State v. Innis ( 1978 )

Doris, J.

The defendant, Thomas J. Inn is, was tried before a justice of the Superior Court, sitting with a jury, on an indictment charging him with murder, kidnapping and robbery.¹ The jury returned verdicts of guilty on all three counts. The defendant was sentenced to life imprisonment for the murder and received concurrent sentences of 20 years for the kidnapping and 30 years for the robbery. The defendant appeals.

The case presented by the state at trial was built primarily on circumstantial evidence. The testimony revealed that defendant had been picked up by a taxi on the evening of January 12, 1975, in Providence. On January 16, 1975, the body of the cab driver was found in a shallow grave in Coventry. Death resulted from a shotgun blast to the back of the head. Witnesses testified that defendant made statements implicating himself in the crime, and the state presented evidence that defendant was seen in the possession of a sawed-off shotgun prior to the commission of the crime. A sawed-off shotgun was introduced into evidence by the state.

The defendant brings several claims of error before us on appeal. Based upon our view of this case, we need only address two of defendant’s contentions.

The initial assignment of error we address is defendant’s claim that the trial justice erred in denying defendant’s motion to suppress evidence obtained in violation of his fifth amendment rights.

The evidence presented by the state at the suppression hearing indicated that defendant was apprehended by Patrolman Robert M. Lovell of the Providence Police Department early on the morning of January 17, 1975. Lovell placed defendant under arrest and advised him of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Sergeant Francis J. Sears then arrived at the scene of the arrest, and he also gave defendant his Miranda warnings.

Responding to the call that defendant had been apprehended, Captain John J. Leyden arrived and again advised defendant of his rights. In response to the warnings given by Leyden, defendant stated that he wanted to see an attorney. At this point Leyden had defendant placed in a police wagon for transportation to police headquarters. Three Providence police officers, Joseph Gleckman, Walter Williams and Richard McKenna, were assigned to the station wagon. Ley-den ordered the three patrolmen not to question or coerce defendant in any way.

The patrolmen placed defendant in the station wagon and began their journey to the police station.² Once in the wagon, Gleckman informed McKenna that there was a school for handicapped children in the area, and he expressed the fear that one of the children might find the weapon and injure himself. The defendant, who was clearly able to hear the entire conversation, asked the police to return to the scene of the arrest so that he could show them where the shotgun was hidden. It is undisputed that at no time were any questions asked of defendant before he offered to lead police to the weapon.

The police wagon, which had traveled approximately one-half to one mile from the scene of the arrest, was driven back to that area, where a search for the shotgun was in progress. Upon returning, defendant was again advised of his rights by Captain Leyden. Leyden then asked defendant if he understood his rights, whereupon defendant answered that he did, and that he wanted to show the police where the weapon was hidden. The defendant then led police to the hidden shotgun and shells, which were later introduced into evidence at trial over defendant’s objection.

The defendant asserts that the introduction of the sawed-off shotgun and shells, as well as the testimony of the police officers relating to the discovery of the evidence, violated both his right against self-incrimination and his right to counsel.

We turn to defendant’s fifth amendment claim. There can be no doubt that an accused possesses an absolute right to consult an attorney before being subjected to police interrogation. Miranda v. Arizona, supra; State v. Kachanis, 119 R.I. 439, 379 A.2d 915, 916 (1977); State v. Lachapelle, 112 R.I. 105, 111, 308 A.2d 467, 470 (1973). There is no dispute that defendant requested to see a lawyer after being initially advised of his rights by Captain Leyden; and clearly, the incriminating evidence was located by police with defendant’s assistance prior to his consulting an attorney. The issues we address, therefore, are (1) whether defendant was “interrogated” within the meaning of Miranda prior to leading police to the shotgun, and (2) if so, whether he submitted to that interrogation voluntarily by waiving his right against self-incrimination. There is no dispute that defendant was in custody.

