Merger Doctrine and the Rule of Lenity

• Jurisdiction: Maryland

XII. Merger doctrine and the rule of lenity

A. Merger

Merger is a mechanism to determine whether it is permissible to impose separate consecutive sentences for criminal offenses arising from a single criminal transaction. Regarding each criminal transaction, if the defendant is found guilty, the issue is how many times the defendant may be punished or sentenced. This requires a determination of whether multiple offenses, arising out of one criminal transaction, constitute separate offenses for sentencing purposes or are deemed to be the same offense. In Jones v. State, 357 Md. 141, 157 (1999), the Court of Appeals stated: "We determine first whether the charges arose out of the same act or transaction, and second, whether the crimes charged are the same offense."

If the offenses arising from one transaction are separate offenses, they may be sentenced separately and consecutively. If the offenses are deemed to be the same offense, they may be sentenced separately, but the sentence for lesser included offense(s) merge into the sentence for the greater offense.

In Washington v. State, 200 Md. App. 641 (2011), the Court of Special Appeals stated: "In a single prosecution, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and the Maryland common law of double jeopardy prohibit the imposition of multiple penalties for the same offense." Id. at 647 (citing Taylor v. State, 381 Md. 602, 610 (2004)). Thus, because merger is a sentencing issue, a jury may return guilty verdicts for both the lesser and greater offenses, but the sentences on those verdicts are subject to merger. Harris v. State, 160 Md. App. 78, 103 (2004).

Moreover, in one transaction, one law may be violated multiple times. In crimes against persons, each person is a separate unit of criminality. Thus, if there are multiple victims of crimes against persons during one criminal transaction, the number of victims determines the units of criminality.

In Harris v. State, 42 Md. App. 248, 259 (1979), superseded by Md. Rule 4-246, as recognized in Walker v. State, 406 Md. 369, 379 n.3 (2008), the Court of Special Appeals held that there were two units of criminality when the defendant shot at two police officers. In Savoy v. State, 67 Md. App. 590 (1986), the Court of Special Appeals stated: "[W]e have held that where a single criminal indictment results in multiple victims, the number of victims can determine the number of violations." Id. at 594 (citing Jackson v. State, 63 Md. App. 149, 157-59 (1985); Jones v. State, 3 Md. App. 608 (1968)).

1. Blockburger required evidence test

The Blockburger required evidence test is used to determine whether two offenses, arising from one criminal transaction, are separate offenses or are deemed to be the same offense. Snowden v. State, 321 Md. 612, 616-17 (1991); Monoker v. State, 321 Md. 214, 217 n.2 (1990); Gianiny v. State, 320 Md. 337, 342 (1990); Middleton v. State, 318 Md. 749, 757 (1990); White v. State, 318 Md. 740, 742-43 (1990); Hagans v. State, 316 Md. 429, 449 (1989); State v. Ferrell, 313 Md. 291, 295 (1988); Nightingale v. State, 312 Md. 699, 702-03 (1988); State v. Jenkins, 307 Md. 501, 517 (1986); Simms v. State, 288 Md. 712, 718-19 (1980); Brooks v. State, 284 Md. 416, 420-22 (1979); Thomas v. State, 277 Md. 257, 262-67 (1976); Flannigan v. State, 232 Md. 13, 19 (1963); Veney v. State, 227 Md. 608, 611-14 (1962).

For the Blockburger required evidence test to apply, and for crimes to be subject to merger, the crimes must have occurred in one criminal transaction. Merger is never an issue if the crimes occurred in multiple criminal transactions.

2. No merger when "actual evidence" is the same but "required evidence" is different

The Blockburger required evidence test examines only the law of the elements for each offense and ignores the facts. This is accomplished by determining what elements are required, as a matter of law, in order to establish a prima facie case for each offense arising from one criminal transaction and what evidence is required to support those elements. See Brooks, 284 Md. at 421-24; Newton v. State, 280 Md. 260, 268 (1977). When the actual evidence establishing a prima facie case is identical for two offenses, it may appear that the offenses merge. However, the two offenses do not merge if the required evidence is different, even when the actual evidence is the same.

3. Merger under the required evidence test

Any offense that must, of necessity, be established in the process of establishing another offense in the same transaction is a lesser included offense of that greater offense. This occurs if every element of the lesser included offense is also an element of the greater offense. Hagans, 316 Md. at 449 n.8. Therefore, one offense is a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense. Id. at 449 (citing Gov't of Virgin Islands v. Parrilla, 550 F.2d 879, 881 (3d Cir. 1977); State v. Lovelace, 322 N.W.2d 673 (Neb. 1982)).

