*1 part of appellant child, her previous- Christina. As noted, ly the trial judge based his decision to terminate the appellant’s parental rights regard to Edwin on that fact such, As alone. in admitting error the documents at issue, all of which reports contained concerning appellant’s abuse, motivation for the cannot be deemed to have been prejudicial. Christina, actual abuse of not appellant’s motivation for committing abuse, was what Judge Welch focused on in rendering his decision. AFFIRMED;
JUDGMENT COSTS TO BE PAID BY APPELLANT.
752A.2d 653 Antoine Markee MITCHELL Maryland.
STATE of 690, Sept. Term, No. 1999. Special Appeals Maryland.
Court of
June *3 (Jennifer Public Lyman, Assigned P. De- Douglas Hudson fender, brief), DC, appellant. for Washington, on the (J. Curran, Jr.,
Mary Ince, Atty. Joseph Gen. Ann Asst. Johnson, Baltimore, Atty. for Gen., State’s Atty. and Jack Marlboro, brief), on the George’s County, Upper Prince appellee. C.J., MURPHY,
Argued before and HOLLANDER ADKINS, JJ.
HOLLANDER, Judge. Mitchell, with nu- appellant, charged Antoine Markee shooting with the assault and merous offenses connection *4 for Following jury a trial in the Circuit Court Eddy Arias.1 George’s County, attempted Prince was convicted appellant assault, murder, a degree handgun use of degree second first to felony, in the of a commit second conspiracy commission murder, to commit first assault. degree degree document, charging transcript the victim's name In the trial and the brief, spelled "Eddy.” appellant’s spelled is In the name "Eddie.” charging rely spelling We on document. shall case, At the close of the State’s the circuit court granted for appellant’s judgment motion of acquittal as to charges murder, of attempted degree conspiracy to commit first and possession of a by firearm a convicted felon. jury subsequently acquitted appellant of second Thereafter, degree assault. appellant was a sentenced to total forty-six years incarceration. appeal, On appellant presents six issues for our consider- ation, which we have condensed and restated as follows:
I. Did court err in refusing grant appellant’s
motion for mistrial after a witness ap- revealed that pellant was incarcerated?
II. Is murder a
crime under Maryland law and did the court err in allowing jury charge? consider that III. Was the evidence sufficient support appellant’s
convictions? follow,
For the reasons that we shall affirm. FACTUAL BACKGROUND2 Sometime between noon and 1:15 p.m. on September 1997, Eddy Arias shot from behind two wearing men stocking masks. The bullet entered the victim’s right hip area, just his buttocks, above through exited the other side. The attack occurred the interior stairwell apartment building at resided, which Mr. Arias located at Barnsley Court in Laurel. trial,
At Mr. Arias prior testified that to the incident he had gone to the to get store Upon return, food his wife. his guys “two with gun went around [his] neck. And tried they to attack with the gun.” [him] Mr. Arias stated that he 2. Ten witnesses testified for the State. we Because must consider light evidence in the most to the prevailing party, favorable State as the our factual essentially discussion summary constitutes of the State’s case. *5 pushed attacker] and up [the head attacker’s] [his “pulled to the wall.” [him] an African-Ameri- Arias, the shooter was to Mr.
According tall, gun. a “black” male, inch who used feet one about six can male, whose African-American was an other assailant The Mr. eight inches tall. five feet was about height estimated carrying appeared was what the shorter man Arias stated State gun. .45 The caliber an “aluminum-colored” to be the people two being the shorter appellant accused colloquy on direct following attack. The involved in the is relevant: examination one, the shorter who was individual
[PROSECUTOR:] on? doing going this was what, if he while anything, was my me neck guy by tall grabbed When the ARIAS:] [MR. like going was fight guy him. And other trying I was for looking me. (indicating) guy The other what?
THE COURT: know, pointing the trying He was to—You ARIAS]: [MR. (indicating). know, gun me with the looking for gun. You was to break free and that he able explained Mr. Arias “the apartment building, his but up to run the stairs of began feet Mr. away. him from five approximately tall one” shot floor, his next where to ascend the stairs managed Arias located, knock “all the began he on and apartment building a short The attackers remained doors.” left, his they apartment. After Arias returned to time. Mr. wife, Arias, the testified that her husband Michelle vietim’s shortly messages pager on his before three received time, apartment Arias left and re- shooting. Each Mr. third read pages soon thereafter. The second and turned Ms. Arias stated Upon page, his return from the third “911.” hallway apart- she commotion outside the heard a ment, single After Mr. Arias screamed gunshot. followed name, him then opened Arias the door to let in. She her Ms. African-American and saw two went the kitchen window away building, wearing jeans from blue walking men Arias eyebrows. to their Ms. nylon stockings pulled down indicated that one of the men light had a complexion, was approximately tall, eight five feet inches like a “had darkish, greenish tee-shirt.” She described man the other having tall, a darker complexion, about six feet wearing a dark *6 blue holding Arias, tee-shirt and a gun. According to Ms. the red, got two men into a four-door Nissan Sentra and “sped away quickly.”
Although Ms. Arias had a clear view the men from about away, 25 feet them, and Mr. Arias had direct contact with neither the victim nor his wife was to identify able at appellant trial as one of the two men who had been involved the Moreover, shooting. Mr. Arias testified that he had never seen either of his prior attackers shooting. the
At 1:15 on p.m. about the day of the shooting, Prince George’s County police officers to a responded call that shots had been fired at Barnsley Court. When Corporal Dove Robinson entered the Arias’s apartment, she saw that Mr. Arias had a gunshot suffered hip. wound the There was blood on the stairway leading to the victim’s apartment a and hole the wall. A shell spent stairs, was casing found on the but the bullet was never recovered. Corporal Steven Gaughan testified that he was in his patrol n
car approximately half a mile away Barnsley from 8805 Court when he heard the police broadcast about the shooting. The dispatcher small, red, a indicated that occupied four-door car by an African-American male jump a wearing suit had been leaving observed the scene. Less than a minute after the broadcast, two African-American a fitting men vehicle the dispatcher’s description passed Gaughan going opposite the One of direction. the men was a wearing “top.” blue U-turn, Gaughan made a lights activated his emergency and siren, backup. suspect and radioed for The vehicle off took high chase, speed. Although Gaughan gave he lost the vehicle in an apartment complex after it onto turned Morris Drive in Gaughan later, Laurel. testified when a matching vehicle description was it, found and he had a inspect chance to he thought it was like “exactly the vehicle chasing.” [he] had been managed employed by company Blair Paul was Blair At 1:15 and several complex. p.m., about apartment out of the rental moving complex’s men safe other were noise, a loud like tires Drive when he “heard office on Morris speed Toyota and a red Nissan or squealing,” turned see from sharp right made a turn past quickly him. vehicle Blair less than fifteen Drive As was Morris onto Parkside. it he able to passed, from vehicle when see away feet car, African-American, people were in the both that there two male. Blair also made note the driver as and he identified later, minutes Blair saw a number. Several Maryland tag police complex car George’s County enter Prince turning onto straight Morris Drive without continue down Parkside. storage safe Blair the other men moved the
While shed, parked front Blair saw the same vehicle time, At that located at Sharon Court. apartment building *7 alignment out of the unoccupied parked the car was and into As Detective William Gross drove the parking spaces. him “that Blair down. Blair told Gross the complex, flagged sitting for is on Sharon.” He you may looking car be that officer to the vehicle. then directed the backing out of its the vehicle was approached, When Gross officer, Corporal Howard parking space. Gross another made Calvert, behind vehicle and a positioned themselves the by two stop.”3 occupied traffic The vehicle was “felony women, Pitts, Debra who Patricia Wills and African-American were of the car. Calvert noted the vehicle’s ordered out hood hot. felt felony stop as
3. Calvert described a traffic follows: vehicle, back-up, occupants pull get and we call the behind the [W]e vehicle, pull we one at a A lot of times of the vehicle out of the time. actually occupant at guns.... one out a What we’ll do is call our vehicle, Usually Get ou1 we’ll call the driver out.... time. wearing clothing, they baggy us. are back towards If come waistband, that, get something where we can't a visual their like around, up and make sure put them their hands turn we ask call weapons person. on their And we them and secure there is no back towards us. them nylon stockings Gross found two on the rear seat of the stockings vehicle. These same were shown to Arias Ms. trial, and she said they resembled ones by worn area, assailants. sweep When Calvert conducted a he magazine found .45 from a gun caliber containing five bullets on ground near the to 14 door Sharon Court. The magazine plain was in any signs view and did not show having been for very long. there friend, suspect Pitts,
