Alston v. State

RODOWSKY, Judge. The petitioner, David L. Alston (Alston), was convicted by a jury in the Circuit Court for Baltimore City of, inter alia, second degree murder that had been submitted on the depraved heart theory. The Court of Special Appeals affirmed. Alston v. State, 101 Md.App. 47 , 643 A.2d 468 (1994).

Alston petitioned this Court to review “[wjhether the evidence was insufficient to sustain the charge of second degree murder where the victim was killed by a shot that was fired by a man against whom the petitioner was engaged in a gun battle.” We granted the writ of certiorari, and we shall affirm. Depraved heart murder was described by this Court in Robinson v. State, 307 Md. 738 , 517 A.2d 94 (1986), as follows: “ ‘A depraved heart murder is often described as a wanton and wilful killing. The term “depraved heart” means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must [or reasonably should] realize the risk his behavior has created to the extent that his conduct may be termed wilful.

Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.’ “R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure § 1.6-3 (1983). The critical feature of ‘depraved heart’ murder is that the act in question be committed ‘under circumstances manifesting extreme indif ³⁰⁸ ference to the value of human life.’ 2 Wharton’s Criminal Law § 143 at 197 (14th ed. 1979). The terms ‘recklessness’ or ‘indifference,’ often used to define the crime, do not preclude an act of intentional injury. They refer to ‘recklessness’ or ‘indifference’ to the ultimate consequence of the act—death—not to the act that produces that result.” Robinson, 307 Md. at 745 , 517 A.2d at 98 .

The murder victim, Adrian Edmonds, age fifteen, was shot and killed on the night of July 14, 1992. 1 Ms. Edmonds, her eighteen month old baby, and two of her friends happened to be at a street corner in Baltimore City when two bands of teenaged males engaged in a gun battle at about 11:00 p.m. Alston was a member of one of the bands that we shall call the “Alston” group. In its opening statement, the State conceded that Ms. Edmonds had been killed by a nine millimeter bullet from a weapon fired by a youth known only as “BO.” BO was a member of the group at which the Alston group was shooting. BO and another member of this group, “D Nice,” were referred to in the neighborhood as “New York boys.” Consequently, we shall call the second band of gun battle participants the “New York” group.

In this Court Alston does not contend that the evidence of his conduct is insufficient to convict for depraved heart murder because it lacks the requisite degree of wantonness. Alston’s point is that BO is the acknowledged shooter and that his act of shooting is the sole legal cause of Ms. Edmonds’s death. Further, Alston argues that as a matter of law no member of the Alston group could have been aiding and abetting BO whose object was to shoot members of the Alston group. The Court of Special Appeals, speaking through Judge Moylan, rejected these contentions and explained: ³⁰⁹ “The ‘bottom line’ is that when a group, or two groups, of hoodlums deliberately engage in a gang-war style of shootout in a crowded urban area, they collectively trigger an escalating chain reaction creating a high risk to human life.

When instead of taking their gunslinging vendetta to an uninhabited island or some remote spot in the desert, they arrogantly indulge in their homicidal insanity in the middle of a crowded block of residences, each participant in such collective madness displays a wanton and depraved indifference to any human life that might randomly fall within their overlapping and deadly enfilades. Should death to one of the innocent bystanders or homeowners ensue, each participant in the lethal encounter has exhibited the mens rea that qualifies him for depraved-heart murder. “In terms of the actus reus of this particular depraved-heart murder, the deadly homicidal force was not a bullet. Such an analytic approach would commit us to the trivializing foolishness of seeking to establish the trajectory and provenance of each of forty or fifty bullets fired in the course of a single wild exchange. The deadly homicidal force, rather, was a collective hail of bullets, a collective fusillade, with no further parsing required.

Which bullet came from which gun is inconsequential. One does not anguish over which member of the firing squad killed the prisoner.” 101 Md.App. at 49 , 643 A.2d at 469 . The identity of the participants, a description of the setting, and a statement of the events preceding the gun battle are necessary to understanding the conviction in this case. The two groups of participants, some of whom were not identified by their full names, were comprised of the following persons (parenthetical numerals indicate age as of July 14, 1992): ³¹⁰ Hall and the members of the Alston group were arrested and indicted.

