Whittlesey v. State5/13/1992
iberate and premeditated first degree murder, or an intentional killing amounting to second degree murder. Instead, the defendant simply asserted that all of the offenses "arose from the same transaction . . . ." The Supreme Court and this Court, however, have repeatedly rejected the "same transaction" test as the standard for determining whether distinct offenses are to be deemed "the same offense" for double jeopardy purposes. See, e.g., Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764, 779 (1985); State v. Boozer, 304 Md. 98, 113-114, 497 A.2d 1129, 1137 (1985); Cousins v. State, 277 Md. 383, 389-397, 354 A.2d 825, 829-831, cert. denied, 429 U.S. 1027, 97 S.Ct. 652, 50 L.Ed.2d 631 (1976), and cases there cited. Recently, since its decision in Grady v. Corbin, supra, the Supreme Court has reiterated that its prior cases
have rejected the "same transaction" test. United States v. Felix, U.S. , 112 S.Ct. 1377, 1384-1385, 118 L.Ed.2d 25 (1992).
The scope of the Grady v. Corbin holding is not entirely clear. Nevertheless, the Supreme Court's focus in the Grady opinion upon establishing an "element" of the charged offense by proving "conduct that constitutes" the earlier "offense," coupled with the rejection of the "actual evidence" and the "same transaction" tests, suggests that the Grady standard is applicable only when the conviction of the earlier offense will, as a matter of law (and not simply because of the particular underlying facts), fully establish an element of the later offense. See, e.g., United States v. Clark, 928 F.2d 639, 642 (4th Cir.1991). Although Grady v. Corbin liberalized somewhat the so-called "required evidence" or " Blockburger " test for determining when two offenses should be deemed the same for purposes of the double jeopardy prohibition against successive prosecutions, the Supreme Court has cautioned against reading the language of Grady "expansively." United States v. Felix, supra, 112 S.Ct. at 1384. The Court has indicated that, under the Grady test, the earlier offense "might be viewed as a 'species of lesser-included offense,'" in the same manner as the underlying felony is a lesser included offense of felony murder. United States v. Felix, supra, 112 S.Ct. at 1384, quoting Illinois v. Vitale, 447 U.S. 410, 420, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228, 238 (1980), discussing Harris v. Oklahoma, supra.
Turning to the present case, a conviction for robbery in no way establishes an element of wilful, deliberate and premeditated murder. Unlike the situation involving a conviction for the underlying felony followed by a felony murder prosecution, the earlier robbery conviction in this case does not amount to an alternate element of wilful, deliberate and premeditated murder. Although robbery
requires proof of force or threat of force, the force required to prove robbery does not legally or necessarily establish any act which is an element of intentional homicide. Consequently, I do not believe that the prosecution for wilful, deliberate and premeditated murder is precluded by the Grady v. Corbin test.
There may be some cases where the force used to commit the robbery is factually identical to the force employed to carry out an intent to kill, and there may be some cases where it is different even though the robbery and the homicide may be part of the same transaction. If one were to assume, arguendo, that the Grady v. Corbin test might be applicable if the State's evidence of force to establish an intentional homicide were identical to the evidence which had earlier been used to prove robbery, the result would no
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