State v. Fabien

State of Maryland v. Kory J. Fabien, No. 1061, September Term, 2021. Opinion by
Woodward, J.
CRIMINAL LAW – MANSLAUGHTER OF A VIABLE FETUS UNDER
CRIMINAL LAW ARTICLE (“CR”) § 2-103 – APPLICABLITY OF CR § 2-103 TO
MANSLAUGHTER BY VEHICLE OR VESSEL UNDER CR § 2-209, BOTH IN
GENERAL AND AS APPLIED – REQUIREMENT OF KNOWLEDGE FOR
CONVICTION
CRIMINAL LAW – MOTION TO DISMISS – GRANT OF MOTION TO DISMISS
SOME, BUT NOT ALL, OF THE CHARGES – STATE NOT REQUIRED TO
ENTER NOLLE PROSEQUI OF REMAINING CHARGES WITHIN THIRTY
DAYS OF ORDER GRANTING MOTION
Facts: On January 12, 2019, appellee, Kory J. Fabien, drove a motor vehicle while under
the influence of alcohol, crossed the double-yellow center lines, and caused a head-on
collision with another vehicle. Haruko Berry, who was then thirty-three weeks pregnant,
was the front seat passenger of the other vehicle. Although Ms. Berry survived the crash,
she sustained serious injuries and her viable fetus was delivered stillborn during an
emergency cesarean section at the hospital.
On December 19, 2019, appellee was indicted on four counts: (1) manslaughter by
vehicle or vessel in violation of CR § 2-209(b); (2) homicide by motor vehicle or vessel
while under the influence of alcohol per se in violation of CR § 2-503(a)(2); (3) criminally
negligent manslaughter by vehicle or vessel in violation of CR § 2-210(b); and (4) life-
threatening injury by motor vehicle or vessel while under the influence of alcohol per se in
violation of CR § 3-211(c)(ii). In counts one, two, and three, the State charged appellee
with the death of a viable fetus.
On February 9, 2021, appellee filed a motion to dismiss counts one, two, and three,
to which the State filed an opposition. The trial court granted appellee’s motion to dismiss
in an Order dated May 28, 2021, and entered on June 1, 2021. On September 3, 2021, the
State entered a nolle prosequi to the remaining count of the indictment and then filed a
Notice of Appeal on September 9, 2021.
Held: Affirmed.
On appeal, appellee moved to dismiss the State’s appeal on the grounds that, if the
State intended to enter a nolle prosequi to the remaining count of the indictment, it had to
do so within thirty days of the entering of the Order granting the motion to dismiss.
According to appellee, because the State entered the nolle prosequi and noted an appeal
more than thirty days after the entry of the Order granting the motion, the State’s appeal
was untimely. The Appellate Court of Maryland denied appellee’s motion to dismiss,
holding that there is no thirty-day time limit on the prosecutor’s power to enter a nolle
prosequi when the trial court dismisses some, but not all, of the counts of an indictment.
The Court pointed out that, under well-established case law, an appeal cannot be taken by
the State from an order dismissing fewer than all counts of an indictment and that a final
judgment occurs only when the remaining charges are resolved – here by entry of a nolle
prosequi.
Next, as a preliminary matter, the Appellate Court noted that in order to convict a
person of manslaughter of a viable fetus, CR § 2-103(c)(3) requires the State to prove that
the defendant “wantonly or recklessly disregarded the likelihood that the person’s actions
would cause the death of or serious physical injury to the viable fetus.” The State conceded,
and the Court agreed, that CR § 2-103(c)(3) establishes a mens rea standard higher than
the mens rea required for convictions under CR §§ 2-210 and 2-503. Consequently, the
Court held that CR § 2-103 does not apply to a prosecution for a violation of CR §§ 2-210
and 2-503, and thus the trial court’s dismissal of counts two and three must be affirmed.
Accordingly, the only charge subject to the instant appeal was manslaughter by vehicle or
vessel in violation of CR § 2-209.
The Appellate Court identified the issue raised in the appeal as whether CR § 2-103
applies to CR § 2-209, both generally and under the circumstances of this case. Because
the issue is entirely of statutory construction, the Court engaged in an extensive analysis of
both CR § 2-103 and CR § 2-209 under the established principles of statutory construction.
As a result of that analysis, the Court held that CR § 2-103 applies to CR § 2-209 generally.
The Appellate Court then addressed whether CR § 2-103 applied to CR § 2-209
under the circumstances of the instant case. Specifically, the Court focused on appellee’s
argument that by choosing the phrase “to the viable fetus” instead of “to a viable fetus” in
describing the object of the defendant’s “wanton or reckless disregard” in CR § 2-
103(c)(3), the General Assembly “intended the perpetrator to know of the potential harm
to the viable fetus.” The Court noted that the indefinite article “a, an” denotes a single but
unspecified person or thing and is analogous to “human life” in the gross negligence
standard of “wanton or reckless disregard for human life.” By contrast, according to the
Court, the definite article “the” denotes particular, specified persons or things. The Court
held that by using the phrase “the viable fetus” in CR § 2-103(c)(3), the General Assembly
intended to add the element of knowledge to the gross negligence mens rea in a prosecution
for manslaughter of a viable fetus.
Because it was undisputed that appellee did not know or have reason to know that a
pregnant woman was in the vehicle involved in the head-on collision caused by his grossly
negligent operation of a vehicle, the Court concluded that the State could not prove an
essential element of the charge under CR § 2-209. Accordingly, the Court affirmed the trial
court’s dismissal of the charge of manslaughter by vehicle or vessel in violation of CR §
2-209(b).
Circuit Court for Prince George’s County
Case No. CT191310X
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1061
September Term, 2021
______________________________________
STATE OF MARYLAND
v.
KORY J. FABIEN
______________________________________
Beachley,
Tang,
Woodward, Patrick L.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Woodward, J.
______________________________________
Filed: September 5, 2023
*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
In the Circuit Court for Prince George’s County, appellee, Kory J. Fabien, was
charged on December 19, 2019 by criminal indictment with four counts arising out of a
motor vehicle collision that caused the death of a viable fetus. Both parties agreed that
under Md. Code Ann., Crim. Law (“CR”) § 2-103, the State could prosecute an individual
for murder or manslaughter of a viable fetus. The parties, however, disagreed on whether
CR § 2-103 applied to the criminal charges brought against appellee.
On February 9, 2021, appellee filed a motion to dismiss counts one through three of
the indictment. On February 22, 2021, the State responded by filing an opposition to
appellee’s motion. After a hearing held on May 21, 2021, the circuit court issued an Order
dated May 28, 2021, and entered June 1, 2021, granting appellee’s motion to dismiss.
On September 3, 2021, the State entered a nolle prosequi on the remaining count of
the indictment—count four. Shortly thereafter, on September 9, 2021, the State filed a
notice of appeal from the circuit court’s decision granting appellee’s motion to dismiss
counts one through three.1 On September 14, 2021, the court entered an Opinion and Order
of Court “in supplement to the record made on May 21, 2021, and the Order issued on May
28, 2021.”
On appeal, the State raises one question for our review:
1
Md. Code Ann., Cts. & Jud. Proc. § 12-302(c)(2) permits the State to appeal “from a final
judgment granting a motion to dismiss or quashing or dismissing any indictment,
information, presentment, or inquisition.” By entering a nolle prosequi to count four of
the indictment against appellee, the State secured a final, appealable judgment within the
meaning of the statute. See State v. Gibson, 4 Md. App. 236, 240 n.1 (1968), aff’d, 254
Md. 399 (1969), cited with approval by Jones v. State, 298 Md. 634, 637-38 (1984).
Did the circuit court err when it granted [appellee]’s motion to dismiss
[c]ounts [o]ne, [t]wo, and [t]hree charging [appellee] with manslaughter of a
viable fetus by operation of a motor vehicle?
For the reasons set forth herein, we shall affirm the judgment of the circuit court, but not
on the grounds relied upon by that court.
BACKGROUND
For the purpose of the instant appeal, the parties do not dispute the facts resulting in
appellee’s indictment. On January 12, 2019, appellee was driving a motor vehicle in the
eastbound lane of Brown Road near the intersection of Brown Road and Nightside Drive
in Prince George’s County, Maryland. Appellee drove his vehicle across the double-
yellow center lines into the westbound lane of Brown Road and caused a head-on collision
with another motor vehicle driven by Kevin Berry II and occupied in the front passenger
seat by his wife, Haruko Berry, who was at that time 33 weeks pregnant with the couple’s
second daughter. At the time of the collision, appellee had a blood alcohol concentration
of 0.23 grams of alcohol per 100 milliliters of blood, and thus was driving under the
influence of alcohol per se. Ms. Berry survived the crash but sustained serious injuries.
Ms. Berry was transported to a hospital where she underwent an emergency cesarean
section during which her viable fetus, Braylen Berry,2 was delivered stillborn.
As previously stated, the State indicted appellee on December 19, 2019, on four
counts: (1) manslaughter by vehicle or vessel in violation of CR § 2-209(b); (2) homicide
by motor vehicle or vessel while under the influence of alcohol per se in violation of CR §
2
Appellee does not dispute that Braylen Berry was a “viable fetus” prior to the collision
on January 12, 2019.
2
2-503(a)(2); (3) criminally negligent manslaughter by vehicle or vessel in violation of CR
§ 2-210(b); and (4) life-threatening injury by motor vehicle or vessel while under the
influence of alcohol per se in violation of CR § 3-211(c)(1)(ii). In counts one, two, and
three, the State charged appellee with the death of a viable fetus.
On February 9, 2021, appellee filed a motion to dismiss counts one, two, and three,
arguing that CR § 2-103, which permits the prosecution for murder or manslaughter of a
viable fetus, was not intended to apply to prosecutions for manslaughter or homicide by
motor vehicle based on the death of a viable fetus. Specifically, appellee contended that
under CR § 2-103, the State was required to prove that the defendant knew of the existence
of the viable fetus. Appellee pointed to subsection (c)(3) of CR § 2-103, wherein it states
that the accused must have “wantonly or recklessly disregarded the likelihood that the
person’s actions would cause the death of or serious physical injury to the viable fetus.”
