The petitioner, Nathaniel Paul McMillan, was tried by a jury in the Circuit Court for Prince George’s County for the murder of Herman Haiss, a former neighbor. His defense at trial was that his participation — knocking on the victim’s door, which allowed his two acquaintances to gain entrance — in the crimes with which he was charged, first-degree premeditated murder, first degree felony murder and second-degree murder,
We granted both the petition and the cross-petition. McMillan v. State,
I. Duress As Defense To Felony Murder
The victim, on November 16, 2005, was found dead in his home on Cree Drive, in Forest Heights, Maryland, by his daughter-in-law. He had been bludgeoned to death with a baseball bat, which was found next to his corpse. The house had been ransacked, and most of the numerous weapons, including a .357 caliber pistol, three modern rifles, three shotguns, and three muzzleloaders, that the victim, a hunter, kept stored in a home safe, were missing. The word “Crips” was spray painted on a wall near the victim’s body.
The petitioner was arrested about a month later, on December 16, 2005, in connection with the murder. Approximately 12 years earlier, he had been the victim’s neighbor, living with his aunt and uncle in the house next to the victim’s home. Thus, the petitioner knew the victim and his grandchildren and, during the two years he lived next door to him, had spent time in the victim’s home.
After he had been interrogated for seven hours and given the police detectives several conflicting stories about what happened on the evening of the murder, the petitioner was charged with, and subsequently tried for, the victim’s murder. The petitioner maintained throughout the interrogation that he did not go into the victim’s home; that he never threatened or attacked the victim; and that, other than knocking on the door, he did not participate in the robbery in any way. No DNA or fingerprint evidence connecting the petitioner to the crimes was recovered from the scene.
At some point during the interrogation, which was recorded, the petitioner professed to being afraid of his two acquaintances, “S.O.” and “Vel,” and what they would do to him if he did not do what they wanted him to do: facilitate their entry into the victim’s house by knocking on the door. The petitioner thus began to suggest, which became the basis of his contention at trial, that whatever he did was done under duress. The petitioner told one of the detectives that S.O. and Vel picked him up in a green SUV at his place of work and that he asked them to give him a ride home. When, shortly thereafter, he noticed that S.O. was not driving toward his home, but in the direction of Forest Heights, he said he protested, “I don’t live this way.” S.O.’s response was that they were all going to Forest Heights so that the petitioner could knock on the victim’s door. The petitioner then said that he told S.O. he didn’t want anything to do with a robbery, to which S.O. responded, “it’s GBA [guilt by association], you get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do?” Given that choice, the petitioner indicated that he acceded, telling them, “I’ll knock on the door.”
A portion of the interrogation, including a short colloquy between Detective Nelson and the petitioner, that was played for the jury, further addressed and supported the petitioner’s fear and the petitioner’s contention that his actions in connection with
“DET. NELSON: You felt pressure to do that [knock on Haiss’s door] for them [S.O. and Vel]. If you didn’t do it, you’d probably be dead right now, don’t you think?
“MCMILLAN: I probably be dead because they killing everybody.
“DET. NELSON: And that’s why you did it.”
Later in the interview, the petitioner said that he was “forced to go get the door open,” that he was “compelled” to open the door, and that if he refused, he would be killed. Still later, when recounting his interaction with S.O. and Vel the day after the murder, the petitioner recalled an event that confirmed his fear and the basis for his feeling coerced. He said that once S.O. and Vel had told him the details of how the victim ultimately was murdered, S.O. went into a back room of the petitioner’s home and loaded a .357 pistol with bullets. When S.O. re-emerged, the petitioner said that S.O. asked the petitioner whether the petitioner had told anyone what happened the night before. When the petitioner responded, “No,” S.O., he related, said, “Good, because I don’t want any harm to come to you.” This was, the petitioner argued at trial, “some evidence” of duress, sufficient to support a jury instruction.
There was, to be sure, evidence that contradicted the notion that the petitioner was coerced or acted under duress. Much of that evidence came from the same source as that upon which the petitioner relied: his own statement. When first arrested, the petitioner did not claim that he was forced to knock on the victim’s door or was, in any way, coerced. Indeed, the petitioner maintained that he was not involved in the crimes at all. He did say, however, that he had heard that his acquaintance, “S.O.,” was responsible.
