Fischer v. State

CATHELL, Judge. David Michael Fischer was charged in the Circuit Court for Baltimore County under a five-count indictment as follows: count 1, murder; count 2, arson of a dwelling; count 3, arson of a structure; count 4, first degree burglary; and count 5, second degree burglary. Appellant was tried before a jury, and at the close of the state’s case-in-chief, the court granted a motion for a judgment of acquittal as to the first degree burglary count. At the close of all the evidence, the court ⁴⁴⁵ granted a motion for judgment of acquittal as to the second degree burglary count.

The other three counts went to the jury, and the jury found appellant not guilty of first degree murder, guilty of second degree murder, guilty of the arson of the dwelling, and guilty of arson of the structure. After appellant’s motion for a new trial was denied, he was sentenced to a thirty-year term of incarceration on the second degree murder conviction and a consecutive thirty-year term of incarceration for the conviction of arson of a dwelling. The court merged the conviction for arson of a structure into the conviction for arson of a dwelling. Appellant raises two questions for our review: 1.

Did the trial court err in denying ... appellant’s motion for a judgment of acquittal [on] the charge of arson of a dwelling house? 2. Did the trial court err in failing to instruct the jury: A) As to the definition of an accomplice, and that the testimony of an accomplice must be corroborated, and B) That ... appellant’s prior convictions for theft and burglary could only be considered in determining ... appellant’s credibility? FACTS The murder victim was a fifteen year old girl who ran away from home in the late summer of 1995. On April 16, 1996, Baltimore County Police discovered her decomposed remains in a shallow grave off of River Road in Catonsville.

The cause of death was determined to be a single gunshot to the head. The State alleged that appellant killed the girl sometime during the fall of 1995 at 1125 North Rolling Road and then, with the help of Jonathan Izquierdo (Izquierdo), dumped her body near River Road in Catonsville. The State also alleged that on February 28, 1996, appellant attempted to destroy potential evidence by setting fire to the house in which the murder took place. ⁴⁴⁶ To establish appellant’s criminal agency, the State relied primarily upon the testimony of three individuals: Izquierdo, John Tuchman (Tuchman), and Charles Walton (Walton). All three individuals knew each other for at least one year and agreed to cooperate with the police.

Each of the individuals also had contact with appellant. Additionally, these three witnesses agreed to cooperate and testify against appellant, in part, because each faced significant legal problems of his own. 1 Izquierdo testified he met appellant through a mutual friend, Khori Smith (Smith), in March of 1995. Izquierdo testified that appellant regularly carried in his waistband a nine millimeter Glock, which he first showed Izquierdo sometime prior to September of 1995. Izquierdo also testified that in September of 1995, he accompanied appellant to an uninhabited house located at 1125 North Rolling Road because appellant wanted to “show him something.” Izquierdo stated that, once inside the house, appellant opened a cabinet and removed a dead body that was wrapped in a blanket.

Izquierdo did not recognize the body at that time. He told the jury that he did not know the victim, but later remembered meeting her at a party at appellant’s house. After appellant showed Izquierdo the body, Izquierdo helped him put it in the back of appellant’s truck. Once in the truck, Izquierdo noticed a set of black handcuffs that belonged to appellant.

Appellant and Izquierdo then drove to River Road in Catonsville and threw the body over a three foot high concrete wall. Appellant wanted to fire a shot into the dead body from his Glock, but Izquierdo talked him out of it. ⁴⁴⁷ Tuchman testified that, on January 5, 1996, he told William Ryan, a Baltimore County Police Detective, about a conversation that had taken place between him and appellant. The conversation took place sometime between November 1995 and January 1996, and concerned a girl who appellant had killed at a house on Rolling Road. Tuchman testified that appellant told him that he handcuffed the victim, choked her first with his hands and then with a board, and then broke her back.

On January 5, 1996, Tuchman took Detective Ryan to 1125 North Rolling Road to investigate. Ryan testified that the location was a very rundown, apparently abandoned house that was starting to fall apart, with broken windows, no furniture, and graffiti on all the walls and floors. Because they could not find the body, Ryan told Tuchman to become friendly with appellant in order to find out where the body was located. On February 23, 1996, Ryan outfitted Tuchman with a body wire and recorded part of a conversation between Tuchman and Izquierdo as they drove to, and went inside, the Rolling Road house.

