State v. Sowell

RAKER, Judge,

concurring:

I concur only in the judgment of the Court. I agree with the majority that the evidence was insufficient to establish that Sowell was a principal in the first or second degree and that, under the current state of the law in Maryland, his conviction must be reversed. I part company with the majority, however, because I believe that the time has come for this Court to abolish the common law distinction in charging between principals and accessories.

*735Twenty-two years ago, two distinguished Maryland jurists called for the abolition of the useless common law distinction between principals and accessories. See State v. Williamson, 282 Md. 100, 382 A.2d 588 (1978) (Levine, J., concurring) and Williamson v. State, 36 Md.App. 405, 374 A.2d 909 (1977) (Lowe, J., dissenting), reversed, State v. Williamson, 282 Md. 100, 382 A.2d 588 (1978). Although this Court has chipped away at this distinction, Maryland remains the only state in the country to retain this doctrine.1 See Maj. op. at 720; State v. Ward, 284 Md. 189, 191, 396 A.2d 1041, 1043 (1978), overt'uled on other grounds, Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979). To echo the words of Judge Irving Levine, the time has come to discard the common law distinction between principals and accessories before the fact and to replace these categories with an ail-encompassing doctrine which would treat all those who knowingly procure, command, counsel, encourage, aid or abet a felon in the commission of a crime as principals regardless of whether the actor was present at the place of the crime. See State v. Williamson, 282 Md. at 114, 382 A.2d at 595.

Writing for the Court of Special Appeals in Williamson, 36 Md.App. at 413, 374 A.2d at 914, Judge Thomas Hunter Lowe, in his perfervid dissent, noted the futility in awaiting a legislative change of the common law distinction between accessories before the fact and principals. He wrote:

It is hardly conceivable that in the 20th Century, a court of last resort could so clearly recognize the utter purposelessness of so horrendously harmful a semantic distinction, *736yet must still recognize its viability. Worse yet is the fact that more than two decades have passed since this ‘pure technicality ... [which] has no existence either in natural reason or .the ordinary doctrines of the law ... ’ was held up to ridicule in that case, and the Legislature has done nothing to correct it. Nor did our own attempt at flagging this fictional foolishness in Agresti v. State, 2 Md.App. 278, 281, 234 A.2d 284, elicit a statutory erasure of that common law blot upon jurisdictional reasoning, as has been accomplished in many, if not most common law jurisdictions. See 40 Am.Jur.2d, Homicide §§ 28, 29; 21 Am.Jur.2d, Criminal Law §§ 120-124; 22 C.J.S. Criminal Law § 82; see also 95 A.L.R.2d 175, 178, 187.

(Alteration and omissions in original) (footnote omitted).

The judicial system and the common law created the doctrine in question, and thus, it is appropriate for the judicial branch of government to correct the anomaly when we recognize that the distinction is not practical, useful, or fair. As Judge Lowe noted:

This has caused us factually to distinguish and interpretatively whittle away at the rule, but such intellectual exercises hardly do justice to the judicial system. Because it was not the legislative branch but the common law judicial system that created the technical monster, I would no longer await the action of a Legislature which may well be too occupied with matters of state to clean up the jurisprudential cobwebs we have accumulated. The common law is a growing thing and when it outgrows old garments not only of no further use but of .potential harm, they should be discarded.

Id. at 413-14,374 A.2d at 914.

This Court, in this ease, should change the law, to be applied prospectively, and should no longer cling to a common law rule that has been rejected by every state in the nation. Whatever may have been the reason for the rule governing the indictment of the actor as a principal or accessory before the fact, that reason, as we noted in Lewis regarding the *737sequence of the principal’s and accessory’s trials, has long since disappeared. As observed by Judge Levine in Williamson, and Judge Eldridge in Lewis, the procedural rules probably were devised by 14th and 15th century English courts as a means of alleviating the harshness of the death penalty in all felony cases. Williamson, 282 Md. at 113, 382 A.2d at 595; Lewis, 285 Md. at 715, 404 A.2d at 1079; see also Watson v. State, 208 Md. at 219, 117 A.2d at 553; 1 J. Bishop, Criminal Law § 673, at 486-87 (9th ed.1923). Today, the death penalty in Maryland, with two exceptions, is reserved for principals in the first degree, and thus, the original purpose of the distinction—to restrict excessive executions when all felonies were punishable by death—no longer exists.2 See Perkins & Boyce, Criminal Law, Parties to Crime at 759 (3d ed. 1982) (“Since the reason for the principal-accessory distinction ceased to exist when most felonies were removed from the category of capital crimes, the distinction itself should be abrogated ... ”). Further, the punishment for accessories before the fact in Maryland is the same as for principals. See Ward, 284 Md. at 210, 396 A.2d at 1053 (“As an accessory before the fact he is punished as a partaker of the guilt of the principal and is hable to the same punishment as the principal.”). The distinction has outlived its purpose.