The guidelines set down by the United States Supreme Court regarding police questioning are straightforward and unambiguous:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. * * * If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. * * *

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda v. Arizona, supra, at 473-75, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723-24.

We have strictly and conscientiously applied the teachings of the Miranda decision. See, e.g., State v. Travis, 116 R.I. 678, 360 A.2d 548 (1976); State v. Lachapelle, supra.

Since Miranda, the traditional notions of both “custody” and “interrogation” have been gradually expanded to meet the changing techniques and tactics of law enforcement personnel. With respect to interrogation, we have held that, under certain circumstances, even casual conversation can be interrogation when it is initiated under false pretense for the purpose of obtaining incriminating statements. See State v. Travis, supra.

The expansion of the concept of interrogation has most recently been undertaken by the United States Supreme Court in Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977).

In Brewer, the suspect Williams was arrested and arraigned in Davenport, Iowa, on a charge of abducting a small child, whom police were unable to locate after arresting the defendant. Williams was represented by counsel in Davenport and in Des Moines, where the offense was committed. Both lawyers advised Williams not to make any statements to the police until he had been transported to Des Moines and had consulted his attorney there. Two police officers were assigned to drive Williams from Davenport to Des Moines.

During the course of the journey, one of the police officers began directing statements toward the suspect, who was asked not to respond, on the subject of the child’s need for a Christian burial. At this point Williams had been given his Miranda warnings three times but had expressed no willingness to discuss the case and had in fact already told police that he would talk with them after consulting his Des Moines lawyer. However, as a result of the officer’s remarks, Williams made several incriminating statements and then led police to the victim’s body.

Williams was convicted in state court and his conviction was affirmed by the Iowa Supreme Court. He then petitioned for a writ of habeas corpus in federal court. The District Court ruled that the evidence of the events which transpired during the automobile trip was wrongly admitted against Williams because the statements were obtained in violation of both Williams’ fifth and sixth amendment rights. Williams v. Brewer, 375 F. Supp. 170 (S.D. Iowa 1974). That decision was affirmed by the Court of Appeals. Williams v. Brewer, 509 F. 2d 227 (8th Cir. 1974).

The Supreme Court decided the case strictly on sixth amendment grounds and held that Williams’ right to counsel had been violated by the so-called “Christian burial speech,” given to him by the police officer. The Court, however, specifically upheld the lower court ruling that the speech was, in effect, a form of interrogation. Brewer v. Williams, supra at 400, 97 S. Ct. at 1240, 51 L. Ed. 2d at 437. The Supreme Court decision noted that Williams’ constitutional claim to counsel would not “have come into play if there had been no interrogation.” Id.

While there are several factors relating to the Brewer remarks which distinguish that case from the one before us, we find the differences to be constitutionally insignificant. To do otherwise would be “to play games with an individual’s constitutional guarantees.” State v. Travis, supra at 682-83, 360 A.2d at 551.

As the Supreme Court has noted, absent a valid waiver, any statement taken after a suspect invokes his fifth amendment rights “cannot be other than the product of compulsion subtle or otherwise.” Miranda v. Arizona, supra at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. We do not accept the argument that Officer Gleckman’s remarks do not constitute interrogation because he was expressing only a concern for public safety and not intentionally attempting to solicit evidence of an incriminating nature. We have already held that evidence obtained by a police officer from a suspect for the purposes of self-protection of the officer in the absence of legal counsel or of a valid waiver may not be used against the suspect at trial. State v. Vargas, 118 R.I. 113, 373 A.2d 150 (1977). Public safety, like self-defense certainly a subject foremost in the mind of a police officer, nevertheless must not be permitted to become a vehicle for violating a suspect’s constitutional rights.

We also reject the contention that no interrogation occurred because defendant was not addressed personally. The police officers in the wagon chose not to discuss sports or the weather but the crime for which defendant was arrested. The defendant, alone in a police wagon with three officers at 4 a.m., underwent the same psychological pressures which moved Williams to lead police to the body of his victim. Police officers in such a situation must not be permitted to achieve indirectly, by talking with one another, a result which the Supreme Court has said they may not achieve directly by talking to a suspect who has been ordered not to respond. The same “subtle compulsion” exists.

