Campbell v. State

Davidson, J., delivered the opinion of the Court. This case concerns the criminal responsibility of felons for the lethal acts of others. More particularly, it presents the question whether, under Maryland Code (1957, 1982 Repl. Vol.), Art. 27, § 410, Maryland’s so-called "felony-murder” statute, the killing of a co-felon during an armed robbery, by either a police officer attempting to apprehend him, or by a victim resisting the armed robbery, constitutes murder in the first degree on the part of the surviving felon.

On 5 February 1980, in the Criminal Court of Baltimore, the appellant, Anthony Wilson Campbell, pled guilty to first degree felony murder of a co-felon, assault with intent to murder a victim, and robbery of the same victim with a deadly weapon. A factual statement presented as the basis for the guilty pleas showed that on 19 September 1979, at approximately 12 midnight, the appellant and Rufus Branch (co-felon) entered a taxicab operated by Paul Alston (victim). ⁴⁴⁰ The appellant sat in the back seat of the taxicab and the co-felon sat in the front seat. After requesting the victim to drive to a street in an area of deserted buildings, the co-felon pulled out a small caliber handgun, pointed it at the victim, and said, "This is a stick up.” The co-felon then ordered the victim to hand him his money bag. The appellant said, "Do what he tells you.

I have a gun too.” The victim handed his money bag and his wallet to the co-felon and then looked at both the co-felon and the appellant. The appellant said, "He’s seen our faces; we have to take him somewhere and kill him.” As the victim drove up the street, he saw two police cars. The victim drove alongside the police car of Officer Cruse and slammed on his brakes. At that point, the co-felon opened fire at the victim who returned the fire with his own handgun.

Both the victim and the co-felon were wounded. Officer Heiderman, then on foot patrol, came to the victim’s assistance and shot at the co-felon. The co-felon and the appellant then left the taxicab and began to run. The appellant hid in the vestibule of a nearby building.

Officer Heiderman and Officer Cruse chased the co-felon and ordered him to halt. The co-felon continued to run. Officer Heiderman hid behind a truck to reload his weapon. When Officer Heiderman emerged, the co-felon suddenly appeared from behind a vehicle and pointed his gun toward the officer.

Officer Cruse shouted a warning to Officer Heiderman, who turned and shot the co-felon approximately four times. The co-felon fell to the ground, dead. An autopsy report revealed nine bullet wounds, five of which were potentially lethal. At least two of the nine wounds were inflicted by the victim.

Under these circumstances, it is unclear whether the co-felon was killed by the victim or by the police officer. A third police officer, Officer Steinman, arrested the appellant in the vestibule where he was hiding. After searching the appellant and finding that he did not have any weapons, Officer Steinman walked the appellant back to the victim’s taxicab. At that time, the victim identified the ⁴⁴¹ appellant as one of his assailants.

The victim’s money bag and his wallet were found in the gutter of the street directly between the taxicab and the vestibule in which the appellant was found. The trial court accepted the appellant’s guilty pleas. Thereafter, the trial court convicted the appellant of first degree murder, assault with intent to murder, and robbery with a deadly weapon, and sentenced him to concurrent terms of life (all but 15 years suspended), 15 years, and 10 years respectively. The appellant appealed to the Court of Special Appeals.

We issued a writ of certiorari before consideration by that Court. Maryland Code, Art. 27, §§ 407-410 provide that certain types of murder shall be murder in the first degree. More particularly, § 410 provides in pertinent part: "All murder which shall be committed in the perpetration of, or attempt to perpetrate ... robbery .. . shall be murder in the first degree.” All murder not specified in §§ 407-410 is murder in the second degree. § 411. These sections do not create any new statutory crimes, but rather divide the crime of murder, as known at common law, into degrees.