The majority recounts the recent occasions this Court has changed the common law as to principals and accessories, but distinguishes those cases on the ground that the changes were merely technical changes. Maj. op. at 725. See, e.g., Lewis v. *738State, 285 Md. at 715, 404 A.2d at 1079 (noting that “the technical procedural rules accompanying the common law doctrine of accessoryship are illogical”). The majority misconstrues the Court’s reference to technical procedural rules. The' common law requirement that an actor be charged either as a principal or an accessory before the fact falls within this Court’s concept of technical procedural rules and is a distinction without a difference. As Judge Levine explained in his concurring opinion in Williamson, 282 Md. at 112-13, 382 A.2d at 594-95:

[Tjhe common law doctrines of accessoryship did give rise to several highly technical procedural rules which, as one recent commentator has stated, “tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance.” W. LaFave & A. Scott, Handbook on Criminal Law § 63, at 498-99 (1972). These rules make their appearance in essentially three areas: 1) jurisdiction; 2) trial; and 3) pleading. As to the first, jurisdiction, the rule was that an accessory could be put on trial only in that jurisdiction in which the act of accessory-ship was committed, irrespective of the situs of the felony, itself. State v. Chapin, 17 Ark. 561, 566 (1856); R. Perkins, Criminal Law 671 (2d ed.1969).
Insofar as trial procedure is concerned, an accessory before the fact at common law could not be tried before the principal. Thus, if the principal were acquitted or his identity never established, an accessory to the felony could never be brought to trial, thereby escaping punishment altogether. Commonwealth v. Phillips, 16 Mass. 423, 425 (1820); L. Hochheimer, The Law of Crimes and Criminal Procedure § 38, at 23 (1897).
Finally, the rule as to pleading, invoked by the Court of Special Appeals to reverse appellee’s conviction, has produced the result that one charged with the commission of a felony as a principal cannot be convicted of that crime if the evidence actually produced shows only that the accused had acted as an accessory before the fact. Agresti v. State, 2 *739Md.App. at 284, 234 A.2d 284.[3] Conversely, if an individual is charged in the indictment solely as an accessory before the fact, subsequent proof of his guilt as a principal will not result in a conviction. McBryde and Bland v. State, 30 Md.App. [357] at 360[, 352 A.2d 324].

We are dealing here with the procedural, technical common law rule as to pleading and a variance between the charge and the proof “spread over the principal and accessory categories.” LaFave & Scott, Substantive Criminal Law, Parties to Crime, § 6.6(d)(2) (1986 & 1999 Supp.). It is as appropriate for this Court to eliminate the charging requirement as it was to abolish the requirement that the principal must be tried before the accessory before the fact.

It is well-settled that, while a court should afford due respect to the important doctrine of stare decisis, that doctrine “is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life.” White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966); Hearst Corp. v. State Dept. of A & T., 269 Md. 625, 643-644, 308 A.2d 679, 689 (1973). We have repeatedly recognized and stated that “[t]his Court has manifested a willingness to change common law rules which have ‘become unsound in the circumstances of modern life.’ ” Jones v. State, 302 Md. 153, 161, 486 A.2d 184, 188 (1985) (quoting Lewis, 285 Md. at 715, 404 A.2d at 1079); Boblitz v. Boblitz, 296 Md. 242, 273, 462 A.2d 506, 521 (1983); Moxley v. Acker, 294 Md. 47, 52, 447 A.2d 857, 859-60 (1982); Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981); Pope v. State, 284 Md. 309, 342, 396 A.2d 1054, 1073 (1979). As Judge Eldridge noted, again, in Lewis, 285 Md. at *740715, 404 A.2d at 1078, the common law is not static, is subject to change, and adapts itself to changing conditions and increasing knowledge. And finally, as Justice Holmes stated, as to stare decisis:

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897).