On the facts before us, we believe that defendant was interrogated within the meaning of Miranda in the absence of counsel after requesting to see an attorney. Unless a valid waiver occurred, the statements of Officer Gleckman constituted an infringement of defendant’s right against self-incrimination. We therefore turn to a discussion of waiver.

It is well settled that whenever a defendant decides to fore-go a right guaranteed by the fifth amendment, the alleged waiver must meet the strict standard of an intentional relinquishment or abandonment of a known right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938); State v. Vargus, supra at 122, 373 A.2d at 154. A waiver of defendant’s right to remain silent must be made voluntarily, knowlingly and intelligently. Miranda v. Arizona, supra at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. Courts will entertain every reasonable presumption against the waiver of a fundamental constitutional right, Johnson v. Zerbst, supra, by placing a “heavy burden” on the state to establish that such a waiver occurred. Miranda v. Arizona, supra, at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724; State v. Vargus, supra at 122, 373 A.2d at 154.

The evidence presented at the suppression hearing makes it apparent that defendant received his Miranda warnings on three occasions prior to being subjected to Officer Gleckman’s remarks and that he received his warnings once more before leading police to the shotgun. No one denies that defendant, upon receiving his warnings for the third time, requested to see a lawyer.

The trial justice concluded that the statements made by defendant, and his willingness to assist police in locating the weapon, were not the products of coercion or threats but were made voluntarily and therefore constituted a waiver of defendant’s constitutional rights. The trial justice stated:

“In the automobile, driving along Chalkstone Avenue, we have three officers who are out at four in the morning, or later, and have been prowling around searching for a weapon which they had reason to believe was there. The weapon was either loaded or with shells. It is in the area of a school where when daylight arrives handicapped and retarded children will be coming to the area. I think it is entirely understandable that they would voice their concern to each other. And I have to say that I commend the defendant for responding to the danger which, more than likely, he did not know of up until that time. There is no reason for me to believe, and no evidence on which I should conclude, that he was familiar with the area and the type of facilities that were there. So the defendant responded out of a very commendable concern to a situation that he became acquainted with. I commend him for it. He responded and then said: ‘Turn around, take me back and I will show you where the weapon is.’

“It was a waiver, clearly, and on the basis of the evidence that I have heard, an intelligent waiver, of his right to remain silent. And for whatever reason, whatever motivates people, as long as it is not the result of threat or coercion, it is a waiver for all purposes, and the weapon was found.”

This is not a case where a defendant voluntarily confesses to a crime or admits to incriminating evidence on his own. The defendant’s statement to the police admittedly occurred only after his being subjected to Officer Gleckman’s remarks, remarks which were highly improper in light of the fact that defendant had not been given an opportunity to consult with his attorney.

The finding of a waiver in this situation would be highly inconsistent with the conduct of defendant, who just minutes before had chosen to exercise his right to counsel before being subjected to questioning. See State v. Lachapelle, supra at 111, 308 A.2d at 470. The record before us lacks any evidence that defendant ever disavowed his request to speak to an attorney or specifically waived any of his Miranda rights while in the police wagon; nor did he request an opportunity to discuss the case with one of the officers before Officer Gleckman’s remarks. There is no evidence in the record before us indicating that defendant affirmately waived his fifth amendment rights at this time other than the fact that he ultimately agreed to assist the police in locating the incriminating evidence. Id. at 111-12, 308 A.2d at 470-71. As the Supreme Court has stated:

“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda v. Arizona, supra at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724.