The petitioner admitted, as well, that prior to the incident, 5.0. and Vel asked him for specific information about the victim, such as his age, his daily routine and schedule, whether he had an alarm system and weapons in the house, and whether he had family in the home. According to the petitioner, S.O. and Vel told him that they were going to knock on the victim’s door and “[fjuck him up once he opened the door.”
As indicated, the petitioner knocked on the door, and it was in response to that knock that S.O. and Vel gained entry to the victim’s home. The petitioner gave inconsistent statements as to what happened after that. He said variously that he left the house immediately after knocking on the door; that he left the house and sat in the SUV; or that, after waiting in the SUV, he went back to the house to tell S.O. and Vel to hurry. After the crimes had been committed, the petitioner reported that the three men drove back to a house to “play” with the stolen weapons, and that S.O. later drove the petitioner home.
In his statement, the petitioner said that, on the day after the murder, S.O. and
At trial, Thomas Gray, who lived across the street from the victim, testified for the State. He testified that, on November 15, 2005, he saw three or more young men in white t-shirts, whose faces he did not see, walking up and down Cree Street near a green SUV. Approximately 30 to 40 minutes later, he saw the men running down the street carrying bags. Gray did not, and could not, identify the young men.
Devonshire Majors, who was acquainted with the petitioner, also testified as a State witness. Her testimony tended to implicate the petitioner as a principal, and a voluntary one, in the crimes. She said that, around Thanksgiving of 2005, she heard the petitioner tell her boyfriend that he “got a move to go on with something.” She explained that a “move” refers to any type of crime, including robbery. Majors also testified that she overheard the petitioner say that the “move” was going to be against someone on his “old street,” Cree Drive. Majors said that, some time after she heard about the murder on television, McMillan told her boyfriend that he had to “roll out” and “can’t come around no more.”
Other State witnesses, Antonio Gooding and Victoria Wynn, contradicted the petitioner’s duress defense. Gooding testified that, around Thanksgiving of 2005, after the murder, the petitioner offered to sell him a weapon for $300 or $400. Wynn, S.O.’s girlfriend at the time of the murder, testified that she let S.O. drive her green SUV, that, around Thanksgiving of 2005, she saw the petitioner and S.O., in her house with guns, and that, at that time, the petitioner did not look scared or threatened.
The petitioner did not put on a case. His defense of duress was based on his statement and cross examination of the State’s witnesses. Believing the issue to be a jury question, that the record contained some evidence that would permit the jury to find that the actions he took in furtherance of the crimes committed by S.O. and Vel were coerced and, therefore, that he acted under duress, the petitioner requested that the trial judge instruct the jury on duress. He requested that the Pattern Instruction, Maryland Criminal Pattern Jury Instructions (“MPJI-CR”) 5.03
“DEFENSE COUNSEL: I am also ... requesting ... the duress instruction, because at the point when he realizes ... they brought him to the scene, then he realizes the man is home and they threaten him.
“THE COURT: My recollection is that the law is very clear that duress must be imminent.
“DEFENSE COUNSEL: Correct, Your Honor.
“THE COURT: — a threat of direct physical harm to the individual at that moment.
“DEFENSE COUNSEL: Correct. That’s absolutely correct.
“THE COURT: Not weeks later, or weeks before.
“DEFENSE COUNSEL: Correct.
“THE COURT: And I don’t think there was any evidence of, he was in immediate and impending danger of death or serious bodily harm if he did not participate in this crime.
“DEFENSE COUNSEL: Well, I would beg to differ on that. Even the Detective’s testimony, I mean—
“THE COURT: The Detective’s testimony ... was it was only after the fact were they threatening him not to tell.
“DEFENSE COUNSEL: No. No. His testimony was, he talked about, ‘You felt compelled to do it. You felt compelled.’ And then the Detective actually said, ‘You thought you would be dead if you didn’t.’
“THE COURT: Right.
“DEFENSE COUNSEL: That’s at the time of the event.