Wills owned the vehicle. She and her way on their were the store when Gross and Calvert them explained ordered to exit the vehicle. Wills that she and Ellis Gregory had driven to Sharon help Court to Pitts out of apartment. move her Wills described Ellis as “about six tall. complected. feet Dark Real slim build.” According Wills, car, when she and initially got Ellis out of her Ellis keys her for asked so that he togo could the store to buy gave beer. Wills then the keys Ellis and went inside. She testified that indicated, she never saw Ellis again.4 Wills however, that she did not appellant. know that,
Pitts shortly arrived, testified after Wills she looked out of an apartment window and Ellis saw with appellant. She recalled appellant was wearing white shirt. polo Thereafter, Wills, Pitts, and Pitts’s sister left to rent a U-Haul moving truck.5 they truck, When returned with the Wills and Pitts decided to take car to get Wills’s food. attempt Their was interrupted felony aforementioned stop. traffic trial, pressed At identify State Wills to who was at 14 day Sharon Court on the of the shooting. Wills testified that boyfriend, “Tony,” supposed Pitts’s help, but that he *8 never showed She up. claimed that “Tony” she had never met and not mention, however, did know who he was. Wills did that Lyle.” she “knew a Tony Elaborating upon not explanation It is clear from Wills’s keys of events when or how the were returned to Wills. moving 5. Blair testified a parked that U-Haul been truck had front days. Sharon Court for several “That is explained: [Pitts’s] one Lyle, of Mr. Wills identity After Eastern Shore.” np [the] He’s locked boyfriends. as a to treat Wills approval court’s successfully seeking the witness, following colloquy ensued: hostile Wills, that the fourth it true on Ms. isn’t [PROSECUTOR:] day of you provided police on statement page [the know and Tony Greg [Ellis] shooting] indicate that you Is you. that correct? through other each Yes, I did. [WILLS:] moments testified few you So when
[PROSECUTOR:] statement, that even I this don’t you you before showed ago, is, Isn’t correct? that is not true. that Tony who know I know. don’t [WILLS:] Tony is? You had no idea who
[PROSECUTOR:] No, I don’t. [WILLS:] know you Tony Greg How do know
[PROSECUTOR:] other? each (No response.) audible
[WILLS:] that why you answered you Do know [PROSECUTOR:] way September that on 5? question no idea. ago. I have years That was almost two [WILLS:] Wills, that, “a in addition to her sister and Pitts testified of mine named Greg and a friend friend of named [Pitts’s] Further, Pitts help Pitts move. Tony” were supposed after speak appellant she did not although testified him speak prior on she did shooting September about questioned 1997. The State Pitts September conversation, follows: you did discuss? exactly What
[PROSECUTOR:] him I I him—It a discussion. asked asked wasn’t [PITTS:] not it. he did answer question my him what happened when I asked did he know And my cous- happened know cousin’s car? Does he what car? in’s *9 said,
And he why? I said because —I you said: “Do know what happened my said, cousin’s car?” I because the Police trying to us, charge was trying charge us with something.
And he said: What did they say?
And when I was getting ready to said, answer he Forget it. And he said he get would ready to go to New York.
And that was it. It wasn’t anything else. Further questioning elicited the following:
[PROSECUTOR:] Did he indicate who he was going New York with?
[PITTS:] With Greg. Greg [PROSECUTOR:] Ellis? The same person he was with earlier? just
[PITTS:] He Greg. said I say can’t if it Greg Ellis.... Larry
Detective Best of the Washington, police D.C. depart- ment was the State’s final witness. Best was called to de- scribe the physical characteristics of both Ellis appellant. and He testified that Ellis is six feet one inch tall weighs pounds, while Mitchell is five feet seven inches tall weighs pounds. parties subsequently stipulated that latent fingerprint examination of suspect vehicle revealed Ellis’s fingerprint on the driver’s window. Appellant’s prints were not recov- ered, however.
We shall include additional facts in our discussion.
DISCUSSION I.
Appellant complains that the court erred refusing grant his mistrial, motion for which was generated in response to the State’s direct examination of Pitts. After eliciting testimony that Pitts had seen “Tony” outside her apartment on the day of the shooting, the following exchange occurred: about out- talking are Tony we And
[PROSECUTOR:] without in the white shirt sitting here gentleman is the side about? talking are Tony we jacket on. Is Yes. [PITTS:] talking Tony you were was the This
[PROSECUTOR:] *10 helping you? out who was about me. help to Well, begin [sic] he hadn’t
[PITTS:] sorry? I’m [PROSECUTOR:] gone hadn’t help me. We begin [sic] He hadn’t
[PITTS:] yet. the U-IIaul get Markee Tony this Okay. But [PROSECUTOR:] —Antoine here? talking about you are person is the Mitchell—this Tony we This is the talking about? Tony we are This is about? talking are at the time. Tony him as [sic] I knowed
[PITTS:] person that ma’am. I understand [PROSECUTOR:] who is seated here person is that the Tony, describe you today? Yes.
[PITTS:] Now, help you. there to Tony this was [PROSECUTOR:] was there? Greg Tony was when Where split I him for a second. just mean seen He was—I [PITTS:] I I know. didn’t I where he went. don’t And don’t know see them more. here, man the De- Okay. you And
[PROSECUTOR:] —this fendant, September Mitchell—from the time Mr. that? year him for a after seen about you hadn’t maybe I it think was Maybe year. Yeah. it was
[PITTS:] didn’t see probably It was. Because I going years. on two his, him me that I and he told until ran into friend again is when I [, i.e., locked And that appellant,] up. he moved. Honor,
[APPELLANT’S Your objection. COUNSEL]: THE COURT: Sustained. May
[APPELLANT’S approach, COUNSEL]: we Your Honor? added.)
(Emphasis bench, At the the following discussion ensued: Honor, [APPELLANT’S Your I going COUNSEL]: am have move for a mistrial. It’s obvious that jury has heard that this Defendant was locked up. And the fact that believe, know, he was locked Iup, you has so prejudicially jury tainted the that I don’t think that my client aget could fair trial now.
I’m not suggesting that the State’s Attorney knew she that, was about to say but the fact that she did. Well,
THE COURT: you do want to jury excuse the while argue we this? (Nodded affirmatively.)
[PROSECUTOR]: *11 jury The jury Thereafter, returned room at p.m. 3:52 appellant’s argued: counsel Honor,
Your I’ll be moving for a mistrial. I believe this matter, jury now that the has heard that Mr. Mitchell was locked up, we believe that jury is now so prejudicially they torn that will be unable to decide the facts of this case evidence, based on the other or any other evidence that may come in before their consideration.
Obviously the Court is well that aware we take great pains to keep such matters from jury for that very reason. It is not relevant. But now that they’ve heard that he’s Iup, just locked think that it is impossible for him to aget fair trial from this on. point
The State contended that a curative instruction would be sufficient to remove taint by caused Pitts’s testimony. Appellant disagreed. ultimately The court took a recess to proceed. consider how best to
At p.m., 4:15 the court returned to the bench and informed counsel that it going deny “was the mistrial give further prompted court’s decision The instruction.” curative provide decision to discussion, with the court’s which ended instruction: following curative was incarcer- the Defendant testimony that You have heard his bond. not able to make is because he was This ated. has no to make bond was not able The fact that he these guilty or not guilty on whether he bearing you. that can be considered It is not a matter charges. by you. to be discussed It is not a matter over one slightly 4:55 p.m., was delivered at The instruction testimony. Pitts’s from the time of hour testimony particularly that Pitts’s contends Appellant link- witness pivotal Pitts was “the State’s damaging because mind, that argues this in he to the case.” With ing [appellant] effectively deprived up” he was “locked Pitts’s statement that court’s further avers that the Appellant him of a fair trial. instruction, giving coupled delay with the curative instruction, of the court to cure inability” to the “speak remedial the trial court’s harm. The State counters dissipate any sufficient to harm. efforts were extraordinary considered an grant “The of a mistrial is ‘if to serve the granted only necessary be remedy and should ” State, 528, 555, 355 Md. justice.’ Klauenberg v. ends of (1999) (citation State, omitted); Braxton v. see A.2d State, (1998); 599, 666-67, Burks v. 720 A.2d Md.App. denied, 173, 187, cert. 332 Md. Md.App. (1993). turns on the necessity of a mistrial
326 to grant
Whether
a mistrial is a matter “classically
...
entrusted to the wide discretion of the trial
judge.”
