Brooks v. State

DAVIS, Judge. Appellant, Dionne Chevelle Brooks, was charged with several crimes relating to the death of Margaret Kobic. Following a jury trial in the Circuit Court for Baltimore County (Fader, J.), appellant was convicted of first degree felony murder and robbery with a dangerous and deadly weapon. The State sought the death penalty.

After appellant waived her right to jury sentencing, the court, sitting without a jury, imposed a sentence of life without parole for the felony murder conviction. The robbery conviction was merged. Appellant presents three questions for our review, which we renumber for our convenience: I. Did the trial judge err when he refused to instruct the jury that all murder is presumed to be murder in the second degree? ²⁰⁸ II. Did the consideration of the underlying felony of robbery in bcí¿h the guilt/innocence and sentencing phases of appellant’s trial violate her right under the Maryland Declaration of Rights and the federal constitution to be free from cruel and unusual punishment?

III

Was the trial judge’s advice to appellant regarding her waiver of jury sentencing flawed, thus rendering the waiver ineffective? FACTS It is undisputed that appellant killed Margaret Kobic. The central question for the jury was appellant’s state of mind at the time of the homicide. As a witness for the State, Sam Goodwin testified that he and his mother, Ms. Kobic, shared a two-bedroom apartment in Baltimore County.

Goodwin was employed doing maintenance work and carpentry. He kept a bucket of tools in his bedroom, including a carpenter’s plane. In March of 1993, Goodwin became friends with Brooks while participating in a drug treatment program. Before she was released from the program, appellant told Goodwin that she “had nowhere to go,” and he offered to let her stay with him and his mother.

On March 31, 1993, appellant moved into Goodwin’s apartment. Goodwin slept on the couch and let appellant use his bedroom. On April 2, 1993, Goodwin left for Pennsylvania to visit his son. On April 16, he spoke with appellant by phone, and told her that he planned to move to Pennsylvania.

According to Goodwin, both appellant and his mother were upset by his announced plans. After observing that his mother was intoxicated, Goodwin hung up on her. On Sunday, April 16, Goodwin returned to retrieve his belongings and found his mother dead on the kitchen floor. There was blood on the floor, walls, and ceiling.

Brooks was gone, but Goodwin found her jacket on a path leading from the apartment complex to a nearby shopping center. The police ²⁰⁹ found no signs of forced entry. A crime lab technician testified that the victim was lying on her back, with her clothing pulled up toward her neck. There was a massive head wound around the eye.

Dr. Anne Dixon, a medical examiner who supervised the autopsy, testified that there were multiple injuries to the right side of the head. Dr. Dixon estimated that there were at least twenty-five separate blows, but added that the injuries were overlapping, and that it was impossible to make an accurate count. There were also multiple skull fractures. Appellant testified on her own behalf.

After learning that Goodwin intended to move, she and Kobic left the apartment to get liquor, cigarettes, and beer. Kobic used her ATM card to get money, and appellant memorized the PIN number. Appellant stated that she hoped to steal the card, and planned to buy drugs with money stolen from Kobic’s account. Appellant and Kobic returned to the apartment and continued drinking.

According to appellant, the pair quarrelled, and Kobic slapped appellant in the face. Kobic apologized, and the pair began to discuss their plans to live together after Goodwin moved out. At some point, Kobic allegedly touched appellant’s breasts without any warning. Appellant explained that this unwanted touching made her feel “weird” and “creepy.” She responded by hitting Kobic over the head with a bottle, and wrapping an electrical cord around her neck.

Appellant then proceeded to Goodwin’s bedroom, retrieved his carpenter’s plane, and struck Kobic repeatedly over the head. After she realized that Kobic was dead, appellant took jewelry from the body. She ransacked the bedroom and retrieved Kobic’s wallet, checkbook, and ATM card. She also took a television set and Goodwin’s paycheck.

Before leaving the apartment, appellant washed the blood from her hands and placed the plane, bottle, and electrical cord in a plastic bag, which she left in a dumpster. Over the next two days, appellant used the ATM card, pawned two rings, and purchased drugs with the money. On April 20, 1993, she turned herself in to the police. She later gave a full confession. ²¹⁰ At trial, appellant argued that she was not criminally responsible for the killing.

Pamela Taylor, a social worker, testified that appellant was reared in a dysfunctional family and had suffered for years from sexual and physical abuse. According to Taylor, one of appellant’s stepfathers forced her to have intercourse with him from the time she was thirteen years old. He also tried to sodomize her and threatened to kill family members if she told anyone what he had done. At the age of fifteen, appellant became pregnant with her stepfather’s child, had an abortion, and thereafter attempted suicide.

