Wallace v. State ( 2018 )

Wallace v. State, No. 53 of the 2017 Term, Opinion by Moylan J.
HEADNOTE:
SECOND-DEGREE MURDER – THE ATTACHMENT OF THE SIXTH
AMENDMENT RIGHT TO COUNSEL – AN INVESTIGATIVE PROCEDURE
VERSUS A PROSECUTORIAL COMMITMENT – THE DISTINCTION BETWEEN
BEING AN “ACCUSED” AND BEING AT A “CRITICAL STAGE” – A
CONTRACTUAL RIGHT TO COUNSEL IS NOT A CONSTITUTIONAL RIGHT
TO COUNSEL – NO MERITORIOUS REASON FOR DISCHARGING COUNSEL
– NON-PRESERVATION: NOTHING MORE NEED BE SAID – OUR CONCERN
IS NOT ONLY WITH “WHAT DID THE APPELLANT SAY?” BUT WITH “WHEN
DID HE SAY IT?” – THE ESSENTIAL PLURALISM OF CRIMINAL HOMICIDE –
THE APPELLANT REQUESTS THAT WE NOTICE PLAIN ERROR –
CORRECTING A CLERICAL GLITCH
Circuit Court for Prince George’s County
Case No. CT141549X
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 53
September Term, 2017
______________________________________
DAVON WALLACE
v.
STATE OF MARYLAND
______________________________________
Friedman,
Beachley,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: June 4, 2018
Precisely when (and why) the Sixth Amendment right to counsel attaches to a person
is a far more nuanced inquiry than would at first blush appear likely. This appeal presents
us with a profusion of such nuances. The appellant, Davon Wallace, was convicted by a
jury, presided over by Judge Lawrence V. Hill, Jr., of second-degree depraved heart murder
and two related firearm counts. On this appeal, he contends:
1. The lower court erred by denying the motion to suppress an incriminating
statement.
2. The lower court erred by ruling that Mr. Wallace had no meritorious
reason for discharging counsel.
3. The State failed to present sufficient evidence to sustain the conviction
for second degree murder.
4. The lower court erred by allowing the jury to consider the charge of
second degree felony murder.
5. The commitment record improperly reflects that Mr. Wallace was
convicted of first degree murder, a crime of which Mr. Wallace was
acquitted.
The Attachment Of The Sixth Amendment Right To Counsel
The killing of three-year-old Knijah Bibb, which the appellant does not contest, took
place on August 10, 2014. On that day, the appellant immediately arranged for John
McKenna, Esq. to represent him as his privately retained defense counsel. Mr. McKenna
informed Prince George’s County prosecutors that the appellant would turn himself in on
August 12, 2014. On that date, however, the appellant failed to appear. A manhunt ensued.
The appellant was located in the District of Columbia on September 16, 2014. He was
transported to the Metropolitan Police Department and was there interrogated by detectives
from Prince George’s County. The appellant, on a taped audio/video recording, provided
information linking him to the shooting of Knijah Bibb.
The appellant’s first contention is that because that police interview was conducted
without the appellant’s attorney having been present, it violated his Sixth Amendment right
to counsel and should, therefore, have been suppressed. We are going to respond to the
contention expressly in the terms in which the appellant has framed it. There is no challenge
to the statement based on common law voluntariness. There is no challenge to the statement
based on Miranda v. Arizona or on the Fifth Amendment privilege against self-
incrimination. There is no challenge pursuant to Maryland constitutional law. This
contention is based exclusively on the Sixth Amendment and on nothing else.
Under those circumstances, it is ‘passing strange that nowhere in the appellant’s
brief are we told that he was indicted by the Grand Jury for Prince George’s County on
November 18, 2014. That, of course, was the red letter day on which the appellant was
graduated from the ranks of the hoi polloi of ordinary personhood and assumed the
honorific title of “the accused” for special Sixth Amendment status.1 An indictment per se,
1
The surest way to understand the Bill of Rights is to read what the words of the
Bill of Rights actually say. The Fifth Amendment, for instance, is a long compound
sentence embracing no fewer than five constitutional rights. At the top of the sentence,
however, is a single word that is the subject of the entire sentence—“person.” One becomes
a person no later than the moment of one’s birth. One remains a person until the moment
of one’s death. As long as one is a card-carrying member of homo sapiens, one enjoys the
entire package of Fifth Amendment constitutional rights.
