Harris v. State

BELL, Chief Judge,

dissenting:

The majority holds that the offense of carjacking, see Maryland Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.) Article 27 § 348A,1 is not a specific intent crime. I do not agree and, so, dissent.

Carjacking is nothing more than a “particular type of robbery,” Holloway v. United States, — U.S. —, —, 119 S.Ct. 966, 971-72, 143 L.Ed.2d 1 (1999), one in which the thing taken is an automobile. See also Price v. State, 111 Md.App. 487, 497, 681 A.2d 1206, 1210-11 (1996), in which the Court of Special Appeals stated, “[t]he intent of the legislature [in enacting the carjacking statute] was to proscribe actions which although already crimes, ie. robbery, were deemed to be of *618such an aggravated nature as to require specific legislation and punishment” and, thus, carjacking “is little more than robbery without the need to prove specific intent to permanently deprive the owner of his property.” That is, in truth, also all that the legislative history shows.

The carjacking statute was enacted as a result of the public’s outrage over the brutal murder of a Howard County woman, Dr. Pamela Basu, who was dragged two miles to her death, during a carjacking.2 In addition to the outcry from the public and despite the recognition that the act of carjacking could be charged under already existing statutes, a fact specifically and clearly communicated to the General Assembly, see, e.g., Testimony of Steven B. Larsen, Governor’s Legislative Office, “Carjacking,” HB 415 and SB 339 (1993), “[wjhile the separate acts that constitute a carjacking fall within current chargeable offenses, the existing penalties are wholly inadequate for the gravity of the offense,” id., the Governor urged the General Assembly to create a separate statutory offense for the act of robbery in which an automobile in a person’s possession is taken. The Legislature quickly debated and enacted the carjacking statute as an emergency measure.

From the legislative history, it is clear that the purpose of the enactment of the carjacking statute was to provide additional penalties than those already available in order to “send a strong signal to carjackers thát the penalties for carjacking are severe.” Id. It was also to “provide[ ] prosecutors with *619additional tools needed to place carjackers behind bars.” Id. As introduced, the bill contained a provision that mandated a mandatory minimum sentence.3 Though the bill was eventually amended to delete this provision, debate over it dominated the deliberations. See generally, Bill Files for House Bill 415 and Senate Bill 339. As enacted, see 1993 Laws of Maryland, ch. 69, § 1, the statute prescribed a penalty for carjacking of up to 30 years. Maryland Code (1957, 1996 RepLVoL, 1997 Cum.Supp.) Art. 27 § 348A (c).4 This is a greater penalty than that of the already existing similar offenses—theft, robbery and armed robbery.5 In addition, the statute made carjacking an aggravating circumstance for the purpose of the death penalty sentencing procedure. § 413(d)(10).6 Further, the statutes classifying “crimes of violence,” see § 441(e)7, *620§ 643(B)(a)8 and Maryland Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.) Art. 41 § 4-501(12)(XII),9 were amended to include carjacking and armed carjacking.

*619"The term ‘crime of violence’ means abduction; ar son; burglary; including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaugh*620ter; excepting involuntary manslaughter; mayhem; murder; rape; robbery; robbery with a deadly weapon; carjacking or armed carjacking; sexual offense in the first degree; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable for imprisonment for more than one year.”

To be sure, the General Assembly did address, to some extent, the intent element of carjacking; by providing that proof of an intent permanently to deprive the owner of the *621vehicle is not a defense to carjacking, § 848A (e), the Legislature did not define carjacking to be the identical offense as robbery or theft. That is the only indication of the Legislature’s awareness of the intent issue. As we have seen, by contrast, the Legislature spent a considerable amount of time debating the proper penalty and collateral impact of enacting a carjacking statute.