The facts of the case at bar relating to the waiver issue dovetail the Brewer case with minor exceptions up to the point at which defendant received the second warning from Captain Leyden, a warning Williams never received. Because of the lack of any affirmative evidence other than the ultimate incriminating statement, all three federal courts found Williams had not waived his constitutional rights. It is true that Williams was known to police as a former mental patient and a deeply religious individual; we find no such evidence regarding defendant. However, this distinction would be relevant only if the federal courts at some stage of the proceedings had found Williams to be mentally incompetent to make such a waiver. No such finding was made.

The fourth warning received by defendant presents us with an issue not addressed in Brewer, however. In response to the warning given by Captain Leyden subsequent to the incriminating statement but prior to the discovery of the weapon, defendant stated that he understood his rights but wished to show police where the shotgun was hidden so that no child in the area would find it and injure himself. At this point, defendant led the police to the sawed-off shotgun that was subsequently introduced into evidence at trial over his objection.

We find no merit in the argument that, while defendant’s statement in the police wagon must be suppressed, the shotgun itself is admissible evidence on the grounds that defendant waived his Miranda rights in response to Captain Leyden’s warnings before he led police to the weapon.

In our view, to allow the shotgun to be admitted into evidence would be to allow the state to benefit from the illegal actions which occurred in the police wagon. The seizure of the weapon was the product of the improper remarks of Officer Gleckman. Because of this inescapable fact, the weapon and any evidence leading to its discovery must be suppressed as “fruit of the poisonous tree.” We have no doubt that the discovery of the shotgun occurred as a result of an “exploitation” of the original illegality. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417. 9 L. Ed. 2d 441, 455 (1963).

Having reached the conclusion that both the shotgun and defendant’s statements were obtained in violation of defendant’s fifth amendment rights, we must set aside the conviction and order a new trial unless we are convinced that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Lachapelle, supra.

A review of the trial transcript, however, convinces us that the tainted evidence was certainly a contributing factor in the conviction of defendant, particularly in light of the fact that most of the other evidence against defendant was circumstantial in nature. The state has not met its burden of proving harmlessness beyond a reasonable doubt. Therefore, the conviction cannot be allowed to stand.

There is one other issue raised by defendant which we feel compelled to address before this case is retried. The defendant asserts that he cannot be tried and convicted for both felony murder and the underlying felony, in this case, robbery. To do so, defendant contends, is a violation of the double jeopardy clause of the fifth amendment.

There can be no doubt that the murder conviction obtained against defendant was based solely upon the theory of felony murder. This is clear from both the evidence presented and the trial justice’s instructions to the jury.³

The defendant contends that his double jeopardy argument ought to be upheld in light of the United States Supreme Court decision of Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977).

The Harris decision involved a defendant who was first tried and convicted for felony murder, and then tried and convicted for committing the underlying felony, robbery with firearms. The Court, in a very brief decision, held:

“When, as here, conviction of agreater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. (citations omitted) [A] person [who] has been tried and convicted for a crime which has various incidents included in it, ... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.’ ” Id. at 682-83, 97 S. Ct. at 2912-13, 53 L. Ed. 2d at 1056.

The state argues that the holding of Harris is restricted to instances in which a defendant is subjected to successive prosecutions, not to cases such as the one at bar in which a defendant is convicted of both crimes at the same trial. We cannot agree with the state’s argument.

It is our opinion that the question of double jeopardy cannot depend solely on whether a defendant is tried once or twice for two crimes which arguably constitute the same offense. “The Fifth Amendment guarantee against double jeopardy prohibits both successive prosecution for the same offense as well as multiple punishment for the same offense.” Newton v. State, 280 Md. 260, 373 A.2d 262, 264 (1977). The record makes clear that defendant was punished for both the murder and the underlying felony. Although he received concurrent sentences for the two offenses, he has been punished twice. Id. at 265, 373 A.2d at 265; People v. Martin, 398 Mich. 303, 310, 247 N.W.2d 303, 306 (1976). Therefore, if these crimes constitute the same offense, defendant has been placed in jeopardy twice for one illegal act, despite the fact that he had but one trial. State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974).⁴ See also People v. Anderson, 62 Mich. App. 475, 233 N.W.2d 620 (1975).

