State v. North

ELDRIDGE, Judge,

Dissenting:

I dissent. The majority’s view is inconsistent with this Court’s prior holdings in State v. Gibson, 254 Md. 399, 254 A.2d 691(1969), affirming and adopting State v. Gibson, 4 Md.App. 236, 242 A.2d 575 (1968), and Forbes v. State, 324 Md. 335, 597 A.2d 427 (1991). Contrary to the majority, I find these cases controlling and not “distinguishable” from the case at bar.

*320The statute at issue in this case, Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 287B, clearly parallels the statute at issue in Gibson and Forbes. Section 287B encompasses an entire subject area within the larger realm of common law attempt to possess controlled dangerous substances (CDS) and has a less severe penalty than the common law offense. This was true of the two offenses involved in Gibson and Forbes. I would follow the principle applied in those cases and hold that common law attempt to possess CDS has been repealed under the limited circumstance where the accused either purchases or possesses non-CDS with the reasonable belief that it is CDS. In that situation, § 287B should be the sole avenue of prosecution.

Although the “ ‘rules of the common law are not to be changed by doubtful implication,’ ” when it is clear that the survival of common law coverage “ Svould in effect deprive [the statute] of its efficacy and render its provisions nugatory,’ ” the statute abrogates the common law to the extent of its provisions. Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934), quoting 25 R.C.L. 1054. If the provisions of the statute are in conflict with the common law, then the statute controls, and if the statute covers an entire subject matter, the common law is replaced by the statute as to that subject. Ibid.

In State v. Gibson, supra, the defendant was charged with four counts of common law involuntary manslaughter and one count under Article 27, § 388, the manslaughter by motor vehicle statute. The four common law manslaughter counts were based on the misdemeanor-manslaughter rule, and there was some question as to whether, and to what extent, the misdemeanor-manslaughter rule was applicable as a matter of Maryland common law. The defendant filed a motion to dismiss the first four counts, arguing that involuntary manslaughter caused by motor vehicle was no longer encompassed by the common law in light of the enactment of § 388. The circuit court granted the motion to dismiss, and both appellate courts affirmed. Even though § 388 did not cover the entire field of common law involuntary manslaughter, this Court *321adopted the Court of Special Appeals’ opinion and holding that the limited area of involuntary manslaughter by motor vehicle was preempted by the statute, thus abrogating the common law offense in that limited area. In Forbes v. State, supra, when presented with the same issue, we re-affirmed the holding in Gibson.

The situation in the case at bar is similar to that in Gibson and Forbes. Theresa North purchased a substance which she reasonably believed was heroin but which, in fact, was not a CDS at all. Like the question concerning common law misdemeanor-manslaughter in Gibson, in 1991 there was some question among trial courts as to whether a person in North’s position could be found guilty of the common law offense of attempting to possess a CDS, or whether the defense of legal impossibility was applicable.1 In an effort to address these very limited circumstances within the larger subject of common law attempt to possess CDS, the General Assembly enacted § 287B. The legislative history clearly shows that the statute was meant to further prosecutions based upon reverse-sting operations. In order to accomplish this objective, § 287B explicitly negates the defense of impossibility. As a result, the statute has carved out a limited exception to the common law, covering the entire matter of purchase and possession of non-CDS, in which impossibility is no longer a viable defense. Although the remainder of the common law subject was left intact, to the extent the statute encompasses the area, the common law should yield. See State v. Gibson, supra, 4 Md.App. at 247, 242 A.2d at 581-582, citing Lutz v. State, supra, 167 Md. 12, 172 A. 354. See also, Forbes v. State, supra, 324 Md. at 341, 597 A.2d at 430.

The penalty provision of § 287B also shows the Legislature’s intent to partially abrogate the common law. As the majority explains, the bill which became § 287B was House Bill 288 of the 1991 legislation session. The bill, as initially *322introduced, would have abrogated the entire field of common law attempt to possess CDS. The Title of the bill, as first introduced, reflected an intent to criminalize the “attempt to possess or solicit controlled dangerous substances or other substances reasonably believed to be controlled dangerous substances____” See Ch. 362 of the Acts of 1991, Laws of Maryland 1991 at 2343. The maximum penalty under this bill was equal to that imposed for common law attempt to possess CDS, namely up to four years imprisonment and a $25,000 fine. See Laws of Maryland 1991, supra, at 2344, and Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Art. 27, §§ 290, 287(e). When the bill was amended, in the course of the legislative process, it excluded the attempt to possess actual CDS and only prohibited the possession or purchase of “non-controlled substances reasonably believed to be controlled dangerous substances.” Laws of Maryland, 1991, supra, at 2343. The penalty under the amended bill was far less severe: one year imprisonment and a $500 fine. Id. at 2344.