Appellant also offered the testimony of Dr. Stephen Siebert, a psychiatrist. According to Dr. Siebert, appellant suffers from a borderline personality disorder arising from the trauma of her childhood abuse. Appellant’s already-vulnerable personality was weakened by years of substance abuse, which yielded paranoid symptoms. As a result, Dr. Siebert explained, appellant “snapped” when Kobic touched her, because she perceived the touching of her breasts as a “prelude to rape.” Dr. Harminder Mallik, the State’s expert witness, also testified that appellant suffered from a mental disorder.

In his view, however, appellant knew what she was doing and did not lack the capacity to control her conduct. A jury convicted appellant of first degree felony murder and robbery with a dangerous and deadly weapon. She was acquitted on charges of first degree premeditated murder, as well as second degree murder. The State sought the death penalty, and appellant waived her right to a jury sentencing.

The only aggravating circumstance was the fact that appellant committed the murder during the course of a robbery. The mitigating circumstances found by the judge included appellant’s surrender and subsequent confession, the “horrible” circumstances of appellant’s upbringing, the absence of any prior criminal history involving a crime of violence, and the fact that the murder was not premeditated. 1 After weighing ²¹¹ the circumstances, the judge sentenced appellant to life without parole. This appeal followed. LEGAL ANALYSIS I Appellant first contends that her conviction must be reversed because the trial court refused to give an instruction regarding the applicable law.

Defense counsel requested that the lower court instruct the jury that “the defendant is entitled to an assumption that all murder is only murder in the second degree. The State must prove that it rises to first degree.... ” The judge rejected the proposed instruction. In support of her position, appellant refers us to Abney v. State, 244 Md. 444, 448 , 223 A.2d 792 (1966), cert. denied, 387 U.S. 925 , 87 S.Ct. 2043 , 18 L.Ed.2d 981 (1967), wherein the Court of Appeals noted that “[a] felonious homicide is presumed to have been committed with malice aforethought and so to constitute murder in the second degree.” In Hook v. State, 315 Md. 25 , 28 n. 5, 553 A.2d 233 (1989), the Court again noted that felonious homicide “is presumed to be murder in the second degree,” and that “[t]he burden is on the state to show that the killing was within the statutory definitions of first degree murder....” See also Oates v. State, 97 Md.App. 180, 186 , 627 A.2d 555 (1993) (describing second degree murder as “the baseline from which everything proceeds up or down”). At the request of a party, the trial court must “instruct the jury as to the applicable law....” Md.Rule 4-325(c).

The requirements of this rule are mandatory. When a requested instruction correctly states a point of law that is relevant to the facts of a case, the failure to give that instruction is error, unless the point has been fairly covered by the instructions actually given. Binnie v. State, 321 Md. 572, 581-83 , 583 A.2d 1037 (1991). ²¹² In Evans v. State, 28 Md.App. 640, 679-80 , 349 A.2d 300 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976), we noted that there are good reasons for avoiding the statement that “[a]ll murder will be presumed to be murder in the second degree.” As Judge Moylan explained, such a statement “is simply a circuitous and roundabout way of saying that the burden is on the State of proving beyond a reasonable doubt all elements that go to make up murder in the first degree.” Id. at 679, 349 A.2d 300 . In the case at hand, the relevant point was fairly covered by the instructions given.

With regard to first degree murder of the premeditated type, the trial judge properly instructed the jury that the killing must be wilful, deliberate, and premeditated. With regard to second degree murder, the court’s instructions included the following: Now, second degree murder does not require premeditation or deliberation. It is a lesser offense. More needs to be proven, as I explained to you with first degree murder, than needs to be proven with second degree murder.

The State has the higher burden of proof____ In order to convict Miss Brooks of second degree murder the State must prove that the conduct of Miss Brooks caused the death of Miss Kobik; and Number 2, that Miss Brooks engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death would be the likely result. It is clear from the court’s instructions that appellant could not be convicted of premeditated first degree murder unless the State proved that the killing was wilful, deliberate, and premeditated. It is equally clear that a conviction for second degree murder does not require deliberation or premeditation. In arguing that the point at issue was not fairly covered, appellant asserts that the court’s instructions failed to convey that the State must overcome a “presumption” in favor of second degree murder.

We disagree. In addition to the instructions quoted above, the judge further instructed the jury: ²¹³ The Defendant is presumed to be innocent of the charges. The presumption remains with the defendant, Miss Brooks, throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt and to a moral certainty that she is guilty. Jury instructions must be viewed as a whole, and not in isolation.

