Jones v. State

KRAUSER, C.J. Accused of having participated, with four other men, in the robbery, shooting, and killing of Julian Kelly, Tyshon Jones, appellant, was charged with first-degree murder, armed robbery, robbery, the use of a handgun in the commission of a ⁶⁰⁵ felony or a crime of violence and, of particular relevance to the issue raised by this appeal, second-degree murder with the intent to inflict serious bodily harm. A jury, in the Circuit Court for Montgomery County, subsequently found him not guilty of first-degree murder, second-degree murder with the intent to inflict serious bodily harm, armed robbery, and robbery but was unable to reach a verdict as to the charges of first-degree felony murder and the use of a handgun in the commission of a felony or a crime of violence. Consequently, the Montgomery County circuit court granted a mistrial as to those two charges. Although the State initially announced its intention to retry Jones for first-degree felony murder, it later changed its mind, upon agreeing with Jones that there was no underlying felony to support that charge.

Consequently, the State requested that the circuit court rule that, together with the handgun charge, second-degree felony murder based on first-degree assault was a charge “pending” against Jones. Over Jones’s objection, the circuit court so ruled. This interlocutory appeal, from that ruling, followed. However, because second-degree murder with the intent to inflict serious bodily harm, the offense of which Jones was acquitted, and second degree felony murder based on first-degree assault, the charge upon which the State now wishes to proceed, are the same offense for double jeopardy purposes, we reverse.

I. Shortly before midnight on August 20, 2010, Julian Kelly was beaten, robbed, and shot by a group of men while on his way home from work. This criminal episode began when, according to witnesses, Kelly was surrounded by “maybe ... five” men who began “kicking and punching” him, upon his refusal to surrender his backpack and necklace. After he was knocked to the ground, one of Kelly’s assailants stood over him and shot him five times, three times in the torso and twice ⁶⁰⁶ in the head, wounds from which Kelly died several weeks later. Identified as one of Kelly’s assailants, Jones was tried before a jury, in the Montgomery County circuit court, for his purported participation in Kelly’s robbery and murder.

At trial, the State advanced two different theories of the role Jones played in the perpetration of those crimes. The first theory alleged that Jones, although not a participant in the robbery and the beating, shot Kelly after mistaking him for someone else. The second suggested that Jones had, in fact, participated in both the robbery and the beating and had shot Kelly when Kelly had refused to relinquish his belongings. In response, Jones, who did not testify at trial, attempted to establish through the testimony of several witnesses that he had merely been a bystander to the incident and that it had been one of Kelly’s assailants, not he, who had fired the fatal shots.

At the close of evidence, the court instructed the jury on first-degree murder, first-degree felony murder, second-degree murder with the intent to inflict serious bodily harm, armed robbery, robbery, and the use of a firearm in the commission of a felony or a crime of violence. With respect to first-degree felony murder, the court instructed the jury that, in order to convict Jones of that offense, it must find that Jones murdered Kelly “during the commission” of an underlying felony and that, here, the underlying felony could have been either armed robbery, robbery, or assault in the first degree. Section 2 — 201(a)(4) of the Criminal Law Article 1 states that a murder “is in the first degree” if it is “committed in the perpetration of or an attempt to perpetrate” a number of enumerated felonies. Although robbery and armed robbery, two of the three offenses the court below included in its instructions, could underlie a finding of first-degree felony murder, first-degree assault cannot.

Thus, both Jones and ⁶⁰⁷ the State agree that that portion of the circuit court’s instructions was an incorrect statement of the law. The jury found Jones not guilty of first-degree murder, second-degree murder with the intent to inflict serious bodily harm, robbery, and armed robbery. But, as previously noted, it was unable to reach a verdict on the charges of first-degree felony murder and the use of a handgun in the commission of a felony or a crime of violence. When Jones moved for a mistrial with respect to those charges, the court granted that motion.

The State then informed Jones of its intention to retry him on the two verdictless counts, that is, first-degree felony murder and the use of a handgun in the commission of a felony or a crime of violence. Jones responded by moving for a judgment of acquittal as to the first-degree felony murder charge, 2 asserting that, since first-degree assault was not a “predicate felony” for a charge of first-degree felony murder, his acquittal on the charges of robbery and armed robbery meant that there was no felony that could serve as the underlying offense for the charge of first-degree felony murder. While conceding in its opposition to Jones’s motion that it could not retry Jones on first-degree felony murder, the State insisted that it could retry him on the charge of second-degree felony murder based on first-degree assault because, though first-degree assault is not an underlying felony for a charge of first-degree felony murder, it can serve as an underlying felony for a charge of second-degree felony murder. After the court, at the hearing that ensued on Jones’s motion, granted a judgment of acquittal as to first-degree felony murder, it turned to the State’s request to retry Jones on the charge of second-degree felony murder based on first- ⁶⁰⁸ degree assault.

Jones asserted that the constitutional prohibition against double jeopardy barred the State from proceeding on such a charge. The circuit court, however, flatly rejected that claim. It stated that second-degree felony murder based on first-degree assault was a “viable” charge as it arose “out of the facts of this case” and because Jones had “not been acquitted” of it or of the underlying offense of first-degree assault. Consequently, the court declared that “double jeopardy would not bar the prosecution” of Jones on the charge of second-degree felony murder based on first-degree assault.