Once again, the legislative circumstances in the case at bar clearly parallel those involved in Gibson and Forbes. In Gibson, the defendant was facing a ten-year maximum imprisonment penalty under common law involuntary manslaughter, whereas the maximum penalty under the statute was limited to three years. In light of the disparate penalties, Chief Judge Murphy’s opinion for the Court of Special Appeals in Gibson, adopted by this Court, stated (4 Md.App. at 247, 242 A.2d at 582):

‘While the crime of manslaughter is not defined by statute in Maryland, it is, as heretofore stated, recognized by Section 387 of Article 27 and provision made for its punishment. The rule is well settled that ‘where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a penalty for the same, or practically the same, offense, the later statute repeals the earlier one, and this is true whether the penalty is increased or diminished.’ ”

This Court and the Court of Special Appeals in Gibson held that the clear intent of the “Manslaughter by Automobile” *323statute was “to encompass the entire field of unintentional criminal homicides resulting from the operation of a motor vehicle,” thereby repealing common law involuntary manslaughter “when based on occurrences of that type.” Gibson, 254 Md. at 401, 254 A.2d at 691-692.

The majority argues that the “obvious intent” of Art. 27, § 287B, was to provide an alternative approach for prosecutors in the county or counties where trial courts were dismissing cases based on legal impossibility. (Majority opinion at 315).2 Under the majority’s view, in Prince George’s County, for example, charges based upon reverse-sting operations would be brought under the new statute. In all the other counties, where common law attempt charges were not being dismissed, the common law would remain a viable option for prosecutors. Therefore, under the majority’s view of what the Legislature contemplated, if a defendant committed the same act in both Prince George’s County and Baltimore County, he would likely face a maximum of one year imprisonment in the former and four years in the latter. This is the result which the majority thinks is most “obvious.” I doubt that this was the intent of the Legislature. As in Gibson and Forbes, common sense dictates that the General Assembly’s purpose by enacting § 287B was to treat all charges of possession or purchase of non-CDS in the same manner, and have them prosecuted under the new statute.

If the statute and the common law were meant to co-exist in 1991, the new statute would have been nugatory in most counties of the State, and, after this Court’s opinion in Grill v. Stale, supra, would have been nugatory throughout the entire State. Under the majority’s holding, prosecutors will have no incentive to utilize § 287B. This Court in Forbes v. State, supra, 324 Md. at 340-341, 597 A.2d at 430, pointed out that, if the manslaughter by automobile statute, Art. 27, § 388, would

*324not have been deemed to repeal common law involuntary manslaughter for circumstances covered by the statute, “prosecutors would never utilize § 388 since the same proof would lead to a conviction under the common law involuntary manslaughter offense. This would render § 388 nugatory.” The same is true with regard to § 287B. The majority today has effectively repealed Art. 27, § 287B.

The General Assembly in 1991 carved out of the area of common law attempt to possess CDS the specific matter of attempt to possess noncontrolled substances reasonably believed to be CDS. It made a policy determination that the former offense should continue to be punishable by a maximum of four years imprisonment but that the latter offense should be punishable by a maximum of one year imprisonment. This policy decision makes sense in light of the obvious difference between CDS and noncontrolled substances. The majority today has overruled this legislative policy determination.

Chief Judge BELL concurs in this dissenting opinion.

. As the majority explains, this Court later held that the actual issue was one of factual impossibility, which is not a defense to common law attempt. See Grill v. State, 337 Md. 91, 651 A.2d 856 (1995).

. Although the majority states "that a number of courts, principally ... district courts in Prince George’s County” were dismissing cases based on legal impossibility, the "Background” section of the Senate Floor Report on House Bill 288 refers only to dismissals within Prince George’s County.