Once inside, Izquierdo showed Tuchman the cabinet in which the body had been kept. On the morning of February 27, 1996, Ryan received a telephone call from Izquierdo. Later that afternoon Ryan commenced a search of the River Road area, but he again failed to locate the body. Tuchman testified that at approximately 9:00 p.m. on February 27, 1996, he called Ryan and told him that appellant was going to burn down the house on Rolling Road.

At Ryan’s direction, Tuchman called appellant back and told him that he would help. Appellant then told Tuchman to pick him up around midnight and to bring gasoline. In the meantime, Ryan went to 1125 North Rolling Road to establish surveillance. Just after midnight, Tuchman and Keith Sensibox (Sensibox) arrived at appellant’s house driving a blue Mitsubishi.

On the way to the house, the three men stopped off at a gas station where Tuchman acquired a pack of matches. After ⁴⁴⁸ arriving and parking near the house, Tuchman and appellant went inside while Sensibox waited outside by the car. Tuchman testified that once inside, appellant selected a room filled with carpet, piled up the carpet, and poured gasoline onto it. According to Tuchman’s testimony, appellant instructed him to light the carpet.

After Tuchman lit the carpet, both he and appellant left the premises and went back to the car where Sensibox was waiting. While they were proceeding to a nearby parking lot to watch the fire, the police stopped the vehicle and arrested all three of the occupants. On April 16,1996, Ryan and Walton went to the River Road area and recovered the body. At trial, Deputy Chief Medical Examiner Dr. Ann Dixon testified that an autopsy of the body revealed the cause of death was a single gunshot wound to the head.

At trial, appellant testified that he did not kill the victim. Appellant also testified that, on the evening of February 28, 1996, he went with Tuchman to 1125 Rolling Road, not knowing that Tuchman planned to burn down the building. The defense put on additional testimony that appellant was framed for both the murder and the arson because of a personal vendetta Tuchman, Izquierdo, and Walton had against appellant. Appellant was convicted of second degree murder, arson of a dwelling, and arson of a structure.

This timely appeal followed. DISCUSSION 1. Conviction for Arson of a Dwelling Appellant asserts the trial court erred in denying his motion for judgment of acquittal on the charge of arson of a dwelling because the structure in question was not a dwelling. He argues there was insufficient evidence to allow the jury to render a decision that the building in question was a dwelling.

The test for sufficiency of the evidence is “ ‘whether, after viewing the evidence in the light most favorable to the prose ⁴⁴⁹ cution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Atkinson v. State, 331 Md. 199, 205 , 627 A.2d 1019 (1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979)). Appellant contends that when applying this standard to the case sub judice, no reasonable trier of fact could have concluded that the structure in question was a “dwelling”. We disagree and shall affirm. Appellant’s assertion revolves around the definition of a dwelling under section 5(b) of Article 27 of the Maryland Code.

This section defines dwelling as “a structure, regardless of whether an individual is actually present, any portion of which has been adapted for overnight accommodation of individuals, including any kitchen, shop, barn, stable, or outhouse that is parcel to, belonging to, or adjoining the structure.” Md.Code (1957,1996 RepLVol.), Art. 27, § 5(b). The resolution of this question involves statutory construction of the term “dwelling.” The cannons of statutory construction were stated by Judge Chasanow in State v. Bricker, 321 Md. 86, 92-93 , 581 A.2d 9 (1990): When interpreting a statute, the starting point is the wording of the relevant provisions. If “the .language in question [is] so clearly consistent with apparent purpose (and not productive of any absurd result) ... further research [is] unnecessary.” Kaczorowski v. Mayor and City of Baltimore, 309 Md. 505, 515 , 525 A.2d 628 (1987). In the event that ambiguity clouds the precise application of the statute, the cardinal rule of statutory construction is to ascertain and effectuate legislative intent.

Taxiera v. Malkus, 320 Md. 471, 480 , 578 A.2d 761 (1990); Harford County v. University, 318 Md. 525, 529 , 569 A.2d 649 (1990); Jones v. State, 311 Md. 398, 405 , 535 A.2d 471 (1988); In re Ramont K., 305 Md. 482, 484 , 505 A.2d 507 (1986). To perform this task, legislative intent should be gleaned first from the phrasing of the statute itself, giving the words their “ordinary and popularly understood meaning, absent a manifest contrary legislative intention.” In re Arnold M., ⁴⁵⁰ 298 Md. 515, 520 , 471 A.2d 313 (1984). See also Jones, 311 Md. at 405 , 535 A.2d 471 . When engaging in the interpretive process, however, the purpose, aim or policy of the legislature cannot be disregarded.

