Goldsberry v. State

EYLER, JAMES R., J. James Earl Goldsberry, Jr., appellant, and co-defendant James Myers, Jr., 1 were charged in the Circuit Court for Prince George’s County with first degree premeditated murder, first and second degree felony murder, second degree specific intent murder, attempted robbery with a dangerous 2 weapon, use of a handgun in the commission of a crime of violence, conspiracy to commit first degree premeditated murder, and conspiracy to commit second degree specific intent murder. A jury convicted appellant of second degree felony murder, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit second degree murder. The court sentenced appellant to a 30-year term of incarceration for second degree felony murder and the merged conviction of attempted rob ⁴⁰⁰ bery with a deadly weapon, a 20-year consecutive term of incarceration for use of a handgun in a crime of violence, and a 30-year concurrent term of incarceration for conspiracy to commit second degree murder. This appeal followed.

Appellant contends that the trial court erred by (1) submitting to the jury a second degree felony murder charge based on the underlying felony of attempted robbery with a dangerous weapon; (2) submitting to the jury a charge of conspiracy to commit murder in the second degree; (3) instructing the jury that only a unanimous verdict was acceptable; (4) terminating representation by co-counsel, thereby denying appellant his right to counsel of choice; and (5) failing to specifically instruct the jury that it need not believe the testimony of an uncontradicted witness. 3 For the foregoing reasons, we shall reverse appellant’s convictions of second degree felony murder and conspiracy to commit second degree murder, without the possibility of retrial, and reverse the remaining convictions of attempted robbery with a dangerous weapon and use of a handgun in the commission of a crime of violence and remand for a new trial on those charges. Facts Wendy Braxton, an acquaintance of both appellant and the victim, Vincent Chamberlain, and the sole witness to the attempted robbery and shooting of Mr. Chamberlain, gave an uncontradicted account of the events at trial. Ms. Braxton testified that sometime in March, 2006, while visiting appellant, she received a call from Mr. Chamberlain inviting her and appellant to come to Mr. Chamberlain’s house to smoke marijuana. On arriving at the house, Mr. Chamberlain handed Ms. Braxton some marijuana to roll, and while doing so, she heard appellant and Mr. Chamberlain discuss selling Mr. Chamberlain’s marijuana.

The three then proceeded to a field behind the house to smoke some of the marijuana. Ms. Braxton ⁴⁰¹ again observed appellant and Mr. Chamberlain conversing as they returned from the field. Ms. Braxton then departed with appellant and dropped him off at his apartment. Ms. Braxton further testified that appellant called her later that evening to ask questions about Mr. Chamberlain.

Ms. Braxton subsequently received a call from Mr. Chamberlain asking if she wanted to play cards and requesting that she pick him up. On arriving at Mr. Chamberlain’s home at approximately 10:00 p.m., Ms. Braxton testified that she saw appellant and another individual parked in front of the house. Appellant exited the car and spoke with Mr. Chamberlain outside the house. Ms. Braxton further testified that appellant left in his car, stating that he had to “go get something.” On returning, appellant proceeded with Mr. Chamberlain to a shed attached to the rear of the house.

Ms. Braxton got out of her car several minutes later and went to the shed to ask Mr. Chamberlain if she could use the bathroom. As Ms. Braxton entered the shed, she saw appellant leave and return with Mr. Myers. Ms. Braxton testified that as appellant and Mr. Myers entered the shed and approached the door leading to the house, appellant drew a gun on Mr. Chamberlain and said “[g]ive me the stuff.” Ms. Braxton ran to hide behind a tree, where she observed Mr. Myers chasing Mr. Chamberlain and heard a gunshot. Ms. Braxton then saw appellant run out of the house, Mr. Myers run to the front of the house, and Mr. Chamberlain fall to the ground.

After Mr. Myers and appellant fled the scene, Ms. Braxton ran to Mr. Chamberlain and saw blood coming from his head. Unsure of what to do, Ms. Braxton got in her car and left the scene. As Ms. Braxton was “driving around,” appellant called her, asked if she had gone to the police, and requested that they meet. When Ms. Braxton declined appellant’s request to meet, appellant told her “snitches get stitches.” Ms. Braxton also testified that appellant offered her money, discussed the need “to make up a story,” and told her to tell police he was not at the scene. ⁴⁰² Ms. Braxton went to stay with a friend, and was called by appellant “four or fives times a day,” asking where she was and if she was with the police.

