Hickman v. State

DAVIS, J. Brian Anthony Hickman, appellant, notes this appeal from his June 15, 2009 convictions by the Circuit Court for Charles County for involuntary manslaughter and a common-law affray. Appellant elected to waive his right to a trial by jury and proceed with a court trial. At the conclusion of the evidence, the court found appellant guilty of involuntary manslaughter and a common law affray, but not guilty of second-degree assault due to the victim’s consent to the fight. On June 15, 2009, the court sentenced appellant to two concurrent ten-year sentences with all but eighteen months suspended.

The same day, appellant filed a Notice of Appeal. Appellant presents two issues for our consideration, which we have restated as follows: I. Did the circuit court err in ruling that the common law crime of affray remains a viable offense in Maryland?

II

Did the circuit court err in giving inconsistent verdicts where it found appellant guilty of an affray but not guilty of second-degree assault? 1 ²⁴¹ For the following reasons, we answer appellant’s questions in the negative. Accordingly, we affirm the decision of the Circuit Court for Charles County. FACTUAL AND PROCEDURAL BACKGROUND 2 On the evening of October 24, 2008, into the early morning hours of October 25, 2008, appellant, along with several friends, were drinking at a bar in Waldorf, Maryland. Also present at the bar was the victim, Joshua Gregor, who was drinking with several of his friends.

Around 2:00 a.m., the bar closed. Gregor was standing outside smoking a cigarette when he and Justin Ferrell, one of appellant’s friends, exchanged heated words. Eventually, Ferrell punched Gregor twice in the face, which caused Gregor to fall backward into the bar. Ferrell then walked toward the parking lot and joined his friends.

Gregor’s friends, incensed at Ferrell’s actions, followed Ferrell into the parking lot. According to witness accounts, Gregor also walked into the parking lot; however, he and another friend went in a different direction from Ferrell. In the parking lot, appellant confronted Gregor. 3 After Gregor and appellant exchanged harsh words, appellant struck Gregor twice in the head with his fists causing Gregor immediately to collapse. As he fell, his head hit the pavement and he never regained consciousness.

Appellant and his friends fled the scene immediately thereafter. 4 Police and ambulances responded to the scene and transported Gregor to the hospital. On October 27, 2008, Gregor succumbed to his injuries and died. ²⁴² On October 29, 2008, an autopsy was conducted, the medical examiner’s results confirming that Gregor died from blunt force trauma to the head. The force of the blows fractured his skull and caused multiple hemorrhages, hematomas and contusions, which ultimately led to his death. On November 21, 2008, the State filed an indictment, charging appellant with involuntary manslaughter, second-degree assault and the common law offense of an affray.

On March 19, 2009, appellant filed a Motion to Dismiss Count 3-common law affray. In that motion, appellant argued that “[a]n affray at common law, was a form of assault and battery” and that, according to Robinson v. State, 353 Md. 683 , 728 A.2d 698 (1999), when the Maryland General Assembly enacted the consolidated assault statute in 1996, it eliminated all common law forms of assault and battery. 5 Therefore, appellant concluded, because an affray is a form of assault at common law, the offense no longer existed and, accordingly, he could not be charged with the offense. Five days later, on March 24, 2009, the State filed its Response to appellant’s Motion to Dismiss. The State agreed that, at common law, an affray is “the fighting of two or more persons in some public place to the terror of the people”; however, it argued that affray is a distinct crime from the common law forms of assault and battery.

Likening an affray to robbery, which requires “a felonious assault” as an element, the State contended that an affray, while including assault and battery, required there to be “publicity attached to the fighting”; thus, it was distinguishable. The State also asserted that the legislature has not preempted the common law offense of an affray because the offense was “conspicuously absent from Chapter 632 of the Acts of 1996, from Subtitle 2 of Title 3 of ²⁴³ the 2008 Supplement to the Criminal Law Article, and from all versions of second and first degree assault in between.” Moreover, the State pointed out, the Court of Appeals did not mention the offense of “affray” in its decision in Robinson v. State, 353 Md. 683 , 728 A.2d 698 (1999). On April 1, 2009, before trial, the court heard the parties’ arguments on the Motion to Dismiss. As appellant’s counsel explained to the court, “[t]he basis for the Motion to Dismiss is that what was known ... in the common law as an affray or mutual affray is no longer a cognizable offense.” Appellant’s counsel contended that the common law crime of an affray has not existed since 1996, when the Maryland General Assembly codified the assault statutes under Art. 27, §§ 12, 12A and 12A-1.

