Dishman v. State

CHASANOW, Judge. This appeal arises out of the 1997 first degree murder and robbery conviction of Petitioner Diallo Mugabe Dishman in the Circuit Court for Prince George’s County. The Court of Special Appeals affirmed the convictions in Dishman v. State, 118 Md.App. 360 , 702 A.2d 949 (1997). We granted certiorari to determine whether the Court of Special Appeals properly concluded that Petitioner’s indictment under Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 616, 1 did not charge manslaughter and whether the trial court correctly refused Petitioner’s request for jury instructions on manslaughter, reckless endangerment and assault and battery.

We conclude that the indictment did charge Petitioner with manslaughter, and we reverse the trial court’s refusal to submit the man ²⁸⁴ slaughter charge to the jury but affirm as to reckless endangerment and assault and battery. I. In the early morning of March 11, 1996, a passerby noticed a small fire off the side of Lottsford Vista Road in Prince George’s County. The fire turned out to be the burning body of Peverly Hart. According to the medical examiner’s testimony, Hart died from asphyxia or lack of air, and her body was burned after she had died.

The medical examiner determined that Hart’s ankles and arms had been bound with tape while she was still alive and that a two-inch piece of silver tape had “partially cover[ed] the [victim’s] nose and mouth.” On March 12, 1996, Petitioner was arrested on bench warrants for charges involving a bad check and driving with a suspended license. He was then taken to an interview room where, over the course of about ten hours, he gave two written statements to police concerning Hart’s death. The second statement in particular is relevant to this appeal and will be discussed, in more detail below. 2 After he had given these statements, Petitioner took police officers to a pawn shop where the victim’s jewelry was located, and to the victim’s car, which he had removed to a location in Washington, D.C. Petitioner and Felicia Jackson were indicted jointly. Jackson was charged as an accessory after the fact, while Petitioner was charged with murder, robbery, robbery with a deadly weapon, and carjacking.

Testimonial and other evidence, as well as his own statements, provided strong evidence linking Petitioner to the burning of Hart’s body. At the close of its ²⁸⁵ case, the prosecution entered a nolle prosequi as to the robbery with a deadly weapon and carjacking counts. After contentious discussions between defense counsel and the prosecution, the trial court refused to instruct the jury on depraved heart murder, manslaughter, reckless endangerment, and assault and battery. The jury convicted Dishman of murder in the first degree and robbery.

He was subsequently sentenced to life for the murder count and ten years for the robbery count.

II

Before addressing Petitioner’s arguments concerning the trial court’s jury instruction rulings, we find it necessary to address the Court of Special Appeals’ analysis of “whether the [Petitioner] was charged with manslaughter in accordance with the language in his indictment.” Dishman, 118 Md.App. at 371 , 702 A.2d at 954 . We first summarize the premise for the intermediate appellate court’s holding, and then we provide our reasons for disagreeing with that premise. A. A charge of murder may be made in either the common law form or the statutory short form. Hardy v. State, 301 Md. 124, 137 , 482 A.2d 474, 481 (1984).

The Court of Special Appeals concluded, and we agree, that Petitioner was indicted in accordance with the statutory form indictment found in § 616. Dishman, 118 Md.App. at 371 , 702 A.2d at 954 . That section, entitled, “Indictment for murder or manslaughter,” provides: “In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: ‘That A.B., on the ..... day of ..... nineteen hundred and ....., at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and ²⁸⁶ murder) C.D. against the peace, government and dignity of the State.’ ” As the intermediate appellate court observed, this section was originally enacted as Chapter 248 of the Acts of 1906, and for over ninety years, it has remained in the same form with only a few minor alterations, none of which are relevant to our analysis in this case.

Dishman, 118 Md.App. at 371 , 702 A.2d at 954 . 3 The intermediate appellate court recognized that “generally speaking, under the statutory short form of the indictment, an accused may be found guilty of first degree murder, second degree murder, or manslaughter.” Dishman, 118 Md.App. at 372 , 702 A.2d at 955 . The court, however, applied “an exception to the general rule” which that court first recognized in Brown v. State, 44 Md.App. 71 , 410 A.2d 17 (1979). As articulated in Brown , this exception applies when the indictment includes the words “with premeditation” and “deliberately.” The indictment in Brown alleged that the defendant “did unlawfully, willfully, deliberately and with premeditation ldll and slay [the victim].” Although the Brown court recognized that the adoption of the statutory form “eroded most of the technical niceties which were required at common law,” 44 Md.App. at 76 , 410 A.2d at 21 , it held that the inclusion in the indictment of the words “with premeditation” and “deliberately” “precludes a construction that the indictment charges manslaughter.” 44 Md.App. at 74 , 410 A.2d at 20 . Moreover, the court held that since the indictment was missing “that indispensable ingredient of murder[,] malice,” the indictment also failed to charge murder.