Burks,
190,
96
at
Md.App.
Rainville v. is instructive. There, Robert Rainville was charged with various offenses stemming alleged from the rape and sexual abuse of a seven- year-old girl. incident, At the time of the Rainville was renting a room the home girl’s mother and the mother’s girl fiancé. The and her brother had gone into Rainville’s room to watch television. At some point thereafter sexually Rainville molested and raped girl. Just prior report abuse, of the girl’s Rainville was arrested on child abuse, offense, sexual and battery charges concerning the girl’s brother.
Although the sought State to consolidate the trials on the criminal charges relating girl brother, to the and her circuit court denied the motion. At the trial charges on the relating girl, the following question and response oc- curred: Now, would, if you
PROSECUTOR: describe for the gen- tlemen of the jury [your daughter’s] demeanor when she you told about the incident? *13 I very upset. was had noticed for
THE MOTHER: She to me in her actions. She came days several a difference jail for what he was [the defendant] and she said where not afraid to tell me what [my done to that she was son] had happened. 401,
Id. at
614 A.2d
mistrial, arguing
moved for a
immediately
The defense
Id. at 401-
“hopelessly prejudiced.”
Rainville’s case had been
motion,
02,
but immedi-
On appeal,
challenged
Rainville
the court’s denial of the
motion
mistrial. The Court found the mother’s remark
“particularly prejudicial because the defendant had not been
son],
of any
against
convicted
sexual offenses
but was
[the
being
jail
trial
pending
charges.”
held
on those
Id. at
conclusion,
In reaching
A.2d 949.
its
the Court considered
previously
several factors
set forth
its decision Guesfeird
(1984).
653, 659,
“whether the reference to
[the
evidence]
inadmissible
statement;
repeated
single,
or whether it was a
isolated
counsel,
whether the reference was solicited
or was an
statement;
inadvertent
unresponsive
whether the wit-
making
ness
is
principal
upon
reference
witness
prosecution depends;
credibility
whom the entire
whether
issue;
a great
crucial
whether
deal of other evidence
[and]
”
exists....
(alterations
Rainville,
in original)
The Court noted
the case
Rainville “rested
entirely upon
testimony
seven-year-old girl.”
almost
of a
Rainville,
*14
We'are
with a situation
There,
as that in
jury
Rainville.
a
was faced with an emotion-
ally charged case
involving
sexual abuse of two children.
testimony
The mother’s
indicated that
the defendant had
engaged
son,
in the
or similar criminal activity
same
with her
likely invoking
jury’s
the inference
mind that Rainville
was a
sought
serial child abuser. Rainville had
to avoid the
possibility
testimony by opposing
such
the consolidation of
contrast,
In
his trials.
we are confident
that
the court’s
curative instruction adequately
any prejudice
ameliorated
that
Kosmas,
may
appellant
have suffered. See
Pitts’s was called into the State before and after her remark that was appellant up.” “locked fact, In questioning the line of that led to appears the remark to have relationship been intended to establish a between and, appellant accordingly, part and Pitts bias on the of Pitts. persuaded any significant We are not that damage resulted remark, isolated statement that single, as it was from Pitts’s question, to the State’s and the wholly unresponsive to overcome adequate court’s curative instruction was taint. sum, judge the trial abused her say
In we cannot that extraordinary remedy concluding discretion not under the circumstances. As we mistrial was warranted State, 604, 613, Md.App. stated Brooks v. denied, (1987),
(1986), cert. A.2d 1283 “[w]hile trial, fair a defendant is entitled to a he is not entitled to one; given, and when curative instructions are it is perfect can and follow them.” Brooks presumed jury will See (1991). 355, 360, Md.App.
II. On Mitchell asserts for time that appeal, crime, to commit is not a and therefore his conviction for that must offense be reversed. alia, charged, The indictment inter *15 murder, degree
second that alleging appellant conspire “did Ellis, with Gregory feloniously with malice aforethought, kill in Eddy and murder Arias violation of Law the Common trial, Maryland.” appellant of At not challenge legal did the count; that adequacy of he did not to dismiss it on move the crime, ground charged that it a nonexistent nor did he move judgment for on that basis. At the of acquittal conclusion case, only argument charge the State’s Mitchell’s as to degree to commit second was that Thereafter, support charge. evidence was insufficient to at sentencing, appellant requested only that he be sentenced guidelines” to the “bottom of the conviction respect for to commit and that his conviction for conspiracy to commit first assault merged with that offense.
Preliminarily, argues the State that the has not issue preserved Although generally been for our review. it is true that we will not decide an issue that not in or raised court, a on by party may, appeal, challenge
decided the trial subject jurisdiction, independent trial court’s matter in by whether the issue was raised or decided the court. Md. 8-131(a). in Lane v. Appeals explained Rule As Court (1997): State, 272, 348 Md. 703 A.2d exception general preservation This to the rule of is based a premise judgment on the entered on a matter over subject jurisdiction which the court had no matter is a and, nullity jurisdictional deficiency light when the comes to in a collateral attack appeal judgment, either an on the ought to be declared so. regard, recognized
In this it has now become that a court may validly charge not enter a conviction on a that does not in deficiency constitute a crime and that such judgment jurisdictional nature. omitted). (citations 278,
Id. at A.2d for support reasoning, part, The Lane Court derived its State, prior from its decision Williams 302 Md. (1985). There,
A.2d 1277 the Court stated that a trial “court power impose is without to render a verdict or a sentence a which charging charge under document does not an offense jurisdiction within prescribed by its common law or stat- ute.” Id. at 490 A.2d The Court continued: “Manifestly, cognizable where no crime is the court charged, subject jurisdiction lacks fundamental matter to render a conviction, i.e., judgment of it is in such circum- powerless facts, law, stances to into the inquire apply the an punishment declare the offense.” Id. at 490 A.2d 1277; State, 683, 702, accord Robinson v. 353 Md. Lane, (1999); 180; 348 Md. at Townes v. A.2d (1988); Md. Rule 4-252 cf. (a)(2)
(stating paragraph generally alleging motion *16 charging designat- “defect” document not filed within a (d) waived, period providing paragraph ed is deemed but asserting charging motion failure document to “[a] or jurisdiction charge may show the court an offense be time”). raised and determined at
331 is that the argument appellate of Mitchell’s premise subject jurisdiction respect matter court lacked circuit is to commit murder any conspiracy because charge, murder, degree and to commit necessarily Thus, charge. appellant him of that acquitted the court to commit was convicted of contends that when he offense. murder, illusory convicted of an he was “jurisdictional is on the argument based appellant’s Because to commit second alleging conspiracy count sufficiency” of the notwithstanding appeal, it raised on may be Lane, 279, Md. at 703 the issue below. 348 his failure raise appellant’s turn to consider the merits A.2d 180. We contention. in Maryland. common law crime
Murder remains a
225,
State,
502, 520,
cert.
606 A.2d
v.
326 Md.
Whittlesey
See
(1992);
269,
denied,
894,
Md.
A
homicide
satisfies the common law definition of
categorized
murder is then
by statute as either murder in the
degree.
520,
first or second
Whittlesey,
See
326
atMd.
