Higginbotham v. State

BLOOM, Judge. Appellant, Tracey Higginbotham, was convicted by a jury in the Circuit Court for Baltimore City of first degree felony murder and attempted robbery with a dangerous weapon. Appellant was sentenced to life imprisonment without parole on the felony murder conviction and to a concurrent prison term of twenty years on the conviction for attempted robbery with a dangerous weapon. In this appeal from those judgments, appellant presents the following issues for our determination: ¹⁴⁸ I. Did the trial judge err in refusing to submit to the jury the charge of second degree murder?

II

Did the trial judge err in [sic] when he instructed the jury that with respect to felony murder, the intent to commit the felony need not coincide with the killing?

III

Did the trial judge err in denying appellant’s motion to suppress his statement?

IV

Did the trial judge err in imposing separate sentences for felony murder and the underlying felony? FACTS Appellant spent the afternoon and evening of 30 May 1991 smoking “crack” cocaine with his brother, Terry Higginbotham, and Tabitha Stanley, Terry’s girlfriend, in the basement of appellant’s mother’s house at 3021 West Belvedere Avenue in Baltimore City. When the cocaine supply was exhausted around 2:30 a.m. on the morning of 31 May, appellant stated that he was going to obtain “one more blast” of cocaine. He further stated that, if he was unable to obtain more, he was going to go to the local trash collection company where he was employed.

Appellant then put his work clothes into a blue bag, tucked a knife into the back of his pants, and exited the house. Shortly thereafter, appellant hailed a taxicab on Belvedere Avenue. When the taxicab reached the intersection of Belvedere and Queehsbury Avenues, appellant stabbed the taxicab driver in the neck. After the cab had crashed into the curb, appellant took a white bag belonging to the driver from the front seat and fled the scene.

Andrew Gould, who was sitting on the front steps of his house in the 3000 block of West Belvedere Avenue, testified that he saw a taxicab coasting toward the side of the road and heard someone yelling for help. After the taxicab crashed into the curb, Mr. Gould saw appellant climb out of the window of the car and run away. Another witness testified that the taxi driver then got out of the car and called for help. ¹⁴⁹ Ms. Stanley testified that appellant, covered with blood and carrying a white bag, stumbled in the back door of the house, approximately twenty minutes after he left the house in search of cocaine. Appellant told his brother and Ms. Stanley that he thought he “might have killed somebody.” He then proceeded into the basement, dropped the cab driver’s bag onto the floor, removed his bloody clothing, and washed the blood from his hands.

When members of the Baltimore City Police arrived on the scene, the taxi driver, Lyle Roberts, was lying next to the taxicab with a fatal stab wound in the base of the right side of his neck. The interior and the exterior of the taxi were covered with blood, and there was a large knife on the hood of the car. Blood found on the knife matched the victim’s blood. Inside the taxi, the police found a blue bag containing a pay stub with appellant’s name on it.

A palm print found in the taxi was later matched with appellant’s palm print. Later that same day, appellant’s mother consented to a police search of the trash cans behind her house. During their search of the trash cans, police seized bloody clothing and a white bag that contained items that had belonged to the taxi driver. The blood on the clothing was later identified as the victim’s blood.

The police arrested appellant on 6 June 1991 in Baltimore County and on 7 June transported him to Baltimore City where he was interviewed by Detectives Gary Childs and Christopher Graul. At 8:30 p.m., Detective Childs had appellant read Baltimore City Police Form 69 (waiver form), which set forth each of appellant’s “Miranda rights.” Appellant, who has a ninth grade education, had difficulty understanding some of the words in the form, including “attorney,” “absolute,” “explanation,” and “appoint.” After Detective Childs explained the meaning of the words and appellant stated that he understood them, appellant agreed to give a statement. He confessed to killing the victim. The detectives then explained appellant’s Miranda rights to him a second time and appellant gave a tape recorded confession. ¹⁵⁰ In February 1992, appellant was tried by a jury in the Circuit Court for Baltimore City on charges of premeditated first degree murder, second degree murder, first degree felony murder, robbery, and other related charges.