Brown, 44 Md.App. at 78 , 410 A.2d at 22 . Therefore, the Brown court reasoned the indictment failed to allege any crime, and thus, Brown’s conviction of second degree murder was reversed. ²⁸⁷ In the case sub judice, the indictment alleged that Petitioner “feloniously, wilfully and of his deliberately premeditated malice aforethought, did kill and murder Peverly Hart....” Applying the Brown exception to this indictment, the Court of Special Appeals concluded that the inclusion of the terms “deliberately” and “premeditated” meant that the indictment charged murder only, but not manslaughter. We conclude otherwise. B. In one of our first decisions interpreting the statutory form indictment, we addressed an indictment that “would unquestionably be defective” at common law.

Neusbaum v. State, 156 Md. 149, 155 , 143 A. 872, 875 (1928). In finding the indictment constitutional, we noted that statutory form indictments had been enacted in many states “in an effort to escape the excessive formalism of the common law, which formerly made the conviction or acquittal of one charged with crime so often turn upon some technical quibble rather than upon the guilt or innocence of the accused.” Neusbaum, 156 Md. at 157 , 143 A. at 876 . We therefore concluded that the short form indictment was sufficient without including an allegation of the manner or means by which the death was caused. Since Neusbaum , we have consistently upheld indictments under § 616 against a variety of challenges.

Prior to the intermediate appellate court’s decision in Brown , we allowed convictions for criminal homicide other than first degree murder in a number of cases even though the charging document contained the terminology of first degree murder, as in this case. For example, in Wood v. State, 191 Md. 658, 663 , 62 A.2d 576, 578 (1948), the defendant challenged the admission of evidence of a robbery, which had not been charged, under a statutory form indictment that charged that Wood “feloniously, wilfully and of deliberately premeditated malice aforethought, did kill and murder” the victim. Wood argued that he had been indicted on a charge of premeditated murder, and therefore, was not put on notice that the State would attempt to prove felony murder by showing that the death occurred ²⁸⁸ during the commission of a robbery. Wood, 191 Md. at 667 , 62 A.2d at 580 .

We rejected Wood’s argument, holding that an indictment in the language of the statutory short form was sufficient and did not “require the fact of robbery to be incorporated in an indictment as part of the crime charged.” Id. See also Carroll v. Warden, 205 Md. 681 , 632-33, 106 A.2d 71, 72 (1954)(“A verdict of guilty of manslaughter can be rendered on [a statutory form] indictment for murder.”); Blackwell v. State, 278 Md. 466, 476 , 365 A.2d 545, 551 (1976), cert. denied, 431 U.S. 918 , 97 S.Ct. 2183 , 53 L.Ed.2d 229 (1977)(“In first degree murder indictments filed pursuant to [statutory short-form indictment] provision, it is well settled that murder in the second degree and manslaughter are lesser included offenses.” (Emphasis added)); State v. Evans, 278 Md. 197, 199, n. 1 , 362 A.2d 629 , 630 n. 1 (1976)(“Under such an indictment [charging that defendant ‘feloniously, willfully, and of deliberately premeditated malice aforethought’ murdered victim] the accused could be found guilty of the lesser offenses of murder in the second degree and manslaughter.”); State v. Williamson, 282 Md. 100 , 382 A.2d 588 (1978)(observing that § 616 relaxed the common law charging requirements and holding that defendant charged in the statutory form could be found guilty of first degree murder if he was an accessory before the fact). Even though these cases do not specifically address whether the indictment charges manslaughter, the fact that the indictment charged manslaughter is implicit in the language of our decisions. If our decisions prior to 1978 failed to make clear that second degree murder and manslaughter are charged when a statutory form indictment uses the language of first degree murder, that ambiguity should have been laid to rest a year prior to the Court of Special Appeals’ decision in Brown , when we issued our opinion in State v. Ward, 284 Md. 189 , 396 A.2d 1041 (1978).

In Ward , we observed that “the General Assembly of Maryland relaxed the formal common law requirements of indictment in homicide cases when it enacted Chapter 248 of the Acts of 1906.” Ward, 284 Md. at 200 , 396 A.2d at 1048 . We then stated: ²⁸⁹ “It is well settled that under an indictment pursuant to the statutory formula, even though it spells out murder in the first degree, the accused may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter.” (Emphasis added). Id. More recent cases further illustrate our flexible interpretation of § 616.