The rule followed in this state is the required evidence test adopted by the United States Supreme Court and stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932):

“[WJhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

We have consistently followed this rule. State v. Grullon, 117 R.I. 682, 685-688, 371 A.2d 265, 267-68 (1977); State v. Boudreau, supra, at 503, 322 A.2d at 629; State ex rel. Scott v. Berberian, 109 R.I. 309, 316, 284 A.2d 590, 594 (1971).

The two offenses for which defendant was convicted were robbery, in violation of G.L. 1956 (1969 Reenactment) §11-39-1 and murder, in violation of G.L. 1956 (1969 Reenactment) §11-23-1.

The statutory crime of robbery incorporates all of the elements of the crime of robbery as it existed at common law. These elements are the felonious taking of money or other property of any value from the person of another, or in his presence, against his will, by force or fear of force. State v. Domanski, 57 R.I. 500, 190 A. 854 (1937).

Murder is statutorily defined in §11-23-1 as “[t]he unlawful killing of a human being with malice aforethought.” Murder in the first degree is:

“[Mjurder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious and premed-iated killing, or committed in the perpetration of, or attempt to perpetrate any arson, rape, burglary or robbery, or while resisting arrest by, or under arrest of, any state trooper or policeman in the performance of his duty; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed * * *.”

As the trial justice charged, the elements of the murder conviction obtained against defendant were the unlawful killing of a human being while in the commission of the felony of robbery.⁵

The law is clear in cases of felony murder. In order to obtain a conviction, the state must prove all of the elements of the underlying felony, in addition to the other elements of murder, beyond a reasonable doubt. Newton v. State, supra at 268-69, 373 A.2d at 266-67. The only element which distinguishes these two offenses is the proof of the victim’s death.

“The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Therefore, as only one offense requires proof of a fact which the other does not, under the required evidence test the underlying felony and the murder merge.” Id. at 269, 373 A.2d at 267.

The Newton decision is quite similar to the case at bar and provides a most insightful discussion on the issue of double jeopardy. The defendant Newton was convicted of felony murder and attempted robbery, which provided the underlying felony for the murder conviction. Newton was found guilty of both charges at one trial and was given concurrent sentences of life imprisonment on the murder conviction and 20 years for attempted robbery. Newton appealed, and the Maryland Court of Appeals held that the separate convictions and sentences for the two offenses constituted double punishment for the same offense in violation of the double jeopardy clause of the fifth amendment.

The one factor which distinguishes Newton from the case at bar is the Maryland Criminal Code, which separates the various methods by which a first-degree murder conviction can be obtained into different statutory sections. Md. Ann. Code, art. 27, §§407-410. In this state, murder in the first degree is embodied in toto in §11-23-1.

The difference gives rise to the state’s contention that the present case does not fall within the parameters of the required evidence test as outlined by this court. The state argues that it need not prove the elements of a felony under §11-23-1 but may show, inter alia, the more common element of premeditated deliberation. Therefore, it argues, there are separate elements in the crimes of robbery and first-degree murder which are not included in the other offense.

We cannot accept the proposition that an individual’s double jeopardy protection hinges on a legislative decision to codify the crime of first-degree murder either into one or several statutory sections. To do so would be, in effect, to allow a crucial constitutional protection to rest on legislative whim.