Appellee concluded that, because appellee did not know that the passenger in the car that
he hit was pregnant, counts one through three must be dismissed.
On February 22, 2021, the State responded by filing an opposition to appellee’s
motion to dismiss, arguing that subsection (c)(3) of CR § 2-103 requires only a general
intent, not a specific intent to harm the viable fetus. The State reasoned that, “[i]f the
[L]egislature intended to require the [d]efendant to have knowledge of the viable fetus in
order to be found guilty of manslaughter[,] it would have said so.” The State also argued
that by authorizing the prosecution of a viable fetus for murder or manslaughter, CR § 2-
103 created a new class of victim that was included within the scope of the statutes cited
in counts one through three. The State pointed out that, although CR § 2-103 sets forth
3
several exceptions to its applicability, there is no express exception for vehicular
manslaughter of a viable fetus. The State concluded its opposition by reiterating that the
Legislature created CR § 2-103 to allow for the prosecution of murder or manslaughter of
a viable fetus, except for protecting “the mother’s right to choose.”
On April 23, 2021, appellee filed a supplemental motion to dismiss counts one, two,
and three of the indictment. Appellee argued that CR § 2-103 is unconstitutionally vague
as applied to this case. Specifically, appellee asserted that CR § 2-103 fails to provide fair
notice of what is prohibited, because the statute’s knowledge requirement is ambiguous,
and thus is open to arbitrary enforcement.
Following a hearing held on May 21, 2021, the trial court granted appellee’s motion
to dismiss counts one, two, and three in an Order dated May 28, 2021, and entered June 1,
2021. In an Opinion and Order of Court entered on September 14, 2021, the trial court
held that the language contained in CR §§ 2-209, 2-503, and 2-210 all require the death of
“another,” meaning a child, after the child’s live birth, not a fetus. The court reasoned that,
if the Legislature had intended to confer personhood or any rights on the fetus, it would
have expressly done so.
After entering a nolle prosequi to count four on September 3, 2021, the State filed
a Notice of Appeal on September 9, 2021. We shall supply additional facts as necessary
to the resolution of the issue presented.
MOTION TO DISMISS
Appellee filed a motion to dismiss the State’s appeal in this Court, arguing that the
State failed to comply with Maryland Rule 8-202(a), which requires the filing of a notice
4
of appeal within thirty days after entry of the judgment or order from which the appeal is
taken. Md. Rule 8-202(a). Appellee contends that “there were two ways that the State
could have filed a valid notice of appeal.” First, according to appellee, the State could have
entered a nolle prosequi on the remaining fourth count of the indictment and noted the
appeal within thirty days of the entry of the Order granting the motion to dismiss. Appellee
argues that the State’s second option was to proceed to a final judgment on count four and
then note the appeal. Regarding the first option, appellee reasons that “[t]he State did not
have unlimited time to decide whether to nol pros the fourth count because it only had
thirty days to note an appeal from ‘entry of the judgment or order.’” According to appellee,
“[i]t contravenes Rule 8-202 to conclude that the State can delay and start the thirty-day
clock when it nol prosses, which is not an ‘entry of the judgment or order from which the
appeal is taken.’” Because the State did not note an appeal until September 9, 2021, which
was more than thirty days from the entry of the order granting the motion to dismiss counts
one through three on June 1, 2021, appellee concludes that the appeal was untimely and
must be dismissed.
In response, the State argues that the notice of appeal was timely filed under Md.
Rule 8-202(a). Specifically, the State claims that it has prosecutorial discretion to decide
whether and, if so, when to file a nolle prosequi, and thus in this case it had thirty days to
note an appeal from September 3, 2021, when, by its entry of the nolle prosequi on count
four, the entire case was dismissed. In other words, when the State “exercised its discretion
to enter a nolle prosequi on count 4, the prosecution ended with a final judgment embracing
the partial dismissal order, and the State thus became authorized to appeal the dismissal of
5
counts 1-3 pursuant to [Md. Code Ann.,] Cts. & Jud. Proc. § 12-302(c)(2).” We agree with
the State.
“We have defined entering a nolle prosequi ‘as an official declaration by the State,
announcing that it will not pursue the charges in a particular charging document.’” State
v. Simms, 456 Md. 551, 557-58 (2017) (quoting Gilmer v. State, 389 Md. 656, 659 n.2
(2005)). A prosecutor has complete discretion as to what offenses to charge in a particular
case. Oglesby v. State, 441 Md. 673, 680 (2015). “[T]he State’s Attorneys retain the broad
discretion they have historically enjoyed in determining which cases to prosecute, which
offenses to charge, and how to prosecute the cases they bring.” Evans v. State, 396 Md.
256, 298 (2006). Further, “[t]he entry of a nolle prosequi is generally within the sole
discretion of the prosecuting attorney, free from judicial control and not dependent upon
the defendant’s consent.”3 Ward v. State, 290 Md. 76, 83 (1981); accord, Simms, 456 Md.
3The State acknowledges in its brief that the prosecutor’s power is not absolute, but that
the judicially prescribed limits on such power are not applicable to this case. See Hook v.
State, 315 Md. 25, 35-36 (1989) (explaining that the entry of a nolle prosequi by the
prosecuting attorney “is not completely without restraint”); see e.g., State v. Simms, 456
Md. 551, 561 (2017) (“[W]e have prohibited the State’s entry of a nol pros in circumstances
where a defendant’s right to a speedy trial or . . . a fair trial has been undermined.”); Curley
v. State, 299 Md. 449, 462 (1984) (explaining that where the State enters a nol pros that
has the purpose or necessary effect of circumventing the defendant’s right to a trial within
the 180-day time limit, that nol pros is treated as a nullity); Burrell v. State, 340 Md. 426,
434 (1995) (“In considering whether an entry of nolle prosequi to a lesser included offense
is unfair to the defendant, . . . the evidence must . . . be such that the jury could rationally
convict only on the lesser included offense.”); Bynum v. State, 277 Md. 703, 705 (1976)
(citing Barrett v. State, 155 Md. 636, 638 (1928)) (“Where a nolle prosequi is entered
before double jeopardy attaches, the state is merely precluded from further prosecution
under the indictment or count so dismissed.”); see also Lee v. State, 257 Md. App. 481,
526 (quoting Hook, 315 Md. at 42) (“By entering a nol pros while a motion to stay was
pending, and while the State still had more than a week before [statute] required action, the
(continued...)
6
at 561. As recently reiterated by this Court, “a nol pros ‘is not an occasion for skepticism
or suspicion,’ but rather, ‘it is a legitimate and accepted way of doing prosecutorial
business.’” White v. State, 250 Md. App. 604, 628 (2021) (quoting Baker v. State, 130 Md.
App. 281, 288 (2000)).
Here, appellee seeks to take the thirty-day appeal period of Rule 8-202(a) and
engraft it as a time limit on the prosecutor’s power to enter a nolle prosequi when the court
has dismissed some, but not all, of the counts of an indictment. Appellee cites to no
authority for such principle of law, and we have found none. Neither the Maryland Rules
nor case law provide for a time limit from the entry of an order dismissing some, but not
all, counts of an indictment and when a nolle prosequi, if elected by the prosecutor, must
be entered.4 Further, as the State correctly points out, an appeal cannot be taken by the
State from an order dismissing fewer than all counts of an indictment. State v. Gibson, 4
Md. App. 236, 240 n.1 (1968); see State v. Gregg, 163 Md. 353, 353 (1932) (explaining
that an appeal is not permitted if, after sustaining a demurrer to one or more counts, one
count still remains). Therefore, once the State entered the nolle prosequi on count four,
there was then a final judgment from which the State could appeal under Cts. & Jud. Proc.
§ 12-302(c)(2). Accordingly, appellee’s motion to dismiss the instant appeal is denied.
State violated the requirement that the entry of a nol pros conform to ‘the rudimentary
demands of fair procedure[.]’”), cert. granted sub nom., Syed v. Lee, 483 Md. 589 (2023).
4
Of course, a prosecution of any remaining counts are subject to the Hicks Rule and the
constitutional right to a speedy trial. See State v. Hicks, 285 Md. 310, 318 (1979).
7
STANDARD OF REVIEW
“‘[T]he standard of review of the grant or denial of a motion to dismiss is whether
the trial court was legally correct.’” Lipp v. State, 246 Md. App. 105, 110 (2020) (quoting
Howard v. Crumlin, 239 Md. App. 515, 521 (2018)). Accordingly, we review the granting
or denial of a motion to dismiss de novo. Myers v. State, 248 Md. App. 422, 431 (2020)
(citing D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 350 (2019); Lipp, 246 Md.
App. at 110). Further, we may affirm a trial court’s judgment on any ground adequately
supported by the record, whether or not that ground was relied upon or even considered by
the court below. Unger v. State, 427 Md. 383, 406 (2012) (citing U.S. v. Arthur Young,
465 U.S. 805, 814 n.12 (1984)).
DISCUSSION
A. Preliminary Issue – What Statutes Are Involved
Title 2 of the Criminal Law Article in the Maryland Code governs homicide.
Subtitle 1 of Title 2 contains the general provisions of the title, including section 2-103,
entitled “Murder or manslaughter of viable fetus.” Section 2-103 was enacted by the
Maryland General Assembly in 2005, and provides, in its entirety:5
5
When originally enacted, section 2-103 contained subsection (h), which read:
(h) The commission of first degree murder of a viable fetus under this
section, in conjunction with the commission of another first degree murder
arising out of the same incident, does not constitute an aggravating
circumstance subjecting a defendant to the death penalty under § 2-
303(g)(ix) of this article.
(continued...)
8
(a) “Viable” defined. – For purposes of a prosecution under this title,
“viable” has the meaning stated in § 20-209 of the Health--General
Article.
