘this State, or of any county or city of this State

(ii) members of the armed forces of the United States or of

the National Guard while on duty or traveling to or from

duty; or (iii) law-enforcement personnel of some other state

or subdivision thereof temporarily in this State on official

business; (iv) any jailer, prison guard, warden, or guard of

keeper at any penal, correctional or detention institution in

this State or (v) sheriffs and temporary or full-time sheriffs’

deputies, as to all of whom this exception shall apply only

when they are on active assignment engaged in law

_enforcement; provided, that any such person mentioned in

this paragraph is duly authorized at the time and under the

circumstances he is wearing, carrying, or transporting the

weapon to wear, carry or transport such weapon as part of

his official equipment.

(2) Nothing in this section shall prevent the wearing,

carrying, or transporting of a handgun by any person to

'

Nias as) a! aI NR ta SOE ARTA et A i AE PON BI OD AN ae ER ALE he AO a a Re tlle I -

A. 19

whom a permit to wear, carry or transport any such

weapon has been issued under §36E of this article.

(3) Nothing in this section shall prevent any person

from carrying a handgun on his person or in any vehicle

while transporting the same to or from the place of legal

purchase of sale, or between bona fide residence of the

individual, or between his bona fide residence and his place

of business, if the business is operated and substantially

owned by the individual or to or from any bona fide repair

shop. Nothing in this section shall prevent any person from

wearing, carrying, or transporting a handgun used in

connection with a target shoot, formal or informal target

practice, sport shooting event, hunting, trapping, dog

obedience training class or show or any organized military

activity while engaged in, on the way to, or returning from

any such activity. Nothing in this section shall prevent any

bona fide gun collector from moving any part of all of his

gun collection from place to place for public or private

exhibition. However, while traveling to or from any such

place or event referred to in this paragraph, a handgun shall

be unloaded and carried in an enclosed case or enclosed

holster. ,

4) Nothing in this section shall prevent a person from

wearing, carrying, or transporting a handgun within the

confines of real estate owned or leased by him or upon

which he resides or within the confines of a business

establishment owned or leased by him. Nothing in this

section shall prevent a supervisory employee from wearing,

carrying, or transporting a handgun within the confines of a

business establishment in which he is employed during such

time as he is acting in the course of his employment and

has been authorized to wear, carry, or transport the

handgun by the owner or manager of the business

establishment. .

(d) Unlawful use of handgun in commission of

crime, —Any person who shall use a handgun in the

commission of any felony or any crime of violence as

A. 20

defined in §441 of this article, shall be guilty of a separate

misdemeanor and on conviction thereof shall, in addition to

any other sentence imposed by virtue of commission of said

felony or misdemeanor, be sentenced to the Maryland

Division of Correction for a term of not less than five nor

more than fifteen years, and it is mandatory upon the court

to impose no less than the minimum sentence of five years.

(e) Reduction or suspension of mandatory minimum

sentence; probation.—Notwithstanding any other provision of

law to the contrary, including the provisions of §643 of

this article, (1) except with respect to a sentence prescribed

in subsection (b) (i) hereof, no court shall enter a judgment

for less than the mandatory minimum sentence prescribed in

this subheading in those cases for which a mandatory

minimum sentence is specified in this subheading; (2) except

with respect to a sentence prescribed in subsection

(b) (i) hereof, no court shall suspend a mandatory

minimum sentence prescribed in this subheading; (3) except

with respect to a sentence prescribed in subsection

(b) (i) hereof for wearing, carrying, oF transporting a

handgun in violation of §36B other than on public school

property, no court shall enter a judgment of probation

before or without verdict with respect to any case arising

under this subheading, and (4) except with respect to a

sentence prescribed in subsection (b) (i) hereof no court

shall enter a judgment of probation after verdict with

respect to any case arising under this subheading _which

would have the effect of reducing the actual period of

imprisonment prescribed in this subheading as a mandatory

minimum sentence. (1972, ch. 13, §3; 1973, chs. 61, 332.)

Effect of amendments.—Chapter 332, Acts I 973,

effective July 1, 1973, substituted a period for a semicolon

at the end of sub-subsection (1) of subsection (c).

. Pe a re eee Cee

Peete tb Male amt ns SI Nein, I MLS

A. 21

ASSAULT WITH INTENT TO MURDER,

RAVISH OR ROB

§12. Penalties; proviso as to assault with intent to rape.