Taxiera, 320 Md. at 480 , 578 A.2d 761 ; Harford County v. University, 318 Md. at 529 , 569 A.2d 649 ; Kaczorowski, 309 Md. at 513 , 525 A.2d 628 . Resultant conclusions are to be reasonable, logical and consistent with common sense. Harford County v. University, 318 Md. at 529-30 , 569 A.2d 649 ; Potter v. Bethesda Fire Dept., 309 Md. 347, 353 , 524 A.2d 61 (1987). [Brackets in original.] The term dwelling recently was defined statutorily by chapter 228 of the 1993 Maryland Laws. Prior to that time, the term dwelling was defined by the common law.

We shall examine the common-law treatment of the term dwelling after we examine the language of the statute. First degree arson is now defined as “willfully and maliciously set[ting] fire to or burning] a dwelling or occupied structure, whether the property of the person or another.” Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 6 (emphasis added). Second degree arson prohibits the burning of a structure. See Md.Code (1957, 1996 Repl.Vol.),.

Art. 27, § 7 (emphasis added). The term dwelling is defined in the present statute as a “structure, regardless of whether an individual is actually present, any portion of which has been adapted for overnight accommodation of. individuals.” Art. 27, § 5(b). . The term structure is defined as a building, other construction, vehicle, or watercraft, including: (1) Any barn, stable, garage, pier, wharf, boathouse, and any facility attached to a pier or wharf; (2) Any shop, storehouse, warehouse, factory, mill, house of worship, meeting house, courthouse, workhouse, school, tent, public building, or public bridge; and (3) Any motor vehicle, aircraft, boat, ship, and railroad car. ⁴⁵¹ Art. 27, § 5(e). The house in question was clearly a structure in that it was a building.

In determining whether the structure was a dwelling, the critical issue is whether any portion of the house in question was “adapted for overnight accommodation.” Art. 27, § 5(b). Applying the statutory canons discussed above, we conclude that there was sufficient evidence for the jury to decide that the house in question was a dwelling house. We explain. The touchstone of statutory construction is determining the purpose of the statute and the intent of the Legislature.

The plain language of the statute now provides that a dwelling is a building that “has been adapted for overnight accommodation.” Art. 27, § 5(b). This language suggests the purpose of the statute was to expand the common-law definition of dwelling that existed prior to the enactment of the statute. The term dwelling, as defined by section 5 of Article 27, would clearly include a house in which no one is actually residing at the time of the arson because a house generally is “adapted for overnight accommodation.” The committee note to the statute also lends support that the purpose and legislative intent of the statute was to broaden the definition of dwelling such that the burning of various types of structures would constitute first degree arson. The committee note provides in relevant part: The definition of “structure” (and necessarily of “dwelling” and “occupied structure”) has been expanded to include certain vehicles and vessels where the presence of individuals is likely and the potential for loss or injury to human life from a fire is high.

It is further not unusual for these vehicles and vessels to be adapted for and used as dwellings, such as the cab of a tractor-trailer and many pleasure boats. The Committee felt that it was appropriate that these items be afforded the same protections as the more traditional dwellings. Art. 27, § 5 committee note. Although the committee note specifically refers to structures such as boats and vehicles, it is clear the purpose of defining the terms dwelling, structure, ⁴⁵² and occupied structure was to punish more severely arson to structures “where the presence of individuals is likely and the potential for loss or injury to human life from a fire is high.” Art. 27, § 5 committee note.

An examination of the case law prior to the enactment of the 1993 statute also affirms our conclusion that the purpose and legislative intent was to broaden the scope of the types of structures that constitute dwellings. Prior to the enactment of the 1993 statute, arson was defined as follows: Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof ... shall be guilty of arson____ Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 6. In a thorough opinion tracing the history of Maryland’s arson statute, Judge Karwacki, in Richmond v. State, 326 Md. 257, 263-65 , 604 A.2d 483 (1992), noted: The language of Art. 27, § 6 prohibiting the burning of a “dwelling house,” however, which was adopted from the common law, has not been varied. Generally, a structure which qualifies as a dwelling house for the purpose of burglary also qualifies as a dwelling