BO and D Nice were not apprehended by the time of trial. ³⁰⁹ The Alston Group David L. “Diesel” Alston (17) Thomas “Junior” Conyers (18) Micah Mays, known as Micah (17) Rennie Cooper Boiseau, known as “Cooper” (17) Thomas “Porky” Kent (17) The New York Group Gregory Alexander Hall (19) “D Nice” or “Nice” “BO” ³¹⁰ The gun battle took place in and near the intersection of Presstman and Division Streets in Baltimore City. Witnesses placed both groups of participants, prior to the gun battle, in the rectangular area formed by Presstman St. on the north, Division St. on the east, Robert St. on the south, and Brunt St. on the west. 2 Within that rectangle there are three alleys. One runs behind the houses on the north side of Robert St. from Brunt to Division (the Southern Alley). A second runs behind the houses on the south side of Presstman St. from Brunt to Division (the Northern Alley).

The third alley connects the Northern and Southern Alleys and runs behind the properties that face on Division and Brunt Sts. (the Central Alley). The neighborhood is densely populated. There are a dozen -three-story rowhouses, ie., houses with party walls, on each side of Presstman St. between Division and Brunt Sts.

Those on the south side bear odd numbers beginning at Division St. with 553 and those on the north side bear even numbers beginning at Division St. with 550. The houses on both sides of that block of Presstman St. have no lawns or porches. The building line meets the sidewalk. Basements of the buildings project one-half story above ground level.

Access between the front doors and the sidewalk is by traditional Baltimore City “marble” steps. The night of July 14, 1992 was a hot, humid, Tuesday night. A number of the witnesses described themselves and others sitting on the front steps of various houses before the gun battle. Indeed, the jurors, based on their common experience, could have concluded that in rowhouse neighborhoods in Baltimore City it is not uncommon for residents to sit on the front ³¹¹ steps or in lawn chairs on the sidewalks on midsummer nights until 11:00 p.m. or later.

Prior to the events hereinafter described, there had not been any serious altercation between the Alston and New York groups. On Sunday, July 12,1992, a friend of the Alston group, Renardo “Nardo” Foster, while standing on a street corner, had been shot at, but not hit, by one or more of a group of youths from another neighborhood to the east. It seems that one of the latter group resented the attention which Nardo was paying to a young lady, or, as Nardo perceived it, vice versa. BO was present at that shooting, but did not intervene on behalf of Nardo.

Hall, a witness for the State, testified that, following the Sunday shooting, members of the Alston group were angry with BO. Following an incident that occurred on Monday, July 13, the description of which was excluded under a defense motion in limine, Hall began carrying a .32 caliber revolver because he did not know what was going to happen. The events of the night of July 14, in overview, are that, after a peace overture by the New York group failed, the Alston group assembled and armed themselves in the vicinity of Robert and Brunt Sts., whence they hastened on foot to the northwest corner of Presstman and Division Sts. There, from behind the cover of a large motor vehicle, they opened fire on the New York group who, proceeding on foot northbound on Division St., had almost reached its intersection with Presstman.

The murder victim, Ms. Edmonds, was one of four persons seated on the outside front steps of the building at 553 Presstman St., the corner building in the southwest quadrant of the intersection. They were fully within the field of fire commanded from the position of the Alston group on the other side of Presstman St. On the night of the murder Phyllis Avery, then approximately nineteen years old, was residing with six other persons at her grandmother’s house, 556 Robert St., on the north side thereof, between Brunt and Division Sts. She was sitting on the front outside steps talking to Alton “Baldy” Alston, the ³¹² brother of the petitioner. D Nice approached, walking westerly along Robert St. from Division, calling out, “Diesel.” Two youths (inferentially, Hall and BO) were standing at the intersection of Division and Robert Sts., waiting for D Nice.