Every person convicted of the crime of an assault with

intent to have carnal knowledge of a female child under the

age of 14 years, or with intent to rob shall be guilty of a

felony and shall be sentenced to confinement in the

Maryland Penitentiary for not less than two years or more

than ten years; every person convicted of the crime of an

assault with intent to murder shall be guilty of a felony and

shall be sentenced to confinement in the Maryland

Penitentiary for not less than two years nor more than

fifteen years; and every person convicted of the crime of an

assault with intent to commit a rape shall be guilty of a

felony and shall be punished with death, or, in the

discretion of the court, he shall be sentenced to

confinement in the penitentiary for the period of his natural

life, or he shall be sentenced to confinement in the

penitentiary for not less than two years nor more than

twenty years; provided, however, that the jury before whom

any person indicted for the crime of an assault with intent

to commit a rape shall be tried, if they find such person

guilty thereof, may add to their verdict the words “without

capital punishment”, in which case the sentence of the

court shall not exceed twenty years in the penitentiary, and

in no case where a jury shall have rendered a verdict in

manner and form as hereinbefore prescribed, “without

capital punishment”, shall the court in imposing the

sentence, sentence the convicted party to pay the death

penalty or to be confined for more than twenty years in

the penitentiary. Nothing in this section.as hereby amended

shall be construed or held to effect or control any violation

of this section occurring prior to June 1, 1949, or the

prosecution thereof, but each such violation and prosecution

thereof shall be governed by the provisions of the section as

it read and was in effect at the time such violation

A. 22

occurred. (An. Code, 1951, §14; 1939, §13; 1924, §17;

1912, §17; 1904, §17; 1888, §16; 1809, ch. 138, §4;

1904, ch. 76; 1908, ch. 366; 1931, ch. 449; 1941, ch. 722;

1943, ch. 402; 1949, ch. 196.)

PISTOLS

§441. Definitions.

(a) As used in this subtitle—

(b) The term ‘person’ includes an __ individual,

partnership, association or corporation.

(c) The term “crime of violence” means abduction ;

arson; burglary, that twelve inches in length, including

signal, starter, and blank pistols.

(d) The term ‘“dealer’’ means any person engaged in

the business of selling firearms at wholesale or retail, or any

person engaged in the business of repairing such firearms.

(e) The term “crime of violence” means abduction;

arson; burglary, including common-law and all statutory and

storehouse forms of burglary offenses; escape; housebreaking;

kidnapping; manslaughter, excepting involuntary

manslaughter; mayhem; murder; rape; robbery; and sodomy;

or an attempt to commit any of the aforesaid offenses; or

assault with intent to commit any other offense punishable

by imprisonment for more than one year.

(f) The term “fugitive from justice’ means any person

who has fled from a sheriff or other peace officer within

this State, or who has fled from any state, territory or the

District of Columbia, or possession of the United States, to

avoid prosecution for a crime of violence or to avoid giving

testimony in any criminal proceeding. (An. Code, 1951,

§538; 1941, ch. 622, §531A; 1966, ch. 502, $1.)

ee ee ee ee Se ee ee ees

A. 23 <

Cross reference.—As to machine guns, see §372 et seq.

of this article.

Stated in United States v. Wolfe, 303 F. Supp. 671 (D.

Md. 1969).

MAIMING

§384. Mayhem; tarring and feathering.

Every person, his aiders and abettors, who shall be

convicted of the crime of mayhem, or of tarring and

feathering, shall be sentenced to the penitentiary for not

more than ten years nor less than eighteen months. (An.

Code, 1951, §451; 1939, §433; 1924, §351; 1912, §317;

1904, §292; 1888, §187; 1809, ch. 138, §4.)

§385. Malicious injury to tongue, nose, eye, lip, limb, etc.

Every person, his aiders, abettors and counsellors, who

shall be convicted of the crime of cutting out or disabling

the tongue, putting out an eye, slitting the nose, cutting or

biting off the nose, ear or lip, or cutting or biting off or

disabling any limb or member of any person, of malice

aforethought, with intention in so doing to mark or

disfigure such person, shall be guilty of a felony and upon

conviction thereof be sentenced to the penitentiary for not

less than two nor more than ten years. (An. Code, 1951,

$452; 1939, §434; 1924, §352; 1912, §318; 1904, §293;

1889, §188; 1809, ch. 138, §4; 1966, ch. 628, §1.)

Editor’s note.—Section 2 of ch, 628, Acts 1966,

provides that the act shall not apply to crimes committed

before June 1, 1966.

A. 24

§386. Unlawful shooting, stabbing, assaulting, etc., with

intent to maim, disfigure or disable or to prevent

lawful apprehension.

If any person shall unlawfully shoot at any person, or

shall in any manner unlawfully and maliciously attempt to

discharge any kind of loaded arms at any person, or shall

unlawfully and maliciously stab, cut or wound any person,

or shall assault or beat any person, with intent to maim,

disfigure or disable such person, or with intent to prevent

the lawful apprehension or detainer of any part for any

offense for which the said party may be legally apprehended

or detained, every such offender, and every person

counselling, aiding or abetting such offender shall be guilty

of a felony and, upon conviction thereof be punished by

confinement in the penitentiary for a period not less than

eighteen months nor more than ten years. (An. Code, 1951,

§453; 1939, §435; 1924, §353; 1912, §319; 1904, §294;

1888, §189,1853, ch. 99,§ 1; 1966, ch. 628, §1.)