He was convicted of first degree felony murder and robbery with a dangerous weapon and sentenced to life imprisonment without the possibility of parole. On appeal, this Court reversed the judgment entered on appellant’s felony murder conviction, holding that the trial court failed to comply with Maryland Rule 4-215(e) when it prevented appellant from explaining why he was moving for a postponement of his trial. Higginbotham v. State, 95 Md.App. 732 (1993) {Higginbotham I). In February 1994, appellant was retried in the Circuit Court for Baltimore City on charges of first degree felony murder, robbery with a dangerous weapon, attempted robbery with a dangerous weapon, robbery, attempted robbery, assault, and theft.

He was convicted of first degree felony murder and attempted robbery with a dangerous weapon. On 4 April 1994, appellant filed a timely notice of appeal to this Court. I. Appellant’s first contention is that the circuit court erred in refusing to submit the charge of second degree murder to the jury. In appellant’s first trial, the trial judge instructed the jury to consider initially whether appellant was guilty of first degree felony murder.

The trial judge further instructed the jury to consider the charges of first degree premeditated murder and second degree murder only if it found appellant not guilty of first degree felony murder. Deliberating in accordance with those instructions, the jury found appellant guilty of first degree felony murder and made no findings with respect to the charges of first degree premeditated murder and second degree murder. Following this Court’s reversal of the judgment entered on appellant’s felony murder conviction in the first trial, appellant ¹⁵¹ moved to have the charge of first degree premeditated murder dismissed in his second trial. According to appellant, the fact that the jury did not render a verdict on the first degree premeditated murder charge operated as an acquittal on that charge.

Thus, appellant contended, retrial on that charge was barred by double jeopardy, the common law doctrine of autrefois convict, collateral estoppel, and res judicata. After hearing arguments on the motion, the circuit court concluded that the first degree premeditated murder charge was barred by principles of double jeopardy. At the State’s request, the court also ruled that the State was precluded by principles of double jeopardy from charging appellant with second degree murder. We need not address the propriety of the circuit court’s granting of appellant’s motion to dismiss the charge of first degree premeditated murder.

It was upon appellant’s motion that the circuit court ruled that that charge was barred by principles of double jeopardy. Because appellant requested the dismissal, he cannot now complain about the legal consequences flowing from that ruling. Appellant asserts that an “instruction on second degree murder was supported by the evidence in this case, and was required by principles of fundamental fairness.” In support of this argument, appellant relies on the decision of the Court of Appeals in Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989). In that case, the State charged Hook with first degree premeditated murder, first degree felony murder, second degree murder, manslaughter, and related offenses.

At the close of its case-in-chief, the State, over the defendant’s objection, entered a nolle prosequi on the second degree murder charge. The jury then convicted Hook of first degree murder under both theories—premeditation and murder committed in the perpetration of a felony. On appeal, Hook asserted that the trial court erred in allowing the State to withdraw the second degree murder charge from the jury’s consideration. The Court of Appeals held that the prosecutor’s authority to nol pros a charge must ¹⁵² be constrained in situations where the entry of a nolle prosequi essentially compels the finder of fact to either convict the defendant, who is clearly guilty of some offense, of the most serious charge, or acquit him.

Id. at 41-42 , 553 A.2d 233 . Concluding that the entry of the nolle prosequi on the lesser included offense of second degree murder increased the risk of an unwarranted conviction of first degree murder and thus denied Hook a fair trial, the Court reversed the judgments and articulated the following principle: When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant’s objection, to nol pros the lesser included offense____ In short, it is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense. And if the trial is before the jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense. Id. at 43-44 , 553 A.2d 233 .