“THE COURT: Then he changed his story after that. I mean, that was just to get the Defendant to give a statement, and then the Defendant’s ultimate statement was different than that. But the bottom line is, in order for duress to occur, there has to be a situation in which someone is, in effect, holding a gun to his head at the time he commits the crime, and that didn’t happen. There is no evidence that that happened.
“DEFENSE COUNSEL: I agree, Your Honor, but—
“THE COURT: And the testimony, even taken in the light most favorable to the Defendant, is what it says here as the defense of duress is not established by proof that the Defendant had been threatened with violence at an earlier time. So the mere fact that he was threatened—
“DEFENSE COUNSEL: I’m not arguing harm after, or harm before. I’m saying that the Detective’s statement was, ‘While you’—
“THE COURT: Don’t tell me about the Detective’s statement, tell me what the Defendant said.
“DEFENSE COUNSEL: The Defendant acknowledged that statement to be true. He said “Yeah, they’re killing everybody.’
“THE COURT: And that was midway through what he said, and that—
“DEFENSE COUNSEL: Well, I think that’s a factual— that’s a fact. Those are the facts in evidence that I can argue to the jury as far as his intent. Plus, it goes even further, because, I mean, we have an aiding and abetting which requires,one of the elements is willful participation—
“THE COURT: Okay. So, you’ve got the aiding and abetting,4 so we’ve already covered that. As far as I’m concerned, aiding and abetting is already covered. Whether or not the jury finds that he was a voluntary participant. If they find he wasn’t a voluntary participant, then they can say that they found that he did not aid and abet the murder of Mr. Haiss. And that is where it will go. But—
“DEFENSE COUNSEL: That’s why I’m asking.
“THE COURT: and [the jury] may also feel that he was not a willing participant in the robbery. And if they do, then they will find him not to be guilty of the offense----I’m not going to give them a separate instruction on duress.
“DEFENSE COUNSEL: Just so the record is clear—
“THE COURT: You may take exception to that.
“DEFENSE COUNSEL: — because of the underlying felony of robbery, duress would be usable in that. Had Mr. Haiss not died, the duress would be available under underlying robbery.
“THE COURT: Under your theory. And I’ve just said, no, I feel that it’s entirely covered by the aiding and abetting instruction, which covers the voluntariness issue. I do not find that this case has any evidence that rises to the point of duress as an element, and I’m not going to instruct the jury to that extent. You may note your exception at this time. I will not give the duress instruction.”
Urging affirmance of the judgment of the Circuit Court, the State, as a threshold matter, argues in this Court, as it did in the Court of Special Appeals, that a duress defense does not apply in this case, since the petitioner was charged with and tried for murder. Accordingly, it submits, an instruction on the defense was neither viable nor available. The State relies on Frasher v. State,
Neither this Court nor the Court of Special Appeals has addressed directly the question that this case presents, whether duress is a defense to felony murder. It is now well-settled, however, that the defense of duress is a viable defense in Maryland, but that it does not apply in the case of murder. Wentworth,
“In order to constitute a defense, the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time. The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury. 1 Wharton’s Criminal Law, supra, § 123, pp. 262-64.... However, there appears to be accord that the defense cannot be claimed if the compulsion arose by the defendant’s own fault, negligence or misconduct[5 ] 1 Wharton’s Criminal Law, supra, § 123, p.264; 16 C. J., Criminal Law, § 59, p. 91; 22 C.J.S. Criminal Law, § 44, p. 136; Ross v. State, 169 Ind. 388 ,82 N.E. 781 (1907); State v. Clay,220 Iowa 1191 ,264 N.W. 77 (Iowa 1935); State v. Patterson,117 Or. 153 ,241 P. 977 (1925); People v. Merhige,212 Mich. 601 ,180 N.W. 418 (1920).”
Id.,
The issue of the applicability of the duress defense to murder was squarely presented in Wentworth,
“There is one critical limitation upon the defense of duress, which leaves the appellant here utterly bereft in terms of possible total exculpation as to the murder. Whatever the psychological reality may be, the law, as a matter of social policy, has declared that the defense of duress may not extend to the taking of an innocent person’s life.”
