Henry v. State

WRIGHT, J. By indictment filed in the Circuit Court for Prince George’s County on August 15, 1997, the appellant, Clarence Henry, was charged with two counts of first degree murder (Counts 1 and 3) and two counts of use of a handgun in a crime of violence (Counts 2 and 4). Henry, who was 15 years old when the offense occurred, filed a motion to transfer the case to juvenile court as well as a motion to suppress the statement he made to police. On December 12, 1997, a hearing on the motion to remand to juvenile court was held. That motion ¹⁵² was denied.

On January 30,1998, the court held a hearing on the motion to suppress, which was also denied. Following a jury trial held on February 23-25, 1998, Henry was convicted of two counts of second degree murder and two counts of use of a handgun in the commission of a crime of violence. On March 27,1998, Henry was sentenced as follows: Count 1: 30 years for the second degree murder of William Curry, with credit for time served; Count 2: 20 years, consecutive, for use of a handgun in the commission of the crime against Curry; Count 3: 30 years, consecutive, for the second degree murder of Deana Bell; and Count 4: 20 years, concurrent, for use of a handgun in the crime of violence against Bell. The court imposed an aggregate sentence of 80 years.

Henry filed an appeal to this Court two days late, on April 29, 1998. Because he filed late, the appeal was dismissed on April 21, 1999, and the dismissal was recorded on May 26,1999. A post-conviction hearing was held eight years later, on May 14, 2007. By order of the Circuit Court for Prince George’s County, Henry was granted a belated appeal.

Pursuant to the court order, Henry filed this appeal on June 26, 2007. QUESTIONS PRESENTED We have consolidated the questions presented by both parties as follows: 1) Did the circuit court err when it instructed the jury on the doctrine of transferred intent, where both the intended and unintended victims were killed? 2) Did the circuit court err when it declined to instruct the jury on the offense of involuntary manslaughter as to Deana Bell, the unintended victim? 3) Did the circuit court err in admitting evidence of a robbery in which Henry was involved, where the evi ¹⁵³ dence established that he recently had possession of a gun similar to that used in the instant crime? 4) Did the circuit court abuse its discretion when it denied Henry’s request, made on the day of trial, for a continuance so that his mother could attempt to hire private counsel? Because we answer “no” to all of the above questions, we shall affirm the judgment of the circuit court. FACTS On July 14, 1997, William Curry, Ronald Patterson, and Zelma D. Codray, Jr. went out to celebrate Curry’s completion of a work-related computer training course.

The three men, who were all in their forties, went to 3103 Good Hope Avenue, Apartment 315, Temple Hills, Maryland, where Alfred Bar-field resided. Curry wanted to collect money that Barfield owed him so that he and his friends could celebrate, but Barfield did not have the money. Curry argued with Barfield before leaving the apartment with Patterson and Codray. On their way out, the three men passed Kevin D. Queen, Sr., Michael Chew, Deana Bell, 1 and Clarence Henry on the steps.

What happened next was disputed at trial. 2 It was undisputed, however, that a verbal argument ensued between Curry and Chew, and it escalated into a physical fight. Curry, an ex-Marine who “worked out three, four times a week” at the gym, threw the first punch, striking Chew. The fight ¹⁵⁴ moved from the front steps to the parking lot. Queen then came to Chew’s defense, prompting Patterson to assist Curry.

Henry was not involved in the fístfíght. He was “down the street” when it started. Henry left, came back with a sawed-off rifle, and began shooting at Curry. Queen testified to seeing Henry shooting “at the three guys.” Upon hearing the shots, Patterson, Codray, and Queen all took cover.

According to Patterson, it appeared that Henry was “trying to place his shots” to hit Curry and “miss his buddy.” Patterson described the gun as a gun metal, sawed-off rifle, with a pistol grip and a pump action. It was approximately two feet long with a 16-inch barrel. Henry struck Curry seven times, killing him. According to Dr. Jack Titus, an associate pathologist at the Chief Medical Examiner’s Office, four of the seven gunshot wounds were to Curry’s back side.