(b) Murder or manslaughter of viable fetus. – Except as provided in
subsections (d) through (f) of this section, a prosecution may be
instituted for murder or manslaughter of a viable fetus.
(c) Intent. – A person prosecuted for murder or manslaughter as
provided in subsection (b) of this section must have:
(1) intended to cause the death of the viable fetus;
(2) intended to cause serious physical injury to the viable fetus;
or
(3) wantonly or recklessly disregarded the likelihood that
the person’s actions would cause the death of or serious
physical injury to the viable fetus.
(d) Right to terminate pregnancy. – Nothing in this section applies to or
infringes on a woman’s right to terminate a pregnancy as stated in § 20-
209 of the Health--General Article.
(e) Liability of medical professionals. – Nothing in this section subjects a
physician or other licensed medical professional to liability for fetal
death that occurs in the course of administering lawful medical care.
(f) Act or failure to act of pregnant woman. – Nothing in this section applies
to an act or failure to act of a pregnant woman with regard to her own
fetus.
(g) Personhood or rights of fetus. – Nothing in this section shall be construed
to confer personhood or any rights on the fetus.
(Emphasis added.) Section 2-103 was the first law in Maryland that permitted the State to
charge a person with the murder or manslaughter of a viable fetus. It is important to note,
With the abolition of the death penalty in Maryland in 2013, the General Assembly also
deleted subsection (h) of section 2-103. 2013 Md. Laws ch. 156, § 3.
9
however, that section 2-103 does not create a new crime, nor does it contain any penalty
provisions. Instead, the statute defines the circumstances under which the State may
prosecute a person for the murder or manslaughter of a viable fetus.
Subtitle 2 of Title 2 of the Criminal Law Article contains the statutes governing the
crimes of murder in the first degree (CR §§ 2-201, 2-203); murder in the second degree
(CR § 2-204); attempt to commit murder in the first degree (CR § 2-205); attempt to
commit murder in the second degree (CR § 2-206); manslaughter (CR § 2-207);
manslaughter by vehicle or vessel (CR § 2-209); and criminally negligent manslaughter by
vehicle or vessel (CR § 2-210). The statutes governing murder (CR §§ 2-201, 2-203–204)
do not create any new statutory crimes, but rather divide the crime of murder, as known at
common law, into degrees. Newton v. State, 280 Md. 260, 266 (1977); Campbell v. State,
293 Md. 438, 441 (1982); Selby v. State, 76 Md. App. 201, 210 (1988). Similarly, because
the statute governing manslaughter (CR § 2-207) prescribes only a penalty, the crime of
manslaughter is still a common law offense. Connor v. State, 225 Md. 543, 558 (1961);
see Gibson, 4 Md. App. at 241 (stating that, because the crime of manslaughter “is not
defined by statute, it is afforded its common law meaning in this State”). On the other
hand, the crime of manslaughter by vehicle or vessel (CR § 2-209) is a statutory crime by
which “the General Assembly repealed that portion of the crime of common law
involuntary manslaughter dealing with unintended homicides resulting from the operation
of motor vehicles.” Forbes v. State, 324 Md. 335, 339 (1991).
Subtitle 5 of Title 2 of the Criminal Law Article contains statutes governing the
crimes of homicide by motor vehicle or vessel while under the influence of alcohol or under
10
the influence of alcohol per se (CR § 2-503); homicide by motor vehicle or vessel while
impaired by alcohol (CR § 2-504); homicide by motor vehicle or vessel while impaired by
drugs (CR § 2-505); and homicide by motor vehicle or vessel while impaired by a
controlled dangerous substance (CR § 2-506). These statutory crimes were first enacted
by the General Assembly in 1978. 1978 Md. Laws, ch. 454.
As stated above, appellee was ultimately charged with violating CR §§ 2-209, 2-
210, and 2-503. Section 2-209, the statute governing manslaughter by vehicle or vessel,
states, in relevant part:
(b) Prohibited. – A person may not cause the death of another as a result of
the person’s driving, operating, or controlling a vehicle or vessel in a grossly
negligent manner.
CR § 2-209(b) (emphasis added).
CR § 2-210, the statute that criminalizes causing the death of another by operation
of a vehicle in a criminally negligent manner, states, in relevant part:
(b) Prohibited. – A person may not cause the death of another as the result
of the person’s driving, operating, or controlling a vehicle or vessel in a
criminally negligent manner.
(c) Criminal negligence. – For purposes of this section, a person acts in a
criminally negligent manner with respect to a result or a circumstance when:
(1) the person should be aware, but fails to perceive, that the
person’s conduct creates a substantial and unjustifiable risk
that such a result will occur; and
(2) the failure to perceive constitutes a gross deviation from the
standard of care that would be exercised by a reasonable
person.
CR § 2-210(b)–(c) (emphasis added).
11
Finally, CR § 2-503, which is the statute governing homicide by motor vehicle or
vessel while under the influence of alcohol or under the influence of alcohol per se,
provides, in relevant part:
(a) Prohibited. – A person may not cause the death of another as a result of
the person’s negligently driving, operating, or controlling a motor vehicle
or vessel while:
(1) under the influence of alcohol; or
(2) under the influence of alcohol per se.
CR § 2-503(a) (emphasis added).
At the outset, it is important to note the mens rea that is required for the prosecution
of murder or manslaughter of a viable fetus. In order to prosecute a person for the murder
or manslaughter of a viable fetus, CR § 2-103 requires that the State prove that the
defendant either: “(1) intended to cause the death of the viable fetus; (2) intended to cause
serious physical injury to the viable fetus; or (3) wantonly or recklessly disregarded the
likelihood that the person’s actions would cause the death of or serious physical injury to
the viable fetus.” CR § 2-103(c)(1)–(3).
Of relevance to this case is the mens rea of “wanton or reckless disregard” as
prescribed in CR § 2-103(c)(3). In order to prosecute a person for manslaughter by vehicle
or vessel, CR § 2-209 requires the State to prove that the person acted “in a grossly
negligent manner.” CR § 2-209(b). The State argues that the mens rea of CR § 2-103(c)(3)
is equivalent to the mens rea of CR § 2-209(b). The State, however, concedes that the
mens rea of CR § 2-210(b)–(c) and CR § 2-503(a) permit conviction upon proof of a mental
state less culpable than CR § 2-103(c)(3) allows. In its brief, the State argues:
12
Because Section 2-103 requires the State to prove a certain mens rea
to prosecute a person for the murder or manslaughter of a viable fetus—that
is, specific intent (C[R] § 2-103(c)(1) and (2)), which is not relevant here, or
wanton or reckless disregard of the likelihood of causing death or serious
physical injury to the viable fetus, C[R] § 2-103(c)(3), which is relevant
here—the State’s focus is on Count One, which charged Fabien with grossly
negligent manslaughter by motor vehicle in violation of C[R] § 2-209.
Counts Two and Three alleged, respectively, negligent homicide by
motor vehicle while under the influence of alcohol per se, in violation of
C[R] § 2-503, and criminally negligent manslaughter by operation of a motor
vehicle, in violation of C[R] § 2-210(b). These substantive offenses permit
conviction on proof of mental states less culpable than C[R] § 2-103(c)(3)
allows. . . . The State acknowledges that it would have to prove the
mental state of gross negligence in a prosecution for the death of Braylen
Berry, the viable fetus.
(Emphasis added.) Thus, the State claims that it can still prosecute appellee under CR § 2-
210 and CR § 2-503, provided the State proves the mens rea of gross negligence. In
response, appellee construes the State’s position as conceding that there can be no
prosecution of appellee under CR § 2-210 and CR § 2-503. In its reply brief, the State does
not concede that there cannot be a prosecution under these sections.
In our view, CR § 2-103(c)(3) establishes a mens rea standard higher than the mens
rea required under CR § 2-210(b)–(c) and CR § 2-503(a). Consequently, CR § 2-103
simply does not apply to a prosecution for a violation of CR § 2-210 and CR § 2-503. Cf.
Kilmon v. State, 394 Md. 168, 181 (2006) (stating that CR § 2-103 “did not encompass the
reckless endangerment statute” (CR § 3-204(a)(2))). Therefore, the decision of the trial
court to dismiss counts two and three must be affirmed. Accordingly, this opinion will
focus exclusively on the challenge by appellee to his prosecution under CR § 2-209
(manslaughter by vehicle or vessel).
13
B. The Issue
The issue raised by the State’s question in the instant appeal is whether CR § 2-103
(“murder or manslaughter of a viable fetus”) applies to CR § 2-209 (“manslaughter by
vehicle or vessel”), both generally and under the circumstances of this case. Because the
issue is entirely one of statutory construction, we must determine whether, in enacting CR
§ 2-103, the General Assembly intended that the statute apply to CR § 2-209, and if so,
whether the General Assembly intended to include the conduct of appellee as charged in
the indictment.
In Daughtry v. Nadel, 248 Md. App. 594 (2020), this Court summarized the
principles of statutory construction:
The cardinal rule of statutory construction is to ascertain and
effectuate the intent of the General Assembly. To determine the General
Assembly’s purpose or policy, we look first to the language of the statute,
giving it its natural and ordinary meaning. We do so on the tacit theory that
the General Assembly is presumed to have meant what it said and said what
it meant. In interpreting a statute’s plain language, we must read the statute
as a whole to ensure that no word, clause, sentence or phrase is rendered
surplusage, superfluous, meaningless or nugatory. In doing so, our inquiry
is not confined to the specific statutory provision at issue on appeal. Instead,
the plain language must be viewed within the context of the statutory scheme
to which it belongs, considering the purpose, aim or policy of the Legislature
in enacting the statute.
Id. at 611-12 (cleaned up).
Further, the Supreme Court of Maryland6 has observed that “[w]hile not necessary
in every instance, we often find it prudent to scrutinize the legislative history to confirm
6
At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals of Maryland to the Supreme Court
(continued...)
14
that our interpretation of the statute’s plain language accords with the [L]egislature’s
intent.” Berry v. Queen, 469 Md. 674, 687-88 (2020) (citing Neal v. Balt. City Bd. of Sch.