Id.,
“As Sir William Blackstone put it in 4 Commentaries, an accused ‘ought rather to die himself than escape by the murder of an innocent.’ Perkins, [Rollin M. Perkins, Criminal Law (2d ed., 1969) ], provides a modern rationale for the refusal of the common law to recognize such a defense, at 952: ‘The refusal of the common law to excuse one who has intentionally taken an innocent life to save his own is due, not to any notion that the rule of law will serve as an effective deterrent in such an emergency, but to an unwillingness to place the stamp of approval upon such conduct.’
Whatever the rationale, the law is now clear. LaFave and Scott, [Wayne R. LaFave et al., Criminal Law, 2d ed., 1986] points out, at 376: ‘It has been held that duress cannot justify murder — or, as it is better expressed (since duress may justify the underlying felony and so justify what would otherwise be a felony murder), duress cannot justify the intentional killing of (or attempt to kill) an innocent third person.’ ”
Id.,
The State relies on the Wentworth holding, its clear statement that duress does not totally exculpate as to the crime of murder, and the recognition that, “as a matter of social policy ... the defense of duress may not extend to the taking of an innocent person’s life.”
Murder is a common law crime in Maryland, separated into first and second degrees for the purpose of punishment. Clemons v. State,
The defense of duress is applicable to the crime of robbery. Frasher, 8 Md.App. at 450,
“The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.”
LaFave & Scott, Criminal Law 374-75 (1972).
To that point, the Court of Special Appeals observed: “At common law, the rationale for barring the duress defense in a prosecution for murder was that a person ‘ought rather to die himself than escape by the murder of an innocent.’ 5 BLACKSTONE’S COMMENTARIES 30. This rationale disappears when the sole ground for the murder charge is that the defendant participated in an underlying felony, under duress, and the defendant’sco-felons unexpectedly killed the victim, thereby elevating the charge to felony-murder. We conclude that if duress would serve as a defense to the underlying felony, it is also available as a defense to a felony-murder arising from that felony, assuming the criteria for such a defense are otherwise satisfied.”
McMillan,
The intermediate appellate court has pointed out that a majority of jurisdictions that have addressed this issue have determined that duress is available as a defense. See id.,
Disallowing the duress defense in the case of felony murder, absent a statutory imperative, would be unwarranted, in our view: a defendant could have a complete defense to the felony that forms the basis of a murder charge and be exonerated of that charge, yet, because unable to present it as a defense to the murder charge, still be convicted of felony murder. Although McMillan was not charged separately with robbery, in this case, as in other cases, the State’s argument would create unacceptable results.
II. Application of Duress Defense/Jury Instruction
Maryland Rule 4-325 is the Rule on instructions to the jury. Section (c) of that Rule addresses when jury instructions are to be given. It provides:
“(c) How given. The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.”
We said in Thompson v. State,
The petitioner requested the trial judge to instruct the jury as to the duress defense pursuant to MPJI-CR 5.03.
“present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused to escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time”
Frasher,
Whether, in a given case, the evidence supports the giving of a requested instruction is a determination subject to a relatively low threshold that must be met. The defendant must show “some evidence” and then the burden shifts to the State to show, beyond a reasonable doubt, that the defense does not apply. Dykes v. State,
The trial judge reasoned, and the Court of Special Appeals agreed, that the petitioner’s statements to Detective Nelson did not establish that he was in impending or immediate danger because “in order for duress to occur, there has to be a situation in which someone is, in effect, holding a gun to his head at the time that he commits the crime, and that didn’t happen.” McMillan,
The State argues that the petitioner aided and abetted the robbery and the murder. We do not agree. The petitioner’s actions are not analogous to those of a “getaway” driver, claiming to be acting under duress, but who waits for the criminals to get back in the car and then drives them from the crime scene, in the manner urged by the State. According to the petitioner’s statement, and taking it in the light most favorable to him, the petitioner did not aid any aspect of the crimes after his part, knocking on the door, was complete.
As we shall discuss, infra, affirmative obstructionist actions, such as attempting to thwart the crime or contacting the police, are not elements of the defense and are not required to be shown. The petitioner, accordingly, submitted “some evidence” during his trial for each element of the duress defense that the jury could have considered, thus, viewed in a light most favorable to the petitioner, justifying the requested duress jury instruction.