As such, a lesser included offense is deemed to be the same offense as the greater offense. Because they are deemed to be the same offense, and the defendant may be punished only one time for one offense, the lesser included offense merges into the greater offense and, thus, the sentence for the lesser included offense merges into the sentence for the greater offense.

4. No merger under the required evidence test

Offenses are separate offenses if each offense has at least one element that the other offense does not have. If so, neither offense merges into the other offense. If, under the required evidence test, two offenses are separate offenses, not only can they be prosecuted separately, even though they arose from one criminal transaction, they can be sentenced separately and consecutively whether or not they are prosecuted together or separately. In Williams v. State, 187 Md. App. 470, 478-79, cert. denied, 411 Md. 602 (2009), the Court of Special Appeals held that first degree assault and robbery do not merge.

The aggravating factors necessary to make a second degree assault become first degree may be proven disjunctively, by actual or intended serious physical injury, or by a firearm, neither of which is a required element of robbery. Moreover, robbery requires a taking, which is not a required element of assault. In Burkett v. State, 98 Md. App. 459, 473-74 (1993), the Court of Special Appeals held that assault and weapons offenses do not merge.

5. Disjunctive methods of proving an offense and the required evidence test

When an offense can be committed in alternative or disjunctive ways, a defendant cannot be convicted twice based on the same conduct, even if the conduct establishes a prima facie case under multiple methods of proof. Illinois v. Vitale, 447 U.S. 410, 421 (1980); Biggus v. State, 323 Md. 339, 348-49 (1991). Whether a given offense is proven one way or proven multiple ways, it is still only one offense.

Furthermore, when applying the required evidence test to offenses with alternative elements for merger purposes, regardless of whether the disjunctive offense is the greater offense or the lesser offense, the court must analyze the required evidence test by using only the method or methods for which there was a prima facie case, and for which the finder of fact found guilt. Nightingale v. State, 312 Md. 699, 705 (1988), superseded by statute, as recognized in Fisher v. State, 367 Md. 218, 242 (2001); State v. Ferrell, 313 Md. 291, 298 (1988); Adams v. State, 86 Md. App. 377, 389 (1991) (citing Vogel v. State, 76 Md. App. 56, 61 (1988), aff'd, 315 Md. 458 (1989)).

If crime #1 requires element A and either element B or element C, a defendant cannot be convicted twice for that crime based on conduct that satisfies elements A, B, and C. Element B and element C are merely alternative ways to arrive at the same place. In State v. Ferrell, the Court of Appeals stated: "[W]hen a common law offense or a criminal statute is multi-purpose, embracing different matters in the disjunctive, a court applying the required evidence test must examine 'the alternative element relevant to the case at hand.'" 313 Md. at 298 (quoting Nightingale, 312 Md. at 705); see Newton v. State, 280 Md. 260, 265-66 (1977); Thomas, 277 Md. at 267-68.

In Washington v. State, 200 Md. App. 641 (2011), the Court of Special Appeals held that the defendant could not be sentenced twice for fleeing and eluding police by vehicle and then on foot. The Court stated: "[The defendant] committed one crime of fleeing or eluding the police. The fact that he committed that crime first by driving and not stopping does not mean that he committed two crimes." Id. at 664.

In Eldridge v. State, 329 Md. 307, 315 (1993), the Court of Appeals held that the crime of carrying a deadly weapon can be established by carrying a deadly weapon openly with intent to injure or by carrying a deadly weapon concealed, and, if established both ways, it is still only one crime of carrying a deadly weapon.

In Wagner v. State, 160 Md. App. 531, 566 (2005), the Court of Special Appeals held that the crime of murder can be established by premeditated murder or by felony murder, and if established both ways against one murder victim, it is still only one crime of murder. The Court stated: "'[I]f one willfully, with deliberation and premeditation, kills a person in the course of an armed robbery, [the killer] cannot receive both a sentence for deliberate and premeditated murder . . . and a separate sentence for felony murder.'" Id. at 566 (quoting Williams v. State, 323 Md. 312, 325 (1991)).

Moreover, if the trial court fails to instruct the jury to identify on the verdict sheet whether it finds premeditated murder, felony murder, or both, then for merger purposes, the verdict sheet must be construed most favorably to the defendant. See Nightingale, 312 Md. at 709; Dixon v. State, 364 Md. 209, 248-49 (2001). This means...