Two bullets also struck Deana Bell, who was killed while sitting on the front steps of the apartment building. 3 Dr. Titus stated that one bullet entered the back of her left arm and came out through the front. The other bullet “entered the left chest, went through some skin and muscle and went through the left lung” before getting lodged in the left chamber of her heart. When the firing stopped, Patterson and Codray came to Curry’s aid; They tried to take Curry to their car but he collapsed before they could do so. Patterson then saw Henry, Queen, and Chew flee the scene so he went to call an ambulance.

At trial, both Patterson and Codray identified Henry as the person who shot Curry. Nine expended cartridge casings were recovered from the crime scene. In addition, a total of six bullets were recovered. ¹⁵⁵ Gary Phillips, a firearm examiner with the Prince George’s County Police Department, testified that all nine of the recovered cartridge casings “had been fired in one single firearm.” Similarly, all six recovered bullets “had been fired through ... one firearm.” Phillips added that the bullets were “fired from a weapon compatible with the same weapon that fired the nine casings.” Without recovery and examination of the firearm, however, it was not possible to determine whether the bullets were fired from the same firearm that ejected the casings. Additional facts will be supplemented in the relevant sections below.

DISCUSSION I. Transferred Intent Henry’s first contention on appeal is that “the trial court committed plain error by instructing the jury on the doctrine of transferred intent where both the intended victim and the unintended victim were killed.” We disagree. We first note that this issue was not preserved because Henry failed to object after the instruction for transferred intent was given to the jury. Maryland Rule 4-325(e) states that “[n]o party may assign as error the giving [of] ... an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” We explained the importance of this rule in McMillan v. State, 181 Md.App. 298, 359 , 956 A.2d 716 , cert. granted 406 Md. 744 , 962 A.2d 370 (2008): The policy behind the preservation rule is clear. The trial court cannot correct errors of which it is not informed.

Only if a party takes exception to an error in the jury instruction does the court have the opportunity to correct it. Johnson v. State, 310 Md. 681, 686 , 531 A.2d 675 (1987).... Put another way, considerations of fairness and judicial efficiency generally require that all challenges that a party wishes to make to a trial court’s ruling, action, or conduct “be presented in the first instance to the trial court so that ¹⁵⁶ (1) a proper record can be made with respect to the challenge, and (2) the other parties and the trial judge can respond to the challenge.” Chaney v. State, 397 Md. 460, 468 , 918 A.2d 506 (2007). Henry himself concedes that “defense counsel did not object to the court’s transferred intent instruction to the jury,” but argues that this Court should still review it because the trial court’s instruction constituted plain error.

Maryland Rule 4-325(e) provides that “[a]n appellate court, on its own initiative or on the suggestion of a party, may ... take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” “But, ‘there are some limitations on the affirmative act of noticing error. 1) There must be error. 2) It must be plain. 3) It must be material.’ ” McMillan, supra, 181 Md.App. at 359-60 , 956 A.2d 716 (quoting Morris v. State, 153 Md.App. 480 , 507 n. 1, 837 A.2d 248 (2003), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004)). Because this specific application of transferred intent — where both the intended and the unintended victims die — has not been addressed by an appellate court of this state, we will take up the invitation to decide the issue. After reviewing the evolution of the doctrine in Maryland, we conclude that the circuit court did not err in giving the transferred intent instruction. In this case, the circuit court instructed the jury, with regard to transferred intent, as follows: 4 ... [T]he State has offered evidence of a concept called transferred intent.

What it really means is that, for example, if there are three people, A, B, and C, and A intends to shoot C and either accidentally or in the process shoots B, the intent is transferred from C to B, the person who was actually shot. ¹⁵⁷ Upon being informed that the jury “had no idea what was going on,” the court re-instructed the jury: Let me explain this. Maybe you didn’t get the transferred intent. We’ll give you a — see if I can straighten that out. Let’s say you have four people, four or five people, and A intends to shoot B, but in the process of doing it he shoots two other people, C and D. The intent to kill A is transferred to C or D or a third person.

So if you — let me see, I see expressions on your faces. If I wanted to shoot say my clerk here and in the process of doing it I shoot Miss Mason or Mr. Maloney, then my intent to kill is transferred to those two people also in addition to myself, to my clerk. Do you all understand that? All right ...