But negating the intent permanently to deprive as a defense does not equate to eliminating altogether the requirement to prove the specific intent to deprive the owner temporarily of the vehicle. In point of fact, the opposite would appear to be the case—by specifying the specific intent that is not a defense, the Legislature inferentially recognized that another, lesser specific intent may be a defense. The fact that the Legislature specifically noted that the State was not required to prove intent to deprive permanently implies that some proof of intent to deprive, even if the intended deprivation is temporary, is necessary. Had the Legislature intended to relieve the State of the burden of proving intent to deprive for any period of time, it could have, and I submit would have, refrained from using the qualifying word, “permanently,” in subsection (e). To interpret the statute, on that basis, as not requiring proof of any specific intent to deprive, would render the word “permanently” superfluous. It is well settled that, “absent a clear intent to the contrary, a statute is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.” Montgomery County v. Buckman, 333 Md. 516, 523-24, 636 A.2d 448, 452 (1994). See Hyle v. Motor Vehicle Admin., 348 Md. 143, 149, 702 A.2d 760, 763 (1997); Blondell v. Baltimore Police, 341 Md. 680, 691, 672 A.2d 639, 645 (1996); Warsame v. State, 338 Md. 513, 519, 659 A.2d 1271, 1273 (1995).

In any event, subsection (e) is at best ambiguous; it certainly is not clear and unambiguous. When dealing with a criminal statute that is ambiguous, the Rule of Lenity applies, entitling the defendant to the benefit of the ambiguity. See Gardner v. State, 344 Md. 642, 651, 689 A.2d 610, 614 (1997), in which this Court stated: “Lenity expressly prohibits a court *622from interpreting a criminal statute to increase the penalty it places on a defendant “when such an interpretation can be based on no more than a guess as to what [the Legislature] intended,’ ” quoting Monoker v. State, 321 Md. 214, 222, 582 A.2d 525, 529 (1990), which in turn quotes Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199, 205 (1958).

The majority cites a number of federal cases interpreting the federal carjacking statute, as originally enacted in 199210, to support its conclusion that the Maryland statute prescribes a general intent crime. See, e.g., United States v. Payne, 83 F.3d 346, 347 (10th Cir.1996); United States v. Martinez, 49 F.3d 1398, 1401 (9 th Cir.1995), cert. denied, 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 696 (1996); United States v. Oliver, 60 F.3d 547, 551 (9th Cir.1995); United States v. Harris, 25 F.3d 1275, 1279-80 (5th Cir.1994), cert. denied, 513 U.S. 978, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994). These cases, as I will explain, actually support my position.

Martinez provides insight into why the courts interpreted the federal carjacking statute as a general intent crime. There, the 9th Circuit pointed out that the structure, language, *623and legislative history of the carjacking statute indicated that the offense of carjacking was analogous to robbery. See Martinez, 49 F.3d at 1401. It referenced H.R.Rep. No. 102— 851(1), 102 nd Cong., 2d Sess. 13-17, reprinted in 1992 U.S.C.C.A.N. 2829, 2833, a House of Representatives Judiciary Committee Report which stated that “the definition of [carjacking] tracks the language used in other federal robbery statutes.” The court then stated, “[w]e see no reason to distinguish between the bank robbery and carjacking statutes with respect to intent.” Id. It is significant that Federal bank robbery is a general intent offense. See United States v. Darby, 857 F.2d 623, 626 (9th Cir.1988) (citing United States v. Hartfield, 513 F.2d 254 (9 th Cir.1975)). The court reasoned that since robbery, under federal law, is a general intent offense, it follows that carjacking should be as well.

In Maryland, robbery is a common law offense, Jupiter v. State, 328 Md. 635, 643, 616 A.2d 412, 416 (1992); West v. State, 312 Md. 197, 202, 539 A.2d 231, 233 (1988), requiring proof of a specific intent to steal. Jupiter, 328 Md. at 639, 616 A.2d at 414. If that rationale were applied in the instant case, it would follow that, since robbery under Maryland law is a specific intent offense and the carjacking statute negates only the intent permanently to deprive, carjacking requires proof of specific intent as well.

Also cited by the majority in support of its position is a recent Michigan Court of Appeals decision, People v. Davenport, 230 Mich.App. 577, 583 N.W.2d 919 (1998). In that case, the court construed the Michigan carjacking statute as requiring proof of only general intent.11 In stark contrast to the legislative history of Maryland’s carjacking statute, the legisla*624tive history of the Michigan carjacking statute confirms that construction. A review of that legislative history reveals that the Michigan Legislature intended, by enactment of the carjacking statute, to make it easier for a prosecutor to obtain a carjacking conviction; the bill analysis leaves no doubt that the Legislature, by passing that act, intended to lower the State’s burden of proof.12 Thus, it had an entirely different intent than did the Maryland Legislature. The Michigan Court of Appeals concluded, “it seems clear that the Legislature purposely omitted any element of specific intent in the crime of carjacking in order to make it simpler to. convict offenders. Reading a specific intent element into the statute would negate that objective.” 230 Mich.App. 577, 583 N.W.2d 919, 921.