Jackson v. State, 286 Md. 430, 435-36 , 408 A.2d 711, 715 (1979); State v. Frye, 283 Md. 709, 712-13 , 393 A.2d 1372, 1373-74 (1978); Davis v. State, 39 Md. 355, 374 (1874). With respect to the crime of murder as known at common law, this Court has recently stated in Jackson v. State, 286 Md. 430 , 408 A.2d 711 (1979): "At the common law, to which the inhabitants of Maryland are entitled, Md. Const. Declaration of Rights, Art. 5, homicide is the killing of a human being by another human being; criminal homicide is homicide without lawful justification or excuse; criminal homicide with malice aforethought is murder; malice aforethought is established, inter alia, upon commission of criminal homicide in the ⁴⁴² perpetration of, or in the attempt to perpetrate, a felony. Thus, at common law, homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice. 'The [felony-murder] doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute.’[ 1 ] The doctrine has not been abrogated by statute in this State.” Jackson, 286 Md. at 435-36 , 408 A.2d at 714-15 (footnote omitted) (citations omitted) (emphasis added).

This Court has held that under the felony-murder doctrine, a participating felon is guilty of murder when a homicide has been committed by a co-felon. Stevens v. State, 232 Md. 33, 41 , 192 A.2d 73, 78 , cert. denied, 375 U.S. 886 , 84 S.Ct. 160 (1963); Boblit v. State, 220 Md. 454, 457 , 154 A.2d 434, 435 (1959), appeal dismissed sub nom. Brady v. State, 222 Md. 442 , 160 A.2d 912 (1960); Shockley v. State, 218 Md. 491, 497 , 148 A.2d 371, 374 (1959); see Veney v. State, 251 Md. 159, 174 , 246 A.2d 608, 617 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 (1969); see also Mumford v. State, 19 Md. App. 640, 643-44 , 313 A.2d 563, 566 (1974). We have also held that under the felony-murder doctrine a participating felon is guilty of murder when a hostage is accidentally killed by a police officer attempting to apprehend robbers fleeing from the scene of an armed robbery.

Jackson, 286 Md. at 442-43 , 408 A.2d at 718-19 . However, this Court has not previously considered whether under the felony-murder doctrine a participating felon is guilty of murder when, during an armed robbery, a police officer kills a fleeing co-felon in an attempt to apprehend him, or a victim kills a co-felon in an attempt to resist the armed robbery. ⁴⁴³ Courts in a majority of the jurisdictions in which the question has been considered have held that under the felony-murder doctrine a participating felon is not guilty of murder when the killing is done by a person other than the participating felon or his co-felons. E.g., People v. Antick, 15 Cal.3d 79, 87 , 539 P.2d 43, 48 , 123 Cal.Rptr. 475, 480 (1975); People v. Gilbert, 408 P.2d 365, 373 , 47 Cal.Rptr. 909, 917 (1965), vacated on other grounds, 388 U.S. 263 , 87 S.Ct. 1951 (1967); People v. Washington, 402 P.2d 130, 133-34 , 44 Cal.Rptr. 442, 445-46 (1965); Alvarez v. District Court In & For the City & County of Denver, 186 Colo. 37, 38-39 , 525 P.2d 1131, 1131-32 (1974); Commonwealth v. Moore, 121 Ky. 97, 98-100 , 88 S.W. 1085, 1086 (1905); Commonwealth v. Balliro, 349 Mass. 505, 514-15 , 209 N.E.2d 308, 314 (1965); Commonwealth v. Campbell, 89 Mass. 541, 544-46 (1863); People v. Austin, 370 Mich. 12, 30-31 , 120 N.W.2d 766, 774-75 (1963); Sheriff, Clark County v. Hicks, 506 P.2d 766, 768 (Nev. 1973); State v. Canola, 73 N.J. 206, 226 , 374 A.2d 20, 30 (1977); People v. Wood, 8 N.Y.2d 48, 50 , 167 N.E.2d 736, 738-39 , 201 N.Y.S.2d 328, 331-33 (1960); State v. Oxendine, 187 N.C. 658, 661-62 , 122 S.E. 568, 570 (1924); Commonwealth exrel. Smith v. Myers, 438 Pa. 218, 227-35 , 261 A.2d 550, 555-58 (1970); Commonwealth v. Redline, 391 Pa. 486, 495-96 , 137 A.2d 472, 476 (1958), see Annot. 56 A.L.R.3d 239 (1974).