(continued . . . )
2
of course, might not have been indispensable for such status. It could, alternatively, have
been conferred by the filing of a criminal information by the State’s Attorney, but it was
not. This Court went to great lengths to explain this Sixth Amendment investiture
ceremony in In re Darryl P., 211 Md. App. 112, 176–77, 63 A.3d 1142 (2013):
The initial attachment of the right in this case is uncontroversial. The
very wording of the Sixth Amendment, of course, restricts its application to
“criminal proceedings.” Even with respect to criminal proceedings,
moreover, the entire package of Sixth Amendment rights is only available to
“the accused.” That is in dramatic contrast to the Fifth Amendment, which is
broadly available to “persons” generally. What is it then that raises one’s
status from the hoi polloi of mere “persons” to the special station of being
“the accused”? The standard statement for acquisition of “accused” status
is United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 81 L. Ed.
2d 146 (1984):
[A] person’s Sixth and Fourteenth Amendment right to counsel
attaches only at or after the time that adversary judicial
proceedings have been initiated against him.
In further explanation of how “adversary judicial proceedings have
been initiated,” the Court elaborated that such initiation occurs “by way of
formal charge, preliminary hearing, indictment, information, or
arraignment.” 467 U.S. at 188, 104 S. Ct. 2292. As Moran v. Burbine, 475
U.S. 412, 430, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), emphatically points
out, the fact that one has privately retained a lawyer does not trigger the Sixth
Amendment right to counsel. Only the honorific of “accused” can do that.
( . . . continued)
The Sixth Amendment, by contrast, is an even longer sentence, embracing seven
separate constitutional rights. At the top of the sentence is the subject of the entire
Amendment right. One must qualify for the honorific “accused” by a meticulously
prescribed rite of passage.
The best insight into the Sixth Amendment is gleaned by contrasting it with the Fifth
Amendment. A Sixth Amendment right has a much shorter shelf life than has a Fifth
Amendment right. The Fifth Amendment is a package of life-long rights. The Sixth
Amendment is a package of trial rights. One only acquires a trial right when one is destined
to stand trial.
3
(Emphasis supplied).
An Investigative Procedure Versus A Prosecutorial Commitment
The rite of passage by which the State commits itself to a criminal trial of “the
accused,” moreover, is not an investigative step or function but a formal prosecutorial
commitment. On August 10, 2014, to be sure, the police filed a Statement of Charges with
a District Court Commissioner, charging the appellant with murder and asking for an arrest
warrant. The Commissioner signed the Statement of Charges and issued the arrest warrant.
That, however, was a preliminary investigative function and not a formal commitment to
prosecution. The appellant was not yet in custody and would not be in custody for more
than another month. A formal commitment to prosecute can only be made 1) by the Grand
Jury, by filing an indictment; 2) by the State’s Attorney, by filing a criminal information;
or 3) in rarer cases, by the filing of the ultimate pleading, the official document on which
a defendant could be tried in a lower court proceeding.
As the Supreme Court explained in Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct.
1877, 32 L. Ed. 2d 411 (1972), “it is only then that the government has committed itself to
prosecute, and only then that the adverse positions of government and defendant have
solidified.” See also United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 81 L.
Ed. 2d 146 (1984). Citing Kirby, the Court of Appeals in State v. Gee, 298 Md. 565, 574,
471 A.2d 712 (1984), spoke to the same effect.
[W]hen the defendant cannot be tried under the warrant-statement of charges
he is not held to answer a criminal charge on the basis of that document. Its
issuance does not mark the onset of formal prosecutorial proceedings to
which the Sixth Amendment guarantee is applicable, nor has the putative
defendant thereby become an “accused.”
4
(Emphasis supplied).
In Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984), the Court of Appeals held
that a defendant was not yet an “accused” and, therefore, did not possess a Sixth
Amendment right to counsel at a police line-up, notwithstanding the fact that a “Statement
of Charges and the arrest warrant were issued prior to the lineup.” The Court of Appeals
held that neither qualified as a “formal charge.”
The Statement of Charges charged Webster with first degree rape. That
felony is within the exclusive jurisdiction of the circuit court, and, therefore,
the Statement of Charges did not constitute a charging document under which
a defendant may be tried.
299 Md. at 611 (emphasis supplied). In the present case, the words of State v. Gee, 298
Md. at 574, are dispositive:
The State has not by the issuance of such a warrant-statement of charges
committed itself to prosecute. Before it can proceed the grand jury must
indict or the State’s Attorney must file an information. Neither is obliged to
do so.
(Emphasis supplied).
The appellant thus did not become an “accused” on August 10, 2014. He did not
become an “accused” until he was indicted on November 18, 2014.
The Distinction Between Being An “Accused”
And Being At A “Critical Stage”
The appellant here is nonetheless obsessed with the issue of whether the police’s
taking of a statement from him on September 26, 2014, was a “critical stage.” It may have
been, but that alone, to the appellant’s chagrin, would not confer on him a Sixth
Amendment right to counsel. In focusing as he does, the appellant is looking only at the
5
second step of a two-step attachment process. He completely ignores the indispensable and
antecedent first step. Even an “accused” does not enjoy the cloak of the Sixth Amendment
at every stage of his post-indictment life. He must be ensnared in a “critical stage” of the
prosecution for his Sixth Amendment right to counsel to click in. Being “accused” is not
enough. You must be an “accused” who is also at a “critical stage.”
