Bradshaw v. State

MURPHY, Chief Judge. This appeal presents the question of whether the “inter-spousal immunity” defense applicable to a charge of theft is also applicable to charges of robbery, attempted robbery and/or conspiracy to commit robbery. In the Circuit Court for Montgomery County, a jury (Hon. S. Michael Pincus, presiding) convicted Kelly Lynn Bradshaw, appellant, of felony murder and related offenses.

The State’s evidence was sufficient to establish that, on or about September 29, 1998, appellant and one Darryl “Speedy” Butler (1) conspired to rob Olanipekun “Tony” Oyefusi, appellant’s husband, and (2) murdered Mr. Oyefusi during their attempt to commit the robbery. In support of her argument that the interspousal ⁵⁷ immunity defense is applicable, appellant presents two questions on that issue: Whether the trial court erred in refusing to give a requested jury instruction that a wife cannot be convicted of stealing from her husband and, therefore, cannot be guilty of conspiracy to rob or attempted robbery of her husband nor his felony murder based on the felony of attempted robbery? and, if the answer to this question is “yes,” Whether the evidence was sufficient to support the convictions of felony murder, conspiracy to rob and attempted robbery with a dangerous and deadly weapon? For the reasons that follow, we are persuaded that a defendant can be convicted of the robbery or attempted robbery of his or her spouse — whether either of those offenses is committed by the defendant alone or in concert with one of more accomplices. We shall therefore affirm the judgments of the circuit court.

INTERSPOUSAL IMMUNITY According to Professor Hochheimers treatise on Crimes and Criminal Procedure, [a] married woman can not incur the guilt of larceny by a taking of her husband’s goods or chattels, [and] ... [t]he husband cannot, at the common law, incur the guilt of larceny by a taking of his wife’s goods or chattels. Lewis Hochheimer, The Law of Crimes and Criminal Procedure, Sec. 368 at pp. 405-406 (2d ed., The Baltimore Book Company, 1904). Although the crimes of “grand larceny” and “petty larceny” were abolished as of July 1, 1979, the date on which our theft statute took effect, the elements of larceny were retained in the crime of robbery until October 1,2000. 1 ⁵⁹ When our theft statute was enacted, the General Assembly decided to modify, rather than abolish, the interspousal immunity defense. Md. Ann.Code, art. 27, § 343(c) & (d)(2001) expressly provides that the following defenses and presumptions are applicable to cases in which a defendant is charged with theft: (c) Good faith; property of spouse; trade secrets. — It is a defense to the offense of theft that: (1) The defendant acted under a good faith claim of right to the property involved; (2) The defendant acted in the honest belief that he had the right to obtain or exert control over the property as he did; (3) The property involved was that of the defendant’s spouse, unless the defendant and the defendant’s spouse were not living together as man and wife and were living in separate abodes at the time of the alleged theft; or (4) In cases of theft of a trade secret, that the defendant rightfully knew the trade secret or that it was available to him from a source other than the owner of the trade secret.

(d) Common law and evidentiary presumptions. — All common law and evidentiary presumptions applicable on July 1, 1979 to offenses which are consolidated under the provisions of this subheading are also applicable to the offense of theft, unless specifically repealed or modified by the provisions of this subheading, or unless modified by court decisions rendered after July 1, 1979. Appellant’s trial counsel moved for a judgment of acquittal on the charges of felony murder and attempted robbery, ⁶⁰ arguing that appellant “could not, as a matter of law, commit the crime of larceny or attempted larceny against Mr. Oyefusi, her husband, on [the] date [of his death].” According to appellant, because it was “undisputed” that she and the victim were married, and because larceny or attempted larceny is an “essential element of attempted robbery,” the “long standing doctrine of interspousal immunity” recognized in Maryland was applicable to the felony murder and related charges. The prosecutor argued in response that the public policy that supports this interspousal immunity is limited to theft. It doesn’t extend further up the chain.

There is no immunity for robbery. There is no immunity for felony murder. It is much more limited ... There is a much greater difference between a theft which has to do with some kind of ownership issues and robbery, which is a crime against person.

