Hopewell v. State

²⁰⁸ THIEME, Judge. Appellant, Raymont Hopewell, a/k/a Michael Bennett, was convicted by a jury in the Circuit Court for Baltimore City (Friedman, J.) of theft over $300 and was sentenced to two years imprisonment. Appellant asks us a single question on appeal: Did the trial court err in refusing to instruct the jury on “mere presence?” We perceive no error. Accordingly, we shall affirm the judgment of the trial court.

The appellant was tried for and convicted of taking several video games that belonged to Danielle Baker. Appellant took the games while a guest in Danielle’s home. Two witnesses testified for the State: Danielle, and Mary Baker, Danielle’s mother. Danielle testified that in September of 1996, she lived in a three-story house with her mother and her older half-brother, Calvin Hill.

The house was located in the 3800 block of Woodlawn Avenue in Baltimore City. Around 6:30 p.m. on 20 September 1996, Danielle arrived home from basketball practice and found that no one else was home. She put her books down, went to the kitchen to get something to drink, and then went downstairs to the basement to get something. While downstairs, she observed her Super Nintendo games by the television.

She then came back upstairs and heard a knock at the front door. Danielle opened the front door and saw the appellant, who was Hill’s cousin. The appellant told Danielle that he had just spoken to Hill. During that conversation Hill allegedly told the appellant to meet Hill at his house.

Danielle let the appellant in the house and he asked if he could watch television while waiting for Hill. Danielle showed him to the basement and then went to the second floor to gather some clothes to wash. Danielle further testified that she was upstairs for about five minutes when she heard the house alarm go off. She went down to the first floor and looked out the window, where she saw the appellant riding his bike away from the house.

She then went down to the basement and noticed that between eight and nine of her Super Nintendo games were missing. ²⁰⁹ She testified that each cost about $60.00. She telephoned her mother, who arrived home shortly after the call. Mary Baker, Danielle’s mother, testified that she had received a call from her daughter around 7:00 p.m. that evening and that her daughter was upset. She further testified that Danielle kept several video games downstairs in the basement and that each game cost at least $59.99.

During her examination, Mary identified a letter addressed to her from the appellant and postmarked several months after the incident. In that letter, the appellant stated that he was sorry “for taking them things out [sic] your house.” He explained in the letter that he was “hungry and tired of living on the streets and I seen an opportunity to get a couple of dollars and I went for it.” Appellant presented no testimonial evidence. After both parties had rested and the court instructed the jury, the following colloquy occurred at the bench: [DEFENSE COUNSEL]: Your Honor, I would ask for a mere presence instruction. I don’t think you gave that and a circumstantial evidence instruction.

THE COURT: Well, I’ll give circumstantial evidence. I won’t give mere presence. Okay. The court then instructed the jury as follows: There are two types of evidence, direct and circumstantial.

The law makes no distinction between the weight to be given to either direct or circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. In reaching a verdict, you should weigh all the evidence presented whether direct or circumstantial. You may not convict the Defendant unless you find the evidence, when considered as a whole, established guilt beyond a reasonable doubt.

After the jury was so instructed, the parties made their closing arguments to the jury. The appellant poses an interesting query on appeal which, on first blush, appears to have at least the potential of some merit to it. When, however, “... the day breaks, and the ²¹⁰ shadows flee away,” 1 it becomes pellucid that the appellant has undertaken an unwinnable battle. He asks a. single question before this Court, that of whether the trial court committed error in refusing to give a jury instruction on “mere presence.” Although the issue seems quite simple and straightforward, if we were to agree with the appellant and hold that the instruction should have been given, the ramifications of our holding would indeed be far-reaching and well beyond what the law ever intended. 2 We explain.

I. The Historical Roots of the Mere Presence Doctrine The mere presence doctrine was formally incorporated into this nation’s jurisprudence in the mid-1800s. One of the earliest references to the doctrine occurred in State v. Hildreth, 31 N.C. 440 (1849), a case in which two individuals were indicted for murder. The Supreme Court of North Carolina, in examining the various instructions given to the jury by the trial court regarding aiding and abetting, explained: For one, who is present and sees that a felony is about being committed and does in no manner interfere, does not thereby participate in the felony committed. Every person may, upon such an occasion, interfere to prevent, if he can, the perpetration of so high a crime; but he is not bound to do so at the peril, otherwise, of partaking of the guilt.