Conversely, being at a “critical stage” is not enough, unless you also qualify as “the
accused.” Those who do not yet qualify for Sixth Amendment coverage do not acquire
such coverage simply by being at a “critical stage.” The Supreme Court created this
difference but we explained the difference in Wood v. State, 196 Md. App. 146, 157–58, 7
A.3d 1115 (2010), cert. denied, 418 Md. 192, 13 A.3d 800 (2011):
Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), first
held that a suspect placed in a pre-indictment, as opposed to a post-
indictment, line-up did not yet enjoy the protection of the Sixth Amendment
because such a suspect was not yet an “accused.” Being at
a critical stage would qualify an “accused” for Sixth Amendment assistance,
but if you are not yet “accused” even a critical stage would not help.
Whatever little wind still propelled the exclusionary sails after Kirby, it was
largely wafted away by the subsequent holding in United States v. Ash, 413
U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973), that even a post-indictment
exhibition of a photograph of a subject, either in a group picture or as part of
an array of individual photographs, was, unlike standing the suspect in a live
line-up, not a critical stage. Whereas Kirby had diminished the ranks of the
“accused,” Ash diminished the incidence of a “critical stage.”
(Emphasis supplied). It is a case of 1) eligibility plus 2) need. Neither one alone will suffice.
A Contractual Right To Counsel
Is Not A Constitutional Right to Counsel
The appellant persists that the police violated his Sixth Amendment right to counsel
when they interrogated him on September 26, 2014, without his retained counsel’s having
6
been present. The flaw in the appellant’s argument is that the police could not have violated
his Sixth Amendment right to counsel on September 26, 2014, because the appellant had
no Sixth Amendment right to counsel on that date. He would not acquire such a right until
seven and one-half weeks later, when he was indicted by the Prince George’s County Grand
Jury. It was only on November 18, 2014, that formal prosecutorial proceedings were
launched against him and that he thereby became an “accused” person. It was only then
that he enjoyed a Sixth Amendment right to counsel.
The appellant seems to harbor an idea that his retention of John McKenna, Esq., on
August 10, 2014, endowed him with a Sixth Amendment right. In his brief, he argues:
At the suppression hearing, attorney John McKenna testified that he had
agreed, on August 10 or 11, 2014, to represent Mr. Wallace in this case. Mr.
McKenna reached out to the prosecutors to arrange for Mr. Wallace to turn
himself in on August 12, 2014. Mr. Wallace did not appear. Mr. McKenna
testified that he still considered himself Mr. Wallace’s attorney when
Mr. Wallace was arrested and interrogated in Washington, D.C., about a
month later. Detective Deere, who was among the three officers who
interrogated Mr. Wallace, testified that he knew that Mr. Wallace had a
lawyer at that time.
At several points in the interrogation, Mr. Wallace indicated that he
wanted his attorney present while talking to investigators. When a detective
began to tell Mr. Wallace about his Miranda rights, Mr. Wallace said, “I
already know these things. Y’all know I got a lawyer too, right[?]” The
detective responded, “Yeah. No, we know that.” Rather than contact
Mr. Wallace’s attorney, the detectives continued with the interrogation,
pressing Mr. Wallace to share “[his] version of what happened.”
Mr. Wallace responded, “I already told my version,” to “[m]y lawyer.”
(Emphasis supplied).
A contractual right to counsel, however, is not a constitutional right to counsel. As
In re Darryl P., 211 Md. App. at 176–77, explained:
7
As Moran v. Burbine, 475 U.S. 412, 430, 106 S. Ct. 1135, 89 L. Ed. 2d 410(1986), emphatically points out, the fact that one has privately retained a
lawyer does not trigger the Sixth Amendment right to counsel. Only the
honorific of “accused” can do that.
(Emphasis supplied).
In Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), the
family of the defendant had already retained counsel to defend him at the time the police
arrested him and subjected him to a police interrogation. Justice O’Connor’s opinion for
the Court explained why the private retention of counsel was not tantamount to the
attachment of the Sixth Amendment right to counsel.
More importantly, the suggestion that the existence of an attorney-client
relationship itself triggers the protections of the Sixth Amendment
misconceives the underlying purposes of the right to counsel. The Sixth
Amendment’s intended function is not to wrap a protective cloak around the
attorney-client relationship for its own sake any more than it is to protect a
suspect from the consequences of his own candor. Its purpose, rather, is to
assure that in any “criminal prosecutio[n],” U.S. Const., Amdt. 6, the accused
shall not be left to his own devices in facing the “‘prosecutorial forces of
organized society.’” By its very terms, it becomes applicable only when the
government’s role shifts from investigation to accusation.