Comm’rs, 467 Md. 399, 415-16 (2020)). Finally, this Court has said:
“In addition to legislative history, we may and often must consider
other external manifestations or persuasive evidence in order to ascertain the
legislative purpose behind a statute. Specifically, [courts] should consider
the context of the bill, including the title and function paragraphs, the
amendments to the legislation as well as the bill request form. [Courts] may
also analyze the statute’s relationship to earlier and subsequent legislation,
and other material that fairly bears on the fundamental issue of legislative
purpose or goal, which becomes the context within which we read the
particular language before us in a given case.”
State v. Williams, 255 Md. App. 420, 440 (2022) (quoting Blackstone v. Sharma, 461 Md.
87, 113-14 (2018)).
C. Statutory History of CR § 2-103
1. Murder and Manslaughter in Maryland
To gain a better understanding of the statutory history of CR § 2-103 and its
relationship to CR § 2-209, a brief review of the history of murder and manslaughter in
Maryland is instructive.
In 1776 the framers of the Constitution of Maryland adopted the common law of
England as a part of the law of Maryland. Md. Const. Decl. of Rts., art. 5; Gladden v.
State, 273 Md. 383, 389 (1974). Included in the common law of England were the common
of Maryland. The name change took effect on December 14, 2022. See also, Md. Rule 1-
101.1(a) (“From and after December 14, 2022, any reference in these Rules or, in any
proceedings before any court of the Maryland Judiciary, any reference in any statute,
ordinance, or regulation applicable in Maryland to the Court of Appeals of Maryland shall
be deemed to refer to the Supreme Court of Maryland . . . .”).
15
law crimes of murder and manslaughter. See Gladden, 273 Md. at 389 (stating that “the
ingredients and elements of murder are as they were at common law”); Gibson, 4 Md. App.
at 241 (stating that “[m]anslaughter is a common law offense . . . and since the crime is not
defined by statute, it is afforded its common law meaning in this State”).
In 1809, the General Assembly made its first attempt to codify Maryland’s criminal
law by enacting chapter 138 of the Acts of 1809. Charles E. Moylan, Jr., Criminal
Homicide Law § 2.14, at 32 (2002). “[T]he Legislature divided the crime of murder as it
was known at common law into first and second degrees and attached penalties therefor…”
Gladden, 273 Md. at 389-90; accord, Evans v. State, 28 Md. App. 640, 683 (1975). The
act, however, did not create a new statutory offense; it left “the common law definition of
the crime of murder undisturbed.” Evans, 28 Md. App. at 683 (citing Davis v. State, 39
Md. 355 (1874)). Similarly, the act did not define the common law crime of manslaughter;
it merely prescribed a ten-year imprisonment as the maximum penalty. 1809 Md. Laws,
ch. 138, § 4(3); Bowers v. State, 227 Md. App. 310, 323-24 (2016).
Except for the changes in the capital punishment provisions of the statute and the
ultimate repeal of such provisions, “there has been virtually no change in Maryland’s
criminal homicide law between 1809 and the present day.” Moylan, Criminal Homicide
Law § 2.14, at 34. Prior to the 2002 recodification of Maryland’s criminal law into the
Criminal Law Article, the provisions of section 3, chapter 138, Laws of 1809, regarding
first-degree murder, were codified in Md. Code Ann., Article 27, §§ 407–410, and the
provision of section 3 regarding second-degree murder was codified in Article 27, § 411.
16
For manslaughter, the provision in section 4(3) of chapter 138 of the Laws of 1809 was
codified in Article 27, § 387. See Bowers, 227 Md. App. at 323-24.
Before taking a closer look at the 2002 recodification that created the Criminal Law
Article, we need to consider the separate statutory crimes enacted by the General Assembly
to address homicides that result from the operation of an automobile or other modalities of
transportation. The first is what Judge Moylan called “one small latter-day spinoff” of
common law manslaughter, namely, “the separate statutory crime of manslaughter by
automobile.” Moylan, Criminal Homicide Law § 8.1, at 151, § 12.11, at 240. Judge
Moylan explained: “The statutory crime was enacted by Chapter 414 of the Acts of 1941.
It cut out from the general ranks of manslaughter those particular manslaughters that were
‘the result of the driving, operation or control of’ certain modalities of transportation ‘in a
grossly negligent manner.’” Id. § 12.11, at 240. Further, according to Judge Moylan, the
actus reus and mens rea of the statutory crime was “common law gross negligence
manslaughter.” Id. Prior to the 2002 recodification, the statutory crime of manslaughter
by automobile was codified in Article 27, § 388.
Second, in 1978 the General Assembly added the crime of homicide by motor
vehicle or vessel while intoxicated. This Court summarized the purpose of the new law, in
comparison to manslaughter by automobile, in Loscomb v. State, 45 Md. App. 598, 600-
01 (1980):
Cognizant of the degree of difficulty confronting State’s Attorneys’
efforts to prove “gross negligence” in order to establish guilt under section
388, the Legislature enacted a new substantive offense that contained many
of the elements of manslaughter by motor vehicle, but added the additional
17
factor of “intoxication,” and reduced the “gross negligence” standard of
section 388 to “negligence.” Md. Ann. Code art. 27, [§] 388A.
(Footnote omitted.) Prior to the 2002 recodification, the name of the statutory crime of
homicide by motor vehicle or vessel while intoxicated was changed to homicide by motor
vehicle or vessel while under the influence of alcohol and, as indicated in the above
quotation from Loscomb, was codified in Article 27, § 388A.7
2. 2002 Recodification of Maryland’s Criminal Law
In 2002 the General Assembly enacted Chapter 26, Acts of 2002, for the purpose of
adding a new article to the Annotated Code of Maryland, called the “Criminal Law
Article,” which, among other things, revised, restated, and recodified the laws of Maryland
relating to criminal law. 2002 Md. Laws, ch. 26. As originally enacted, the Criminal Law
Article consisted of fourteen titles, Titles 1 through 14. Title 2, entitled “Homicide,”
contained five subtitles. Relevant to the instant appeal are subtitle 2, entitled “Murder and
Manslaughter,” and subtitle 5, entitled “Homicide by Motor Vehicle or Vessel While
Impaired or Under the Influence.” Id.
Under subtitle 2, murder in the first degree was set forth in section 2-201(a) without
substantive change from Article 27, §§ 407–410; murder in the second degree was set forth
in section 2-204(a) without substantive change from Article 27, § 411; manslaughter was
7
Article 27, § 388A included the crimes of homicide by motor vehicle or vessel while
under the influence of alcohol (§ 388A(b)); homicide by motor vehicle or vessel while
impaired by alcohol (§ 388A(c)); homicide by motor vehicle or vessel while impaired by
drugs (§ 388A(d)); and homicide by motor vehicle or vessel while impaired by a controlled
dangerous substance (§ 388A(e)).
18
set forth in section 2-207(a) without substantive change from Article 27, § 387; and
manslaughter by vehicle or vessel was set forth in section 2-209 without substantive change
from Article 27, § 388. Section 2-209(c) expressly provided that the “[n]ame of [the]
crime” “is manslaughter by vehicle or vessel.”
Under subtitle 5, homicide by motor vehicle or vessel while under the influence of
alcohol or under the influence of alcohol per se was set forth in section 2-503 without
substantive change from Article 27, § 388A(b).8 Section 2-503(b) expressly provided that
the “[n]ame of [the] crime” “is (1) homicide by motor vehicle or vessel while under the
influence of alcohol; or (2) homicide by motor vehicle or vessel while under the influence
of alcohol per se.” CR § 2-503(b).
The relevant provisions of the 2002 recodification of homicide laws into Title 2 of
the Criminal Law Article, as outlined above, set the stage upon which the General
Assembly acted to address the lack of a fetal homicide law in Maryland in the wake of the
murder in 2002 of Laci Peterson, who was then eight months pregnant. The murder and
subsequent highly publicized prosecution of Laci’s husband, Scott Peterson, on two counts
of murder under California law prompted Congress to pass the federal Unborn Victims of
Violence Act in 2004 and approximately twenty states to establish criminal penalties for
8
Homicide by motor vehicle or vessel while impaired by alcohol was set forth in section
2-504 without substantive change from Article 27, § 388A(c); homicide by motor vehicle
or vessel while impaired by drugs was set forth in section 2-505 without substantive change
from Article 27, § 388A(a)(4), (d); and homicide by motor vehicle or vessel while impaired
by a controlled dangerous substance was set forth in section 2-506 without substantive
change from Article 27, § 388A(a)(5), (e). CR §§ 2-504–506.
19
fetal homicide. Marka B. Fleming, Feticide Laws: Contemporary Legal Applications and
Constitutional Inquiries, 29 Pace L. Rev. 43, 49-52 (2008); see also Carolyn B. Ramsey,
Restructuring the Debate Over Fetal Homicide Laws, 67 Ohio St. L.J. 721 (2006).
3. The 2004 Legislative Session
In early 2004 Delegate Charles R. Boutin (R – Harford) introduced House Bill 520,
entitled “Homicide – Victim – Viable Fetus,” “for the purpose of establishing that for
certain murder, manslaughter, or other unlawful homicide prosecutions . . . the victim may
include a viable fetus.” H.B. 520 (2004). H.B. 520 would accomplish its purpose by
adding section 2-103 to the Criminal Law Article. H.B. 520 read, in relevant part:
Homicide – Victim – Viable Fetus
FOR the purpose of establishing that for certain murder,
manslaughter, or other unlawful homicide prosecutions and under certain
conditions the victim may include a viable fetus; defining a certain term;
providing for the construction of certain provisions of this Act; providing for
application of this Act; and generally relating to prosecution for murder,
manslaughter, or other unlawful homicide.
* * *
Article – Criminal Law
(A) FOR PURPOSES OF A PROSECUTION UNDER THIS TITLE,
“VIABLE” HAS THE MEANING STATED IN § 20-209 OF THE
HEALTH – GENERAL ARTICLE.