Ms. Braxton went to the police two days after the incident. Additional facts are provided below. Discussion A. Second Degree Felony Murder Predicated on Attempted Robbery with a Dangerous Weapon Appellant argues that the legislature, by expressly designating certain felonies as predicates for first degree felony murder, including attempted robbery with a dangerous weapon, 4 intended to disqualify those felonies as supporting second degree felony murder. Consequently, appellant asserts that second degree felony murder predicated on attempted robbery with a deadly weapon is a “non-existent form of felony murder.” We agree.

The trial court’s instruction regarding felony murder was as follows: Question number two reads — and this is what we call felony murder. It’s different from first degree premeditated murder. Felony murder can be divided into two degrees. Question two deals with first degree felony murder.

That means that each defendant is charged with the crime of felony murder. If your verdict is not guilty on question one, then you go on to two. ⁴⁰³ In order to prove the elements of question two, the State must prove that the defendant, or another participating in the crime with that defendant, committed or attempted to commit the underlying felony. The underlying felony in this case is question five, attempted robbery with a deadly weapon. So that’s a precursor to question two.

Number two, the second element, is that the defendant, or another participating in the crime, killed the victim, in this case Mr. Chamberlain. That the defendant, or another person participating in the crime, killed the victim. And, number three, that the act resulting in the death of the victim occurred during the commission of the underlying felony. In this particular case, the underlying crime is the attempted robbery with a deadly weapon.

So if the murder occurred during the course of the attempted robbery, that satisfies that element, if proven beyond a reasonable doubt. It is not necessary for the State to prove that that particular defendant intended to kill the victim. So, in the felony murder, the intent to kill is not necessary to prove. Now that would be the definition of first degree felony murder, question number two.

If your verdict is not guilty of question number two, then you would go on to question number three, which is second degree felony murder. Second degree felony murder means that the defendant, or another participating in the crime with the defendant, committed or attempted to commit that underlying felony, again, question five, attempted robbery with a deadly weapon. Element number two, that the way in which the attempted robbery with a deadly weapon was committed or attempted under all the circumstances created — and here’s the distinction between first degree felony murder and second degree. In second degree felony murder, that attempted robbery with a deadly weapon created a reasonably foreseeable risk of death or serious physical injury likely to result in death.

So that the act created a reasonably ⁴⁰⁴ foreseeable risk of death or serious physical injury likely to result in death. The third element is that, as a result of the way in which the attempted robbery was committed, Mr. Chamberlain was killed. That distinguishes second degree felony murder from first degree. But remember the intent to kill doesn’t have to be present for either one.

Defense counsel objected to the instruction on second degree felony murder and, following appellant’s conviction on that charge, unsuccessfully moved for a new trial on the same argument pressed before this Court — that Maryland law does not recognize second degree felony murder predicated on attempted robbery with a dangerous weapon. The existence of second degree felony murder in Maryland predicated on felonies not delineated in the first degree murder statute is well established. See Fisher v. State, 367 Md. 218, 251 , 786 A.2d 706 (2001) (recognizing second degree felony murder predicated on non-enumerated felonies); Deese v. State, 367 Md. 293, 296 , 786 A.2d 751 (2001) (reaffirming position that second degree felony murder predicated on an inherently dangerous, non-enumerated felony is a cognizable offense in Maryland). The parties’ briefs and this Court’s research has not, however, revealed any direct authority on the question of whether a felony sufficient to support first degree murder may also serve as a basis for a second degree felony murder.

Nonetheless, the statutory scheme dividing murder into first and second degree, and the cases defining second degree felony murder, compel the conclusion that the same felony cannot serve as a predicate for both first and second degree felony murder. The Criminal Law Article delineates four categories of first degree murder: (1) a deliberate, premeditated, and willful killing; (2) murder committed by lying in wait; (3) murder committed by poison; and (4) murder committed in perpetration of, or an attempt to perpetrate, an enumerated felony. C.L. § 2-201(a). Murder of a type not listed in § 2-201(a) is in the second degree.

