Caseflicks

Court of Appeals of Maryland • 1999

State v. Sowell

728 A.2d 712 | 353 Md. 713 | 1999 Md. LEXIS 184

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Takeaway

In short, this case preserved Maryland's old principal-accessory distinction: a planner who is absent and unable to assist during the crime may be an accessory before the fact, but cannot be convicted as a principal in the second degree.

Background

Brian Lamont Sowell worked for Recycling Incorporated, which paid employees in cash. On the day of the robbery, Sowell called the office to learn when the payroll would be ready, asked whether employees would be paid in cash, and collected his own wages. About an hour later, three armed men entered the office, held employees at gunpoint, and took $14,600.

The State presented evidence that Sowell planned the robbery. He allegedly selected the business because of its cash payroll, supplied a map and details about the office, directed the timing, told the robbers to proceed, and arranged to meet them afterward to divide the proceeds. But the evidence also showed that Sowell drove away before the robbery and intended to be on his work route so as not to appear involved.

A Prince George's County jury convicted Sowell of armed robbery, robbery, two handgun offenses, and first-degree assault. The trial proceeded on the theory that he was a principal in the second degree, which required actual or constructive presence during the crime. The Court of Special Appeals reversed, holding that the evidence did not establish such presence and that Maryland still recognized the distinction between a principal in the second degree and an accessory before the fact. The State sought review in the Court of Appeals.

Issues

Issue #1

Whether Maryland should judicially abolish the common-law distinction between principals and accessories before the fact.

Holding

No. Maryland continues to recognize the common-law distinction unless and until the General Assembly changes it.

Reasoning

Under Maryland common law, a principal in the second degree aids, counsels, commands, or encourages the crime while actually or constructively present. An accessory before the fact gives comparable assistance but is absent when the crime is committed. Although the categories ordinarily carry the same punishment, the distinction remains important because it affects how the defendant must be charged and tried.

The Court acknowledged that the distinction has been widely criticized as an outdated technicality. Earlier Maryland decisions had eliminated several related rules, including requirements concerning the order of trial and the relationship between the principal's and accessory's convictions. Those decisions, however, removed procedural consequences of accessoryship rather than abolishing the underlying categories themselves.

The Court had authority to alter an unsound common-law rule, but it gave substantial weight to legislative policymaking. Other states that eliminated the principal-accessory distinction generally did so by statute, and Maryland's General Assembly had not enacted a comparable general reform.

The Legislature's treatment of the subject suggested an intention to retain common-law accomplice rules. In particular, a 1994 committee note accompanying revisions to burglary law stated that common law adequately governed liability for those who cause, aid, or counsel burglary. Given the significance of wholly displacing this historic doctrine, the Court concluded that comprehensive change should generally come from the Legislature.

Issue #2

Whether the evidence was sufficient to prove that Sowell was constructively present and therefore liable as a principal in the second degree.

Holding

No. The evidence showed advance planning and encouragement, but not that Sowell was situated and prepared to aid the robbers during the commission of the offenses.

Reasoning

Constructive presence does not require the accused to be within sight or hearing of the crime. It does require that the accused be cooperating in a common criminal plan and be close enough, with a known purpose, to render aid during the crime—such as serving as a lookout, signaling danger, standing ready to assist, or helping the perpetrators escape.

The evidence supported the conclusion that Sowell was the robbery's planner. He knew the business's cash-payroll practices, helped design the plan, identified its timing and logistics, told the others to proceed, and planned to share the proceeds. Those facts would support liability as an accessory before the fact.

But Sowell was not at the recycling business or nearby during the robbery. The evidence was that he drove away after telling the others to go ahead and planned to be on his work route specifically to avoid suspicion. There was no evidence that he remained available as a lookout, in a getaway vehicle, or otherwise able to assist the gunmen while they carried out the robbery.

Because the case was submitted to the jury only on a principal-liability theory, and Maryland requires actual or constructive presence for a principal in the second degree, the proof was insufficient. Sowell could not be convicted as a principal based solely on evidence establishing accessory-before-the-fact conduct.

Concurrences

Judge Raker

Reasoning

Judge Raker agreed that the evidence did not establish that Sowell was a principal in either the first or second degree and therefore agreed that his convictions had to be reversed under existing Maryland law.

She disagreed, however, with the majority's decision to preserve the principal-accessory distinction. In her view, the Court itself created the common-law doctrine and therefore had both the authority and responsibility to abolish it once it recognized that the rule was impractical, unfair, and obsolete.

Judge Raker regarded the requirement that a defendant be charged as either a principal or an accessory before the fact as one of the very technical pleading rules that the Court had already begun to dismantle in earlier accessoryship decisions. The distinction could allow a plainly culpable participant to avoid conviction merely because the State selected the wrong common-law label.

The historical rationale for the distinction had disappeared. The doctrine likely developed when felony convictions commonly carried the death penalty, but Maryland no longer imposed that penalty broadly, and accessories before the fact were generally punished to the same extent as principals. Retaining the distinction therefore served no meaningful substantive purpose.

She rejected the inference that legislative inaction reflected an affirmative public policy favoring the rule. The Legislature's limited revision of burglary statutes did not demonstrate approval of an archaic pleading distinction, and the Court should not leave an acknowledged common-law anomaly in place simply because the Legislature had not addressed it.

Judge Wilner

Reasoning

Judge Wilner agreed with the judgment because the evidence did not prove the constructive presence required by Maryland's current rule. He also agreed with Judge Raker that the remaining distinction between principals and accessories was an anachronism with no useful purpose.

He nonetheless joined the majority's result because the fact that every other state had changed the rule through legislation gave him pause. The General Assembly's failure to act might reflect opposition to reform, but it might instead reflect that the issue had not been squarely presented or that the Legislature had been occupied with other priorities.

Judge Wilner urged the Article 27 Committee, which considered substantive criminal-code reforms, to examine the issue and make a recommendation to the next legislative session. Legislative consideration would reveal whether the General Assembly shared the Court's apparent view that the distinction should be repealed.