(B) EXCEPT AS PROVIDED IN SUBSECTIONS (C) AND (D) OF THIS
SECTION, A PROSECUTION MAY BE INSTITUTED FOR
MURDER, MANSLAUGHTER, OR UNLAWFUL HOMICIDE,
WHETHER AT COMMON LAW OR UNDER THIS TITLE, FOR AN
ACT OR OMISSION THAT:
(1) OCCURRED WHILE THE VICTIM WAS A VIABLE FETUS;
AND
20
(2) CAUSED THE DEATH OF THE VICTIM.
(C) NOTHING IN THIS SECTION APPLIES TO OR INFRINGES ON A
WOMAN’S RIGHT TO TERMINATE A PREGNANCY AS STATED
IN § 20-209 OF THE HEALTH – GENERAL ARTICLE.
(D) NOTHING IN THIS SECTION SUBJECTS A PHYSICIAN TO
PROSECUTION FOR A DECISION TO PERFORM AN ABORTION
AS STATED IN § 20-209 OF THE HEALTH – GENERAL ARTICLE.
Because of concerns that the bill would adversely affect the reproductive rights of
women, H.B. 520 received an unfavorable report in the Judiciary Committee of the House
of Delegates. See Abortion debate endangers resurrected Unborn Victims of Violence bill,
DAILY REC. (Feb. 21, 2005), https://thedailyrecord.com/2005/02/21/abortion-debate-
endangers-resurrected-unborn-victims-of-violence-bill/. By failing to be favorably
reported by the House Judiciary Committee, H.B. 520 did not proceed to the floor of the
House and thus was not enacted into law. See The Legislative Process: How a Bill Becomes
a Law, MD. STATE ARCHIVES (Sept. 14, 2022), https://msa.maryland.gov/msa/mdmanual/
07leg/html/proc.html#committees.
4. The 2005 Legislation Session
In the 2005 legislative session, Delegate Boutin introduced H.B. 398, a bill identical
to the previous year’s failed H.B. 520. This time, however, H.B. 398 successfully worked
its way through the legislative process, and with several significant amendments, to be
discussed below, was passed by the General Assembly and signed by Governor Robert
Ehrlich, Jr. on May 26, 2005. 2005 Md. Laws, ch. 546.
As originally introduced, H.B. 398 was broad in scope, encompassing certain
prosecutions for “murder, manslaughter, or unlawful homicide” where the victim was a
21
viable fetus and specifying that such prosecutions may be instituted “whether at common
law or under this Title.” However, several amendments were adopted that significantly
narrowed the scope of H.B. 398 and expanded its exceptions or limitations. Of relevance
to the instant appeal, the phrases “unlawful homicide” and “at common law or under this
Title” were stricken from the language of the bill; a new section was added to the bill that
specifically set forth the mens rea necessary for a prosecution; and a new limitation was
added that stated: “Nothing in this section shall be construed to confer personhood or any
rights on the fetus.” See H.B. 398, Second Reader – March 25, 2005, p. 3. H.B. 398, as
adopted by the General Assembly, including all additional and stricken language by
amendment, reads:
AN ACT concerning
Homicide Murder and Manslaughter – Victim – Viable Fetus
FOR the purpose of establishing that a prosecution may be instituted for
certain murder, manslaughter, or murder or manslaughter of a viable fetus
other unlawful homicide prosecutions and under certain conditions the victim
may include for an act or failure to act that cause the death of a viable fetus;
defining a certain term; providing for the construction of certain provisions
of this Act; providing that the commission of certain acts under certain
circumstances shall not constitute a certain aggravating circumstance;
providing for the application of this Act; and generally relating to prosecution
for murder, manslaughter, or murder or manslaughter. other unlawful
homicide.
* * *
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY
OF MARYLAND, That the Laws of Maryland read as follows:
Article – Criminal Law
2-103.
22
(A) FOR PURPOSES OF A PROSECUTION UNDER THIS
TITLE, “VIABLE” HAS THE MEANING STATED IN § 20-209 OF THE
HEALTH – GENERAL ARTICLE.
(B) EXCEPT AS PROVIDED IN SUBSECTIONS (C) AND (D)
(D) THROUGH (F) OF THIS SECTION, A PROSECUTION MAY BE
INSTITUTED FOR MURDER, MANSLAUGHTER, OR UNLAWFUL
HOMICIDE OF A FETUS, WHETHER AT COMMON LAW OR UNDER
THIS TITLE, FOR AN ACT OR OMISSION FAILURE TO ACT THAT:
(1) OCCURRED WHILE THE VICTIM FETUS WAS A
VIABLE FETUS; AND
(2) CAUSED THE DEATH OF THE VICTIM VIABLE
FETUS MURDER OR MANSLAUGHTER OF A VIABLE FETUS.
(C) A PERSON PROSECUTED FOR MURDER,
MANSLAUGHTER, OR UNLAWFUL HOMICIDE MURDER OR
MANSLAUGHTER AS PROVIDED IN SUBSECTION (B) OF THIS
SECTION MUST HAVE:
(1) INTENDED TO CAUSE THE DEATH OF THE
VIABLE FETUS OR PREGNANT WOMAN;
(2) INTENDED TO CAUSE SERIOUS PHYSICAL
INJURY TO THE VIABLE FETUS OR PREGNANT WOMAN; OR
(3) WILLFULLY WANTONLY OR RECKLESSLY
DISREGARDED THE LIKELIHOOD THAT THE ACT OR FAILURE TO
ACT THE PERSON’S ACTIONS WOULD CAUSE THE DEATH OF OR
SERIOUS PHYSICAL INJURY TO THE VIABLE FETUS OR THE
PREGNANT WOMAN.
(C) (D) NOTHING IN THIS SECTION APPLIES TO OR
INFRINGES ON A WOMAN’S RIGHT TO TERMINATE A
PREGNANCY AS STATED IN § 20-209 OF THE HEALTH – GENERAL
ARTICLE.
(D) NOTHING IN THIS SECTION SUBJECTS A PHYSICIAN
TO PROSECUTION FOR A DECISION TO PERFORM AN ABORTION
AS STATED IN § 20-209 OF THE HEALTH – GENERAL ARTICLE.
23
(E) NOTHING IN THIS SECTION SUBJECTS A PHYSICIAN
OR OTHER LICENSED MEDICAL PROFESSIONAL TO LIABILITY
FOR FETAL DEATH THAT OCCURS IN THE COURSE OF
ADMINISTERING REASONABLE LAWFUL MEDICAL CARE.
(F) NOTHING IN THIS SECTION APPLIES TO AN ACT OR
FAILURE TO ACT OF A PREGNANT WOMAN WITH REGARD TO
HER OWN FETUS.
(G) NOTHING IN THIS SECTION SHALL BE CONSTRUED
TO CONFER PERSONHOOD OR ANY RIGHTS ON THE FETUS.
(H) THE COMMISSION OF FIRST DEGREE MURDER OF A
VIABLE FETUS UNDER THIS SECTION, IN CONJUNCTION WITH
THE COMMISSION OF ANOTHER FIRST DEGREE MURDER
ARISING OUT OF THE SAME INCIDENT, DOES NOT CONSTITUTE
AN AGGRAVATING CIRCUMSTANCE SUBJECTING A DEFENDANT
TO THE DEATH PENALTY UNDER § 2-303(G)(IX) OF THIS ARTICLE.
Id.
D. Applicability of CR § 2-103 to CR § 2-209 – In General
1. Statutory Interpretation of CR § 2-103
Although the instant appeal is a State’s appeal from the trial court’s grant of a
motion to dismiss, the parties’ arguments regarding the statutory interpretation of CR § 2-
103 are best understood by presenting appellee’s argument first.
Appellee argues that the plain language and legislative history of CR § 2-103 make
clear that “the [L]egislature intended to permit prosecution for the common law offenses
of murder or manslaughter and nothing more.” Regarding the plain language of the statute,
appellee claims that “§ 2-103(b) lists only ‘murder or manslaughter,’ two common law
crimes, and excludes the other statutory homicides in Title 2.”
24
Concerning the legislative history of CR § 2-103, appellee points to several changes
made to the bill and accompanying Fiscal and Policy Note as originally proposed. First,
appellee cites to the elimination of the term “unlawful homicide” from the original bill.
Second, appellee notes that the Fiscal and Policy Note accompanying the original bill stated
that “[u]nlawful homicide includes murder, manslaughter, and homicide by motor vehicle
or vessel,” but once “unlawful homicide” was eliminated from the bill, the Fiscal and
Policy Note instead read, “[t]his bill allows for the prosecution of murder or manslaughter
of a viable fetus.” Third, according to appellee, the deletion of the phrase “whether at
common law or under this title” from the original bill further indicated a “narrowing of the
bill’s scope.” Lastly, appellee notes that the bill’s short title changed from “Homicide –
Victim – Viable Fetus” to “Murder and Manslaughter – Viable Fetus.” In short, appellee
identifies all of these changes as being representative of the Legislature’s intent to narrow
the scope of the bill to apply solely to the common law crimes of murder and manslaughter
and not to the statutory forms of homicide, such as “vehicular homicide” under CR § 2-
209.
In response, the State argues that “[t]he normal, plain meaning of ‘murder or
manslaughter of a viable fetus’ [under CR § 2-103] includes ‘manslaughter’ by whatever
form. It includes manslaughter by motor vehicle.” In other words, according to the State,
“[a] conviction for violation of C[R] § 2-209 is manslaughter.” Further, the State asserts
that to limit the scope of CR § 2-103 to the common law crimes of murder and
manslaughter, as advocated by appellee, “would require this Court to add ‘common-law’
to the statute. The General Assembly did not do that; this Court should not do that.”