Id. § 2-204(a). Though not set out in ⁴⁰⁵ the statute, the Court of Appeals has defined four types of second degree murder: (1) a murder with intent to kill, but without the premeditation and deliberation required for first degree murder; (2) a killing with intent to inflict such serious bodily harm that death would be the likely result; (3) a depraved heart murder; and (4) a murder committed in perpetration of a felony other than those enumerated in the first degree murder statute. Thornton v. State, 397 Md. 704 , 721-22 & n. 6, 919 A.2d 678 (2007) (citations omitted). The Court of Appeals first acknowledged the applicability of the felony murder doctrine to felonies not enumerated in the first degree murder statute in Fisher, 367 Md. 218 , 786 A.2d 706 . 5 In that case, the Court was asked to consider whether child abuse, a non-enumerated felony, could be a basis for applying the felony murder doctrine.

Id. at 225 , 786 A.2d 706 . The Fisher Court reviewed the history of the statutory scheme dividing murder into degrees and found that its purpose was limited to creating different grades of punishment, and that it had no effect on the felony murder doctrine as it operated at common law. Id. at 249-51 , 786 A.2d 706 . The Fisher Court went on to conclude that second degree felony murder was not limited to common law felonies, but instead included felonies creating a danger to life either by their inherent nature or the circumstances of their commission.

Id. at 251, 263 , 786 A.2d 706 . Accordingly, the Court held that child abuse, or any other inherently dangerous felony not enumerated in the first degree murder statute, was a proper predicate for second degree felony murder. Id. at 263 , 786 A.2d 706 ; accord Deese, 367 Md. at 296, 786 A.2d 751 ; see also Roary v. State, 385 Md. 217, 230 , 867 A.2d 1095 (2005) (applying Fisher to find that first degree assault supported a common law second degree felony murder conviction). Thus, the felony murder doctrine in Maryland continues to operate as it did at common law by supplying the ⁴⁰⁶ malice necessary for murder when a criminal homicide occurs in the course of a felony dangerous to life.

Roary, 385 Md. at 231-32 , 867 A.2d 1095 ; see also State v. Allen, 387 Md. 389, 403 , 875 A.2d 724 (2005) (“the intended perpetration of the felony is an independent murderous mens rea, should death result, and is just as blameworthy and just as worthy of punishment as murder as would be the specific intent to kill” quoting Judge Charles E. Moylan, Jr., Criminal Homicide Law § 5.1 at 105 (2002)). Section 2-201(a)(4) functions after-the-fact to penalize murders committed in the course of the enumerated felonies as murders in the first degree. See Fisher, 367 Md. at 251 , 786 A.2d 706 (“It is only ... after the felony-murder rule has already operated, that [the first degree murder statute] come[s] into play to provide further that in the case of certain designated felonies, the already established murder shall be punished as murder in the first degree.”) (quoting Evans v. State, 28 Md.App. 640 , 686 n. 23, 349 A.2d 300 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976)). A felony not listed in § 2-201(a)(4) will nonetheless support felony murder in the second degree if the underlying felony is sufficiently dangerous to life, as judged by the nature of the crime or by the manner in which it was perpetrated.

Roary, 385 Md. at 229 , 867 A.2d 1095 ; Fisher, 367 Md. at 262-63 , 786 A.2d 706 . Thus, it necessarily follows that the same felony cannot serve as a predicate for both first and second degree felony murder. This Court so stated, albeit by way of dicta, in Harvey v. State, 111 Md.App. 401 , 681 A.2d 628 (1996), explaining: If the homicide occurred in the perpetration or attempted perpetration of a felony spelled out in Md.Code Ann., Art. 27, §§ 408, 409, or 410, for instance, all parties to the crime would be guilty of felony-murder in the first degree. Their individual intents would be immaterial, provided only that they had the necessary intent to commit the underlying felony.

If the felony should be one of the residual felonies under the common law felony-murder doctrine and not one of those listed in sections 408, 409, or 410, the guilt of all ⁴⁰⁷ participants would then be murder in the second degree, under the common law felony-murder doctrine. Id. at 407-08, 681 A.2d 628 . In this case, the trial court’s instruction improperly distinguished first and second degree felony murder based on the manner in which the felony was committed, stating: [T]he way in which the attempted robbery with a deadly weapon was committed or attempted under all the circumstances created — and here’s the distinction between first and second degree felony murder, that the attempted robbery with a deadly weapon created a reasonably foreseeable risk of death or of serious physical injury likely to result in death. In fact, the question of whether the felony created a reasonably foreseeable risk of death determines whether the felony murder doctrine applies at all, and has no bearing on the degree of punishment.