After quoting from Parham v. State, 79 Md.App. 152 , 556 A.2d 280 (1989), in which this Court held “that the marital relationship does not preclude a conviction for burglary,” id. at 161 , 556 A.2d 280 , the prosecutor added that [t]here is no immunity for Mr. Butler, and therefore, you know, her liability is bootstrapped to Mr. Butler’s, and she can’t gain protection for what she assisted somebody else in doing, and the conspiratorial liability laws in this state would indicate she is liable for the actions that she aids, abets and acts that she takes in furtherance of the conspiracy that she has joined in here. After considering the arguments of counsel, Judge Pincus ruled as follows: [Under] 343(c)(3) ... it is a defense that the property involved was that of the defendant spouse, unless the parties were not living together as man and wife and were living in separate abodes at the time of the alleged theft. The evidence with respect to the first prong, whether or not the parties were living together as man and wife, the ⁶¹ Court is prepared to find as a matter of law that he had kicked her out, that she was elsewhere for at least eight days. Notwithstanding the fact that they had sex on the evening in question, the evidence is clear to the Court that they were not living together as man and wife.

The second prong, abodes, I am looking at the dictionary. Webster’s College Dictionary defines abode as a place in which a person resides, a residence, a dwelling, a home. Ms. Bradshaw was residing at various places, but I suppose particularly at the Webbs’ for the longest period of time between the time she was kicked out and the day in question, September 29th. The plain reading of the statute to the Court and the plain use of the words that the statute uses indicates to the Court that they were not living together as man and wife and they were in fact living in separate abodes.

Further, based on the Court’s interpretation of the statute and research, that the statutory intent would restrict— mandates a restriction of the statutory application of the crime of theft and does not extend to crimes such as count 1, felony murder, based on the robbery felony, and count 2, attempted robbery with a dangerous and deadly weapon. There is a case in Maryland, Lusby versus Lusby, at 283 Md. [334, 390 A.2d 77 (1978) ] which deals with whether interspousal immunity — the interspousal immunity doctrine protected a husband from being sued in a tort action by his wife for forcing her vehicle off the road and pointing a high-powered rifle at her, forcing her to enter his vehicle, and during this event he struck her, tore off her clothes and then forcibly and violently raped her against her will and aided two others in raping her as well. The court in Lusby stated the following: “We can conceive of no sound public policy in the latter half of the 20th Century which would prevent one spouse from recovering from another from the outrageous conduct here alleged. ⁶² “There certainly can be no domestic tranquility to be preserved in the face of allegations such as those we have before us. The court does not and cannot conceive of the statutory intent to extend the interspousal immunity to crimes such as those which are here involved.” [Id. at 357, 390 A.2d 77 ].

Now — and I realize the stacking theory or the foundation upon which robbery would be built. Finally, clearly her liability is connected with that of Mr. Butler, and under those theories, as enunciated by the court, the Court will deny the motion. Appellant’s trial counsel thereafter noted a timely exception to Judge Pincus’ refusal to give the following jury instruction: You have heard evidence that Tony Oyefusi and Kelly Bradshaw were legally married. In order to prove that the defendant is guilty of attempted armed robbery and first degree felony murder, one of the elements that the State must prove beyond a reasonable doubt is that the defendant attempted to commit the crime of theft.

It is a defense to the crime of theft and, therefore, to the crimes of attempted armed robbery and first degree felony murder that the property involved was that of the defendant spouse, Mr. Oyefusi, unless the parties were not living together as man and wife or were living in separate abodes at the time of the alleged attempted theft. You are required to find that the defendant is not guilty of attempted armed robbery and first degree felony murder of if either of the following factors are present: One, the parties were living together as man and wife, or two, the parties were not living in separate abodes at the time of the alleged theft. Living together as man and wife requires that the parties engage in sexual intercourse. An abode is a person’s home, habitation or domicile.

In order to convict the defendant of attempted armed robbery and first degree felony murder, the State must show that the defense of interspousal immunity does not ⁶³ apply in this case by proving beyond a