See 1996 Laws of Maryland, Ch. 632. Appellant’s counsel premised this argument on the conclusion that an affray necessarily involves the common law crimes of assault and battery and, therefore, it is a form of those crimes. Quoting from the Court of Appeals’ decision in Robinson v. State, appellant argued that the assault statutes in the Criminal Law Article “as adopted represent the entire subject matter of the law of assault and battery” and, based on his argument that an affray was a form of assault, the statutes abrogated affrays as well. Appellant’s counsel likewise rebutted what he believed would be the State’s argument against the Motion to Dismiss.

He stated that the relationship between affrays and the common law forms of assault and battery differed from the relationship those crimes shared with robbery because the legislature specifically provided for robbery by statute. It was very clear, iterated appellant, that, as a result of the legislature’s actions, robbery “retains its viability,” while affrays do not. Appellant also argued that the common law crime of an affray was different from the common law crime of riot “because riot does[ not] require by necessity that there by [sic] any assaultive conduct or any battery.” In conclusion, appellant’s counsel stated, “I think that the Court [of Appeals] has made it very clear in Robinson that whatever existed in the form of assault and battery in the common law prior to the ²⁴⁴ enactment of the statutes in 1996 is now gone. There is no cognizable offense in Maryland called an affray.” In opposition, the State asserted that common law affray is not a form of common law assault and/or battery, nor has it ever been.

While acknowledging that an affray necessarily involves a common law assault and a common law battery, the State reiterated the argument in its opposition to appellant’s Motion to Dismiss, that so too does robbery, which, as the dissent in Robinson pointed out, was not abrogated with the codification of the assault statutes. The State also argued that affray was a separate and distinct offense because it requires two or more people, unlike assault that requires just one, and that an affray has the additional element that fighting must take place in public. The further distinction, the State posited, was that consent is never a defense to an affray, while it is a defense to the offenses of common law assault and battery. Finally, because the General Assembly is presumed to not disturb the common law, with certain exceptions, the State argued, it did not disturb the common law offense of an affray.

After considering the arguments of counsel, the court denied the motion, concluding that it was not persuaded by appellant’s assertion that the 1996 assault statutes abrogated the common law offense of an affray. Upon review of the Court of Appeals’ decision in Robinson v. State and the Committee notes 6 cited therein, the court stated that, if the General Assembly intended to include crimes other than assault and battery, “such as an affray — which has different elements” then it would have so stated. In sum, the court determined that neither the statutes, the Committee Notes ²⁴⁵ nor the Robinson case supported the conclusion that an affray was not a viable crime in Maryland. At trial, the court heard testimony from several witnesses, including appellant, and found him guilty of involuntary manslaughter and a common law affray, but acquitted him of second-degree assault based on Gregor’s consent to the fight.

Discussing the involuntary manslaughter conviction, the court stated: Therefore the guilt on Count 3 — as discussed prior— previously between the Court and Counsel under the case of [Schlossman v. State, 105 Md.App. 277 , 659 A.2d 371 (1995) ], if you commit a misdemeanor malum en se wrongful in and of itself as opposed to malum prohibitum where there’s — it becomes illegal from some — statute passed by the Legislature. And that malum en se crime, affray, results in the death then you’re guilty of involuntary manslaughter which is the Count 1. That’s how the — legally the case is ... breaking down. Some specific findings ... it’s ... uncontroverted that Mr. Hickman delivered the blow that resulted in the — in the death of Mr. Gregor.