25
Regarding the legislative history of CR § 2-103, the State contends that the deletion
of the phrases, “unlawful homicide” and “at common law or under this title,” does not lead
to appellee’s conclusion that “murder or manslaughter” under CR § 2-103 is limited to only
common law murder and manslaughter. According to the State, because the legislative bill
file for H.B. 398 does not explain why the aforesaid deletions were made, the legislative
history is ambiguous and thus “does not take precedence over the plain and ordinary
meaning of the statute actually enacted.” The State concludes:
In sum, to construe “a person may be prosecuted for murder or
manslaughter of a viable fetus” in the manner that [appellee] argues would
mean that this Court would have to add words, e.g., “common-law” or “but
not statutory offenses,” that are simply not in the plain text of the statute that
the General Assembly adopted. By using “murder or manslaughter,” the
General Assembly intended C[R] § 2-103 to apply to all forms of murder or
manslaughter, whether at common-law or otherwise.
In order to ascertain what crimes the Legislature intended to be covered by CR § 2-
103, and specifically whether CR § 2-103 applies to CR § 2-209, we must look first to “the
normal, plain meaning of the language of the statute.” Wheeling v. Selene Fin. LP, 473
Md. 356, 376 (2021). Here, CR § 2-103(b) states that, with certain exceptions not relevant
to the instant appeal, “a prosecution may be instituted for murder or manslaughter of a
viable fetus.” The statutory crime set forth in CR § 2-209 is the same as common law gross
negligence manslaughter when certain modalities of transportation are involved. Forbes,
324 Md. at 339 (stating that “[p]rior to the enactment of [the predecessor statute to CR §
2-209], the conduct which the jury found to exist in this case would have constituted an
offense covered by the indictment, i.e. common law involuntary manslaughter”); see
Moylan, Criminal Homicide Law § 12.11, at 240 (stating that “[t]he actus reus of the
26
statutory crime, other than being limited to those modalities,” and “[t]he mens rea of the
statutory crime” are “common law gross negligence manslaughter”). Indeed, in enacting
CR § 2-209, the General Assembly specifically named the crime as “manslaughter by
vehicle or vessel.” CR § 2-209(c). Therefore, the plain meaning of the operative language
of CR § 2-103 encompasses the statutory crime of manslaughter by vehicle or vessel under
CR § 2-209.
Next, we consider our interpretation of the statute’s plain language in the context of
the overall statutory scheme to which it belongs. In re Abhishek I, 255 Md. App. 464, 472
(2022). Specifically, we look to the statute’s legislative history, as well as amendments to
the legislation, the title and function paragraphs, and the statute’s relationship to earlier and
subsequent legislation. Williams, 255 Md. App. at 440. Our goal is to confirm our
interpretation of the statute’s plain language as reflective of the legislative purpose or goal
behind the statute. Id. When we conduct such analysis in the instant case, we come to the
same conclusion as our interpretation of the plain language of CR § 2-103(b), i.e., a
prosecution for the manslaughter of a viable fetus includes the prosecution of manslaughter
by vehicle or vessel under CR § 2-209. We shall explain.
As set forth in detail above, when the General Assembly recodified the criminal law
of Maryland into the Criminal Law Article in 2002, it placed the provisions relating to
common law murder and manslaughter (CR §§ 2-201–208) and the statutory crime of
manslaughter by vehicle or vessel (CR § 2-209) in subtitle 2. By contrast, the General
Assembly placed all of the statutory crimes relating to homicide by motor vehicle or vessel
(CR §§ 2-501–507) under subtitle 5. Further, in the 2002 recodification of the criminal
27
law, the General Assembly enacted section 2-102, which eliminated the year and a day
rule.9 Using “new language derived without substantive change from former Art. 27 §
415,” section 2-102 stated, in its entirety:
A prosecution may be instituted for murder, manslaughter, or unlawful
homicide, whether at common law or under this title, regardless of the
time that has elapsed between the act or omission that caused the death of the
victim and the victim’s death. (An. Code 1957, art. 27, § 415; 2002, ch. 26,
§ 2.)
(Emphasis added.) The Revisor’s Note10 to section 2-102 reads, in relevant part: “The
reference to ‘unlawful homicide’ is added to reflect the application of this section to the
various types of homicide by motor vehicle or vessel under Subtitle 5 of this title, all
derived from former Art. 27 § 388A.”
9
The “year and a day rule” was a common law rule that “the law will not recognize[] a
homicide unless the death has resulted within a year and a day from the time of the act
which is alleged to have caused the death.” State v. Brown, 21 Md. App. 91, 92 (1974).
The rule “was the product of a day when medical science was not as advanced in terms of
establishing a cause-and-effect relationship over so extended a period of time.” Moylan,
Criminal Homicide Law § 1.6, at 7. This Court recognized the “year and a day” rule in
Brown, but indicated that if any change in the common law rule was to be made, it would
be more appropriate for the General Assembly to make such change. Brown, 21 Md. App.
at 97. In 1996, the General Assembly abrogated the “year and a day” rule by enacting what
is now CR § 2-102. 1996 Md. Laws, ch. 360.
10
“Revisor’s Notes are an extrinsic aid designed to explain changes in the law that result
from the revision process,” and “have been used by courts to determine the intent of the
General Assembly and the legislative history of statutory provisions.” DEP’T OF LEGIS.
SERVS., LEGISLATIVE DRAFTING MANUAL 113 (2023); see Moore v. RealPage Util. Mgmt.,
Inc., 476 Md. 501, 519 n.8 (2021) (stating that “[t]his Court has consistently reiterated the
importance of reviewing the Revisor’s Notes in ascertaining legislative intent” (quotation
marks and citation omitted)); Off. & Pro. Emps. Int’l Union, Loc. 2 (AFL-CIO) v. Mass
Transit Admin., 295 Md. 88, 101 (1982) (stating that “[t]he notes or reports of a revisor or
revision commission are entitled to considerable weight in ascertaining legislative intent”).
28
In sum, the language and structure of Title 2 of the Criminal Law Article, as enacted
in 2002, indicated an intent on the part of the General Assembly to use the phrase “murder,
manslaughter” to refer to the common law and statutory forms of murder and manslaughter
found in subtitle 2 and to use the term “unlawful homicide” to refer to the statutory crimes
of homicide by motor vehicle or vessel found in subtitle 5.
Further, when the first iteration of CR § 2-103 was introduced in the 2004 legislative
session (H.B. 520) and then again in the 2005 legislative session (H.B. 398), section 2-
103(b) contained language identical to that of section 2-102: “a prosecution may be
instituted for murder, manslaughter, or unlawful homicide, whether at common law or
under this title . . . .” Thus H.B. 398, as originally drafted, included all of the common law
and statutory crimes set forth or referred to in subtitles 2 and 5 of Title 2 of the Criminal
Law Article.
During the legislative process that followed, however, the House Judiciary
Committee amended H.B. 398 by deleting the phrase “murder, manslaughter, or unlawful
homicide” from subsection (b) and inserted in its place the phrase “murder or
manslaughter.” As we have seen, the term “unlawful homicide” was used in the 2002
recodification to refer to the statutory crimes of homicide by motor vehicle or vessel set
forth in subtitle 5. Therefore, by removing the term “unlawful homicide,” the Committee
narrowed the scope of H.B. 398 to the crimes referred to or set forth in subtitle 2, including
CR § 2-209.
We disagree with appellee’s contention that the deletion of the term “unlawful
homicide” removed CR § 2-209 from the scope of CR § 2-103. Appellee relies on the
29
Fiscal and Policy Note accompanying H.B. 398 wherein “unlawful homicide” was
identified as including “murder, manslaughter, and homicide by motor vehicle or vessel.”
Fiscal and Policy Note, H.B. 398, First Reader – February 15, 2005, p. 2, and Revised-
House Third Reader – April 1, 2005, p. 2. Appellee’s reliance on the Fiscal and Policy
Note is misplaced. Fiscal and Policy Notes are not considered as authoritative sources for
legal analysis of a bill. See Logan v. Deitz, Md. App. , No. 1761, September
Term 2021, slip op. at 40 n.10 (filed August 2, 2023) (stating that “[w]hile these notes
provide a broad summary and background regarding the proposed bill, they are prepared
by Department of Legislative Services staff and sometimes miss the detail and nuances that
the committee staff provides in the committee bill analysis and floor reports”). But even
if we consider the Fiscal and Policy Note in the instant case, appellee appears to equate CR
§ 2-209 with the crimes covered by “homicide by motor vehicle or vessel,” and thus when
“unlawful homicide” was deleted, so too were all homicides by motor vehicle or vessel.
What appellee overlooks is that “homicide by motor vehicle or vessel” refers only to the
homicides set forth in subtitle 5, because the name of each homicide set forth in the statute
begins with “homicide by motor vehicle or vessel.” CR § 2-209, on the other hand, is
expressly named “manslaughter by vehicle or vessel.”11 Indeed, the word “homicide”
appears nowhere in CR § 2-209.
11
Also, the homicides set forth in subtitle 5 are limited to the transportation modalities of
a “motor vehicle” or vessel. By contrast, CR § 2-209 is limited to the transportation
modalities of a “vehicle” or vessel, with “vehicle” defined as including a “motor vehicle,
street car, locomotive, engine, and train.” See CR § 2-503–506; CR § 2-209(a).
30
Finally, the House Judiciary Committee passed other amendments to H.B. 398
consistent with the objective of narrowing the scope of CR § 2-103 to subtitle 2. The
Committee deleted the phrase “under this title,” because “this title” meant Title 2 of the
Criminal Law Article and Title 2 included both subtitles 2 and 5. The Committee also
deleted the phrase “at common law.” If, as argued by appellee, the General Assembly
intended to limit the scope of CR § 2-103 to only the common law crimes of murder and
manslaughter, the phrase “at common law” would not have been deleted. In its reply brief,
the State aptly points out that, if “the [L]egislature intended to limit the scope of C[R] § 2-
103 to common-law murder or manslaughter, it knew precisely how to do that – by adding
‘common-law’ to modify ‘murder or manslaughter.’”12 Therefore, by deleting the phrase
“at common law,” the Committee intended that the scope of CR § 2-103 encompass all of
the crimes of murder and manslaughter under subtitle 2, both at common law and by statute.