The doctrine of transferred intent dates back to English common law. Gladden v. State, 273 Md. 383, 390 , 330 A.2d 176 (1974). 5 Maryland expressly adopted it in 1974, when the Gladden Court held “that the mens rea of a defendant as to his intended victim will carry over and affix his culpability when such criminal conduct causes the death of an unintended victim.” Id. at 405 , 330 A.2d 176 . The theory behind the doctrine is “that ‘the state of mind which one has when about to commit a crime upon one person is considered by law to exist and to be equally applicable although the intended act affects another person.’ ” Id. at 404 , 330 A.2d 176 (quoting W. Ritz, Felony Murder, Transferred Intent, and ¹⁵⁸ the Palsgraf Doctrine in the Criminal Law, 16 Wash. & Lee L.Rev. 171 (1959)). It is “typically applied where a defendant, intending to kill A, shoots at but misses A and instead kills B, an unintended victim.” Poe v. State, 341 Md. 523, 530 , 671 A.2d 501 (1996) (citing Gladden, supra, 273 Md. at 390-92 , 330 A.2d 176 and cases cited therein).

Thus, transferred intent allows a shooter to be convicted of the first degree murder of an unintended victim. See Poe, 341 Md. at 530-31 , 671 A.2d 501 . The next important transferred intent case is Ford v. State, 330 Md. 682 , 625 A.2d 984 (1993), in which Ford was apprehended after he and “three other youths stood on or next to the Capital Beltway and hurled large landscaping rocks at vehicles traveling on the Beltway.” Id. at 689 , 625 A.2d 984 . At trial, the circuit court “instructed the jury that if it found Ford assaulted with intent to disable the drivers, this intent could be transferred to the passengers.” Id. at 708-09 , 625 A.2d 984 .

Ford never objected to the instruction, and the Court of Appeals declined to invoke the plain error doctrine. The Court nevertheless commented, in dicta: ... [Transferred intent makes a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim. Transferred intent does not make two crimes out of one. Where the crime intended has actually been committed against the intended victim, transferred intent is unnecessary and should not be applied to acts against unintended victims.

The California Court of Appeal made this point clearly when reversing one of two first-degree murder convictions of a defendant who intended to kill one victim and also accidentally killed a second victim. People v. Birreuta, 162 Cal.App.3d 454 , 208 Cal.Rptr. 635 (1984).[ 6 ] Id. at 709, 712, 208 Cal.Rptr. 635 (emphasis in original). Following this line of reasoning, the Ford Court ¹⁵⁹ concluded that transferred intent did not apply to the crime of attempted murder because “[t]he completed crime has been committed on the intended victim” as soon as the attempt is made. 7 Id. at 714,208 CaLRptr. 635. Three years later, the Court of Appeals again discussed transferred intent in Poe, supra, 341 Md. 523 , 671 A.2d 501 (1996).

In Poe , the defendant, armed with a 12-gauge shotgun, intended to kill his estranged wife. Id. at 526 , 671 A.2d 501 . He fired one shot, which inflicted a nonfatal wound on his wife, but killed an innocent bystander. Id. at 525-26 , 671 A.2d 501 .

Although it acknowledged that “[t]he doctrine of transferred intent is typically applied where a defendant, intending to kill A, shoots at but misses A and instead kills B, an unintended victim,” the Court held that “transferred intent applies to the death of [the unintended victim] notwithstanding the fact that Mr. Poe actually hit and wounded Ms. Poe.” Id. at 530-31 , 671 A.2d 501 (citing Gladden, supra, 273 Md. at 390-92 , 330 A.2d 176 ) (emphasis in original). The Court established the relevant inquiry as: what crime could Mr. Poe have been convicted of had he achieved his goal? Id. (citing Gladden, supra, 273 Md. at 393 ).

In that case, Mr. Poe could have been convicted of the first degree murder of Ms. Poe and, therefore, he was liable for the first degree murder of the bystander. Id. Six months after Poe , this Court discussed the doctrine of transferred intent at length in Harvey v. State, 111 Md.App. 401 , 681 A.2d 628 (1996). In that case, neither the intended nor the unintended victim was killed, but the unintended victim was wounded.

Id. at 405 , 681 A.2d 628 . We held that it was error for the circuit court “to have instructed the jury on the subject of transferred intent,” because the doctrine does not apply to inchoate homicides. Id. at 433 , 681 A.2d 628 . Speaking for this Court, Judge Moylan stated, in dicta, that the fate of the intended victim is immaterial to the ¹⁶⁰ application of transferred intent.