606
225;
A.2d
Campbell,
441,
Murder in the degree (1957, is in defined Md.Code 1996 Repl.Vol., Supp.), (“Md.Code, § Art. Art. 27”) Md.Code, as those kinds of murder not in enumerated 27, §§ Art. 407 through 410. The aggravating factors that raise a common degree to in murder murder law/second degree Md.Code, first have been §§ codified Art. through 410. Sections through that a provide killing committed during perpetration, or attempted perpetration, of certain felonies qualifies degree as first murder. Murder degree first also includes a killing “perpetrated by means of poison, lying addition, in wait” In under section 407. “wilful, that section includes a premeditated deliberate and killing” first murder. initially murder law intent-to-kill a common
Although of wilful- presence as a second regarded the offense deliberation, elevates ness, premeditation explained Appeals The Court of degree. (1980): 695, 717-18, Tichnell purpose a specific must be “wilful” there killing For a be a full kill; there must be to be “deliberate” and intent kill; to be purpose knowledge and conscious *18 the preceded to kill must have design “premeditated” is, time, enough time of length killing by appreciable an unnecessary that the deliberation It is to be deliberate. length of any particular for shall have existed
premeditation
time.
(1992);
126, 133,
State,
Accord (“However Raines, see State act, if intention and between the period short of consequence made as the from a choice killing results premedi and as deliberate crime is characterized thought, the denied, murder.”), 113 S.Ct. cert. 506 U.S. tated 205-06, (1992); Md.App. Hagez v. L.Ed.2d 299 (1996). read, in case, part: relevant In this the indictment late of Prince MARKEE MITCHELL ANTOINE [T]hat aforesaid, 5th of day on or about the George’s County, ninety-seven, at Prince hundred and September, nineteen Ellis, aforesaid, conspire Gregory did with George’s County, deliberately [sic] feloniously, wilfully premedicated and to Arias, in viola- Eddy kill aforethought, and murder malice Maryland, against and tion of the Common Law (Conspire to dignity of the State. government and peace, murder) commit count as one considered this and the court parties
The murder. As we degree commit conspiracy charging first judgment noted, motion granted appellant’s the court What of the State’s case. on that count at the close acquittal successive, count: disputed, and is before us is the ANTOINE MARKED [T]hat MITCHELL late of Prince aforesaid, George’s County, on or day about the 5th September, nineteen ninety-seven, hundred and at Prince aforesaid, George’s County, Ellis, conspire Gregory did with feloniously aforethought, malice kill and murder Eddy Arias violation of the Maryland, Common Law of against peace, government and dignity of the State. murder) (Conspire to commit second Juxtaposition of the two counts only reveals that the sub- stantive difference between them is the addition the first count of “wilfully the words and of deliberately premedicated before aforethought,” [sic]” “malice and the insertion of the words “second degree” into the conclusory parenthetical in the second count. jury was instructed on the conspiracy and attempted
second degree murder charges as follows:
The Defendant is charged with the of conspiracy crime commit murder in the assault degree. Conspiracy agree- is an
ment between two or more persons to commit a crime.
In order to convict the of conspiracy Defendant the State *19 must prove that the Defendant entered into an agreement with at person least one other to commit the crime of murder the degree second or assault in the first degree, the Defendant entered into the agreement with the intent that murder in the second degree assault in the first degree be committed.
The Defendant is charged with the crime of attempted degree second Attempt murder. is a step substantial be- yond preparation mere towards the commission of a crime. Attempted degree second murder is a substantial step be- yond preparation mere towards the commission of murder degree. the second
In order to convict the Defendant of attempted murder in the second degree the State must prove the Defendant took a substantial step beyond mere preparation towards the commission of murder in the degree. second That that time to ability at apparent had Defendant And that the degree. in the second crime of murder Anas. Eddy to kill intended actually Defendant added). (Emphasis murder is a degree to commit second
Whether a matter of to us to be appears offense legally viable our consideration By analogy, in Maryland. impression Abernathy v. murder second attempted of offense There, is instructive. State, 675 A.2d Md.App. alia, convicted, attempted inter Abernathy was Vincent a discharged indiscriminately after he degree murder second pedestri- innocent injuring an people, handgun group into an. wrongful- that he had been argued the defendant appeal,
On This Court affirmed crime. of a nonexistent ly convicted murder, but attempted offense of vitality of the of mind heart state depraved that a rejected the contention that offense. Id. at for support sufficient to conviction Court, Judge Moylan for Writing 675 A.2d reasoned: criminal homicide rea of consummated
Although the mens
alike)
(murder
multiplied by
has been
manslaughter
inchoate
four,
the mens rea of
that is not the case with
degree,
at-
murder
either
(attempted
criminal homicide
intent
manslaughter, assault with
tempted voluntary
murder).
mens rea
indispensable
The exclusive and
specific
is the
intent
inchoate criminal homicides
rea,
inchoate crime is far
In terms of its mens
kill.
crime.
restricted than is the consummated
austerely
more
added);
see Bruce
(emphasis
Id. at
(1989) (“Because
a conviction
kill, it
no
intent to
follows
felony
requires
specific
crime,
intent
attempt
specific
a criminal
is a
that because
*20
Earp
in Maryland.”);
is not a crime
attempted felony murder
(“[A]
(1988)
State,
433, 440,
intent
to kill his
571 A.2d
(1990) (“[W]here
an attempted murder
is charged,
State
specific
must show a
intent
to kill—an intent
to commit
Glenn,
grievous bodily
suffice.”);
harm will not
Conspiracy,
like attempt,
is both an inchoate and
State,
intent crime. See
v.
specific
Acquah
29,
113 Md.App.
(1996)
56,
L.Ed.2d 105 the punishment imposed for a conviction cannot pun “exceed the maximum provided ishment for the offense he or conspired she Md.Code, commit.” § Art.
It is important to underscore the crux of a Townes, is an agreement. unlawful 314 Md. at
337
955;
444,
Heck
Mason,
488 A.2d
832;
Bell III involved an alleged “contract killing.”
Lani-
Marie
er Bell reached an agreement
Mason,
with Ralph Dulaney
Jr.
whereby Mason would kill Bell’s
in exchange
husband
$5,000
II,
and an automobile. Bell
2,
339 III, Bell 48 to murder. conspiracy to batter and 671, 429 Md.App. at A.2d conspired III that Bell Bell concluded judge
The trial life in her to murder and sentenced degree commit first first for a conviction of permitted which is prison, appeal. her on We found challenged murder. Bell sentence error, stating: no not to the submitted premeditation
Because the issue of is not avail that such an inference jury, appellant contends that the sentencing judge, despite able evidence [Md.Code, Art. by “lying 27] murder was done wait.” § 407. that the instructions about issue She contends law of case the evidence before the despite became the 578-80, State, Md.App. Quaglione court. v. Cf. (1972). murder, however, conspires
A.2d 785
one
If
raising the
premeditating
is the
factor
itself
ciime
a second to a
underlying
offense.
from
652[,
See,
656, 425 A.2d
cert.
Md.App.
Wise
denied,
denied,
Md.
cert.
454 U.S.
S.Ct.
(1981)
],
];
v. Williamson
Bell 48 omitted). (parallel citations above, the in III italicized
Relying on statement Bell 300, 680, that Md.App. at 429 A.2d contends we appellant conspiracy to be in “premeditation found inherent the this suggests holding murder.” He further that “from Court’s [III], in Bell it follows that commit second conspiracy a degree murder is nonexistent offense.” in III was within the
Our statement Bell accurate factual agreed that Mason context that case. Bell Mason of husband, in for a sum certain of exchange would kill Bell’s Mason then killed husband. money and an automobile. Bell’s Thus, clearly of estab- conspiracy the dual elements were Moreover, conspiracy that the lished. there was little doubt deliberate, wilful, premeditated killing, was agreement clearly killing. the was reached advance of the reasoning The same is equally applicable to the contract Williamson, killings involved Wise and offered as support- authority in ing Bell III. Wise,
In
656,
652,
Md.App.
defendant,
A.2d
the
who
killer,
was
hired
acquitted
the
was
of
to commit
however,
murder.