It was a blow to the face that caused Mr. Gregor to hit the asphalt so hard that his skull was fractured — causing as Doctor Alexander testified, blunt force trauma injury to his brain, that — that caused a— pressure build-up and — and resulted in his ... death. Regarding the assault, the court stated: Part of the evidence here that — that—when I first heard it didn’t appear very significant, but was [sic] the location of Mr. Gregor when — when the police got there, that’s in the middle of the parking lot. And I think as Mr. Eichelberger testified to, Mr. Hickman approached him at that location. Mr. Gregor was — was not backing down.

That he voluntarily went out [to the parking lot] to engage in the affray as did Mr. Hickman and the results we all know. ²⁴⁶ [Eichelberger] characterized — I—believe he characterized Mr. Gregor and Mr. Hickman as confronting each other and as I say I’m satisfied that’s the way it went down. I do not believe that — accepting those facts as I do this is a case of self-defense by Mr. Hickman. And I — I reject that as a defense. I — I think the State has not proven to my satisfaction beyond a reasonable doubt that it was an assault.

I find it was an affray not an assault so that’s the not guilty for the — for the assault. I’ve indicated that since — Mr. Gregor went out there' with — with the — willingness to engage in — in a fight that— that — he consented to the fight that took place so that would be a defense to second degree assault. Finally, regarding the conviction of a common law affray, the court explained: All right, we’ll just make a couple of legal statements here as to what an affray is. We — we’ve had some discussion about this before.

I — I’ve relied on Corpus Juris Secundum’s definition, Volume 2(A); they have a chapter on affray. Again, its [sic] mutual combat, two or more people — that has a — a [sic] aspect which is frightening to the — to the public at large. I think that’s what happens here is you— as — as we can all see when — when you have these — these types of brawls where — the results are so catastrophic it is — it is a terror to the public. And — so I think it — it satisfies that definition.

There’s Wharton’s Criminal Law, it’s Section 536, also gives a common law definition of affray’s [sic] are fights between two or more persons in public places to the terror or alarm of the citizens. We’ve had discussion about battery. The — the Court believes that — as—even though consent is a defense to ²⁴⁷ battery that interpretation of requiring that criminal battery as part — of—of an affray is — is inconsistent with the nature of the — of the offense. That’s — that’s my decision on that issue.

We’ve discussed the Horkheimer definition. I — I feel that the Horkheimer def — definition supports the Court’s conclusion — when it’s — when—his definition is it’s not necessary that it should be by consent. Well, the reserves [sic] of that would then be true. By implication it — there could be consent in an affray.

Again, in — in—in summary, I believe that — Mr. Hickman when — when—Mr. Gregor moved out past — Mr. Ramer that — he was willing to — to fight him. And he went out as indicated by Mr. Eichelberger and Mr. Smalling to fight him.... And they met, they fought and we’re here. So that — the Court has rendered it’s verdict and I — and I’m required to — to go when — when there’s a court trial the — the Judge is required to put an explanation on the record which I’ve done.

Thereafter, the court ordered that a Pre-Sentence Report be completed. On June 15, 2009, the court sentenced appellant to two ten-year sentences to run concurrent, with all but eighteen months suspended. That same day, appellant filed a Notice of Appeal. LEGAL ANALYSIS I The first issue before us is one of first impression, namely, whether the common law crime of an affray exists in Maryland in light of the Court of Appeals’ decision in Robinson v. State, 353 Md. 683 , 728 A.2d 698 (1999). 7 Appellant asserts that an ²⁴⁸ affray is a form of the common law crimes of assault and battery and, therefore, the Robinson decision abrogated the offense.

The State contends that, while the common law crime of an affray does include the offenses of common law assault and battery, an affray is a separate and distinct crime and, thus, it remains a viable offense. Unlike other states, which have codified the common law offense of affray, Maryland has not and, therefore, if the offense exists, it is clearly only as a matter of common law. Our research has failed to uncover any case, however, in which this Court or the Court of Appeals has expressly examined the definition or elements of the common law offense of an affray. This Court has mentioned, tangentially, when discussing the common law offense of riot, that the common definition of an affray is “ ‘two or more persons fight[ing] in a public place to the terror of the King’s subjects.’ ” Schlamp v. State, 161 Md.App. 280, 290 , 868 A.2d 914 (2005) rev’d on other grounds, 390 Md. 724 , 891 A.2d 327 (2006) (quoting Halsbury, The Laws of England § 919 (1909)).