From the above consideration of the plain language of CR § 2-103, the legislative
history of CR § 2-103, the structure of Title 2 of the Criminal Law Article at the time of its
enactment, the language of CR § 2-102 with its accompanying Revisor’s Note, and relevant
amendments to H.B. 398 during the legislative process, this Court concludes that a
prosecution for manslaughter of a viable fetus under CR § 2-103 applies to CR § 2-209,
manslaughter by vehicle or vessel.
12
The State cites to several statutes in which the term “common-law” is used as a modifier:
“See, e.g., Md. Code Ann., Corps. & Ass’ns § 11-102 (‘common-law deceit’); Agric. § 3-
602 (‘common-law enclosure’); Cts. & Jud. Proc. § 5-526 (‘common-law privileges or
immunities’); Cts. & Jud. Proc. § 4-301 (‘common-law or statutory misdemeanor’); Com.
Law § 11-1207 (‘common law or statutory defense or immunity’).”
31
2. The Statutory Meaning of “Another” Under CR § 2-209
Separate and apart from a statutory interpretation of CR § 2-103, appellee claims
that a prosecution for manslaughter of a viable fetus cannot be instituted under CR § 2-
209, because the language of CR § 2-209(b) precludes such prosecution. Specifically, CR
§ 2-209(b) provides that “[a] person may not cause the death of another as a result of the
person’s driving, operating, or controlling a vehicle or vessel in a grossly negligent
manner.” (Emphasis added.) Appellee argues that “another” in CR § 2-209(b) “means
another person, not a viable fetus.”
Appellee’s argument was adopted by the trial court in the instant case when the
court dismissed counts one, two, and three of the indictment. In its written opinion, the
court relied on the case of Kilmon v. State, 394 Md. 168 (2006), in which the Supreme
Court of Maryland addressed the question of “whether the intentional ingestion of cocaine
by a pregnant woman can form the basis for a conviction under [CR § 3-204(a)(1)] of the
reckless endangerment of the later-born child.” Id. at 170. Recognizing that the Kilmon
case was not dispositive of the issue in the instant case, the trial court focused on the
Supreme Court’s analysis of what constitutes “another” under the reckless endangerment
statute, CR § 3-204(a)(1). The trial court pointed to the Supreme Court’s statement that
“by ‘another,’ it obviously meant another person.” The court then looked at CR § 2-103(g),
which states that “[n]othing in this section shall be construed to extend personhood or any
rights on the fetus.” According to the court, “[h]ad the [L]egislature intended to extend
personhood or rights of the fetus beyond the confines of this statute, it would have done
so, and would not have specifically limited the construction of personhood.” The trial court
32
concluded that, because CR §§ 2-209(b), 2-210(b), and 2-503(a) all require the death of
“another,” such death must “be that not of a fetus, but the child, after the child’s live birth.”
On appeal, the State argues that the trial court’s reliance on Kilmon is misplaced
because our Supreme Court’s focus in that case was the reckless endangerment statute, CR
§ 3-204(a), and not the manslaughter by vehicle or vessel statute, CR § 2-209. In any event,
according to the State, the Supreme Court’s analysis in Kilmon actually supports its
position because “the Court recognized, in dicta, at least, that, with the enactment of C[R]
§ 2-103, it would have been possible to prosecute, but for the exemption in subsection (f),
a pregnant woman for common-law manslaughter who, by ingesting drugs, recklessly
caused the death of her viable fetus.” In addition, the State argues that the trial court
construed “another” too narrowly given the clear purpose of the statutory scheme and
legislative history of CR § 2-103. The State explains that, “[w]hen the law changed to
permit the prosecution of a person for murder or manslaughter of a viable fetus, a viable
fetus was recognized as ‘another’ legal victim of the various forms of murder and
manslaughter, including gross [negligence] manslaughter by motor vehicle.” The State
concludes that the purpose of CR § 2-103 “was to recognize that a viable fetus, in addition
to a person, could be a victim of murder or manslaughter,” and thus CR § 2-103 “was
intended to apply to all forms of murder and manslaughter.”
In response, appellee argues that the Legislature’s use of the term, “another,”
throughout the entire Criminal Law Article means another person, and not a viable fetus.
Appellee reasons that “[i]nstead of expanding the definition of person, the [L]egislature
chose to allow the prosecution of murder and manslaughter where a viable fetus dies as
33
opposed to a person.” According to appellee, with the enactment of CR § 2-103, the
Legislature created “new and separate offenses: murder of a viable fetus and manslaughter
of a viable fetus.” Appellee concludes: “Section 2-103 does not change the meaning of
‘another,’ or another person, which still excludes fetuses. All Title 2 offenses that
criminalize the killing of ‘another’ continue to mean the killing of another person.”
Prior to the enactment of CR § 2-103 in 2005, Judge Charles Moylan, Jr., wrote at
the beginning of his treatise on criminal homicide law the following: “Homicide, criminal
and non-criminal alike, is ‘the killing of a human being by another human being.’ . . . The
homicide victim and the homicidal agent must both be card-carrying members of homo
sapiens.” Moylan, Criminal Homicide Law § 1.1, at 1 (footnotes omitted). Then, rather
presciently, Judge Moylan asked the following question: “[I]s the killing of an unborn fetus
criminal homicide?” Id. His answer was unequivocal: “[A]n unborn fetus, even in an
advanced stage of the mother’s pregnancy and even if clearly capable of sustaining life if
delivered, is not a proper subject of a homicide. Some other crime perhaps, but not
homicide!” Id. § 1.2, at 1. Consistent with Judge Moylan’s statement of the law prior to
the enactment of CR § 2-103, this Court stated: “English Common Law defined
manslaughter generally as the unlawful killing of a person without the express or implied
malice found in murder . . . .” Bowers, 227 Md. App. at 323 (emphasis added). We also
have said that “[i]nvoluntary manslaughter at common law has been generally defined as
the killing of another unintentionally and without malice . . . .” Gibson, 4 Md. App. at 242
(emphasis added). It is clear then that at the time that the General Assembly enacted the
34
predecessor statute to CR § 2-209 in 1941, the phrase “death of another” referred to a
person.
When enacting CR § 2-103, the General Assembly knew the state of the law
regarding murder and manslaughter, whether at common law or by statute. See Collins v.
State, 383 Md. 684, 692-93 (2004) (“We generally presume that the Legislature ‘had, and
acted with respect to, full knowledge and information as to prior and existing law and
legislation on the subject of the statute and the policy of the prior law.”’ (quoting Div. of
Lab. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 422 (2001))). Instead of expanding
the concept of “personhood” to include a viable fetus, the General Assembly created a new
class of victim, a viable fetus, the death of which could be prosecuted for murder or
manslaughter. By doing so, the Legislature in effect modified common law murder and
manslaughter, as well as the meaning of “another” in CR § 2-209, to include a viable fetus
as a victim. To hold otherwise would have the effect of nullifying CR § 2-103, because
there would have been no crime to which the statute could apply. See Nationstar Mortg.
LLC v. Kemp, 476 Md. 149, 170 (2021) (stating that we “avoid constructions that are
illogical and nonsensical, or that render a statute meaningless” (quotation marks and
citation omitted)). Moreover, there is no logical reason to hold that CR § 2-103 permits
the prosecution of common law murder and manslaughter of a viable fetus but not the
prosecution for manslaughter by vehicle or vessel of a viable fetus under CR § 2-209.
Therefore, this Court holds that the “death of another” under CR § 2-209 has been modified
by the enactment of CR § 2-103 to add a viable fetus as a legal victim of that crime.
35
Lastly, appellee’s reliance on Kilmon is misplaced. As recognized by the trial court,
Kilmon involved the issue of whether the reckless endangerment statute applied to the
intentional ingestion of cocaine by a pregnant woman. 394 Md. at 170. Our Supreme
Court noted that CR § 2-103 did not apply to that case because (1) CR § 2-103 “did not
encompass the reckless endangerment statute but dealt only with unlawful homicides;” and
(2) CR § 2-103(f) made “clear that ‘[n]othing in this section applies to an act or failure to
act of a pregnant woman with regard to her own fetus.”’ Id. at 181. More importantly, the
Court’s reference to “another” as meaning another person was made in the context of the
State’s “clear” position that the “‘person’ allegedly endangered by each appellant’s conduct
was not the fetus, but the child, after the child’s live birth.” Id. at 173. Thus, in Kilmon,
the Supreme Court simply did not address the issue of whether the term “another” included
both a person and a viable fetus as a result of the enactment of CR § 2-103.
E. Applicability of CR § 2-103 to CR § 2-209 – As Applied to the Instant Case
During the legislative process, the House Judiciary Committee amended H.B. 398
by adding a mens rea requirement to the prosecution for murder or manslaughter of a viable
fetus. As enacted, CR § 2-103(c) provides:
(c) Intent. – A person prosecuted for murder or manslaughter as provided in
subsection (b) of this section must have:
(1) intended to cause the death of the viable fetus;
(2) intended to cause serious physical injury to the viable fetus;
or
(3) wantonly or recklessly disregarded the likelihood that the
person’s actions would cause the death of or serious
physical injury to the viable fetus.
36
The parties agree that only CR § 2-103(c)(3) is at issue in determining the applicability of
CR § 2-103 to CR § 2-209 under the circumstances of the instant case. Again, the parties’
arguments are best understood by presenting appellee’s argument first.
Appellee argues that the requisite mens rea under CR § 2-103(c)(3) is not equivalent
to the requisite mens rea under CR § 2-209(b), because CR § 2-103(c)(3) requires a wanton
or reckless disregard “to the viable fetus,” whereas gross negligence requires a wanton or
reckless disregard “for human life.” Appellee contends that, because the Maryland
Legislature declined to define a fetus in CR § 2-103 and elsewhere in the Criminal Law
Article as a “person” or “human being,” a viable fetus is not a person and cannot be
construed as human life. Further, appellee argues that CR § 2-103(c)(3) requires
knowledge of the viable fetus by the accused. Appellee points out that the Legislature
chose the viable fetus, as opposed to a viable fetus. In so doing, according to appellee, the
Legislature intended that the perpetrator know of the potential harm to the viable fetus.