See Jones v. State, 310 Md. 569, 589-90 , 530 A.2d 743 (1987), vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988). When the instructions given here are read as a whole, it is clear that the State must prove every element of the offense beyond a reasonable doubt. Appellant’s requested instruction regarding the “presumption” for second degree murder would have added nothing to the court’s instructions regarding the prosecution’s burden of proof. Indeed, appellant’s instruction might have confused the jury, and led them to believe that the State need not prove the elements of second degree murder beyond a reasonable doubt.

The trial court did not err in refusing to give the requested instruction. II As we noted above, appellant’s conviction for first degree murder was based solely on felony murder. See art. 27, § 410 (stating that murder “committed in the perpetration of, or attempt to perpetrate” certain felonies, “shall be murder in the first degree”). During the sentencing phase, the only aggravating factor found by the court was the fact that the murder was committed during the course of a robbery.

See art. 27, § 413(d)(10). Appellant contends that “[t]he duplicate consideration of the underlying felony in both the guilt/innocence and sentencing phases of the appellant’s trial” does not genuinely narrow the class of death-eligible defendants, and is contrary to the Eighth Amendment prohibition against cruel and unusual punishment. 2 ²¹⁴ Because appellant has not been sentenced to death, she may not properly assert that her own right to be free from cruel and unusual punishment has been violated. In effect, appellant contends that her entire sentencing proceeding was tainted because the judge improperly concluded that she was death-eligible. She explains: Had the appellant not been subjected to the death penalty, she would have had a greater chance of receiving a sentence of life imprisonment, instead of the harsher sentence of imprisonment for life without the possibility of parole____ If a sentence for death were not a possibility, life without parole would not have been a middle ground between two other options; it would have been the maximum allowable penalty.

Life without parole would not, therefore, have represented a compromise for a sentencer who was torn between the two poles. The issue raised by appellant requires us to consider the constitutional validity of Maryland’s capital sentencing scheme, as applied to the circumstances of this case. The State contends that appellant’s argument “is doomed under controlling precedent.” We disagree. The cases cited by the State are not controlling here.

In Stebbing v. State, 299 Md. 331 , 473 A.2d 903 , cert. denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984), the defendant’s conviction for first degree murder was based solely on felony murder. Id. at 343, 473 A.2d 903 . On appeal, Stebbing argued that “where the homicide is first degree murder solely because of the felony murder rule, none of the underlying felonies may be used as aggravating factors in the capital sentencing phase.” Id. at 358 , 473 A.2d 903 . For support, she cited State v. Cherry, 298 N.C. 86 , 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980).

Judge Rodowsky, writing for the Court, explained that the holding in Cherry “seems to be premised either on an interpretation of the North Carolina capital sentencing statute ... or on a North Carolina rule of ²¹⁵ merger.” Id. 299 Md. at 359 , 473 A.2d 903 . The Court expressly noted that Stebbing “does not argue that the Cherry rule is of constitutional dimension....” Id. The Court then concluded that a sentence of death for felony murder was consistent with the legislative intent underlying Maryland’s capital punishment statutes, and that Stebbing’s convictions did not present a merger problem. Id. at 359-60, 473 A.2d 903 .

See also Harris v. State, 303 Md. 685, 710-11 , 496 A.2d 1074 (1985); White v. State, 300 Md. 719, 741 , 481 A.2d 201 (1984), cert. denied, 470 U.S. 1062 , 105 S.Ct. 1779 , 84 L.Ed.2d 837 (1985). The decision in Grandison v. State, 305 Md. 685, 748-49 , 506 A.2d 580 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986) applied a similar analysis to a case involving murder for hire. The state relies heavily on Calhoun v. State, 297 Md. 563, 624-29 , 468 A.2d 45 (1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984), in which the Court of Appeals concluded that art. 27, § 413(d)(10) was “a constitutional aggravating factor,” and was neither overbroad nor disproportionate. See also Thomas v. State, 301 Md. 294, 340 , 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985) (reaching a similar conclusion).

Both Calhoun and Thomas involved defendants who were convicted of first degree premeditated murder committed during the course of a felony. The cases, therefore, may be distinguished from the case at hand, i.e., neither involved a situation where the aggravating factor merely duplicated an element of the underlying murder conviction. On its face, Colvin v. State, 299 Md. 88 , 472 A.2d 953 , cert. denied, 469 U.S. 873 , 105 S.Ct. 226 , 83 L.Ed.2d 155 (1984) appears to raise the issue presented here. Colvin argued that the death penalty statute was unconstitutional, “as applied in the instant case, because a death penalty may not be imposed on a felony murder theory when the defendant’s conviction was based on the same evidence of felony murder.” Id. at 127, 472 A.2d 953 .