We note that the Supreme Court decision in Harris v. Oklahoma, supra, upon which defendant primarily rests his argument, was predicated on a statutory scheme such as our own, wherein the several acts which constitute murder in the first degree were embodied in one statute. See Okla. Stat. Ann., tit. 21, §701 (West).⁶

The case of People v. Anderson, supra, is also on point. In Anderson, the defendant was found guilty of both first-degree murder and armed robbery. The murder occurred in the course of the robbery, but whether the jury reached its verdict on a felony murder theory or found premeditated deliberation was unclear. Because of the inability to say that the verdict was not reached on a felony murder theory, the court held that the double jeopardy clause had been violated and ordered the armed robbery conviction dismissed. In construing the Michigan first-degree murder statute, Mich Stat. Ann. §28.548, which is similar to our own, the court stated:

“[I]f the jury’s first-degree murder conviction was based on a finding that the killing took place during the perpetration of the armed robbery, then the armed robbery constitutes a necessary element of first-degree (felony) murder. As a necessary element of first-degree murder, armed robbery would then become an included offense in the greater charge.” 62 Mich. App. at 482, 233 N.W.2d at 623-24.

We therefore hold that defendant may not be convicted of both murder in the first degree under a felony murder theory and the underlying felony of robbery. Upon retrial, if defendant is convicted on the murder count under a felony murder theory, he may not be separately convicted and punished for the underlying robbery.⁷ If, however, he is convicted of murder under another theory provided in §11-23-1, or is acquitted of first-degree murder, he may be convicted of the robbery if the evidence presented so warrants.

Because of the decision we reach on the issues discussed, we do not reach the other assignments of error brought by defendant.

The defendant’s appeal is sustained, the judgments of conviction are vacated, and the case is remanded to the Superior Court for a new trial.

Mr. Justice Paolino participated in the decision but retired prior to its announcement.

1 The indictment initially contained six counts. One count was severed and passed at the beginning of trial. The remaining two counts were merged and passed at the close of the state’s case.

2 At the suppression hearing on defendant’s motion to suppress the shotgun and the evidence related to its discovery, there was some discrepancy in the testimony of the three patrolmen as to their seating arrangements in the wagon. Gleckman and Williams both testified that McKenna drove the vehicle. Gleckman sat with him in the front seat, and Williams was in the rear of the vehicle with defendant. McKenna, however, testified that he was sitting in the front seat with Williams, who was driving, while Gleckman was in the back with defendant.

3 The relevant portion of the trial justice’s instruction on murder was presented as follows:

“Finally, the charge of murder. Murder is: One, an unlawful killing; Two, of a human being; Three, with malice aforethought, but our law provides an alternative to that third one in this situation. Our law provides that any murder committed during the commission of certain crimes — one of them being a robbery — is murder in the first degree. We refer to that sometimes as felony murder. The elements then in this case would be the unlawful killing of a human being while in the commission of a felony, one of the listed felonies, which is robbery.”

4 In State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974), we found a violation of the double jeopardy clause when a defendant was convicted of both assault with a dangerous weapon and the commission of a crime of violence while armed with a pistol. Both convictions occurred at one criminal proceeding.

5 See note 3, supra. Although we have no doubt that defendant was convicted of murder under a felony murder theory, we need only be unable to say with certainty that the jury did not find defendant guilty of murder under that theory to reach the result we do today. See People v. Anderson, 62 Mich. App. 475, 482, 233 N.W.2d 620, 623-24 (1975).

6 This statute has since been repealed and replaced by Okla. Stat. Ann., tit. 21, §701.7 (West), which still retains both forms of murder in the first degree.

7 It is incumbent upon a trial justice to determine the basis for a jury’s verdict of guilty on a murder count when a felony murder theory has been advanced at trial. The trial justice should instruct the jury that it must indicate by its verdict whether it has found the defendant guilty under the felony murder theory or whether it has found that the murder was committed “by poison, lying in wait, or any other kind of wilful, deliberate, malicious and premeditated killing” as provided in §11-23-1. The trial justice must also instruct the jury that, regardless of its basis for finding the defendant guilty of murder in the first degree, it must also render a verdict on each of the other counts contained in the indictment. When the murder conviction is based upon a felony murder theory, the underlying felony must be merged into the murder. No conviction for the underlying felony may appear on the record, and no punishment may be imposed. See Frye v. State, 37 Md. App. 476, 378 A.2d 155, 157 (1977).