In State v. Chaney, 304 Md. 21, 23 , 497 A.2d 152, 153 (1985), we found sufficient an indictment that did not contain the words, “felonious,” “malice aforethought,” or “murder.” Noting that unlawfulness is implicit in the words, “did wilfully and deliberately, with premeditation kill and slay,” we said that “in ascertaining the existence of jurisdiction in the circuit court, we consider the indictment in its entirety.” Chaney, 304 Md. at 26-27 , 497 A.2d at 155 . In Ross v. State, 308 Md. 337 , 519 A.2d 735 (1987), the defendant challenged the constitutionality of his felony murder conviction on a statutory short form indictment charging that he “feloniously, willfully and [with] deliberately premeditated malice aforethought, did Mil and murder [the victim].” 308 Md. at 345 , 519 A.2d at 739 . Once again, we observed that “[a] defendant charged in the statutory language employed in this case is clearly apprised that he is being charged with the crime of murder and that he may be convicted of murder in either degree, or manslaughter.” Id. (emphasis added).

Moreover, we noted that we have “looked with favor upon the general trend of relaxing the formal requirements of indictments to avoid the prolix and often overly technical rules of common law pleading in favor of the shorter and simpler forms.” Ross, 308 Md. at 346 , 519 A.2d at 739 . See also Dykes v. State, 319 Md. 206, 209 , 571 A.2d 1251, 1253 (1990)(observing that criminal information charging that defendant “did feloniously, wilfully, deliberately and maliciously kill and murder [victim]” supported conviction for first or second degree murder or manslaughter). While some of these cases refer to second degree murder and manslaughter as lesser offenses of first degree murder, the language makes clear that an indictment under ²⁹⁰ § 616 alleging first degree murder also charges second degree murder and manslaughter. Thus, we conclude that the intermediate appellate court’s decisions in Brown and in the instant case are incorrectly based on “technical quibble” that the statutory short form of indictment was meant to eliminate.

Although we do not address accessoryship in this appeal, 4 the same analysis applies to the charge of being an accessory to murder'. Section 616 explicitly applies to “being an accessory” to murder or manslaughter, and we have so held. See Williamson, supra (observing that § 616 relaxed the common law charging requirements and holding that defendant could be found guilty of first degree murder if he was an accessory before the fact). Therefore, we conclude that Petitioner was charged not just with first degree but also with second degree murder, manslaughter, and with being an accessory to murder.

III

Petitioner contends that the trial judge improperly refused to instruct the jury as to the offenses of manslaughter, reckless endangerment, and assault and battery. We begin by addressing the manslaughter charge, which we have held was charged in Petitioner’s indictment. We then turn to the uncharged offenses of reckless endangerment and assault and battery. A. Manslaughter 1.

Petitioner’s primary argument on this appeal is that the trial court erred by refusing to give jury instructions on manslaughter. Manslaughter has been defined as “an unlawful homicide without malice aforethought.” 2 Charles E. Torcia, Wharton’s Criminal Law § 153, at 343 (15th ed.1994). Maryland follows the common law distinction between murder characterized by the presence of malice and manslaughter ²⁹¹ characterized by the absence of malice. Ward, 284 Md. at 195 , 396 A.2d at 1045 .

By malice we mean “ ‘the presence of the required malevolent state of mind coupled with the absence of legally adequate justification, excuse, or circumstances of mitigation.’ ” Richmond v. State, 330 Md. 223, 231 , 623 A.2d 630, 634 (1993)(quoting Ross, 308 Md. at 340 n. 1, 519 A.2d at 736 n. 1). We have previously defined involuntary manslaughter 5 as an unintentional death occurring in one of three fashions: “(1) by doing some unlawful act endangering life but which does not amount to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty.” State v. Albrecht, 336 Md. 475, 499 , 649 A.2d 336, 347 (1994); Cox v. State, 311 Md. 326, 331-32 , 534 A.2d 1333, 1335-36 (1988). Petitioner contends that the evidence generated both the unlawful act and gross negligence variations of involuntary manslaughter. Petitioner further contends unlawful act manslaughter occurs where one causes a death unintentionally while committing a criminal act that is malum in se and that is not one of the felonies that gives rise to felony murder.