In a subsequent prosecution,
a jury con-
victed the
of first
murder. On appeal
defendant
from
trial,
the
challenged
second
the defendant
the murder convic-
alia,
alleging,
tion
inter
estoppel.
collateral
The defendant
argued
the
that
State
not admit
could
evidence
the conspir-
acy
light
prior
the
acquittal.
Id. at
In
282 Md.
the defendant
“employed” someone to kill her husband.
After
husband’s
death,
jury
degree murder,
convicted the defendant of first
and solicitation of murder.
Id. at
Therefore, we are not that persuaded compels Bell III proposition proffered appellant. position garners Our sup- Gary of Appeals of the Court opinion from the port (1996). Md. been of case, alleged to have one Gary In Morris was that left two drive-by shooting people in a that participants several a shooting gang- The was injured. more dead and several killing. Immedi- avenge previous intended to related attack sent to ensure shooting, a “scout” was ately prior to on street. Thereaf- rival would be gang members of the van, Gary, ter, evidently including opened in a several men was gang. Gary of the rival supposed fire on members alia, of and conspiracy with counts murder charged, inter two jury Although the deadlocked degree to commit first murder. conspiracy of charges, Gary convicted the murder it on subsequently He was sentenced degree murder. commit first Gary challenged the legality On appeal, to life imprisonment. claim, the Court of In to this responding of the sentence. Appeals explained: [Md.Code, 27], § Art. statutory provision
The relevant which provides: of convicted the crime every person punishment
“The punishment shall not exceed maximum conspiracy to commit.” conspired or she for the offense he provided statute, by plain no its dispute can be There penalty conspiracy for limits the maximum language, for crime that was the the substantive penalty maximum Hence, up to and any sentence object conspiracy. of the for crime is penalty maximum the substantive including the permissible. case, and convicted
In Gary charged the instant degree penalty to commit first murder. [Md.Code, out in Maryland is set degree for murder first 412(b), pertinent part: 27], § Art. which provides in the first found of murder guilty person “[A] life, death, for imprisonment shall be sentenced to of parole.” imprisonment possibility for life without Thus, imprisonment sentence life statutory is the lowest *25 342
penalties degree Therefore, for first Gary’s murder. sen- tence does not violate the maximum penalty conspiracy for [Md.Code, 27], 38, § to murder set out in Art. and is not illegal. 517-18, (citations omitted)
Gary, 341 Md. at A.2d (footnotes omitted).
A footnote that follows the phrase “Gary charged and convicted of to conspiracy commit first murder” is degree relevant here:
Where, case, object as in the instant the of a conspiracy is to kill, appropriate charge the be to may conspiracy degree 669, 680, murder. See Bell v. 48 Md.App. (“If (1981) one to ... conspires murder conspiracy itself is the premeditating raising factor offense.”). underlying crime from a second to first degree added) Id. n. at 517 495 (emphasis (parallel A.2d citation omitted). Thus, in it to Gary, us seems that the Court of Appeals implicitly open left whether it is to appropriate charge to commit conspiracy degree murder.
In us to urging declare to conspiracy commit second offense, degree murder is not a criminal appellant also directs us to from jurisdictions cases two that have so We turn held. to consider those cases. Hammond,
In v. People 187 Mich.App. 466 N.W.2d (1991), Court of Michigan Appeals held conspira- “that cy second-degree to commit murder is not a criminal offense because such a conspiracy logically There, is inconsistent.” alia, Frederick pleaded guilty, Hammond inter conspiracy to to commit second degree murder. After unsuccessfully mov- ing to withdraw that plea, appealed Hammond his conviction conspiracy commit second murder on ground is no such there crime.7 (West Comp. § Supp.2000) corresponds Mich. Laws Ann. 750.316 Md.Code, §§ provides, part: Art. It 407-410. (1) person following guilty A who commits is of first punished by imprisonment murder and be shall for life: Gilbert, Mich.App. People its v. Quoting decisions (1990), Hamp, 110 Mich. People 455 N.W.2d (1981), Court 175, 180 the Hammond 92, 312 N.W.2d App. stated: which intent crime specific is conspiracy
“Criminal more two between or agreement from a mutual arises a crime or unlawful act. accomplish parties do agree- specific, mutual criminal gist of a question; crime in perform ment *26 advance planning for the actual punishment provides statute acts. criminal substantive perform to the agreement and from distinguishable is However, second-degree murder premedita- not require in that it does first-degree kill.” specific a intent to may require in not tion and fact necessary, are ‘planning’ ‘agreement’ and prior “Since we of the crime of mandatory conspiracy, elements requisite first-degree to commit analytically ‘plan’ consistent it find to commit second- ‘plan’ inconsistent to logically murder but wait, any (a) poison, lying in or perpetrated of Murder means willful, deliberate, premeditated killing. other of, (b) perpe- perpetration attempt in the or Murder committed first, second, arson, trate, or third in the criminal sexual conduct major degree, substance in a controlled degree, child abuse the offense, dwelling, entering of robbery, carjacking, breaking and a kind, degree, larceny any of in the first or second home invasion extortion, kidnapping. or (c) officer peace a officer a corrections committed A murder of or lawfully engaged peace officer in the officer or corrections is while peace officer or performance any of his or her duties as a of officer, knowing peace or that officer corrections corrections perfor- peace engaged a officer or corrections officer officer is peace duty a officer or corrections officer. of his or her mance Md.Code, (West 1991) counterpart Michigan's is Section 750.317 of § of murder shall be murder It states: "All other kinds Art. degree, punished by imprisonment in the state and shall be life, trying years, the discretion of the court prison for term of person provides “[a]ny that Michigan's conspiracy statute same.” persons an offense conspires together with 1 or more to commit who law, legal illegal guilty prohibited by a act in an manner or to commit § Id. conspiracy.” of 750.157a. the crime murder. To prove conspiracy to commit it must be conspirators established each have and, intent required [sic] the for murder to establish that intent, foreknowledge there must be of that intent. Fore- knowledge plan are compatible with the substantive first-degree crime of murder as both the crime of conspiracy and the crime of first-degree murder share elements of premeditation. deliberation and Prior planning denotes premeditation and deliberation. The elements of conspira- cy, conversely, incompatible are and inconsistent with sec- ond-degree One murder. does not an ‘plan’ ‘unplanned’ substantive It crime. is not ‘absence’ elements but the ‘inconsistency’ the elements which lead us to conspires [sic] conclude one to commit first- second-degree murder but not murder.” Hammond, (alterations (inter N.W.2d original) omitted). nal citations
Although the issue was differently framed somewhat Cortez, People Cal.4th 77 Cal.Rptr.2d 960 P.2d (1998), the California Supreme Court reached a similar case, conclusion. In that Mario Cortez and Mauricio Corletto engaged in drive-by shooting; Cortez drove the car while *27 Corletto leaned out of the firing window at of shots members a gang. rival The group returned fire and fatally Corletto was struck in the head.