In the case sub judice, the charge of first degree felony murder perpetrated in the course of an armed robbery was submitted to the jury. As we stated in Butler v. State, 91 Md.App. 515, 523 , 605 A.2d 186 (1992), aff'd, 335 Md. 238 , 643 A.2d 389 (1994), [t]he murderous mens rea under [the theory of felony murder based on armed robbery] does not entail any intent to kill at all but only the intent to perpetrate the underlying felony---- Second-degree murder, by contrast, requires the specific intent either to kill or to commit grievous bodily harm against the victim. Although second-degree murder of the intent-to-kill variety is thereby a lesser, included offense subsumed within premeditated murder, it is not a lesser included offense within felony-murder. ¹⁵³ Thus, appellant necessarily is asking this Court to extend the holding of Hook to apply to cases in which the uncharged offense is not a lesser included offense of a charged offense that is submitted to the jury. An argument similar to the one raised by appellant was addressed by the Court of Appeals in Dean v. State, 325 Md. 230 , 600 A.2d 409 (1992).

In that case, the State indicted Dean for assault with intent to murder, attempted murder, assault with intent to disfigure, assault and battery, and assault. Prior to jury selection, the State, over Dean’s objection, was permitted to enter a nolle prosequi on the charges of assault -with intent to murder, assault with intent to disfigure, and assault, leaving only the charges of attempted murder and assault and battery to be considered by the jury. Dean contended on appeal that the court erred in allowing the State to nol pros the charge of assault with intent to disfigure because evidence presented at trial would have supported the charge. Relying on Hook v. State, and its progeny, Dean further argued that his trial was rendered fundamentally unfair because the withdrawal of the charge essentially forced the jury to convict him of attempted murder.

In reaching its decision, the Court initially noted that in neither of the two cases where the Court had addressed the scope and application of “the so-called Hook exception” did it “suggest that the exception should be expanded to include the nol pros of counts that are not lesser included offenses of those counts which go to the jury.” Id. 325 Md. at 237 , 600 A.2d 409 (discussing Jackson v. State, 322 Md. 117 , 586 A.2d 6 (1991) and Fairbanks v. State, 318 Md. 22 , 566 A.2d 764 (1989)). The Court then held that “the limitation placed on a prosecutor’s authority to nol pros a charge set forth in Hook ... is not applicable [to Dean],” id. 325 Md. at 239 , 600 A.2d 409 , since assault with intent to disfigure is “a lesser related offense rather than a lesser included offense” of attempted murder. Id. at 236 , 600 A.2d 409 . We conclude that Dean , not Hook , is controlling in the present case.

As we stated supra, second degree murder is ¹⁵⁴ not a lesser included offense of first degree felony murder. The State, therefore, was not required, under the principles of fundamental fairness espoused in Hook, 315 Md. at 43-44 , 553 A.2d 233 , to charge appellant "with second degree murder. Dean, 325 Md. at 239 , 600 A.2d 409 . Accordingly, we hold that the circuit court did not err in refusing to submit to the jury an issue as to whether appellant was guilty of second degree murder.

II

Appellant’s second contention is that the circuit court erred when it gave the jury supplemental instructions to the effect that appellant could be convicted of felony murder even if the intent to commit the robbery was formed after he committed the act that caused the death of the victim. After both parties had rested their cases, the court instructed the jury with respect to first degree felony murder as follows: In order to convict the defendant of first degree felony murder, the State must prove, one, that the defendant committed an enumerated felony or attempted to commit an enumerated felony. In this case, it’s robbery with a dangerous and deadly weapon, attempted robbery with a dangerous and deadly weapon, robbery, or attempted robbery, and that the defendant killed the victim, and that the act that resulted in the death of the victim occurred during the commission or the attempted commission of the enumerated felony, that is, of the robbery with a dangerous and deadly weapon, robbery or the attempt to commit either. It is not necessary for the State to prove that the defendant intended to kill the victim.

If the death causing act is part of the res gestae, the act is one that constitutes an immediate accompaniment of the felony, and is so closely connected with it that it becomes part of it, if and only if the transaction is an act emanating ¹⁵⁵ from the felony so as to become part of it, part of the same episode. The court also instructed the jury with respect to the elements of the crimes of robbery with a dangerous weapon, attempted robbery with a dangerous weapon, robbery, attempted robbery, assault, and theft. During its deliberations, the jury sent the trial judge a note that asked the following questions: Is it still called robbery if the intention to steal originates after an individual, the victim, has been killed? If you kill someone for whatever reason, and then decide to steal from him, is that called felony murder?