*623“A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle!] from another person, in the presence of that person or the presence of a passenger or in the presence of any oilier person in lawful possession of the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment of life or for any term of years.”

*624Neither is the majority’s reliance upon Pixley v. United States, 692 A.2d 438 (D.C.App.1997) persuasive. Pixley is easily distinguishable from the instant case because the language of the District of Columbia carjacking statute explicitly and specifically contains an intent requirement.13 As the District of Columbia Court of Appeals pointed out, “carjacking requires only that the taking be performed ‘recklessly’[therefore][a]n utterly heedless [perhaps alcohol induced] mistaken *625belief in ownership accompanying a forcible demand for possession would thus satisfy the statute.” Id. at 440. Unlike the instant case, the statute, in Pixley, is not ambiguous.14

When looking at the carjacking statute’s intent and penalty element, together with those crimes related to carjacking, the majority’s interpretation of the intent requirement produces an anomalous result. Unauthorized use of an automobile is a specific intent offense. Under the statute, in order to be convicted of unauthorized use of an automobile, the State is required to prove that the car was taken with the specific intent to deprive the owner of the automobile, although not permanently. See In Re Lakeysha P. 106 Md.App. 401, 425, 665 A.2d 264, 275 (1995), cert. granted, 341 Md. 522, 671 A.2d 500, dismissed as improvidently granted, 343 Md. 627, 684 A.2d 5 (1996).15 Unauthorized use carries a minimum penalty of six months and a maximum penalty of four years.

*626Theft, as defined in Art. 27, § 342, may be committed in several different ways. See Cicoria v. State, 332 Md. 21, 30, 629 A.2d 742, 746 (1993)(“The theft statute prescribes five ways in which the crime of theft can be committed.”) However it is committed, it is a specific intent crime. § 341; See Jones v. State, 303 Md. 323, 493 A.2d 1062 (1985); Brown v. State, 236 Md. 505, 204 A.2d 532 (1964); Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963); Putinski v. State, 223 Md. 1, 161 A.2d 117 (1960). A person convicted of theft where the value of the goods or services is under $300.00, may be imprisoned for up to 18 months, § 342(f)(2), while if the conviction is for felony theft, where the value of the property or services is greater than $300, he or she may be imprisoned for up to 15 years. § 342(f)(1).

The crime of theft, coupled with the use of violence or intimidation, creates the offense of robbery. Once again, for conviction, the State is required to prove that the defendant had a specific intent, the intent to steal. State v. Gover, 267 Md. 602, 606, 298 A.2d 378, 381 (1973). A person convicted of robbery may be sentenced to imprisonment for up to fifteen years. § 486. A person convicted of armed robbery may be sentenced to imprisonment for up to twenty years. § 488.

Carjacking obviously has been deemed by the Legislature to be the most serious of the offenses. Accordingly and logically, it is punishable by up to 30 years. Under the majority’s interpretation, however, the state is required only to prove general intent, withofit the Legislature clearly evidencing its intention that it be so; it is also much easier to prove.16

*627This statutory scheme evidences that the majority’s decision produces an anomalous result. A defendant prosecuted for unauthorized use, theft, or robbery faces a less severe punishment than a defendant charged with carjacking and, in those cases, the State must prove, in addition to the act itself, the intent with which the defendant acted, i.e. to deprive the owner of the property either temporarily or permanently. The result of the majority’s decision is to require the prosecutor to prove less even though the potential punishment and other consequences are greater, when there is no clear intent expressed by the Legislature that it desired that result. This result is fundamentally unfair, defies logic and common sense, and is violative of the Rule of Lenity. Since we have adopted the principle that “unreasonableness of the result produced by one among alternative possible interpretations of the statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result,” D&Y, Inc. v. Winston, 320 Md. 534, 538, 578 A.2d 1177, 1179-80, (quoting 2 A Sutherland Statutory Construction, § 45.12 (4th Ed.1984)), carjacking should be interpreted as requiring proof of the specific intent, at least temporarily, to deprive the owner of the car.

Judges ELDRIDGE and CHASONOW share the views expressed herein.