Baldy identified himself as Diesel’s brother and said that D Nice should talk to him, Baldy. Ms. Avery testified, “D Nice told Baldy, ‘[T]ell your brother we would like to quash this before anybody else gets hurt.’ ” After Baldy answered, D Nice said, “Well, I guess this means more people getting hurt.” D Nice then walked back to Division St. and “went around the corner” with the other two young men. After the conversation Baldy “got up and went down Brunt St.” As Ms. Avery remained seated in front' of 556 Robert St., the Alston group and others began to assemble in front of the house “next to” 556 Robert St. Cooper came from Brunt St. with a shotgun in his hand and carrying a bag. Nardo and Porky rode up on a “bike.” When they got off the “bike” Porky and Cooper started checking their guns.

Porky’s weapon was approximately six inches in length. Nardo was giving bullets from a bag to Cooper. At some point a black car with a sun roof arrived, driven by someone whom Ms. Avery could not identify. “Rock” got out of the car. At that point the group consisted of Cooper, Micah, Porky, Nardo, and Rock.

Then the group left. Rock and the driver rode in the car around the corner of Brunt St., and the others went around the corner on foot. Ms. Avery estimated that the shooting started approximately twenty minutes after the Baldy/D Nice conversation had ended. Mrs. Addie Smith and her husband reside at 1911 Brunt St. On the night in question, from within her house, she heard a car park on Brunt St. Looking out, she saw a group of approximately five teenagers.

Junior was the only one of them whom she could identify by name. One of the other teenagers was carrying a bag. The shape of the bag indicated to Mrs. Smith that it contained a gun or guns. The group went through the alley behind Mrs. Smith’s house (the Central Alley).

Mrs. Smith telephoned the police and reported what she had seen. Almost immediately after she hung up the ³¹³ telephone gunfire erupted. There were, “gun shots everywhere. Just lots and lots of gun shots.” Tracy Braxton, then age twenty or twenty-one, was seated on the steps at 553 Presstman St. with Ms. Edmonds, who was feeding her infant son, Eric, and with Takisha Carolina, then fifteen or sixteen years old.

Ms. Braxton lived at 561 Presstman, five houses from the Division St. corner, and Ms. Carolina lived in the 2100 block of Division St., north of Bloom St., the next street north of Presstman. They had been seated on the steps for approximately one-half hour when Ms. Braxton saw Alston with Porky, Micah, and Cooper. They were running at a jogging pace eastwardly on the north sidewalk of Presstman St. toward Division. They stopped behind a vehicle, identified as a Chevy Blazer, parallel parked, facing westerly, at the north curb of Presstman St. in front of the numbers 552 and 554.

Alston was carrying a “real big gun.” It was long and black, with an attachment. 3 Within seconds after the Alston group got to the Blazer, they began shooting. Their shots were the first shots that Ms. Braxton heard. At that point she and her companions began running for her house at 561 Presstman. The shooting continued while they ran westerly on the south sidewalk of Presstman St., while they were trying to get into the house, and after they were in the house.

In the house Ms. Edmonds handed her child to Ms. Carolina and collapsed. Ms. Edmonds had been shot completely through the left arm and chest by a nine millimeter bullet that was recovered under her body. Young Eric had been wounded in the right arm. Takisha Carolina confirmed that Alston and Cooper, with two others, were shooting from behind the truck. ³¹⁴ Hall testified that immediately prior to the shooting he, BO, and D Nice were walking northerly on Division St. toward Presstman.

Hall was carrying a .32 caliber revolver, BO had a nine millimeter semi-automatic weapon, and D Nice had a small handgun. Hall was in the lead. As soon as he reached Presstman St., the Alston group started shooting. Hall identified Alston as one of the persons shooting at him.

Hall ducked behind a car. BO and D Nice ran into Presstman St. and were shooting. Hall ran across Division St. and easterly on Presstman St., shooting as he ran. He fired six rounds, without aiming at anything in particular.

BO and D Nice were standing in the middle of Presstman St. firing their weapons while the Alston group was running westbound on Presstman St. Hall said that after the shooting stopped D Nice was “hyper and pumped up.” He stood on the corner “yelling, hopping around like he just had did something that was outstanding.” That same night Corinthin Carolina, a friend of Ms. Edmonds, was seated on the steps at 2106 Division St. with another friend. Based on information that she received from a person who had been walking northbound on