Appellee concludes that, because he did not know of the existence of the viable fetus in the
instant case, the State cannot establish the mental state required by CR § 2-103(c)(3) in
order to convict him of a violation of CR § 2-209.
In response, the State argues that the element of intent, i.e., gross negligence, is the
same for CR § 2-103(c)(3) as for CR § 2-209(b). The State further contends that intent is
not the same as knowledge and CR § 2-103 contains no language requiring the perpetrator
to have knowledge of the existence of a viable fetus as a prerequisite for a prosecution for
murder or manslaughter of a viable fetus. According to the State, had the General
37
Assembly intended knowledge of the existence of a viable fetus be a requirement, it would
have explicitly done so. The State concludes that the purpose of CR § 2-103(c)(3) “was
not the imposition of a knowledge element but rather was to confirm – in express terms –
that any prosecution for the death of a viable fetus must include certain proof of intent.”
In Beattie v. State, this Court stated that “[g]ross negligence results when the
defendant is ‘conscious of the risk to human life [posed by] his or her conduct,’ but he or
she nevertheless proceeds, demonstrating ‘a wanton or reckless disregard for human life.’”
216 Md. App. 677, 681 (2014) (internal citations omitted). As noted above, the mens rea
of CR § 2-209(b) is the same as common law gross negligence manslaughter. Moylan,
Criminal Homicide Law § 12.11, at 240. When, however, the General Assembly enacted
CR § 2-103, it decided not to expand the concept of “personhood” to include a viable fetus.
Indeed, the General Assembly expressly provided that CR § 2-103 should not be construed
“to confer personhood or any rights on the fetus.” CR § 2-103(g).
The General Assembly was then faced with the problem of how manslaughter of a
viable fetus could be proven. For the element of “gross negligence” in common law gross
negligence manslaughter and in manslaughter by vehicle or vessel (CR § 2-209) requires
proof that the defendant acted “in wanton or reckless disregard for human life,” and a fetus
is not considered a “person” or “human being.” See Moylan, Criminal Homicide Law §
1.2, at 1 (stating “that one becomes a human being only when one is born alive”). In other
words, proof of common law gross negligence would not result in a conviction for
manslaughter of a viable fetus.
38
The General Assembly solved this proof problem by enacting CR § 2-103(c)(3).
The language of section 2-103(c)(3) mirrors the standard of gross negligence with the
exception of replacing “human life” with “the viable fetus.” By doing so, the General
Assembly, in effect, modified the meaning of gross negligence in prosecutions for
manslaughter of a viable fetus, both at common law and under CR § 2-209. Therefore, this
Court holds that proof of the intent set forth in CR § 2-103(c)(3) will satisfy the requirement
of gross negligence in the prosecution for manslaughter by vehicle or vessel of a viable
fetus under CR § 2-209.
Our analysis of the applicability of CR § 2-103 to CR § 2-209 under the
circumstances of the instant case, however, is not complete. Appellee correctly points out
that “[t]he phrase ‘the viable fetus’ in subsection (c) cannot be ignored.” According to
appellee, by choosing “the” viable fetus, instead of “a” viable fetus in CR § 2-103(c)(3),
the General Assembly “intended the perpetrator to know of the potential harm to the viable
fetus.”
If the Legislature had used the word “a” viable fetus, instead of “the” viable fetus,
in CR § 2-103(c)(3), we would have no hesitancy in concluding that there is no additional
element of knowledge required by that subsection. The indefinite article “a, an” is “used
before nouns and noun phrases that denote a single but unspecified person or thing.” AM.
HERITAGE DICTIONARY ENG. LANGUAGE (4th ed. 2000); see Yellowbird v. N.D. Dep’t of
Transp., 833 N.W.2d 536, 539 (N.D. 2013) (“‘An’ is an indefinite article, which is
equivalent to ‘one’ or ‘any’; but is seldom used to denote plurality” (cleaned up)). The
phrase “a viable fetus” is analogous to “human life” in the definition of gross negligence,
39
because neither refer to a person or thing that is identified. On the other hand, the definite
article “the” is “used before singular or plural nouns or noun phrases that denote particular,
specified, persons or things.” Id.; see Yellowbird, 833 N.W.2d at 539 (“In construing a
statute, definite article ‘the’ particularizes the subject which it precedes and is a word of
limitation as opposed to indefinite or generalizing force of ‘a’ or ‘an’” (cleaned up)); Dale
v. Painter, 765 S.E.2d 232, 240 (W. Va. 2014) (“The definite article ‘the’ particularizes the
subject which it precedes: ‘law enforcement officer.’ In other words, the statute uses the
word ‘the’ to refer to a specific law enforcement officer.”). If, under the principles of
statutory construction, we must read the language of the statute “so that no word, clause,
sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory,” we
certainly cannot change the meaning of a word used by the Legislature or substitute a
different word in order to reach a desired outcome. See Wheeling, 473 Md. at 376.
Therefore, this Court concludes that by using the phrase “the viable fetus” in CR § 2-
103(c)(3), the General Assembly intended to add the element of knowledge to the gross
negligence mens rea in a prosecution for manslaughter of a viable fetus.
The State seeks to avoid the imposition of a knowledge requirement in CR § 2-
103(c)(3) by asserting that “Section 2-103 says nothing about ‘knowledge’ of the existence
of a viable fetus as a prerequisite for prosecuting a person for the commission of murder
or manslaughter of the viable fetus.” The State’s argument, however, overlooks the
General Assembly’s use of “the viable fetus,” instead of “a viable fetus,” not only in section
2-103(c)(3), but in section 2-103(c)(1) and (2), wherein the General Assembly used the
same phrase, “the viable fetus,” when setting forth the specific intent associated with first-
40
degree murder and/or second-degree specific intent murder. (Emphasis added.) See CR §
2-103(c)(1) (“intended to cause the death of the viable fetus”); CR § 2-103(c)(2) (“intended
to cause serious physical injury to the viable fetus”) (emphasis added).
The State also points to the legislative history of CR § 2-103, wherein the House
Judiciary Committee rejected amendments to H.B. 398 offered by Delegate Neil F. Quinter
that would have added “knowing or having reason to know that the victim was a pregnant
woman.” See Proposed Amendments to H.B. 398 by Delegate Neil F. Quinter (March 10,
2005). The State acknowledges in its brief that Delegate Quinter’s amendments were not
to section 2-103 of H.B. 398, but to CR §§ 2-204 and 2-207, which are the penalty
provisions for second-degree murder and manslaughter, respectively. The State did not
indicate, however, that these amendments also increased the penalty for second-degree
murder of a viable fetus from 30 years to 35 years of incarceration and the penalty for
manslaughter of a viable fetus from 10 years to 15 years of incarceration. Because the bill
file for H.B. 398 contains no information as to why the Committee rejected Delegate
Quinter’s proposed amendments, such rejection could mean anything from rejecting the
increased penalties, to rejecting a knowledge requirement, to believing that CR § 2-103(c)
already included a knowledge requirement. In sum, the State’s arguments on this issue are
unconvincing.
In our view, adding the element of knowledge to a prosecution for manslaughter of
a viable fetus will not elevate the mens rea of the crime from general to specific intent. See
Moylan, Criminal Homicide Law § 12.10, at 237 (stating that “[t]he mens rea of gross
negligence manslaughter includes no specific intent”). In Thornton v. State, 397 Md. 70441
(2007), our Supreme Court noted that “[m]ere knowledge that a result is substantially
certain to follow from one’s actions is not the same as the specific intent or desire to achieve
that result.” 397 Md. at 738. Nor does the requirement that the defendant know or have
reason to know that the victim was pregnant preclude all prosecutions for manslaughter by
vehicle or vessel of a viable fetus under CR § 2-209. We can envision factual
circumstances, unlike those in the instant case, where the factfinder could find the requisite
knowledge, such as when a pregnant woman is a passenger in a vehicle driven or operated
by the defendant in a grossly negligent manner that causes the death of the viable fetus.
Finally, a construction of CR § 2-103(c)(3) to require that the defendant know or have
reason to know that the victim was a pregnant woman is, in our view, consistent with the
overall purpose of the statute, which was to fill the gap in Maryland’s law of murder and
manslaughter where the victim was a viable fetus in “Laci Peterson-type cases.”13
In the instant case, it is undisputed that appellee did not know or have reason to
know that a pregnant woman was in the car that was involved in a head-on collision caused
by appellee’s grossly negligent operation of his vehicle. Consequently, the State will not
be able to prove an essential element of the charge of manslaughter of a viable fetus under
13
“The real intent of the bill, the House Judiciary Committee chairman said, is to provide
justice in Laci Peterson-type cases. Peterson, who was [eight months] pregnant[,] . . . was
murdered in December 2003. Under California law, Peterson’s husband was prosecuted
for two counts of murder.” See Abortion debate endangers resurrected Unborn Victims of
Violence bill, DAILY REC. (Feb. 21, 2005), https://thedailyrecord.com/2005/02/21/abortion
-debate-endangers-resurrected-unborn-victims-of-violence-bill/.
42
CR § 2-209. Accordingly, and for the above reasons, this Court will affirm the trial court’s
dismissal of count one, manslaughter by vehicle or vessel in violation of CR § 2-209(b).14
JUDGMENTS OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
AFFIRMED. COSTS TO BE PAID BY
PRINCE GEORGE’S COUNTY.
14
In light of our decision in the instant appeal, this Court will not address, under the
doctrine of constitutional avoidance, appellee’s argument that CR § 2-103 is
unconstitutionally vague in violation of the due process clause of the Fourteenth
Amendment, as well as Article 24 of the Maryland Declaration of Rights. See Sumpter v.
Sumpter, 436 Md. 74, 92 (2013) (stating that the doctrine of constitutional avoidance
“means that when a non-constitutional ground for deciding a case presents itself, we decide
the case on that ground rather than the constitutional grounds”).
43