It is necessary, in order to have that effect, that he should do or say something, shewing his consent to the felonious purpose and contributing to its execution, as an aider and abettor. 31 N.C. at 444 . Four years after the decision in Hildreth , the Supreme Court of Wisconsin in Connaughty v. State, 1 Wis. 159 (1853), engaged in what is probably the most all-encompassing review on the subject to date. As in Hildreth , two individuals were indicted for a single murder. The trial court, ²¹¹ on instructing the jury as to the law of principals and accessories, declared: ...

No naan can innocently stand by and see a murder committed without attempting to prevent it ... ordinarily a bystander should be presumed to understand the effect of great violence, as well as the person who inflicts it. 1 Wis. at 162 . The Supreme Court of Wisconsin, however, rejected the previous instruction as an inaccurate statement of the law. In citing to a wealth of authority dating back to the early common law, the court explained why the above quoted instruction could not stand: This is the language of the court in its charge to the jury, but it is not in accordance -with the law as we understand it. The promptings of humanity, as well as the duty which one man owes to another, and to the laws under which he lives, demand, that when a person sees great bodily injury being inflicted upon an individual, and the looker on has a means or ability to prevent the injury, he shall use such means, and if he do not, but idly stands by without interfering to prevent the commission of crime, the law will not hold him in any degree guilty of the particular crime committed, although he is by no means guiltless in the eye of the law.

Nor are we aware, that, either as a matter of law or of fact, a person who stands by should be presumed to know the effect of great violence, as well as the person who inflicts it. Every man is presumed to know the effect of his own acts, so that if he struck a blow with a dangerous weapon, which causes death, he will be deemed to have known and intended the effect of the blow; but would this presumption in any way apply to, or affect a beholder? We think not, unless there had been a previous concert or arrangement between the actor and the beholder in relation to the subject. To render this prisoner, Connaughty , a principal in the second degree, in the murder of Gullen, it was necessary to prove to the jury, that he was not only an eye witness of the infliction of the deadly blows, or present either actually or ²¹² constructively, but also, that he was “aiding in the commission of the offense” — aiding and abetting the fact committed; that he countenanced or encouraged McDonald in the fact, or had some participation therein.

Mr. Sergeant Hawkins, in his Pleas of the Crown, 2 vol., 442, § 10, says: “Also those who by accident are barely present when a felony is committed, and are passive, and neither any way encouraging it, nor endeavor to hinder it, nor to apprehend the offenders, shall neither be adjudged principals nor accessories; yet if they be of full age, they are highly punishable by fíne and imprisonment for their negligence, both in not endeavoring to prevent the felony, and in not endeavoring to apprehend the offender.” In Russell on Crimes, we have the same rule expressed thus: “But a person may be present, and if not aiding and abetting, be neither principal nor accessory; as if A. happened to be present at a murder, and take no part in it, nor endeavor to prevent it, or to apprehend the murderer; this strange behavior, though highly criminal, will not itself render him either principal or accessory.” 1 Russ, on Cr., 627, Foster, 350. “Mere presence is not sufficient to constitute the party a principal, without he aids, assists, and abets. Thus, if two are fighting, and a third comes by and looks on, but assists neither, he is not guilty, if homicide ensue.” 1 Hale’s P.C., 439. So also in Stephens’ “Summary of Criminal Law,” Cap. 3, p. 7, it is held: “The aiding and abetting must involve some participation. Mere presence without opposition participation, will not suffice, if no act whatever is done in concert, and no confidence intentionally imparted by such presence to the perpetrators.” The same principle is found in all the writers on criminal law, and is rigorously adhered to by the courts. 1 Wis. at 165-67 (italics in original; underlining supplied).