The majority points to the recent code revision of Burglary and the Legislative election “to continue to allow the law of accessoryship to be controlled by the common law with its enactment of Chapter 712.” Maj. op. at 725. The Committee to Revise Article 27—Crimes and Punishments of the Annotated Code of Maryland conducts a piecemeal revision of the criminal code, and in the recent Burglary revision, the retention of the law of accessoryship should not be read as legislative approval for the common law of accessoryship. The committee addressed the substance of the crime, and likely did not find it appropriate to eliminate the pleading requirement for an accessory before the fact for simply one crime.

The common law rules as to accomplices and the procedural pleading requirements have, as Judge Levine observed, “injected a most undesirable hyper-technicality into the law of accomplice responsibility, which not infrequently operates to thwart justice and reduce judicial efficiency.” Williamson, 282 Md. at 113, 382 A.2d at 595. In that the only justification for retaining the distinction between accomplice and principal is the “sheer antiquity of the doctrine,” id. at 115, 382 A.2d at 596, this Court should obliterate the distinction. These procedural traps for the prosecution are, as Judge Lowe observed, as fundamentally unfair as it would be to have set them for the accused. No unfair prejudice will inure to the accused by the elimination of this distinction. See Williamson, 282 Md. at 114, 382 A.2d at 595-96. “The concept of fair play which we recognize as a basic tenet of Anglo-American jurisprudence is *741not reserved solely for the accused. Society should share in it equally.” Williamson, 36 Md.App. at 414, 374 A.2d at 915 (citation omitted).

While recognizing that Maryland is the only state which retains the common law rule as to accessoryship, the majority points out that in all the other states, the change was made by the legislature and not the courts. There are several responses to this argument. First, very few states, if any, have retained the criminal common law as has Maryland. Second, in Hawkins, Ward, Lewis, and Jones, in changing the law of accessoryship, this Court never looked to the manner in which the other states changed the common law.

The majority states that “the General Assembly’s failure to amend or abrogate a common law rule sometimes reflects its desired public policy.” Maj. op. at 723-24. I agree with that proposition. The principle must be read in context, however. In that this Court has recognized that the archaic common law rules as to accessoryship are obsolete, see Jones, 302 Md. at 158, 486 A.2d at 187, the majority surely cannot mean that letting a guilty defendant “off’ on a technical pleading error such as we are discussing is reflective of the public policy of the State.

This Court should clean up its own cobwebs and abolish the distinction between principals and accessories.

. This Court has changed some aspects of the common law of accessoryship. For example, see State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992) (Orth, J.) (Court of Appeals changed common law rule of aceessoryship to allow verdict of guilty as an accessory after the fact along with verdict of guilty on the substantive offense); Jones v. State, 302 Md. 153, 486 A.2d 184 (1985) (Eldridge, J.) (Court of Appeals changed common law rule to allow accessory before the fact to be convicted of a greater crime than that of which the principal was convicted); Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979) (Eldridge, J.) (Court of Appeals changed common law to allow accessories before the fact and accessories after to the fact to be tried before the principal in certain circumstances).

. The first exception, recently enacted by the Legislature, is that a principal in the second degree is death-eligible for the murder of a law enforcement officer killed in the performance of his duties, if the principal willfully, deliberately, and with premeditation intended the death of the law enforcement officer, was a major participant in the murder, and was actually present at the time and place of the murder. Chapter 538, Acts of 1998, effective October 1, 1998 (codified at Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.), Article 27, § 413(d)(1), (e)(1)). The second exception is that a person who engages or employs another person to commit murder is death-eligible where the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration. Art. 27, § 413(d)(7), (e)(l)(i).

. Professors Perkins and Boyce cite Agresti v. State, 2 Md.App. 278, 234 A.2d 284 (1967), as an example of the application of the common law rule that one charged only as an accessory could not be convicted if the evidence established that he was instead a principal. Perkins & Boyce, Criminar Law, Parties to Crime at 754 n. 77 and accompanying text (3d ed.1982). They note that as a result, it was possible for an accomplice to avoid conviction altogether because of uncertainty as to whether he had been present at the time the offense was committed by the principal. Id. at 754-55.