Thereafter, a jury convicted of Cortez to conspiracy commit theory murder. The underlying the conspiracy charge “agreed that conspired Cortez and with Corletto to murder one or more members of the gang] by [rival means of a drive- by 733, Id. shooting.” Cal.Rptr.2d 77 P.2d 960 at 539. On appeal to the Court Appeal, California of argued Cortez that trial judge failing require the erred to jury to determine degree of the murder that was the underlying object conspiracy. The appellate rejected intermediate court that argument and Cortez then appealed affirmed. to the Califor- Supreme nia Court. earlier, Swain,
Two years 593, in People v. 12 Cal.4th 49 390, Cal.Rptr.2d (1996), 909 P.2d 998 the California
345 murder commit conspiracy to concluded a Court Supreme murder. to intent-to-kill commit is a necessarily court The Swain at 1001. 909 P.2d Cal.Rptr.2d Id. however, conspir- of whether question left open, expressly ais degree murder intent-to-kill second specific commit acy to so, Id. if offense, appropriate punishment. viable 1002-04. Confident that Cortez’s 909 P.2d at Cal.Rptr.2d ques- those to resolve vehicle provided appropriate appeal to whether “granted review determine tions, the court degrees is into to murder divisible of commit crime to conspiracies or whether all punishments, differing with mur- to commit first conspiracies are murder Cortez, P.2d Cal.Rptr.2d of as a matter law.” der at 539. Cortez, it is to discussion turning consider the
Before of Penal sections the California to several helpful highlight statute, is the By “[m]urder pertinent that decision. Code aforethought.” ... malice being human killing unlawful of a 1999). (West 187(a) § California’s Code Penal Cal. states, in Md.Code, perti §§ Art. 407-411 counterpart part: nent by means a destruc- perpetrated
All which is murder use of ammunition de- explosive, knowing or tive device armor, poison, lying metal or primarily penetrate signed willful, deliberate, wait, torture, kind of by any or other or killing, which is committed premeditated arson, car- of, rape, or attempt perpetrate, perpetration kidnapping, train robbery, burglary, mayhem, jacking, sections], or under wrecking, any punishable [certain act discharging which is means perpetrated murder vehicle, intentionally another at from, motor firearm death, the intent to outside the vehicle with person inflict All kinds of murders degree. the first other degree. are of the second (West added); (emphasis § 189 Supp.2000)
Cal.Penal Code cf. (indicating Cortez, n. 960 P.2d Cal.Rptr.2d *28 after the statute was added to emphasized language the killed). Corletto addition,
In legislature California’s has codified in Cal.Penal § Code 182 a distinctive scheme to adjudge conspira- criminal cy. case, relevant this As that section provides:
(a) If two or persons conspire: more
(1) To any crime.
[*] * * They punishable are as follows: they conspire
When
to commit ...
felony, they
[a]
shall
punishable
be
in the same manner and to the same extent as
provided
is
for
punishment
of ...
If
felony.
felony
one for which
punishments
different
prescribed
are
for
degrees,
different
jury
court which finds the
guilty
defendant
thereof shall
the degree
determine
felony
conspired
defendant
to commit.
If the degree is not
determined,
so
punishment
for conspiracy to commit the
shall
felony
prescribed
be that
for the lesser degree, except
case
to commit
in which case
the punishment
prescribed
shall be that
murder in the
degree.
(West 1999)
added).
§
Cal.Penal Code
(emphasis
Com
id.,
Md.Code,
(“If
pare
with
§
Art.
two or more
persons conspire
any
to commit
subtitle,
crime defined
this
each
such persons
is guilty of conspiracy and shall be
subject
deemed
felon
punishment
the same
as if he had
committed the crime which
conspired
commit,
he
whether
or not
act be done in furtherance of the conspiracy.”).
§
California Penal Code
played
pivotal role
Indeed,
analysis.
court’s
the court
to great
went
pains
legislative
section,
trace the
history of that
as
well
corresponding changes
the case law applying and interpret-
ing section 182.
In so doing, the court was
to deal
forced
squarely
a previous statement
it
People
had made in
Horn,
(1974).
12 Cal.3d
Cal.Rptr.
The Cortez
Cortez,
Cal.Rptr.2d
§
dicta.
Code
182 was
Cal.Penal
Moreover,
“reading
the court concluded that
at 545.
P.2d
§
as estab
of
Code
punishment
[CaLPenal
182]
the
provisions
of
to commit second
conspiracy
lishing the substantive offense
illogical results.”
murder would lead to
degree [intent-to-kill]
Cal.Rptr.2d
According
[Conspiracy is agree a further intent to commit conspire intent and object conspiracy. crime or of the Murder target degree. is murder of premeditated and deliberated “ beforehand,’ and ‘delib- means ‘considered ‘[Premeditated’ upon at or determined as erate’ means ‘formed or arrived weighing of and of considerations thought result careful of proposed process course of action.’ The against and require any not extend- premeditation and deliberation does true is not the duration time ed time. ‘The test period Thoughts may of the reflection. as much it is extent great cold, follow each other rapidity calculated judgment may be arrived at quickly....’”
Consequently, logically it follows that where two or more persons conspire i.e., to commit intend to agree or murder — conspire, further intend to commit target offense perform one or more overt acts furtherance planned murder —each has acted with state of mind “functionally from indistinguishable pre the mental state meditating target offense of murder.” The mental state of required for conviction to commit murder *30 necessarily premeditation establishes of and deliberation the target offense of all murder —hence conspiracies murder are conspiracies murder, to degree commit first speak. so to stated, accurately More to conspiracy is a murder punishable unitary every offense in in instance same the degree manner is as first provisions under the of § [Cal.Penal Code 182. ] (citations
Id. 77 Cal.Rptr.2d
omitted).8
By creating separate degree the crimes of the killings only for in killer acts not with intent which the (2) deliberation, to kill but and premeditation with and killings murder for in which the killer acts degree to kill without and delib- premeditation intent but eration, intent kill recognized has that the Legislature Contrary deliberation. premeditation can exist without and logical a why there is no reason sudden majority, ” “' ’ intent to kill that neither “considered beforehand” “ ‘ or as a upon nor or arrived at determined result “formed thought weighing of careful of considerations and ’ ” against proposed action,” course of cannot arise persons just two can as it arise in one.
Conspiracies require do not formal expressions agree- ment planning. or advance For example, with a shout of him,” get “let’s two friends drinking who have been all night can, deliberation, a bar premeditation without impul- sively form and share the intent to kill when their sworn walks in. enemy Similarly, a sudden and en- unexpected on disputed counter turf groups between from two different gangs similarly can lead to a spontaneous and unreflective agreement to kill. capable Juries are of distinguishing between first murder conspiracies requiring premed- itation and deliberation and second conspira- cies requiring only intent to kill. (Kennard, (citations J., omitted). dissenting)
Id. Justice Kennard is not alone in out, her view. As points she the Fifth and Ninth Circuits have also recognized varying degrees object of murder as offense criminal conspiracy. (9th See Croft, United States v. Cir.1997); F.3d 1109 (5th Cir.1986), United States v. Chagra, F.2d 398 cert. denied, (1987). 484 U.S. 108 S.Ct. L.Ed.2d Several statutory provisions are pertinent to our own review of those cases. The United States Code defines “murder” as follows: is the killing
Murder unlawful of a human being with malice aforethought. Every murder perpetrated by poison, lying wait, any willful, or deliberate, other kind of malicious, and premeditated killing; or committed perpetration of, attempt arson, or to perpetrate, any escape, kidnapping, espionage, sabotage, treason, aggravated sexual abuse, abuse or sexual burglary, robbery; or perpetrated from premeditated design unlawfully and maliciously effect the death of human being other than him who is killed, is murder in first degree.
Any other murder is murder in degree. the second *32 1111(a) (1994). Moreover, § here, U.S.C. as relevant provides § U.S.C. that two or more persons conspire “[i]f title, this and one or 1114 ... of 1111 [or] to violate section object of act to effect the any of overt persons more such do for punished by imprisonment each shall be the conspiracy, or life.” any years term of was convicted
In 807 F.2d defendant Chagra, aof federal to commit the second murder conspiring 1111, 1114,9 §§ in violation 18 U.S.C. judge, here, Chagra the defendant appellant’s argument Similar murder is to commit second averred that In rejecting argument, Id. at that not a crime. 400-01.
Fifth stated: Circuit agree with another required
What is is that the defendant objective an at the time of accomplish illegal that also of mind re- the defendant have state agreement crime. The two states quired to commit the substantive one, one, or into but always collapse mind are almost tend be made important inquiries it is nonetheless separately. independent
... ... is a of the substan- Conspiracy crime object. tive its The focus of a offense agreement. is into defendant’s upon inquiry offense is conspiracy, or illegal agreement intent at the time of the 1998) provides: § (Supp. 9. 18 IV U.S.C. any employee attempts or officer Whoever kills kill or any agency United or of branch of the States United States services) (including any of the uniformed while Government member perfor- engaged employee
such or in or on account of officer duties, any person assisting official or such an officer or mance of performance employee assistance, or account in the such duties on of that punished— shall be (1) provided in the case of as under section 1111; 1112; (2) manslaughter, provided section in the case of as under or (3) manslaughter, provided attempted the case of in section 1113. *33 that of and state mind can to kill certainly impulsively be as, “yes! judge.” such let’s kill the Id. at 401-02.