The petitioner argues that his requested duress jury instruction was not fairly covered by the “voluntariness” aspect of the aiding and abetting instruction. The Court of Special Appeals agreed that these jury instructions are not interchangeable, McMillan,
The State relies on Frasher for the proposition that, in order to invoke duress as a defense, McMillan must have been under duress during the entire time that the crime unfolded. Other state appellate courts agree that the duress must be continuous throughout the commission of the crime. See e.g. State v. Caine,
“An act which, if willingly, would make a person a principal in the second degree, or an aider and abettor, in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because, during the whole of the time it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him or to do him serious bodily harm, if he refuses; but threats of future injury, or the command of any one not the husband of the offender, do not excuse any offense.”
Relying on decisions from our sister states, Caine,
“The law properly recognizes that one is justified in aiding a robbery if he is forced by threats to do so to save his life; he should not lose the defense because his threateners unexpectedly kill someone in the course of the robbery and thus convert a mere robbery into a murder.”
The petitioner argues that his participation in the robbery, by knocking on the victim’s door, was under duress, and, therefore, the duress inquiry should be restricted to his actions then, rather than over the course of the time that the criminal actions of S.O. and Vel continued. We agree with the petitioner.
The State also argued, and the Court of Special Appeals agreed, that the duress doctrine does not apply if a defendant has a reasonable opportunity to escape, surrender to the authorities, or take steps to stop the crime.
The defense of duress is distinct from both the aider and abetter withdrawal requirement, and the necessity defense. We agree with the petitioner that our previous explications of the elements of necessity, and the Court of Special Appeals’s past application of the duress defense, have not incorporated any requirement that a defendant have sought the aid of police or attempted to thwart the crime he/she was compelled to assist. Necessity is similar to duress, except that the compulsion
The petitioner submitted “some evidence” that he believed reasonably that he was in danger of immediate or impending death or bodily harm if he did not participate in the robbery. Although initially he told the detectives that he was not pressured by anyone to knock on the victim’s door, his story evolved over the course of the interrogation. Later in the interrogation, he told them of S.O.’s threatening question, “you get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do?” Detective Nelson asked the petitioner, who agreed, “If you didn’t do it, you’d probably be dead right now, don’t you think?” The petitioner added, “I probably be dead because they killing everybody.” Further, the petitioner told Nelson that he was “forced to go get the door open,” that he was “compelled” to open the door, and that if he refused, he would be killed. Together, these statements, if believed, constitute the “some evidence” of the petitioner’s state of mind, in the car and leading up to, and including, his participation in the robbery, that the record must reflect to justify a duress instruction.
The petitioner produced “some evidence” that he had no reasonable opportunity to escape before knocking on the victim’s door. He told the detectives that S.O. and Vel arrived at his work and told him that they would give him a ride home. Relying on this offer, the petitioner got in the car driven by S.O. and noted expressly his surprise when he realized that S.O. was driving to Forest Heights, rather than in the direction of the petitioner’s home. His protests elicited S.O.’s threatening question discussed, supra. From this, a jury reasonably could have found that duress began. We do not require that the petitioner make a “mad dash” to escape in the space and time between when the SUV
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE’S COUNTY.
Notes
. Although, having gained entry on the basis of the petitioner's knocking on the door, the two men, whom the petitioner argued coerced him to do so, robbed and murdered the victim, the petitioner was not charged with robbery.
. S.O. was later identified as Sean Hill.
. Maryland Criminal Pattern Jury Instructions, MPJI-CR 5.03 provides:
"You have heard evidence that the defendant acted under the influence of an overpowering force. This is called duress. Duress will excuse an act that would otherwise be criminal. You are required to find the defendant not guilty if all of the following four factors are present:
"(1) the defendant actually believed that the duress placed [him] [her] in immediate and impending danger of death or serious bodily harm;
"(2) the defendant’s belief was reasonable;
"(3) the defendant had no reasonable opportunity for escape; and
"(4) the defendant committed the crime because of the duress.