. Maryland Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.) Article 27 § 348A provides:

"(a) In this section, "motor vehicle” has the meaning stated in § 11-135 of the Transportation Article.
"(b) (1) An individual commits the offense of carjacking when the individual obtains unauthorized possession or control of a motor vehicle from another individual in actual possession by force or violence, or by putting that individual in fear through intimidation or threat of force or violence.
“(2) An individual commits the offense of armed carjacking when the individual employs or displays a deadly or dangerous weapon during the commission of a carjacking.
"(c) An individual convicted of carjacking or armed carjacking is guilty of a felony and shall be sentenced to imprisonment for not more than 30 years.
"(d) The sentence imposed under this section may be imposed separate from and consecutive to a sentence for any other offense arising from the conduct underlying the offenses of carjacking or armed carjacking.
"(e) It is not a defense to the offense of carjacking or armed carjacking that the defendant did not intend to permanently deprive the owner of the motor vehicle.”

. Section 643B (a) provides;

"As used in this section, the term "crime of violence” means abduction; arson in the first degree; kidnapping; manslaughter, except involuntary manslaughter; mayhem and maiming, as previously proscribed under §§ 384, 385, and 386 of this article; murder; rape; robbery; robbery with a deadly weapon; carjacking or armed carjacking; sexual offense in the first degree; sexual offense in the second degree; use of a handgun in the commission of a felony or other crime of violence; an attempt to commit any of the aforesaid offenses; assault in the first degree; and assault with intent to murder, assault with intent to rape, assault with intent to rob, assault with intent to commit a sexual offense in the first degree, and assault with intent to commit a sexual offense in the second degree.”

By being included under this section, carjacking and armed carjacking were made subject to the mandatory sentences prescribed by this section.

. Under this section:

" "Violent crime” means the commission or attempt to commit any of the following offenses:
"(i) Abduction;
"(ii) Arson;
"(iii) Burglary, including any common law or statutory form;
"(iv) Escape;
"(v) Housebreaking;
"(vi) Kidnapping;
"(vii) Manslaughter other than involuntary manslaughter;
"(viii) Mayhem;
"(ix) Murder;
"(x) Rape;
"(xi) Robbery, including robbery with a deadly weapon;
"(xii) Carjacking or Armed Carjacking;
"(xiii) Assault with intent to commit any of these crimes; or
“(xiv) Use of a handgun or other deadly weapon in the commission or attempt to commit any crime.”

. See 'Together', Schaefer Tells Legislators ..., Balt. Sun, January, 15, 1993 at 14A; Michael James, Carjack Patterns Emerging; State Police Suggest Common-Sense Steps, Balt. Sun, December 23, 1992 at IB.; The Intrepid Commuter; Carjacking is Commuters Big Worry, Balt. Sun, September 21, 1992 at IB; Jackie Powder, Residents at Community Meeting Seek Death Penalty in Carjacking, Balt. Sun, September 20, 1992 at 2; Jackie Powder, Carjack Death Leaves “Void and Emptiness’ Balt. Sun, September 17, 1992 at IB; Andrew Brownstein and Michael York, Calling Carjacking Terrorism, Area Officials Coordinate Attack, Wash. Post, September 17, 1992 at Dl; Mary Corey, Carjackings Give Md. Drivers a New Passenger: Fear, Balt. Sun, September 16, 1992 at 1A; Debbi Wilgoren, Carjackers Put Drivers on Defensive, Wash. Post, August 18, 1992 at Al.

. As proposed, § (c) provided:

"(c) (1) An individual convicted of carjacking is guilty of a felony and shall be sentenced to imprisonment for not less than fifteen years and not more than 30 years.
"(2) For an individual convicted of armed carjacking, it is mandatory upon the Court to impose not less than the minimum sentence of 15 years, no part of which may be suspended, and the person may not be eligible for parole in less than 15 years except in accordance with the provisions of Article 3IB, § 11 of the Code.” See Senate Bill 339.

. Unless otherwise indicated, all future references will be to Maryland Code (1957, 1996 Repl.Vol., 1997 Cum.Supp.) Art. 27.

. Felony theft is punishable by up to 15 years. § 342(f)(1). Robbery is punishable by up to 15 years. § 486. Armed robbery is punishable by up to 20 years. § 486.