Although not as explicit as Connaughty , to like effect is Burrell v. State, 18 Tex. 713 (1857), in which the Supreme Court of Texas, when confronted with a similar issue, opined: ²¹³ [I]n order to implicate [the defendant] in the crime, he must have been aware of the intention of his companion to commit it. His bare presence is not sufficient. For “although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who committed it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony or apprehend the felon.” (Roscoe Cr. Ev. 213; Whart.

Am. Cr. L. 6364; Whart. L. Homicide, 157.) ...

His presence was not, of itself, sufficient to inculpate him. It was not, per se, evidence of guilt, or of any force as proof, only as considered with other circumstances conducing to prove his guilt. 18 Tex. at 732 (emphases supplied); see also Harper v. State, 83 Miss. 402 , 35 So. 572 , 574 (1904) (“It is clearly not the law that a bystander, or one who goes with another upon a lawful mission, or at least without any criminal intent on his part, can be held guilty of murder without affirmative proof of some word or encouragement spoken or overt act committed on his part, evincing a design to participate in the killing.”); State v. Hart, 186 N.C. 582 , 120 S.E. 345 (1923) (“But mere presence, and no more, is not sufficient to make one an aider and abettor”); People v. Hill, 77 Cal.App.2d 287 , 175 P.2d 45, 49 (1946) (“The mere presence of the accused at the scene of the crime does not necessarily establish his guilt as an abettor.”). Our review of secondary authorities from that time period reveals the same basis underlying the mere presence doctrine as discussed in the previous cases. And, like those cases, the mere presence doctrine is explained in the context of principals and accessories.

See 1 Francis Wharton, A Treatise on the Criminal Law of the United States, § 116, pp. 68-69 (5th ed. 1861)(quoting from Connaughty v. State, supra, in section entitled “Principals in the Second Degree”); Francis Wharton, Treatise on the Law of Homicide in the United States, ch. VIII p. 157 (1855) (“Although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to pre ²¹⁴ vent the felony, or apprehend the felon.”) (included in section entitled “Principals in the second degree”); 1 Emilin McClain, A Treatise on Criminal Law, § 194, pp. 154-55 (1897) (“Proof that one has stood by at the commission of a crime, without taking any steps to prevent it, does not alone indicate such participation or combination in the wrong done as to show criminal liability ... [but] mere presence is a fact to go to the jury in connection with other facts in the case as tending to show participation”) (included in chapter entitled “Combinations; Principal and Accessory”). The Supreme Court made its first mention of the mere presence doctrine- in 1898. In Hicks v. United States, 150 U.S. 442 , 14 S.Ct. 144 , 37 L.Ed. 1137 , John Hicks along with Stand Rowe 3 were jointly indicted for the murder of Andrew Colvard. The evidence at trial was undisputed that Rowe, and not Hicks, fired the fatal bullet into the chest of the deceased. 150 U.S. at 446 , 14 S.Ct. at 145 .

At the close of Hicks’s case, the trial court instructed the jury on the general law of accomplice liability, and, in part, explained: “[I]f Hicks was actually present at that place at the time of the firing by Stand Rowe, and he was there for the purpose of either aiding, abetting, advising, or encouraging the shooting of Andrew J. Colvard by Stand Rowe, and that, as a matter of fact, he did not do it, but was present for the purpose of aiding or abetting or advising or encouraging his shooting, but he did not do it because it was not necessary, it was done without his assistance, the law says there is a third condition where guilt is fastened to his act in that regard.” 150 U.S. at 449-50 , 14 S.Ct. at 146-47 . In finding reversible error in the instruction, the Supreme Court explained that, given the specific language of the trial court, [t]he jury might well, therefore, have thought that they were following the court’s instructions, in finding the ac ²¹⁵ cused guilty because he was present at the time and place of the murder, although he contributed neither by word or action to the crime, and although there was no substantial evidence of any conspiracy or prior arrangement between him and Rowe. 150 U.S. at 450 , 14 S.Ct. at 147 . 4 Although Maryland made no mention of the mere presence doctrine in its case law until much later (see section II, infra), it did recognize the validity of the doctrine as early as 1897. In The Law of Crimes and Criminal Procedure, § 26, p. 16 (1st ed. 1897), Lewis Hochheimer, citing to the Supreme Court’s decision in Hicks, supra,