Id. at 420 , 681 A.2d 628 . He concluded, id. at 422 , 681 A.2d 628 : ... [T]here is no doubt that the guilt of the defendant for the death of the unintended victim would be precisely the same in the Poe scenario, regardless of whether the intended victim 1) was hit and only wounded or 2) was hit and killed. The actus reus perpetrated on the unintended victim would have been precisely the same. The mens rea or malevolent state of mind of Poe, not subject to being “used up” or exhausted, would then have established the kind and level of blameworthiness for that unintended homicide.

Thus, the doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed. It makes no difference whether the intended victim is 1) missed, 2) hit and killed, or 3) hit and only wounded. This is inconsistent with the dictum in Ford , where the Court concluded that the application of the doctrine depends on the fate of the intended victim. Henry urges us to follow Ford , in which the mens rea and the actus reus “came together in one crime, the second degree specific intent murder of the intended victim,” in his case, Mr. Curry.

As we mentioned above, Ford relied on Birreuta , a California Court of Appeal case, which has since been disapproved by the California Supreme Court in People v. Bland, supra, 28 Cal.4th 313 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 (2002). Interestingly, the Bland Court relied on our decision in Harvey . In Bland, the defendant “shot at three persons, killing one and injuring, but not killing, the other two.” Bland, supra, 28 Cal.4th at 317 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 . At the prosecution’s urging, the court gave the jury instructions on transferred intent.

Id. at 319 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 . On appeal, the California Court of Appeal held that “the trial court erroneously instructed the jury on the doctrine of transferred intent.” Id. at 318 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 . The California Supreme Court granted certiorari, however, and held that “transferred intent applies even when the person kills the intended target. Intent to kill is not ¹⁶¹ limited to the specific target but extends to everyone actually killed.” Id. at 317 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 .

In reaching this conclusion, the Bland Court “rejected the notion that transferring the intent uses it up.” Id. at 325 , 121 Cal.Rptr.2d 546 , 48 P.3d 1107 . It quoted the Harvey opinion: “By thinking of the mens rea in such finite terms — as some discrete unit that must be either here or there — we have created a linguistic problem for ourselves where no real-life problem existed. Criminal acts, consummated or inchoate, are discrete events that can be both pinpointed and counted. A mens rea, by contrast, is an elastic thing of unlimited supply.

It neither follows nor fails to follow the bullet. It does not go anywhere. It remains in the brain of the criminal actor and never moves ...” “... The ‘transferred’ mens rea vis-a-vis the unintended victim or victims will not be affected in any way, therefore, by what happens to the intended victim.” Id. at 325-26, 121 Cal.Rptr.2d 546 , 48 P.3d 1107 (quoting Harvey, supra, 111 Md.App. at 419-20 , 681 A.2d 628 ) (emphasis in original).

Henry objects that Harvey is at odds with the Court of Appeals’ view in Ford . We agree that it conflicts with some of the dicta in Ford , but the actual question presented in Ford was whether transferred intent applies to inchoate homicides. The Ford Court concluded that it does not. See Poe, supra, 341 Md. at 529 , 671 A.2d 501 .

As the Court of Appeals explained in Poe : “In Ford , we made clear that if a defendant intends to kill a specific victim and instead wounds an unintended victim without killing either, the defendant can be convicted only of the attempted murder of the intended victim and transferred intent does not apply.” Id. at 530, 671 A.2d 501 (emphasis added). It is for this reason that Henry’s reliance on the recent opinions in Garrett v. State, 394 Md. 217 , 905 A.2d 334 (2006), and State v. Brady, 393 Md. 502 , 903 A.2d 870 (2006), is misplaced. In those cases, the defendants were charged with attempted first-degree murder and, therefore, the Court of Appeals held that the circuit court committed plain error when it gave the transferred intent instruction. ¹⁶² We are, of course, bound to follow the Court of Appeals’ most recent pronouncement in Poe that transferred intent applies to the death of the [unintended victim] notwithstanding that fact that the shooter actually hit the intended victim. 8 Applying the Poe test, Henry certainly could have been convicted of the second degree murder of his intended victim and indeed, he was. We see no principled basis for distinguishing between cases in which the intended victim is killed and those in which he is simply wounded.