. Section 413(d)(10) provides:

"(d) In determining the sentence, the court or jury, as the case may be, shall first consider whether, beyond a reasonable doubt, any of the following aggravating circumstances exist:
"(10) The defendant committed the murder while committing or attempting to commit a carjacking, armed carjacking, robbery arson, rape or sexual offense in the first degree.”

. Section 441(e) provides:

. The federal carjacking statute as originally enacted in 1992, read: "Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped or received in interstate or foreign commerce from the person or presence of another by force or violence or intimidation, or attempts to do so, shall—

"(1) be fined under this title or imprisoned not more than 15 years, or both,
"(2) if serious bodily injury as defined in section 1365 of this title results, be fined under this title or imprisoned not more than 25 years or both, and
"(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

18 U.S.C. § 2119, Anti Car Theft Act of 1992.

In 1994, the statute was amended and the "possessing a firearm” language was replaced with "with the intent to cause death or bodily harm". See Violent Crime Control and Law Enforcement Act of 1994 § 60003(a)(14), Pub.L. 103-322. Subsequent decisions have interpreted the new statute as changing carjacking to a specific intent crime. United States v. Randolph, 93 F.3d 656, 660 (9 th Cir.1996): United States v. Rivera-Gomez, 67 F.3d 993, 996 n. 1 (1st Cir.1995).

. The Michigan carjacking statute, Michigan Compiled Laws § 750.529(a)(l)(1998 Supp.) provides:

. The portion of the bill analysis reads:

"The bill would make it easier for prosecutors to try carjackers and to show that an offender committed a felony. Robbery and assault offenses typically include elements of intent that can make it difficult to prosecute individuals on those charges. As a result, many of those initially charged with armed assault or robbery enter into plea bargain agreements and, consequently, are punished for less serious offenses ... Carjacking charges would more likely be tried on their merits rather than plea bargained, because the elements of the proposed offense would be easier to prove than those of robbery or assault.”

Senate Fiscal Agency Bill Analysis, SB 773, February 17, 1994.

. The District of Columbia carjacking statute, § 22-2903(a)(l), reads:

"A person commits the act of carjacking if, by any means, that person knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempts to do so, shall take from another person immediate actual possession of a person's motor vehicle.” (emphasis added)

. The majority's assertion that "[u]nlike robbery, the carjacking statute requires no movement or asportation, only unauthorized possession or control .... [therefore] carjacking can be accomplished without committing robbery,” Maj. op. at 615 stretches the definition of carjacking beyond all reasonable limits. Pixley v. United States, 692 A.2d 438, 440 (D.C.App.1997), upon which the majority relies, states that a carjacking without robbery "can be committed by putting a gun to the head of a person, and ordering him out of the car.” Under our theft statute, this would not be sufficient, in my view, to obtain control over the car; it certainly suffices to obtain control over the person, but that is not the test. Something more must be required, at the very least getting behind the wheel of the car. It is inconceivable that, having gone so far as to accost the victim for the purpose of taking his or her car and having to take control of it to complete the crime or realize the goal, a defendant would not, or even that a legislature would contemplate the possibility that he or she would not, move the car. Moreover, why would anyone who had even a general intent to take a car, order a person out of the car and then not move it? The absurdity of this example supports a common sense reading of the carjacking statute as creating a specific intent offense.

. There is no requirement that the state prove the exact duration of the intended deprivation. As Judge Moylan, speaking for the Court of Special Appeals put it:

"It follows that, when the Legislature enacted the Unauthorized Use law, it simply eliminated the animus furandi of larceny so that it could handle not only one but a number of circumstances in which *626the mens rea of the culprit might somehow be in question: 1) the situation in which it is clearly established that the intended deprivation was only temporary, 2) the situation in which the intended deprivation was probably permanent but where there is a failure to carry the burden of persuasion in that regard, 3) the situation in which the fact finder is actually persuaded that the intended deprivation was still of uncertain and undetermined duration in the mind of the culprit, and 4) the situation in which there was simply no evidence at all bearing on the duration of the intended deprivation.”

In Re Lakeysha P., 106 Md.App. 401, 425, 665 A.2d 264, 275 (1995).

. I am, of course, aware that the proof of the offense of carjacking and the related offenses will be circumstantial, consisting of proving the *627circumstances rather than the offer of direct evidence of how long the defendant intended to keep the car. The difference is more than semantics, however. If the State’s burden is to prove a specific intent, the defendant would be entitled to a jury instruction to that effect.