See Fisher, 367 Md. at 250 , 786 A.2d 706 (noting that enumeration in the first degree murder statute is not determinative to the analysis of whether a felony may be a predicate for felony murder). If a felony deemed dangerous to life is among those enumerated in § 2-201(a)(4), the punishment for felony murder is in the first degree as a matter of law. C.L. § 2-201(a). If a murder occurs during the course of a non-enumerated dangerous to life felony, it is murder in the second degree.

See C.L. § 2-204(a) (“A murder that is not in the first degree under § 2-201 of this subtitle is in the second degree.”). Attempted robbery with a deadly weapon is, by its nature, a dangerous to life felony, and thus may serve as a predicate for felony murder. Because attempted robbery with a deadly weapon is among the felonies enumerated in § 2-201(a)(4), however, a murder occurring during its commission is punished in the first degree. C.L. § 2-201(a)(4)(ix).

Therefore, attempted robbery with a dangerous weapon may not also support a charge of second degree felony murder, regardless of the circumstances or manner of its commission. The trial court’s instruction to the contrary misstated the law, ⁴⁰⁸ and appellant’s second degree felony murder conviction must be reversed. B. Conspiracy to Commit Second Degree Specific Intent Murder Appellant also challenges his conviction of conspiracy to commit second degree murder. As with the second degree felony murder charge, appellant objected to the jury instruction on the charge of conspiracy to commit second degree murder and moved for a new trial following his conviction on the ground that there is no such crime in Maryland.

The trial court’s instruction on conspiracy to commit murder was as follows: Mr. Goldsberry is alleged to have conspired with Mr. Myers and vice versa; Mr. Myers is alleged to have conspired with Mr. Goldsberry. Here they are alleged to have conspired to commit the crime of first degree premeditated murder, in question seven, or in question eight, second degree specific intent murder. First degree premeditated murder, the exact same definition I defined for you in question one. Second degree specific intent murder, the same definition I defined for you in question four.

So I need not repeat that. But what does conspiracy mean? Conspiracy is an agreement between two or more persons to commit a crime; in this particular case, murder. In order to convict a defendant of conspiracy, the State must prove that the defendant entered into an agreement with at least one other person— Mr. Goldsberry with Mr. Myers or Mr. Myers with Mr. Goldsberry — to commit that crime, whether it’s first or second degree murder.

And, number two, that the defendant entered into the agreement with intent to commit that particular crime. You can infer intent from the circumstances, but intent is a necessary element. So looking at question seven, that deals with first degree premeditated murder. That deals with first degree pre ⁴⁰⁹ meditated murder.

That’s why I put it down there, so you know what I’m referring to. Revert back to the definition I gave you in question one. Now you know what first degree premeditated murder is. If your verdict is not guilty, then you proceed to question eight.

If your verdict is guilty, you need not address question number eight. Question eight is, again, second degree specific intent murder. The trial court defined second degree murder as follows: What do I mean by second degree specific intent murder? It does not require premeditation or deliberation.

Remember in question one? Premeditation, deliberation, willfulness. Second degree specific intent murder does not require premeditation or deliberation. So in addressing question four, the elements are that the conduct of that particular defendant caused the death of the victim and that the defendant engaged in the deadly conduct either with intent to kill — remember, in felony murder you don’t have intent to kill; the State doesn’t have to prove it, but they do have to prove intent in first degree and also in second degree.

They don’t have to show it’s premeditated or deliberate, but they have to show that the defendant engaged in deadly conduct either with the intent to kill or intent to inflict such serious bodily harm that death would be the likely result. Engaged in 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. In Maryland, a criminal conspiracy is “the combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design.... [T]he crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown.” Townes v. State, 314 Md. 71, 75 , ⁴¹⁰ 548 A.2d 832 (1988). Conspiracy is a specific intent crime; the co-conspirators must join with the specific intent of accomplishing the unlawful object of the conspiracy. Mitchell v. State, 363 Md. 130, 146 , 767 A.2d 844 (2001). Second degree murder, as outlined above, consists of four types.

See supra; Thornton, 397 Md. at 721 -22 & n. 6, 919 A.2d 678 . The jury instructions here referred only to the two specific intent forms of second degree murder — intent to kill and intent to inflict such serious bodily harm that death would be the likely result. Both parties readily concede that Mitchell rules out the possibility of conspiracy to commit second degree murder of the specific intent to Mil variety. See Mitchell, 363 Md. at 150, 767 A.2d 844 (finding that conspiracy to commit the intent to kill form of second degree murder is not a crime in Maryland).