The rationale underlying this rule is the "agency” theory of felony murder. A classic statement of the agency theory appears in Commonwealth v. Campbell, 89 Mass. 541 (1863). There, the accused was participating in a riot growing out of the enforcement of a draft of men for the army. The question presented was whether under the felony-murder doctrine, the rioter could be guilty of murder if another person was killed by a soldier attempting to resist the mob’s attack.

The Supreme Court of Massachusetts stated: "There can be no doubt of the general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it, and that, if he combines and confederates ⁴⁴⁴ with others to accomplish an illegal purpose, he is liable criminaliter for the acts of each and all who participate with him in the execution of the unlawful design. As they all act in concert for a common object, each is the agent of all the others, and the acts done are therefore the acts of each and all. [T]he rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act of one of a party for which his associates and confederates are to be held liable must be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together. Without such limitation, a person might be held responsible for acts which were not the natural or necessary consequences of the enterprise or undertaking in which he was engaged, and which he could not either in fact or in law be deemed to have contemplated or intended. No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose.

Certainly that cannot be said to be an act of a party in any just sense, or on any sound legal principle, which is not only not done by him, or by any one with whom he is associated or connected in a common enterprise, or in attempting to accomplish the same end, but is committed by a person who is his direct and immediate adversary, and who is, at the moment when the alleged criminal act is done, actually engaged in opposing and resisting him and his confederates and abettors in the accomplishment of the unlawful object for which they are united. ⁴⁴⁵ The real distinction is between acts which a man does either actually or constructively, by himself or his agents or confederates, and those which were done by others acting not in concert with him or to effect a common object, but without his knowledge or assent, either express or implied. For the former the law holds him strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed to have contemplated and intended. For the latter he is not liable, because they are not done by himself or by those with whom he is associated, and no design to commit them or intent to bring about the results which flow from them can be reasonably imputed to him.” Campbell , 89 Mass, at 543-44, 544-45, 546 (emphasis added). Courts in some jurisdictions that have considered the precise question here have relied on the agency theory and have held that a participating felon is not guilty of murder when a police officer kills a fleeing co-felon while attempting to apprehend him.

E.g., Antick, 15 Cal.3d at 90-91 , 539 P.2d at 50 , 123 Cal.Rptr. at 482 ; Gilbert, 408 P.2d at 373 , 47 Cal.Rptr. at 917 ; Redline, 391 Pa. at 495-96 , 137 A.2d at 476-77 . Thus, in Commonwealth v. Redline, 391 Pa. 486 , 137 A.2d 472 (1958), a felon and his co-felon were fleeing from the scene of an armed robbery when a police officer, attempting to apprehend them, killed the co-felon. Manifestly, the police officer’s killing of the co-felon was committed to thwart the felony rather than to further it. The Supreme Court of Pennsylvania, employing the agency theory, stated: "The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. 'If is necessary * * * to show that the conduct causing death was done in furtherance of the design to commit the felony. ⁴⁴⁶ [I]n order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. ” Redline, 391 Pa. at 495-96 , 137 A.2d at 476 (emphasis in original).

That Court reversed the surviving felon’s conviction of first degree murder. Similarly, courts in some jurisdictions have held that under the felony-murder doctrine a participating felon is not guilty of murder when a victim kills a co-felon during the commission of a felony. E.g., Washington, 402 P.2d at 133 , 44 Cal.Rptr. at 445 ; Austin, 370 Mich, at 32-33 , 120 N.W.2d at 775 ; Hicks, 506 P.2d at 768 ; Canola, 73 N.J. at 226 , 374 A.2d at 30 . More particularly, in Sheriff, Clark County v. Hicks, 506 P.2d 766 (Nev. 1973), the victim of an attempted murder, in an effort to resist the perpetration of the crime, fatally shot one of three co-felons.

As in Redline , the victim’s killing of the co-felon was committed to thwart the felony rather than to further it. The Supreme Court of Nevada, employing the agency theory, stated: "[T]he felony-murder rule does not apply when the killing is done by the victim of the crime, because in such a case the malice aforethought necessary for murder is not attributable to the accomplice felon. The killing in such an instance is done, not in the perpetration of, or an attempt to perpetrate, a crime,