In Croft, 124 F.3d certain spiritual members of a community Oregon determined that it was necessary to assassinate a community’s enemies, number of the including Turner, Oregon’s Charles A “hit Attorney. U.S. team” was Turner, subsequently formed to kill Sally-Anne and Croft was designated supply money with team for and weapons passports. Although handguns purchased were and surveil- initiated, on lance Turner was plan eventually unraveled no attempt and was made on Turner’s life. thereafter,
Sometime federal and law state enforcement officials of the plan learned and the conspirators were indict- .Five conspirators agreed ed. of testify against Croft another co-conspirator plea and in exchange agreements. a month-long After trial four days deliberation, and of a jury convicted Croft and her co-defendant of to commit murder in of §§ violation 18 U.S.C. and 1117. Circuit, appeal On to the Ninth Croft challenged the ade- instruction, of quacy the district court’s intent which provided: provides [T]he United States Code in pertinent part murder is the unlawful of killing a human being with malice aforethought ... In order to find that either defendant is of guilty offense of conspiring [the to murder the United Attorney], States the government prove must each following beyond elements a reasonable doubt:
First, agreement ... there was an between two or more persons to kill then Attorney United States Charles Turner aforethought. with malice
Second, the defendant willfully became a member conspiracy, knowing objectives of its specifically and intend- ing help accomplish the murder of . .. Turner.
[*] [*] [*] $ A person only becomes a conspira- member of an unlawful if she cy willingly participates the unlawful agreement conspiracy, objective the intent to advance with all of may knowledge have though not person even conspiracy. the details participate . .. to act or “willfully” means
The term help intentionally specific intent voluntarily ... murder of Turner. accomplish the (alterations in original). F.3d at Croft, that, alia, inter defined argued Croft *34 1111(a) that was premeditation element requires § U.S.C. Id. The Ninth Circuit in the instruction. not contained responded: 1111(a) first- and second- encompasses ... both
Section no in this included The indictment case degree murder. only sec accordingly alleged it of premeditation; element See object conspiracy. as the ond-degree murder (5th Harrelson, 1153, 1174 Cir. 754 F.2d States v. United 1985) yet has not addressed . our circuit Although logically that it is Fifth Circuit has held question, murder. second-degree to commit conspire possible (5th 398, Cir. F.2d 401-02 Chagra, States v. United 1986) view, that the indict . that and conclude accept We it was not consequence, that crime. As a alleged ment here premedita court to omit the element of error for the district in its tion instructions. omitted). (footnote 1122-23
Id. at
Hammond,
105, 466
Mich.App.
As our discussion
Cortez,
majority
18 Cal.4th
opinion
and the
N.W.2d
clear,
appel-
960 P.2d
makes
Cal.Rptr.2d
mur-
that
to commit second
position
lant’s
superficially
not
a criminal offense is
does
constitute
der
it, however,
too
those courts took
we see
seductive. As
Michigan
Court
a view of
murder.
narrow
’ ”
“
required
‘prior “planning”
Appeals presumed
further,
and,
an
proof
conspiracy,
for criminal
element
”
“
Ham-
of that
foreknowledge
to kill
intent.’
requires
intent
mond,
added)
To be
an agreement
ais
necessary predicate to a
conspiracy, but the agreement “need not be spoken or formal
long
so
as there is a meeting of the minds reflecting a
unity
purpose
Monoker,
and design.”
In we are persuaded not that the dual elements of conspiracy necessarily establish premeditation and delibera- tion. Admittedly, unreflective agreements kill to between conspirators will between; be few and far the vast majority of conspiracies to murder will most certainly premedita- involve tion and, thus, and deliberation qualify as conspiracy to com- mit first degree murder. Statistical unlikeliness is not a however, sufficient ground, to invalidate a legally cognizable crime. We are to unwilling remove from the province of the jury the determination of whether the aggravating factors premeditation and deliberation present are in a given case. It is properly left to the jury to ascertain whether the State has to commit first conspiracy elements of aggravating proven instead, has, only established murder, if it or includ- of the lesser a defendant sufficient convict elements law degree/common to commit second of conspiracy offense ed murder. have simply could the State noteworthy
It is also murder, without with charged appellant have may That of murder. specific designating Instead, the indict- here. difficulty presented obviated commit murder conspiracy to with charged appellant ment The indictment degree murder. to commit second statutory to track the by the State attempt a clear evidences Md.Code, § 616. That Art. prescribed for murder form provides: section or for manslaughter, for murder
In any indictment thereto, necessary not set it shall be accessory being an sufficient It shall be means of death. manner or forth the “That following to the effect: substantially to use a formula and....., hundred A.B., of. .... nineteen the.....day on aforesaid, of deliber- (wilfully and feloniously county at the (and kill mur- did aforethought) malice premeditated ately der) of the dignity peace, government against C.D. State”. 27, 616, Md.Code, § through Art.
Although
Legislature,
which a defendant
pursuant
form
statutory
has
provided
that “the
it is well-settled
may
charged
be
Wood, 191 Md. at
permissible.”
law forms are still
common
In
576;
[O ]ne predeces Our common-law murder. charging indictment in Davis v. [39 this originally proposition sors noted (1874) ]: Md.
When, therefore, a person murder, for indicted language law, technical of the common charged he is with crime, proper sense, which its includes all circum- aggravation, stances of and as all minor degrees are major, included in the he is liable to be convicted of the inferior, offense, as well as of the higher grades of that and vice versa.
Based on principles these an charging indictment common- law murder is to sustain a conviction either sufficient for or second-degree murder or manslaughter. Evidence presented at trial and the verdicts will determine the level criminal culpability punishment hence the offense. added).
(Emphasis
above,
As discussed
appellant was charged under the con-
spiracy to commit
degree
second
murder count of the indict-
ment with conspiring
feloniously
“to
with malice aforethought,
kill
Eddy
and murder
Arias in violation of the Common Law
Because,
of Maryland.”
law,
at common
“murder” was de-
”
killing
Wood,
fined as “a
aforethought,’
‘malice
(citation
omitted),
we are satisfied that the
count
what
charging
has been
characterized as
commit second
adequately
murder
charged conspiracy
to commit
thereby allowing for a conviction of con-
spiracy to commit
degree.
Camp-
Cf.
bell,
496, 501,
A
verdict
aggrava-
an
prove
failure to
from the State’s
ordinarily results
a defendant is
that when
overlooks
Appellant
element.
ting
quantum
of the
regardless
with first
charged
convict for the lesser
opt to
jury may
nonetheless
proof,
case, it
In this
murder.
of second
included offense
merely
offense
a lesser included
sense to dismiss
makes no
actually proved more.
because,
the State
argues,
as appellant
burglary
burglar,” charged
“twilight
case of the
Assem
1994,
Until the General
point.
illustrates our
to
prior
Laws,
712,
as
Chaps.
burglary,
defined
1994
bly enacted
Md.
law,
Maryland. See McGraw
the law of
common
remained
at
denied,
229,
273, 275,
cert.
379 U.S.
State,
v.
(1964);
124,
P. Gilbert &
64
Richard
85
13 L.Ed.2d
S.Ct.
Jr.,
Law: Practice
Criminal
Moylan,
Maryland
E.
Charles
(1983).