475 U.S. at 430 (emphasis supplied; some internal citations omitted).
For this distinction between a contractual right to counsel and a constitutional right
to counsel, the absolute clincher is Maine v. Moulton, 474 U.S. 159, 168–76, 106 S. Ct.
477, 88 L. Ed. 2d 481 (1985). In that case, a surreptitious investigation of the defendant
had produced evidence against him with respect to two separate crimes, for one of which
he had already been indicted and for the other of which he had not. For the crime for which
Moulton had already been indicted, the violation of his Sixth Amendment right to counsel
meant that his inculpatory words obtained thereby would be excluded from being used
8
against him at the trial for that particular crime. For the trial of the crime for which he had
not been indicted, by contrast, there was no violation of a non-existent Sixth Amendment
right to counsel, and therefore, no exclusion of the inculpatory evidence was warranted.
The Supreme Court’s opinion in Moran v. Burbine, 475 U.S. at 431, explained fully the
Court’s reasoning in Maine v. Moulton:
There, we considered the constitutional implications of a surreptitious
investigation that yielded evidence pertaining to two crimes. For one, the
defendant had been indicted; for the other, he had not. Concerning the
former, the Court reaffirmed that after the first charging proceeding the
government may not deliberately elicit incriminating statements from an
accused out of the presence of counsel. The Court made clear, however, that
the evidence concerning the crime for which the defendant had not been
indicted—evidence obtained in precisely the same manner from the identical
suspect—would be admissible at a trial limited to those charges. The clear
implication of the holding, and one that confirms the teaching of Gouveia, is
that the Sixth Amendment right to counsel does not attach until after the
initiation of formal charges. Moreover, because Moulton already had legal
representation, the decision all but forecloses respondent’s argument that the
attorney-client relationship itself triggers the Sixth Amendment right.
(Emphasis supplied; internal citations omitted).
In this case, there was no violation of the appellant’s Sixth Amendment
constitutional right because the right allegedly violated did not exist.
No Meritorious Reason For Discharging Counsel
In his second contention, the appellant claims that Judge Hill “erred by ruling that
[the appellant] had no meritorious reason for discharging counsel.” On the first day of trial,
November 14, 2016, defense counsel, before the trial formally began, alerted Judge Hill
that the appellant “has indicated that he is unsatisfied with me and he would like to remove
9
me as counsel.”2 Accordingly, Judge Hill conducted a hearing pursuant to Maryland Rule
of Procedure 4–215(e), in which he explored the issue thoroughly with the appellant and
with his appointed defense counsel. Rule 4–215(e) provides:
(e) Discharge of Counsel—Waiver. If a defendant requests permission
to discharge an attorney whose appearance has been entered, the court shall
permit the defendant to explain the reasons for the request. If the court finds
that there is a meritorious reason for the defendant’s request, the court shall
permit the discharge of counsel; continue the action if necessary; and advise
the defendant that if new counsel does not enter an appearance by the next
scheduled trial date, the action will proceed to trial with the defendant
unrepresented by counsel. If the court finds no meritorious reason for the
defendant’s request, the court may not permit the discharge of counsel
without first informing the defendant that the trial will proceed as scheduled
with the defendant unrepresented by counsel if the defendant discharges
counsel and does not have new counsel. If the court permits the defendant to
discharge counsel, it shall comply with subsections (a)(1)–(4) of this Rule if
the docket or file does not reflect prior compliance.
(Emphasis supplied).
Pursuant to the Rule, Judge Hill did not simply permit the appellant to explain the
reasons for his request, but generously indulged him in doing so. State v. Graves, 447 Md.
230, 242, 135 A.3d 376 (2016). Under the circumstances of this case, the only issue for
Judge Hill to decide was that of whether there was or was not “a meritorious reason” for
the appellant to discharge his attorney. With respect to the core ruling itself,
“meritorious” means with “good cause.” Dykes v. State, 444 Md. 642, 652, 121 A.3d 113(2015). Judge Hill ruled that there was no meritorious reason to justify the discharge of
2
In the intervening two years, the appellant’s retainer of John McKenna, Esq. had
long since lapsed. The appellant, at trial, was represented by the Office of the Public
Defender.
10
counsel. Having made that ruling, it became incumbent on Judge Hill to explain to the
appellant that the trial would proceed as scheduled without further delay. Thus warned, the
appellant opted to allow his appointed counsel to continue to represent him, and the matter
was closed.