See Schlossman v. State, 105 Md.App. 277, 283-85 , 659 A.2d 371, 374-75 (1995); Insurance Co. v. Prostic, 169 Md. 535, 539 , 182 A. 421, 423 (1936). Cf. State v. Gibson, 254 Md. 399 , 254 A.2d 691 (1969). The negligence variety of involuntary manslaughter requires a gross deviation from the standard of care an ordinary person would use, ie., the conduct must manifest “ ‘a wanton or reckless disregard of human life.’ ” Albrecht, 336 Md. at 499 , 649 A.2d at 348 (quoting Mills v. State, 13 Md.App. 196, 200 , 282 A.2d 147, 149 (1971), cert. denied, 264 Md. 750 (1972)). ²⁹² Since the prosecution in this case had not entered a nolle prosequi of the charged offense of manslaughter, the trial court was required to give the manslaughter instruction so long as it was a permissible verdict generated by the evidence.

See Maryland Rule 4-325(e)(“The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.”); Lansdowne v. State, 287 Md. 232, 239 , 412 A.2d 88, 91 (1980)(holding that the trial judge must “give a requested instruction which correctly states the applicable law and which has not been fairly covered in instructions”); cf. Ball v. State, 347 Md. 156, 190 , 699 A.2d 1170, 1186 (1997)(observing that Md. Rule 4-325(c) applies to a request to instruct on charged offenses but does not apply to a trial court’s refusal to instruct on uncharged offenses). The determination of whether an instruction must be given turns on whether there is any evidence in the case that supports the instruction. See, e.g., Binnie v. State, 321 Md. 572, 581 , 583 A.2d 1037, 1041 (1991)(holding in theft case that defendant’s uncorroborated statement showing honest belief as to right to property was sufficient to send to jury honest belief defense); Smith v. State, 302 Md. 175, 181 , 486 A.2d 196, 199 (1985)(holding that accused’s alibi statement was sufficient to require jury instruction even though uncorroborated); Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979) (applying similar standard in context of civil trial). The threshold determination of whether the evidence is sufficient to generate the desired instruction is a question of law for the judge.

Dykes, 319 Md. at 221 , 571 A.2d at 1259 . The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired. This Court first articulated this standard in State v. Evans, supra, where we stated that a defendant charged with murder who seeks instructions on the issue of mitigation or self-defense bears the “burden of initially producing ‘some evidence’ ... suffi ²⁹³ dent to give rise to a jury issue with respect to these defenses.” 278 Md. at 208, 362 A.2d at 635 . In Dykes, supra, another murder case, we elaborated on the “some evidence” test in the context of the trial court’s refusal to give an instruction on imperfect self-defense: “Some evidence is not strictured by the test of a specific standard.

It calls for no more than what it says—‘some,’ as that word is understood in common, everyday usage. It need not rise to the level of ‘beyond reasonable doubt’ or ‘clear and convincing’ or ‘preponderance.’ The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden.

Then the baton is passed to the State. It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self-defense.” 319 Md. at 216-17 , 571 A.2d at 1257 . See also Sims v. State, 319 Md. 540, 553 , 573 A.2d 1317, 1323 (1990). On the other hand, where the evidence would not logically support a finding that the defendant committed the offense covered by the instruction, the trial court should not instruct the jury on that offense.

As the 8th Circuit has observed, “[I]t is beyond dispute that a defendant is not entitled to a lesser-included offense instruction unless the evidence adduced at the trial provides a rational basis upon which the jury could find him not guilty of the greater but guilty of the lesser offense.” United States v. Elk, 658 F.2d 644, 648 (8th Cir.1981). The court further noted: “ ‘[A] lesser offense instruction [should] be given only when the elements differentiating the two crimes are in sufficient dispute that the jury can rationally find the defendant innocent of the greater but guilty of the lesser offense. ²⁹⁴ This requirement is intended to prevent the jury from capriciously convicting on the lesser offense when the evidence requires either conviction on the greater offense or outright acquittal.’ ” Elk, 658 F.2d at 648 n. 6 (quoting United States v. Brown, 551 F.2d 236 , 239 n. 4 (8th Cir.1977)). See also 40 Am.Jur.2d Homicide § 530 (1968)(“Generally speaking, error cannot be predicated upon the failure of the trial court to instruct the jury on the degrees of homicide lower than the degree of which the accused is found guilty, if there is no evidence tending to show the commission of a lesser degree of homicide. ”)(emphasis added). Thus, a trial court could properly refuse a manslaughter instruction in a murder case where the evidence was, for example, that the victim was shot numerous times in the head and the only defense was an alibi.

In State v. Alston, 341 N.C. 198 , 461 S.E.2d 687 (N.C.1995), the North Carolina Supreme Court held that the trial court properly refused a second-degree