This definition is consistent with that provided by the treatise Corpus Juris Secundum, which states, “[a]n affray as it is defined by the common law is the mutual combat of two or more persons in a public place to the terror of the people.” 2A C.J.S., Affray, § 1. ²⁴⁹ Despite our inability to uncover any prior Maryland cases with an in-depth analysis of affray, Maryland case law does demonstrate that common law affray has, historically, been a chargeable common law offense. See, e.g., Baltimore & O.R. Co. v. Cain, 81 Md. 87, 100 , 31 A. 801 (1895) (“But the right of a person not an officer to make an arrest is not confined to cases of felony, for he may take into custody, without a warrant, one who in his presence is guilty of an affray or a breach of the peace.”); Hamlin v. State, 67 Md. 333, 338 , 10 A. 214 (1887) (“As for instance, where two persons are indicted for an affray....”); Warzer v. State, 202 Md. 601, 609 , 97 A.2d 914 (1953); Lewis v. State, 289 Md. 1, 2 , 421 A.2d 974 (1980); Schlamp v. State, supra, 161 Md.App. 280 , 868 A.2d 914 . Specifically, in Lewis , 289 Md. 1 , 421 A.2d 974 , the appellant challenged his convictions emanating from an indictment that included a charge of a common law affray. There, the Court declined to hold that an affray was no longer a common law offense in Maryland, although the Court was presented with the occasion to do so.

Notwithstanding the Court’s holding in Lewis, supra, appellant argues that the common law offense of an affray is no longer a viable offense. He points out that an affray, by the use of the term combat, “necessarily involves an assault and battery....” Lewis Hochheimer, The Laws of Crimes and Criminal Procedure, § 284, p. 281 (2d. Ed., 1904). Appellant reasons that, if the crimes of common law assault and battery are elements of an affray, then an affray must be a form of common law assault and battery.

Extrapolating, he concludes that, in light of the Court of Appeals’ decision in Robinson v. State, supra, 353 Md. 683 , 728 A.2d 698 (1999), in which the Court recognized that statutes enacted in Maryland have abrogated common law assault and battery, the crime of an affray is likewise no longer a cognizable offense in Maryland. Thus, according to appellant, his conviction for affray must be reversed and, concomitantly, so must his involuntary manslaughter conviction. Appellant argues that common law assault and battery are necessary elements of an affray and that the Court of Appeals ²⁵⁰ in Robinson held that, following the 1996 statutory enactments of the assault statutes, common law assault and battery ceased to exist as crimes in Maryland. The State disputes appellant’s assertion, however, that, merely because an affray involves common law assault and battery, it is a form of those crimes.

The State contends that an affray cannot be a form of common law assault and battery because it requires different elements. Specifically, assault and battery “do not require two participants, need not take place in public, and need not cause the public terror or harm.” Additionally, the State contends that an affray is a separate and distinct crime because, unlike assault and battery, an affray is not a crime against persons; rather, it is a crime against the public peace. Thus, an affray is more akin to a riot and related offenses and not assault and battery. Finally, the State notes that defenses, e.g., consent, are available to a defendant charged with common law assault and battery, but are not for a defendant who is charged with an affray.

Initially, we recognize that neither Robinson v. State nor the 1996 statutory enactments codifying assault expressly discussed the common law offense of an affray. Robinson and the statutes only discussed “assault and battery.” The failure of the statute to state that it did not abrogate this common law offense is significant; as the Court of Appeals noted, it is a generally accepted rule of law that “statutes are not presumed to repeal the common law ‘further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law.’ ” 353 Md. at 693 , 728 A.2d 698 (quoting Lutz v. State, 167 Md. 12, 15 , 172 A. 354 (1934)). Thus, it is only if a common law affray can be considered a form of the common law assault and battery offenses that it would be abrogated. Based on our analysis of the offenses, common law affray is a separate