In terms of the appellate standard by which the Court will review such a ruling,
Cousins v. State, 231 Md. App. 417, 438, 153 A.3d 163, cert. denied, 453 Md. 13, 160
A.2d 549 (2017), made it clear that “a trial court’s determination that a defendant had no
meritorious reason to discharge counsel under Rule 4–215(e) is reviewed for an abuse of
discretion.” See also State v. Taylor, 431 Md. 615, 630, 66 A.3d 698 (2013). By way of
further insight into how deferential to the trial court’s ruling the abuse-of-discretion
standard actually is, Evans v. State, 396 Md. 256, 277, 914 A.2d 25 (2006), explained that
to constitute an abuse of discretion, the trial judge’s decision “has to be well removed from
any center mark imagined by the reviewing court and beyond the fringe of what that court
deems minimally acceptable.” (Internal quotation marks and citation omitted).
Were the appellant’s reasons for wishing to discharge his lawyer before this Court
for a de novo ruling, we would not find those reasons to be meritorious. A fortiori, we
cannot hold that Judge Hill abused his discretion in so ruling. In the words of Evans v.
State, his ruling was not “beyond the fringe of what [this] [C]ourt deems minimally
acceptable.”
A few representative snippets of appellant’s argument before Judge Hill will suffice
to reveal the essential insubstantiality of his argument. When on the morning of the
scheduled trial, November 14, 2016, the appellant asked permission to discharge his
11
lawyer, the appellant had been represented by that lawyer for essentially two years. The
appellant’s complaints about the infrequency of their communications were not new. As
Judge Hill probed insistently for some explanation as to why the appellant had waited until
the morning of the trial to bring his complaint before the court, the appellant could offer
no cogent explanation.
THE COURT: What I’m saying is his appearance has been in the case since
November of 2014, October, November, 2014, almost two years to the date.
He has been representing you for two years. During the course of that time
there have been several trial dates.
Why are you waiting until two years later, why are you waiting until your
third or fourth trial date before you are asking that he not represent you?
THE DEFENDANT: They have been continued, and me and my family we
were working on getting me a lawyer, and things of that nature. We were
working on getting me a private attorney, and things of that nature. Plus it is
like I can’t get in contact with him to, you know, to tell him how I feel. Friday
he came to see me and I told him Friday, but he said I would have to see you
and here I am.
THE COURT: But you are not really answering my question. My question,
again, is he has been representing you for two years, 24 months.
THE DEFENDANT: Right.
THE COURT: Why are you waiting until the 24th month to want to fire him,
essentially? Why didn’t you fire him after six months? Eight months? 12
months? Why are you waiting until, again, your third or fourth scheduled
trial date?
The appellant’s primary reason for not having brought the matter to the attention of
the court seemed to have been wrapped up in his unrealistic hopes of obtaining a private
attorney.
THE DEFENDANT: I really didn’t think I would have him this long. I
thought I would have my private attorney by now.
12
THE COURT: You have had two years to hire a private attorney and you
haven’t.
THE DEFENDANT: I have been working on it, too. I also have been
working on it.
THE COURT: Do you have a private attorney?
THE DEFENDANT: No.
After the appellant made one or two substantive complaints, Judge Hill called upon
defense counsel to explain the nature of his trial preparation. Counsel provided full detail.
We did go over the content, we spoke about them, we spoke about all the
witnesses prior to the last trial date. The last trial date we were ready to go
mostly. We had discussed everything, our trial strategy and everything else
leading up to the last trial date. The week before that is when he asked to
look into character witnesses. That is why the last trial date was continued
was to try to find character witnesses. That would have been the only
difference in our trial strategy from the last trial date to this trial date would
have been if we found character witnesses, and it would have possibly change
some of our strategy some.
Since that time the social worker in our office had gone over and spoken to
Mr. Wallace about that. They looked into finding character witnesses. I
spoke to his family and asked them to give me names of character witnesses.
In the end we only found one name. The social worker was able to speak to
her. Unfortunately, I was not.
I saw [Mr. Wallace] again last week, explained the trial strategy is essentially
the same because we don’t have any character witnesses. All the stuff we
talked about pretrial last time, nothing has changed. That is why I did not go
back over to rehash everything that we had already spoken about because the
trial strategy, everything we spoke about, nothing has changed since the last
trial date.
In regards to the phone records. He did mention to me that he wanted the
phone records. I disagreed in the strategy reasons. We looked at it. We looked
at the discovery. I explained to him why I did not think the phone records,
and specifically speaking of phone records for one of the witnesses, why I
believed that those phone records would not help us and possibly could hurt
us. That is why I did not seek them. I explained that to him.
13
(Emphasis supplied).
Judge Hill gave his reasons for finding that the appellant’s reasons for wishing to
discharge counsel were non-meritorious.