In effect, Colvin argued that the Cherry rule was of constitutional dimensions. Compare Stebbing, 299 Md. at 359, 473 A.2d 903 . He also asserted that the imposi ²¹⁶ tion of the death penalty for felony murder was “excessive” and “disproportionate.” Id. 299 Md. at 124, 472 A.2d 953 . Like the defendants in Calhoun and Thomas , however, Colvin had also been convicted of premeditated murder.

In affirming Colvin’s sentence, the Court of Appeals noted that the constitutional issues were not presented by the facts of the case. Id. at 124, 128, 472 A.2d 953 . The case sub judice requires, at last, that these issues be addressed. The felony murder doctrine is a common law rule that defines “murder” to include any homicide committed during the perpetration, or attempted perpetration, of a felony.

See Evans, 28 Md.App. at 686 n. 23, 349 A.2d 300 . In a sense, the term “felony murder” is something of a misnomer, “felony homicide” would be more apt. At common law, the term “murder” had the well-defined meaning of killing with “malice aforethought.” Wood v. State, 191 Md. 658, 666 , 62 A.2d 576 (1948). The malice required for a felony murder conviction is the specific intent to commit the underlying felony.

See Bruce v. State, 317 Md. 642, 645 , 566 A.2d 103 (1989). As Judge Moylan explained in Evans, 28 Md.App. at 684-86 , 349 A.2d 300 : The other forms of first degree murder, albeit perhaps less common, are not mere pale reflections of wilful, deliberate and premeditated killing. They stand upon their own feet as self-sufficient definitions of murder in the first degree. Their own sets of circumstances do not constitute first-degree murder because wilfulness, deliberation and premeditation may somehow be inferred, presumed or implied, but because such wilfulness, deliberation and premeditation are irrelevant considerations and are flatly superfluous....

In most of these other forms of first degree murder, it is the particular actus reus, the dreaded modality or means of murder, which we have singled out for our gravest criminal sanction and not a particular mens rea. (footnotes omitted). By virtue of Md.Ann.Code, art. 27, § 410, a felony murder committed in the course of certain enumerated felonies (including robbery) is murder in the first degree, ²¹⁷ notwithstanding the fact that the killing may have been reckless or merely accidental. 3 See Stansbury v. State, 218 Md. 255, 260 , 146 A.2d 17 (1958) (explaining that § 410 does not create a new crime, but merely classifies felony murders into two degrees for the purpose of sentencing). Both courts and commentators have criticized the felony murder rule for its bootstrapping effect: [The rule] vaults a defendant into the class of murderers without the malice finding usually required, and then, still without any culpability finding, elevates what otherwise might not even be murder to first degree murder.

In pure felony murder states, a third level of bootstrapping arises as the felony murder defendant is moved up into the supposedly restricted class of defendants eligible for death. Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C.L.Rev. 1103, 1127 (1990). Maryland is among those states in which a defendant convicted of felony murder may be sentenced to death without any specific finding regarding the mens rea that accompanied the killing. Appellant contends that this bootstrapping effect violates the Eighth Amendment to the United States constitution, as well as corresponding sections of the Maryland Declaration of Rights (Articles 16 and 25).

In Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the United States Supreme Court instituted a sea change in death penalty jurisprudence. A fair statement of the consensus expressed by the plurality in Furman is that “where discretion is afforded a sentencing ²¹⁸ body on a matter so grave as the determination of whether a life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859 (1976) (Stewart J., joined by Powell and Stevens, JJ.). To pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared with others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983). Under the capital sentencing laws of most states, including the Maryland statute at issue here, the sentencing authority is required to find at least one aggravating circumstance before it may impose death. 4 See Gregg, ²¹⁹ 428 U.S. at 162-67 , 96 S.Ct. at 2920-22 (reviewing Georgia sentencing scheme); Proffitt v. Florida, 428 U.S. 242, 247-51 , 96 S.Ct. 2960, 2964-66 , 49 L.Ed.2d 913 (1976) (reviewing Florida sentencing scheme).