11.0,
burglary
law
§
Procedure
at 119
“Common
and
another,
entering
dwelling
breaking
is the
felony
commit a
with the intent
during
nighttime,
State,
648, 653,
Supp.), 11.0, 119 n. 3. What was § Moylan, supra, Gilbert & Md.Code, 29(a) person may provides § not "[a] Art. 10. Current dwelling to commit theft of another with the intent break and enter the Laws, Chap. express purpose of 1994 Md. or a crime of violence.” An day- burglary and the distinction between of] 712 was the "abolition housebreaking.” time known “statutory burglary” contained former Art. 30(a). § Reagan 590, 594, See Md.App. (1968). 30(a) provided A.2d 623 Section that “[e]very person ... who shall break and enter dwelling house steal, nighttime with the intent take or carry away the personal goods of another of any value therefrom shall be felon, deemed a and shall guilty be of the crime of burglary.” The obvious daytime void for breaking was filled with 27, 30(b), § former Art. which stated: Any person ... who shall be convicted of the crime of breaking a dwelling daytime house with intent therein, or felony steal, or with intent *38 take or carry away personal the goods of another of therefrom, value shall guilty be of a felony, upon thereof, conviction shall be penitentiary sentenced the years. not more than ten nature,
Although remedial in
daytime
the
breaking statute
hand,
itself created uncertainty. On the one
a
interpre-
strict
30(b)’s
27, §
tation of former Art.
use of
“daytime”
the word
might
suggested
have
that the State was
required
prove the
in
breaking occurred
the daytime as an essential element of
State,
the
Henry
296, 302,
offense. See
v.
20 Md.App.
315
797,
131,
A.2d
vacated on
grounds,
other
273 Md.
We
605,
resolved the issue in St. Clair v.
1 Md.App.
(1967).
case,
359
Instead,
house-
daytime
we determined
232 A.2d
offense, resulting
non-proof
from
included
breaking as
lesser
30(a)
27, §
Art.
and at
by former
“nighttime”
required
of
State,
468,
Id.;
Md.App.
v.
100
common law.
see Williams
(1994). Thus,
477,
important
an
distinc-
990
we drew
A.2d
non-nighttime (limiting
of
the conviction
proof
tion between
(allowing
non-proof
nighttime
daytime housebreaking)
Henry, 20
daytime housebreaking). See
for a conviction of
303-04,
explained
at
Further illustration can be found
a situation
charged
degree depraved
with second
heart
defendant
depraved heart murder involves an
murder. Second
killing
engaged
potentially
unintentional
while
another
State,
v.
life-threatening
Md.App.
behavior. See Ashe
denied,
726 A.2d
cert.
(1999); Williams,
484-85,
at
990. Ac
Md.App.
641 A.2d
cordingly, the defendant is said to have acted
a mens rea
she,
support
finding
sufficient to
that he or
“conscious of
risk,
such
disregard
life-endanger
acted with extreme
4:17.8,
258;
ing
Pagotto
consequences.” MPJI-Cr
see
271, 277,
granted,
cert.
Md.App.
*39
(1999); Ashe,
613
125
at
Md.App.
Md.
A.2d
Williams,
786;
Md.App.
(quot
at
Obviously, depraved the heart mens rea does not Nevertheless, require charged an intent to kill. a defendant heart is not degree depraved with second murder entitled acquittal merely because she establishes that she acted indeed kill, premeditated with a and deliberate intent to and therefore with charged degree should have been first murder. Cf. Williams, at Md.App. (“Second-degree A.2d 990 unpremeditated murder is described as murder. It frequently not, however, require proof nonpremeditation; of it is does an alternative when there is simply non-proof available is she a premeditation.”). protected showing Neither Robinson, an to harm. she acted with intent See Md. (acknowledging say that the “authorities no may more than that crime heart be depraved [of murder] the injure” stating committed absent intent to further that if “[t]hey do not hold that the crime is not committed there is injure”). an intent to case, if, reasoning our to this even
Applying appel more, i.e., lant the urges, proved appellant State acted deliberation, to commit premeditation conspiracy Moreover, conviction is not degree second murder invalid. on the jury conspiracy was instructed dual elements and attempted in the context of the required, degree second charge, appellant murder to find that intended to kill Mr. Arias in order to convict. The elements of common law/sec which degree presented jury, appro ond murder were its own determination. priately rendered Accordingly, we hold that to commit second Therefore, degree Maryland. murder is a crime the circuit subject jurisdiction court had matter over that charge and conviction. an
Appellant argument also offered “alternative” his brief, stating, part: if to commit
Even murder is crime, legally cognizable Maryland constitutional and common law prohibition against jeopardy precluded double Mr. Mitchell’s on that conviction count. Inherent grant judgment acquittal trial court’s decision to on the charges was a that there was finding premeditation. premedita- insufficient evidence of A type i.e., tion, kill, prior agreement with intent is a critical Therefore, component any -conspiracy to murder. acquittal court’s of Mr. Mitchell on the first degree murder *40 consideration of the charges jury’s should have barred charge as well. degree conspiracy view, In does little more than revive argument our this Therefore, length issues discussed at above. we consid- those unnecessary it to address this “alternative” contention er further.
III. Appellant judgment acquittal made a motion for of on of court granted all counts at the close the State’s case. The of appellant’s respect charges attempted motion with to the to commit first mur der, of a possession firearm after the conviction of a offense, felony drug but stated that rest of the Counts “[t]he will stand.” witness,
Appellant his subsequently only called Detective Best, to the stand in photo- order admit into evidence a graph Gregory of Ellis. out in Appellant points his brief that because only questions, Detective Best was asked five case, appellant then rested his he not “did then have the opportunity to renew judgment acquittal.” [his] motion for of disagree. We
A review the trial transcript indicates after the admitted, photograph was appellant opportunity had the judgment renew his motion for but acquittal, failed do so: No further questions. [APPELLANT’S COUNSEL]: THE very COURT: Thank much you Detective Best. Defendant rests.
[APPELLANT’S COUNSEL]: THE COURT: All right. Any rebuttal? No rebuttal.
[PROSECUTOR]:
THE COURT: No rebuttal.
All right, gentlemen. ready ladies and Now we are the instructions. 4-324(c),
Under Md. Rule defendant who moves for “[a] judgment acquittal at the close evidence offered may State evidence in the offer event the motion is not mo doing, In so the defendant withdraws the granted____ *41 judg withdrew his motion for Accordingly, appellant tion.” counts. In order to acquittal remaining ment of on the review, was re appellate appellant this issue for preserve judgment acquittal to for of at the quired renew his motion State, 579, 585, Ennis v. close of all of the evidence. (1986) Md.Code, 27, § that Art. 593 and (stating preclude appellate 4-324 “have been construed to Md. Rule entertaining from a review of the sufficien courts of this state evidence, jury, in cy of the a criminal case tried before to judgment acquittal where the defendant failed move State, v. evidence”); Dumornay at the close of all the (1995) (same); Briggs Md.App. 664 A.2d (1992). 60, 66, 599 has not Md.App. Appellant A.2d him from his any legal authority referred us to relieved motion, he obligation merely' previously to renew his because case, then made such a motion the end the State’s only just questions. to answer a few called one witness THE FOR PRINCE JUDGMENT OF CIRCUIT COURT AFFIRMED. BE PAID GEORGE’S COUNTY COSTS TO BY APPELLANT.
MURPHY, Judge, dissenting. Chief I agree judge that the trial did not abuse her discretion I refusing grant agree a mistrial. also that the evidence support appellant’s was sufficient to convictions of the offenses dissent, however, jury. submitted to the I from that properly majority of the that affirms convic- portion opinion appellant’s conspiracy degree tion for to commit second murder. against appellant
The State’s evidence was sufficient to first support conspiracy degree a conviction for judge granted appellant’s but the trial motion for judgment acquittal charge. ruling, my on that That judgment, charges. to murder disposed to commit second murder should not have jury. to the been submitted conspiracy to commit to commit murder means
Conspiracy kill that consti agreement It is the degree murder. State, Md.App. factor.” Bell v. premeditating tutes “the (1981) denied, 669, 680, Md. 771 cert. (citations omitted). elements of an premeditation are essential
Deliberation In this killing. in an intentional agreement participate that, case, appellant to convict jurors were instructed degree, “the State conspiracy to commit murder the second agreement ... into the prove [appellant] must entered ... be with the intent that murder the second instructions, jurors In accordance with those committed.” already of a that the court had appellant charge convicted *42 (only) appel- I resolved in his favor. would therefore reverse mur- conviction for lant’s der. MINNESOTA, N.A., Trustee, BANK et al.
NORWEST
June PENCE. Term, 751, Sept.
No. Maryland. Special Appeals Court 2, 2000. June