All right, sir, I have considered your request. Again, the indictment goes back
two years. There have been numerous trial dates. I believe at least two of the
continuances were the State’s request. Nevertheless, this case has been set
for trial numerous times. You are just now making your request for a
continuance.
You gave me a reason for [defense counsel’s] not giving you his all, as well
as questions about the discovery. I have heard [defense counsel’s] response.
I believe he has represented you to the best of his ability and has made some
trial decisions, legal decisions that you may not agree with, but he is an
attorney, an experienced attorney, an experienced attorney doing homicide
cases as well. I don’t find that there are meritorious reasons to discharge
[defense counsel].
(Emphasis supplied).
In making that ruling, Judge Hill did not abuse his discretion. His ruling was not
“beyond the fringe of what [this] [C]ourt deems minimally acceptable.”
Non-Preservation:
Nothing More Need Be Said
The appellant’s third contention could have generated some tantalizing legal issues,
had it been preserved for appellate review. Unfortunately, it has not been preserved.
Maryland Rule of Procedure 4–324(a) is firm as it provides in pertinent part:
(a) Generally. A defendant may move for judgment of acquittal on
one or more counts, or on one or more degrees of an offense which by law is
divided into degrees, at the close of the evidence offered by the State and, in
a jury trial, at the close of all the evidence. The defendant shall state with
particularity all reasons why the motion should be granted.
(Emphasis supplied).
14
A generic motion for acquittal will not suffice. A defendant must “state with
particularity” his reasoning as to why his motion should be granted. On this issue, the Court
of Appeals has been adamant, holding in State v. Lyles, 308 Md. 129, 135, 517 A.2d 761(1986):
The language of the rule is mandatory. Hence Lyles was required
to state with particularity all reasons why his motion for judgment of
acquittal should be granted. The record is clear; he did not do so on either
occasion he made such motion.
(Emphasis supplied). The sanction for the failure to “state with particularity” is clear.
Accordingly, no grounds for the motion having been given, the issue
of the sufficiency of the evidence has not been preserved.
308 Md. at 136 (emphasis supplied).
Our Concern Is Not Only With “What Did The Appellant Say?”
But With “When Did He Say It?”
In the case now before us, the appellant made the following curious motion for a
judgment of acquittal at the end of the State’s case.
[DEFENSE COUNSEL]: Thank you. The defense does make a motion for
judgment of acquittal. We had large arguments over the jury instruction
earlier in regards to what instructions could or could not be read.
Specifically a large instruction with regard to the second-degree
felony murder charge. In regards to that charge we would adopt and
incorporate all of those arguments into our motion for judgment of acquittal.
In regards to all other counts, we would submit on the evidence.
(Emphasis supplied). The motion was denied. At the end of the entire case, the appellant
renewed his motion and simply submitted “on prior argument.” That motion was denied as
well.
15
Contained therein is a curious little procedural wrinkle, well worthy of brief
comment. Will an argument about the continuing vitality of second-degree felony murder
made in the course of a lengthy discussion about jury instructions serve as an adequate
challenge to the legal sufficiency of the State’s evidence to prove second-degree murder
made at the end of the entire case? We do not hesitate to hold that Rule 4–324(a)’s
command to “state with particularity” means to “state with particularity” HERE AND
NOW.
To attempt to incorporate by unadorned reference something that was said in
another place at another time and in another context is not to “state with particularity” why
a judgment of acquittal should be granted. The “large argument over the jury instruction”
to which the appellant refers spanned almost 50 pages in the transcript.3 One might as
readily move for a judgment of acquittal on the basis of “all of the arguments that have
been made in the course of this long and hotly contested trial.”4 Rule 4–324(a) is more
earthbound than that. The objection that the State’s evidence was not legally sufficient to
support a verdict of second-degree murder has not been preserved.
The Essential Pluralism Of Criminal Homicide
3
In none of that “earlier” argument, moreover, was there any objection to instructing
the jury on depraved heart murder. There was, moreover, no suggestion that a depraved
heart murder instruction had not been generated by the evidence.
4
The appellant does not even cite with any specificity what argument he may or
may not have made in the course of that earlier discussion over jury instructions. He
depends upon us to search those 50 pages of the transcript for him. That, however, is not
our job.
16
Under the appellant’s more ethereal and open-ended notion of issue preservation,
some interesting, if vexing, questions might have been before us. The appellant’s present
argument would not have prevailed, however, even if it had been preserved. For the
appellant to contend, as he now does, that the evidence was not legally sufficient to support
a conviction for second-degree depraved heart murder is by no means to contend that the
evidence was not legally sufficient to support a conviction for second-degree murder
generally. The appellant obviously thinks about murder much too narrowly and too
parochially.