Thus, the only potentially valid basis for appellant’s conspiracy conviction is that the jury found him guilty of conspiracy to commit second degree murder of the intent to inflict serious bodily harm form. 6 As the State’s brief indicates, Mitchell expressly reserved the question of whether conspiracy to commit other forms of second degree murder are cognizable crimes, but an earlier decision by the Court of Appeals in State v. Earp, 319 Md. 156 , 571 A.2d 1227 (1990), suggests that they are not. In Earp , the Court considered whether intent to do serious bodily harm was a sufficient mental state to support a conviction of attempted murder. Id. at 162 , 571 A.2d 1227 . The Court held that such mental state was inadequate for attempted murder, and that the State must show an intent to Mil.

Id. at 164 , 571 A.2d 1227 . The Court reasoned that because an attempt is a specific intent crime, the defendant must have the specific intent to commit the crime he is charged with attempting. Id. at 163 , 571 A.2d 1227 . Explaining further, the Court contrasted an attempt with the completed crime of second degree murder, which is “defined in such a way that any one ⁴¹¹ of [several] mental states will suffice.” Id. at 165 , 571 A.2d 1227 .

In other words, if death results, an intent to commit the acts which constitute murder will suffice. Conspiracy is likewise a specific intent crime. As Mitchell explained, “[w]hen the object of the conspiracy is the commission of another crime, as in conspiracy to commit murder, the specific intent required for the conspiracy is not only the intent required for the agreement but also, pursuant to that agreement, the intent to assist in some way in causing that crime to be committed.” Id. More specifically, “if the conspiracy is to commit murder, the intent must be to commit (or have someone commit) those acts that would constitute murder.” Id.

This Court, in Alston v. State, 177 Md.App. 1, 35 , 934 A.2d 949 (2007), cert. granted, 403 Md. 304 , 941 A.2d 1104 (2008), construed Earp and the above quoted language from Mitchell to require a showing of specific intent to kill for conspiracy to commit murder. 7 Both attempt and conspiracy are specific intent crimes, and when the goal is murder, the former requires an overt act and an intent to kill. The latter requires an agreement and a specific intent that is “adjunctive to the criminal objective.” Mitchell, 363 Md. at 146, 767 A.2d 844 . We acknowledge that the relevant analysis in Alston was dicta because the defendant failed to challenge the jury instructions on conspiracy to commit murder, 177 Md.App. at 40 , 934 A.2d 949 . Nonetheless, we will not revisit the issue because we reverse on other grounds as well, as explained below. 8 Conse ⁴¹² quently, in order to convict appellant of conspiracy to commit murder, the State must have shown an intent to kill.

Mitchell, however, precludes a conviction of conspiracy to commit second degree murder of the intent to kill variety, therefore, the only proper charge submitted to the jury was conspiracy to commit murder in the first degree. Consequently, the trial court’s instruction to the jury that it could convict appellant of conspiracy to commit second degree murder based on an intent to kill or intent to inflict serious bodily injury was erroneous. Even if we were to reach a different conclusion regarding this charge, we would nonetheless reverse appellant’s conviction of conspiracy to commit second degree murder. First, the court instructed the jury as to both intent to kill and intent to inflict grievous bodily harm.

We do not know the basis of the jury’s decision. Second, assuming it constitutes a crime, the charge of conspiracy to commit second degree murder should have been submitted to the jury only if generated by the evidence. That question is similar to whether evidence is sufficient to support a criminal conviction. In the latter situation, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); See also Winder v. State, 362 Md. 275, 325 , 765 A.2d 97 (2001); State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994).

We simply cannot find any evidence in the record to support the existence of an agreement between appellant and Mr. Myers to inflict serious bodily injury on Mr. Chamberlain, but not to kill him, much less evidence that could convince a rational fact finder beyond a reasonable doubt. When questioned on the subject at oral argument, the State pointed to the fact that the pair acted together to rob Mr. Chamberlain at gunpoint as the only circumstantial evidence supporting the ⁴¹³ existence of a conspiracy. If this evidence alone were to suffice, a conspiracy would exist in every instance in which two individuals act together to commit a crime that could conceivably result in serious bodily injury to the