For all of these reasons, we hold that the circuit court did not err, plain or otherwise, in instructing the jury on the doctrine of transferred intent where both the intended and the unintended victims were killed. 9 II. Involuntary Manslaughter Next, Henry argues that “the trial court erred in refusing to instruct the jury on the offense of involuntary ¹⁶³ manslaughter as to Deana Bell, the unintended victim.” In addition to the doctrine of transferred intent, the jury was instructed on first degree murder, second degree murder with the intent to kill or inflict such serious bodily harm that death would be the likely result, and second degree depraved heart murder. Specifically, the court gave the following instruction as to depraved heart murder: Second degree depraved heart murder is the killing of another person while acting with an extreme disregard for human life. In order to convict the defendant of second degree murder as to Deana Bell the State must prove beyond a reasonable doubt that the conduct of the defendant caused the death of Miss Bell, that the defendant’s conduct created a very high degree of risk to the life of Miss Bell and that the defendant, conscious of such risk, acted with extreme disregard of the life endangering consequences.

Henry contends that a manslaughter instruction should have been given because “[t]he jury should have been permitted to determine whether ... [Henry] acted with gross negligence and committed involuntary manslaughter, or whether ... he ... acted with extreme disregard of the life endangering consequences and committed depraved heart murder.” See Maryland Criminal Pattern Jury Instructions § 4:17.8B (2006). Maryland Rule 4-325(c) states that “[t]he 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.” The court, however, “need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Id. In Evans v. State, 174 Md.App. 549 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007), we held: “In determining the appropriateness of a given jury instruction, we ‘must determine whether the requested instruction constitutes a correct statement of the law[;] whether it is applicable under the facts and circumstances of this case; and whether it has been fairly covered in the instructions ¹⁶⁴ given.’ ” Id. at 567, 922 A.2d 620 (quoting Stevenson v. State, 163 Md.App. 691, 694 , 882 A.2d 323 (2005) and cases cited); see also Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344 (1984). Generally, a circuit court’s refusal to give a jury instruction will warrant reversal only upon a showing of abuse of discretion.

See Dean v. State, 325 Md. 230, 240 , 600 A.2d 409 (1992). In this case, the requested instruction constitutes a correct statement of law. Our analysis, therefore, turns on whether an involuntary manslaughter instruction is applicable to the facts and circumstances of this case. In other words, we must ■determine whether the circuit court was required to give an instruction on the uncharged, lesser included offense of involuntary manslaughter.

In Ball v. State, 347 Md. 156 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082, 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998), the Court of Appeals held that it is not incumbent upon the circuit court to give an instruction under Md. Rule 4-235(c) when a particular charge is not before the court. Ball, supra, 347 Md. at 190 , 699 A.2d 1170 (citing Dean, supra, 325 Md. at 240 , 600 A.2d 409 ); see also Dishman v. State, 352 Md. 279, 292 , 721 A.2d 699 (1998) (“The threshold determination of whether the evidence is sufficient to generate the desired instruction is a question of law for the judge.” (Citation omitted)). “Rather, a trial judge’s obligation to propound a requested jury instruction on an uncharged, lesser offense is evaluated in light of the principles established in Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), and its progeny.” Ball, supra, 347 Md. at 190 , 699 A.2d 1170 (citing Hagans v. State, 316 Md. 429, 455 , 559 A.2d 792 (1989)). The Ball Court explained the Hook test as follows: In reviewing the denial of a request for an instruction on a lesser offense ... we must consider whether there exists, in light of the evidence presented at trial, a rational basis upon which the jury could have concluded that the defendant was guilty of the lesser offense, but not guilty of the greater offense. If a rational jury could not reach this conclusion, ¹⁶⁵ then the judge need not submit the lesser offense to the jury.

Id. at 191, 699 A.2d 1170 . In other words, “the test is not whether there is sufficient evidence to convict of the lesser included offense but whether the evidence is such ‘that the jury could rationally convict only on the lesser included offense.’ ” Burch v. State, 346 Md. 253, 279 , 696 A.2d 443 (1997) (quoting Burrell v. State, 340 Md. 426, 434 , 667 A.2d 161 (1995)). Applying this test to the instant case, the issue is whether