Many crimes are widely embracing enough to be perpetrated by different modalities
just as they may be explained by alternative and different theories of guilt. Such breadth of
the core crime, however, does not fragment each different modality or each different theory
of guilt into a different crime requiring distinct pleadings and yielding distinct verdicts. In
a case of theft, for instance, the unlawful conversion of the victim’s property may be
effectuated by force or by stealth or by deceit or even by the receiving of stolen goods.
That diversity, however, does not create separate crimes. It simply represents different
ways of being guilty of the same indivisible crime of theft. Rice v. State, 311 Md. 116, 126,
136, 532 A.2d 1357 (1987) (“[Stealing and receiving stolen goods] are not autonomous
offenses but rather one crime defined two ways” and therefore “Maryland’s theft statute
[does] not require the jury unanimity that [Rice] seeks.”).
The same singularity of the underlying crime notwithstanding the multiplicity of its
modalities has been recognized with respect to what was the common law crime of assault
and is now the statutory misdemeanor of Assault in the Second Degree. Criminal Law
17
Article, Sect. 3–201(b); Watts v. State, 457 Md. 419, 434, 179 A.3d 929 (2018) (“In 1996,
the General Assembly simply codified what the Court of Special Appeals in Lamb had
already recognized—that second degree assault is a single crime that could be committed
via different modalities.”). See also Lamb v. State, 93 Md. App. 422, 613 A.2d 402 (1992),
cert. denied, 329 Md. 110, 617 A.2d 1055 (1993).
So too is it with murder. To multiply the ways in which the crime may be committed
is not to multiply the crime itself. There are no fewer than four separate mentes reae that
are deemed blameworthy enough so that one with such a mens rea will be considered a
murderer should the victim of his criminal conduct die. One such mens rea is the specific
intent to kill. Smith v. State, 41 Md. App. 277, 398 A.2d 426, cert. denied, 284 Md. 748(1979). A second murderous mens rea is the specific intent to inflict grievous bodily harm.
State v. Ward, 284 Md. 189, 396 A.2d 1041 (1978). A third mens rea is the intentional
perpetration or attempted perpetration of a life-endangering felony. Fisher v. State, 128
Md. App. 79, 736 A.2d 1125 (1999), aff’d in part, vacated in part, 367 Md. 218, 786 A.2d
706 (2001). A fourth murderous mens rea is the reckless and wanton disregard for human
life that we shorthand with the phrase “depraved heart.” Alston v. State, 101 Md. App. 47,
643 A.2d 468 (1994), aff’d, 339 Md. 306, 662 A.2d 247 (1995).
These are not four separate crimes. They do not have to be charged separately. They
do not have to yield distinct verdicts. They are but alternative mental states for committing
the same crime. Simply to charge the appellant with “murder” is ipso facto to charge him
with all of its myriad manifestations and in all degrees, including manslaughter. See Wood
v. State, 191 Md. 658, 665–68, 62 A.2d 576 (1948); Ross v. State, 308 Md. 337, 340–46,
18
519 A.2d 735 (1987); McMillan v. State, 181 Md. App. 298, 344–45, 956 A.2d 716 (2008),
rev’d on other grounds, 428 Md. 333, 51 A.3d 623 (2012). The legal sufficiency or
insufficiency of the evidence to prove one theory of guilt does not foreclose, therefore, the
evidence’s being legally sufficient to prove other possible theories of guilt. Alternative
mentes reae may overlap. They are not mutually exclusive.
In the present case, on the morning of August 10, 2014, at 6915 Forest Terrace in
Prince George’s County or immediately outside it, the appellant was assaulted and severely
beaten by Rashad Philpot and his friend Anthony. The appellant retreated from the scene,
commandeered a loaded handgun from the car of a close friend, and returned immediately
to 6915 Forest Terrace, hell-bent on retaliation and waving the gun as he approached. Once
at the house, he fired six shots at the second story room that was Rashad’s bedroom and in
which the appellant then believed Rashad and his friend would still be found. Five of the
bullets pierced the wall and ended up in the bedroom. A sixth bullet ricocheted off. One of
the bullets killed the victim. The appellant’s homicidal agency was undisputed. The only
thing to be determined was his mens rea.
The appellant might have fired in hot-blooded rage in response to the provocation
of an unprovoked assault or a mutual affray. He would at least have been entitled to try to
prove that theory of extenuation. In any event, he may well, with or without mitigation,
have fired with a specific intent to kill Rashad and/or Anthony. Whatever legal problem
might be posed by the fact that Rashad and Anthony were not in the room, or even in the
house, when the shots were fired could be easily resolved by the principle of transferred
intent. See generally Harvey v. State, 111 Md. App. 401, 681 A.2d 628, cert. denied, 344
19
Md. 330, 686 A.2d 635 (1996).Whatever intent the appellant harbored toward Rashad
and/or Anthony, as intended victims, would have been transferred to the three-year-old
Knijah Bibb, the unintended victim who was hit and killed by one of the bullets that pierced
the wall.