"The defense of duress is not established by proof that the defendant had been threatened with violence at an earlier time. [He] [she] must have been under a present threat at the time of the actual commission of the crime charged. "In order to convict the defendant, the State must prove that the defendant did not act under duress. This means that you are required to find the defendant not guilty unless the State has persuaded you, beyond a reasonable doubt, that at least one of the four factors of duress was absent."
As we shall see, infra, this instruction is consistent with the law as enunciated in Frasher and Wentworth.
. The aiding and abetting instruction that was given without objection, was:
“Now the Defendant is charged with the crime of murder. A person who aids and abets in the commission of a crime is as guilty as the actual perpetrator, even though he did not personally commit each of the acts that constitute the crime. A person aids and abets the commission of a crime by knowingly associating with the criminal venture with the intent to help commit the crime, being present when the crime is committed, and seeking, by some act, to make the crime succeed.
"In order to prove that the Defendant aided and abetted the commission of a crime, the State must prove: That the Defendant was present when the crime was committed; and that the Defendant willfully participated with the intent to make the crime succeed.
“Willful participation means voluntary and intentional participation in the criminal act.” (Emphasis added).
. That was the issue in Williams v. State,
"Because Williams’s prior conduct contributed mightily to the predicament in which he later found himself, the trial court did not err in concluding that the defense of duress was inapplicable to the instant case. Here, the evidence reveals that Williams voluntarily became involved with the Eubanks' drug organization. It is unrefuted that Williams borrowed money from Rodney Eubanks. Because of his inability to repay promptly, Williams allegedly was forced to make the first drug run up to New York. He also participated in another drug run. In other words, the evidence does not suggest that he was forced to make these runs, he did this of his own volition to help pay off his debt. By becoming involved with this drug ring, Williams through his own recklessness made others aware of his connection with Eubanks, including his abductors. Williams was readily identifiable to those in the organization, including his abductors, and the abductors acted accordingly. This was a situation that would not have occurred but for Williams's association with the drug organization. Considering these facts and the applicable law, we conclude that Williams’s assertion that the defense of duress applies is unavailing.”
Id.,
. § 2-201. Murder in the first degree.
(a) In general.—A murder is in the first degree if it is:
(1) a deliberate, premeditated, and willful killing;
(2) committed by lying in wait;
(3) committed by poison; or
(4) committed in perpetration of or an attempt to perpetrate: ...
(ix) robbery under § 3-402 or § 3-403 of this article; ....
Maryland Code (2002, 2011 Supp.) Criminal Law Article, § 2-201. (This code section was revised by Chapter 186 of the Laws of 2009; however, the sections relating to first-degree felony murder remained unaltered from those in place at the time of the alleged crime here.)
. The Maryland Pattern Criminal Jury Instructions require a defendant to meet four elements to obtain a duress instruction:
1) the defendant actually believed that the duress placed [him] [her] in immediate and impending danger of death or serious bodily harm;
2) the defendant’s belief was reasonable; 3) the defendant had no reasonable opportunity for escape; and 4) the defendant committed the crime because of the duress.
MPJI-CR 5:03.
. The Court of Special Appeals, agreeing with the trial judge, held that, disregarding inconsistencies in the petitioner’s statements, the petitioner did not make out a prima facie case for duress, McMillan,
. The Maryland Criminal Pattern Jury Instructions for aiding and abetting, MPJI—CR 6.01, states:
"The defendant is charged with the crime of (crime). A person who aids and abets in the commission of a crime is as guilty as the actual perpetrator, even though [he] [she] did not personally commit each of the acts that constitute the crime. A person aids and abets the commission of a crime by knowingly associating with the criminal venture with the intent to help commit the crime, being present when the crime is committed, and seeking, by some act, to make the crime succeed.
"In order to prove that the defendant aided and abetted the commission of a crime, the State must prove:
"(1) that the defendant was present when the crime was committed; and
"(2) that the defendant willfully participated with the intent to make the crime succeed...."
. The Court of Special Appeals said that "[by McMillans’s] own account, the crime was ongoing, and [McMillan] continued to aid and abet it by failing to take any step to stop it.” McMillan v. State,