Editor’s note.—Section 2 of ch. 628, Acts 1966,

provides that the act shall not apply to crimes committed

before June 1, 1966.

MANSLAUGHTER

§387. Manslaughter generally.

Every person convicted of the crime of manslaughter

shall be sentenced to the penitentiary for not more than ten

years or in the discretion of the court may be fined not

more than five hundred dollars, or be imprisoned in jail for

not more than two years, or be both fined and imprisoned

in jail. (An. Code, 1951, § 454; 1939, §436; 1924, §354;

1912, §320; 1904, §295; 1888, §190; 1864, ch. 39.)

eine a

. A. 25

Rule 756. Advisory Instructions.

a. Request for—Written—Copies.

At the close of the evidence, the State and any

defendant may file with the court written requests that the

court instruct the jury as set forth in such requests, and

shall furnish to all other parties copies thereof.

(Rule 739 a.)

b. How Given.

The court may and at the request of any party shall,

give such advisory instructions to the jury as may correctly

state the applicable law; the court may give its instructions

either orally or in writing. The court need not grant any

requested instruction if the matter is fairly covered by the

instructions actually given. The court shall in every case in

which instructions are given to the jury, instruct the jury

that they are the judges of the law and that the court’s

instructions are advisory only.

(Rule 739 b.)

c. Summation or Reference to Evidence.

In giving any advisory instructions under section b of

this Rule, the court may make such summation of or

reference to the evidence as may be appropriate in order to

present clearly to the jury the issue to be decided by them;

provided the court instructs the jury that they are the

judges of the facts and that it is for them to determine the

weight of the evidence and the credit to be given to the

witnesses.

(Rule 739 c; amended Sept. 26, 1957.)

d. Ruling on Request for Instructions.

Where the court’s charge is not delivered until after the

argument of counsel to the jury, the court shall, in advance

A. 26 ‘*

of such argument, advise counsel of its proposed action on

the request for instructions and the substance of the

instructions which it proposes to give.

(Rule 739 d.)

e. When Instructions Given.

The court may give its instructions at any time after

the close of the evidence. The giving of such instructions

prior to the argument of counsel shall not preclude counsel

from arguing to the contrary.

(Rule 739 e.)

f. Objection.

If a party has an objection to any portion of any

instruction given, or to any omission therefrom, or to the

failure to give any instruction, he shall before the jury

retires to consider its verdict make such objection stating

distinctly the portion, or omission, or failure to instruct to

which he objects and the ground of his objection.

Opportunity shall be given to make the objection in open

court out of the hearing of the jury upon application either

orally or in writing, made before or after the conclusion of

the charge.

(Cf. Rule 739 f.)

g. Appeal.

Upon appeal a party assigning error in the instructions

may not assign as of right an error unless (1) the particular

portion of the instructions given or the particular omission

therefrom or the particular failure to instruct was distinctly

objected to before the jury retired to consider its verdict

and (2) the grounds of objection were stated at that time.

Ordinarily no other error will be considered by the Court of

Appeals or the Court of Special Appeals, but the appellate

court, either of its own motion or upon the suggestions of

a party may take cognizance of and correct any plain error

in the instructions, material to the rights of the accused

——e ———

" a

A. 27

even though such error was not objected to as provided by

section f of this Rule.

(Rule 739g; G.R.P.P. Pt. Four, I, Rule 6; amended June

23, 1967, effective Sept. 1, 1967.)

APPENDIX C

DECREE ENTERED BY

MARYLAND COURT OF APPEALS

ON NOVEMBER 30, 1976

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals in the above

entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the said petition be, and it is hereby denied as there has

been no showing that review by certiorari is desirable and in

the public interest.

/s/ Robert C. Murphy

Chief Judge

A. 28

MANDATE

COURT OF SPECIAL APPEALS OF MARYLAND

NO. 800, September Term, 1975

Issued October 11, 1976

STATEMENT OF COSTS:

In Circuit Court:

Record 25.00

Stenographer’s Costs 532.00

In Court of Special Appeals:

Filing Record on Appeal ............ 20.00

Printing Brief for Appellant .......... Not supplied

ey GE. 600 06340600:046%¢66 0008800080468

Portion of Record Extract-Appellant .............

Printing Brief for Cross-Appellee ...........+56-.

Printing Brief for Appellee ........... Not supplied

Portion of Record Extract—Appellee .............

Printing Brief for Cross-Appellant ...............

STATE OF MARYLAND, Sct:

I do hereby certify that the foregoing is truly taken

from the records and proceedings of the said Court of

Special Appeals.

In testimony whereof, I have hereunte set my hand as

Clerk and affixed the seal of the Court of Special Appeals,

this eleventh day of October A.D. 1976

/s/ Julius A. Ramano

Clerk of the Court of Special

Appeals of Maryland.

Costs shown on this Mandate are to be settled between

counsel and NOT THROUGH THIS OFFICE.