If, on the other hand, a less vengeful appellant had not specifically intended to kill
Rashad and/or Anthony but had only intended to inflict serious grievous bodily harm on
them, that same intent would have transferred to Knijah Bibb and the second-degree
murder verdict would have been precisely the same as if his intent had been to kill. This
was a second possible basis for a verdict of second-degree murder in this very case.
A third theory of murderous guilt might at that time have rested on the felony of
first-degree assault as the predicate felony for second-degree felony murder under the then
controlling law of Roary v. State, 385 Md. 217, 867 A.2d 1095 (2005). There would have
been no problem in terms of the legal sufficiency of the evidence.
A fourth theory of possible guilt could have been that of depraved heart second-
degree murder. To attempt to fire six bullets into a home the appellant had reason to believe
was then occupied by no fewer than eight persons could easily have been found by a jury
to be evidence of a reckless and wanton disregard for human life.5 That verdict was a pat
hand.
5
Citing Dishman v. State, 352 Md. 279, 299–300, 721 A.2d 699 (1998), the
appellant points to the blurred and ambiguous definitional borderline between second-
degree depraved heart murder and manslaughter of the gross criminal negligence variety.
(continued . . . )
20
On his motion for a verdict of acquittal, the appellant did not challenge in any way
the legal sufficiency of the State’s evidence to support a verdict of second-degree murder
under any of these possible theories of guilt. We have not been told that the State
affirmatively disclaimed any theory of guilt. The jurors, moreover, need not automatically
even have been unanimous in selecting a theory of guilt. Each of the four theories of
possible guilt might have claimed the allegiance of no more than three jurors. All twelve
would have been unanimous, however, in voting for guilt of second-degree murder and
that is the only unanimity that matters. This would be precisely the sort of decisional
diversity that this Court deemed to be permissible in Jeffries v. State, 113 Md. App. 322,
335–36, 688 A.2d 16, cert. denied, 345 Md. 457, 693 A.2d 355 (1997):
A unanimous verdict of guilty of first-degree felony-murder would not be
overturned even if it could be conclusively determined that six of the jurors
stopped their analysis after concluding that the murder in question occurred
in the course of an in-house robbery, five others analyzed it only in terms of
a murder in the course of a burglary, and one lone juror (not sure that the
victim had any money) reached the conclusion that the murder occurred in
the course of an attempted robbery. The unanimous verdict would have been
guilty of the single crime of felony-murder, and not three fragmented
decisions with respect to three separate crimes of robbery-murder, burglary-
murder, and attempted-robbery-murder.
( . . . continued)
If anything, this makes the State’s case on the legal sufficiency of the evidence even
stronger. In the present troubled state of our definitional law, it is for all intents and
purposes impossible to imagine a body of evidence that would satisfy the burden of
production for gross criminal negligence manslaughter that would not ipso facto also
satisfy the burden of production for second-degree depraved heart murder.
21
In a variegated crime such as murder, one juror is by no means required to agree with other
jurors as to the underlying theory of guilt any more than he or she is required to agree with
the other jurors as to which State’s witness he or she finds most persuasive and credible.
The Supreme Court has long recognized this permissible diversity in the jurors’ decisional
process. See Schad v. Arizona, 501 U.S. 624, 631–32, 111 S. Ct. 2491, 115 L. Ed. 2d 555(1991). The permutations and possibilities are fascinating.
Regretfully, we are precluded from indulging in this rich analytic smorgasbord of
Maryland homicide law by the foreclosing fact that the appellant has preserved nothing in
this regard for appellate review. The challenge is not preserved, but it would not have
prevailed even if, arguendo, it had been preserved.
The Appellant Requests That We Notice Plain Error
The appellant’s fourth contention is that Judge Hill gave the jurors an erroneous
instruction on second-degree felony murder. The appellant at trial, however, lodged no
objection to it. The appellant asks us to overlook his non-preservation and to take notice of
plain error. In the exercise of our discretion, we decline to do so.
Correcting A Clerical Glitch
The appellant finally contends that the record erroneously reflects that he was
convicted of first-degree murder. He was not. He was acquitted of first-degree murder but
convicted of second-degree murder. He asks that the record be corrected to show the true
verdicts. The State fully agrees. We hereby direct the circuit court to correct the
commitment record to show that the conviction was for second-degree murder and not for
first-degree murder.
22
COMMITMENT RECORD SHALL BE
CORRECTED AS HEREIN DIRECTED; IN
ALL OTHER RESPECTS, THE
JUDGMENTS OF CONVICTIONS ARE
AFFIRMED; COSTS TO BE PAID BY
APPELLANT.
23