A discussion amongst the parties and the trial judge regarding the proper answer to the question followed the receipt of the note. The trial judge then convened the jury in the courtroom and responded to its questions as follows: Let me instruct you that if the intent to steal was not formed until after the force had resulted in the victim’s death, then the taking and asportation of personal property after death would still be robbery as long as it is part and parcel of the same occurrence or episode. In other words, if it’s all part of the same res gestae of the event. The answer, therefore, is yes.

With regard to felony murder, if you find that, in fact, a robbery was committed and that beyond a reasonable doubt and to a moral certainty not only was it committed, but that the defendant committed the robbery, and if you find during the occurrence of or the episode of that robbery the [victim] died—was killed,—now according to the instruction I just gave you, either before or immediately after the asportation is not significant. What is significant that [sic] it all was part and parcel of the same occurrence, the same event, the same res gestae, Then, in fact, it is felony murder. However, what is and is not part of the res gestae, what is and is not part of the same general occurrence is a factual issue for you as jurors to decide. ¹⁵⁶ (Emphasis added). The parties then approached the bench and the following discussion ensued: MR.

DENTON [DEFENSE COUNSEL]: I object to your answer. I would ask the Court to instruct the jury that it is up—up to them to determine whether the death—in other words, whether they were separate incidents and if—if they determine that the killing was one incident and the theft was a separate— THE COURT: That’s not the law. It would be deceptive. In fact, I just told you Stebbings [sic].

I said to the contrary. After being informed that the supplemental instructions had confused members of the jury, the trial judge gave an additional instruction: Let me—as I instructed you earlier, for a robbery there must be an intent to steal at the time of the taking. If the force precedes the taking, the intent to steal need not coincide with the force, but rather it’s sufficient if there is force applied at some point to the victim by the defendant followed by at some point a taking of personal property from the person or from the presence of the victim with the intent to steal as part of the same general occurrence or episode or event or res gestae. And even if the force should result in death, a taking and asportation of property after death is nevertheless robbery if and in the event it’s all part of the same occurrence.

Appellant’s counsel once again took exception to the court’s instructions, stating that “I think the answer should have been no or not necessarily, but you gave the answer and I just objected.” Under Maryland Rule 4-325, “[t]he trial judge must instruct the jury on every essential point of law supported by the evidence when requested to do so.” Sangster v. State, 70 Md.App. 456, 473 , 521 A.2d 811 (1987) (citations omitted). When appropriate, the court may supplement its instructions at a later time, and the extent of such supplementation is left to the discretion of the trial judge. Howard v. State, 66 ¹⁵⁷ Md.App. 273, 284 , 503 A.2d 739 , cert. denied, 306 Md. 288 , 508 A.2d 488 (1986) (citing Funkhouser v. State, 51 Md.App. 16, 31 , 440 A.2d 1114 (1982)). The State argues that “[t]here is no evidence in this case from which the jury could reasonably infer that Higginbotham stabbed the taxi driver in the neck for some other reason and only after doing so decided as an afterthought to rob him.” The State thus contends that appellant’s proposed answer to the jury’s questions was not supported by the evidence and could not have been submitted to the jury.

See Blackwell v. State, 278 Md. 466, 477 , 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 , 97 S.Ct. 2183 , 53 L.Ed.2d 229 (1977). We need not address the merits of this argument. Even if we were to assume that the State’s contention were correct, once the court chose to give supplemental instructions, it was required to state the law correctly. See Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344 (1984).

The jury asked two separate questions in its note to the trial judge. The parties and the court, however, treated the questions as one distinct question that asked, in effect, whether appellant could be found guilty of felony murder if the intent to commit the robbery was not formed until after appellant committed the act that caused the death of the victim. Viewing the jury instructions in their entirety, Poole v. State, 295 Md. 167, 186 , 453 A.2d 1218 (1983) (stating that adequacy of a jury instruction must