By doing so, the sentencing authority narrows the class of persons eligible for the death penalty according to an objective legislative definition. See Zant, 462 U.S. at 878-79 , 103 S.Ct. at 2743-44 . The legislature must provide “clear and objective standards,” so that the sentencing authority is given “specific and detailed guidance,” and the process of imposing the death penalty is “rationally reviewable” on appeal. Godfrey v. Georgia, 446 U.S. 420, 428 , 100 S.Ct. 1759, 1765 , 64 L.Ed.2d 398 (1980) (holding that an aggravating circumstance in the Georgia death penalty statute was unconstitutionally vague).

Appellant contends, in part, that the use of felony murder as an aggravating factor is unconstitutional under the facts of this case because it merely duplicates the elements of the felony murder conviction. The United States Supreme Court has expressly rejected that argument. In Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988), the defendant was convicted under a statute which narrowly defined five categories of first degree murder. Id. at 241-42 , 108 S.Ct. at 553 .

The petitioner was found guilty under a provision of the statute which provided that first degree murder includes “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” Id. (citing La.Rev.Stat. Ann. § 14:30.A.(3) (West 1986)). The sole aggravating circumstance found by the jury was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Id. at 243, 108 S.Ct. at 554 (citing La.Code Crim. Proc.Ann., Art. 905.4(d) (West 1984)).

The Supreme Court observed: ²²⁰ The use of “aggravating circumstances” is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. We see no reason why this function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. Id. at 244-45 , 108 S.Ct. at 554 (emphasis added). Because Louisiana’s statutory definition of first degree murder adequately narrowed the class of death-eligible persons at the guilt phase of the proceedings, the Court held that the sentencing scheme was constitutionally valid, despite the fact that certain aggravating circumstances duplicated the elements of first degree murder.

The Court concluded: There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more. Id. at 246 , 108 S.Ct. at 555 . See also Jurek v. Texas, 428 U.S. 262, 270-71 , 96 S.Ct. 2950, 2955-56 , 49 L.Ed.2d 929 (1976) (reaching a similar conclusion regarding the Texas death penalty statute).

Notwithstanding Lowenfield and Jurek , the courts of at least two states have ruled that duplicate consideration of the underlying felony at both the guilt and sentencing phases does not narrow adequately the class of death-eligible murderers. 5 In Engberg v. Meyer, 820 P.2d 70 (Wyo.1991), the defendant was convicted of first degree felony murder under a statutory definition similar to article 27, § 410. Id. at 87. The jury found five aggravating circumstances, including: (1) that the murder was committed-while the defendant was engaged in the commission of a robbery, and (2) that the murder was ²²¹ committed for “pecuniary gain.” Id. at 88-89. The Supreme Court of Wyoming concluded: This statute provided no requirements beyond the crime of felony murder itself to narrow and appropriately select those to be sentenced to death and therefore, on its face, permitted arbitrary imposition of the death penalty....

All felony murders involving robbery, by definition, contain at least the two aggravating circumstances detailed above. This places the felony murder defendant in a worse position than the defendant convicted of premeditated murder, simply because his crime was committed in conjunction with another felony. Id. The court distinguished Lowenfield, 484 U.S. 231 , 108 S.Ct. 546 , on the ground that the Wyoming statute clearly provided for narrowing only at the sentencing phase of the proceedings.

Id. at 90-91. Finally, the court concluded that another “compelling” reason for reversing Engberg’s death sentence was that the Wyoming legislature had subsequently amended its death penalty statute. Id. The amended statute corrected the constitutional problems previously found by the court.

In State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), cert. granted, Tennessee v. Middlebrooks, — U.S.-, 113 S.Ct. 1840 , 123 L.Ed.2d 466 , cert. dismissed as improvidently granted, — U.S.-, 114 S.Ct. 651 , 126 L.Ed.2d 555 (1993), the Supreme Court of Tennessee also reviewed a capital sentencing scheme that duplicated the elements of felony murder at both the guilt and sentencing phases. Id. at 341-47. When a defendant has been convicted of first degree murder solely on the basis of felony murder, the court concluded, the use of felony murder as an aggravating factor is unconstitutional under both the Eighth Amendment and the Tennessee state constitution. Id. at 346.

As in Engberg , the Tennessee court held that the felony murder rule did not adequately narrow the class of death-eligible defendants at either the guilt or the sentencing phase of the trial. Citing Gregg, 428 U.S. 153 , 96 S.Ct. 2909 , the court concluded that a “proper” narrowing device must ensure that those who receive ²²² the death penalty will be “among the worst murderers—those whose crimes are particularly serious, or for which the death penalty is peculiarly appropriate.” Id. at 343. Applying that principle to the issue presented here, the court explained: The only defendants who are eliminated by the felony murder narrowing device are those who Mil with premeditation and