This interlocutory appeal followed, after which the circuit court stayed all proceedings pending our resolution of this issue.

II

Jones contends that his acquittal of second-degree murder with the intent to inflict serious bodily harm bars the State from re-prosecuting him for second-degree felony murder based on first-degree assault. He maintains that, since all of the elements of second-degree murder with the intent to inflict serious bodily harm are to be found in the elements of second-degree felony murder based on first-degree assault, and because only one of those two offenses includes an element that the other does not, the two offenses must be deemed to be the same for the purposes of double jeopardy, and, in that event, his acquittal of one offense would bar a subsequent prosecution for the other. Preliminarily, we note that there is no dispute as to the propriety of this interlocutory appeal, given that a defendant “has the right to immediate appellate review of an adverse ruling concerning a double jeopardy claim.” Kendall v. State, 429 Md. 476 , 484 n. 10, 56 A.3d 223 (2012). And, in conducting that review, we give “no deference to the lower court’s resolution of the matter.” Scriber v. State, 437 Md. 399, 407 , 86 A.3d 1260 (2014) (citing Giddins v. State, 393 Md. 1, 15 , 899 A.2d 139 (2006)).

In short, we perform a review de novo. ⁶⁰⁹ With that guiding principle in mind, we begin our analysis by noting that the Fifth Amendment to the United States Constitution precludes any person from being “twice put in jeopardy of life or limb.” U.S. Const, amend V. In other words, an accused cannot be made “twice accountable for the same offense.” State v. Long, 405 Md. 527, 536 , 954 A.2d 1083 (2008), a prohibition that is applicable to the states “through the Fourteenth Amendment,” Scriber, 437 Md. at 407 , 86 A.3d 1260 . What is more, “Maryland common law provides well-established protections for individuals against being twice put in jeopardy.” Id. at 408 , 86 A.3d 1260 . Specifically, the prohibition against double jeopardy bars “multiple punishments and trials for the same offense.” Long, 405 Md. at 536 , 954 A.2d 1083 (citing United States v. Wilson, 420 U.S. 332, 343 , 95 S.Ct. 1013 , 43 L.Ed.2d 232 (1975)). The “appropriate test for determining whether [two] different statutory or common law offenses” are to be “treated as the same offense for double jeopardy purposes” is the “required evidence test.” 3 Holbrook v. State, 364 Md. 354, 369-70 , 772 A.2d 1240 (2001).

That test “focuses upon the evidence necessary to sustain a conviction on each offense.” Thomas v. State, 277 Md. 257, 262 , 353 A.2d 240 (1976). If each offense “requires proof of a fact which the other does not, or ... if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode.” Id. at 267 , 353 A.2d 240 . But, of particular relevance to the issue before us in this appeal, two offenses are considered “the same within the meaning of the prohibition against double jeopardy,” and thus successive prosecutions are barred, “where only one offense requires proof of an additional ⁶¹⁰ fact, so that all elements of one offense are present in the other.” Id. In the instant case, the question before us is whether the offense of second-degree murder with the intent to inflict serious bodily harm — of which Jones was acquitted — and the offense of second-degree felony murder based on first-degree assault — on which the State now wishes to proceed — must be “deemed to be the same” for “double jeopardy purposes,” under the required evidence test.

To answer this question, we must decide whether all the elements of the latter offense are elements of the former.

III

A. Under section 2-204(a) of the Criminal Law Article, a “murder that is not in the first degree ... is in the second degree.” 4 Md. Code Crim. Law § 2-204(a) (2002, 2012 Repl. Vol.) (“CL”). Although the statute itself does not further define that offense, there are, according to Maryland decisional law, “four different types” of second-degree murder.

They are: first, the killing of another person, other than by poison or lying in wait, with the intent to kill but without the deliberation and premeditation required for first-degree murder; second, the killing of another person with the intent to inflict such serious bodily harm that death would be the likely result; third, “depraved heart murder,” which is to say, “a killing resulting from ‘the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not’ ”; and fourth, “murder committed in the perpetration of a felony other than those enumerated in the first-degree murder stat ⁶¹¹ utes.” Thornton v. State, 397 Md. 704, 721-22 , 721 n. 6, 919 A.2d 678 (2007). The second of these four “types” of second-degree murder was the one on which the jury was instructed at Jones’s trial, namely, second-degree murder with the intent to inflict serious bodily harm. Although this type of second-degree murder is a specific-intent crime, it does not require the State to prove a “conscious or purposeful design” on the part of the defendant “to kill the victim,” but only a specific intent to inflict “serious” or “grievous bodily harm”; in other words, the intent “to cause such severe harm that death would be the likely result, not merely a possible result,” of the defendant’s intentional conduct. Id. at 730-31 , 919 A.2d 678 (emphasis in original).

That is to say, “a defendant should only be held liable” for second-degree murder with the intent to inflict serious bodily harm “if death would be the likely result of the harm he [or she] intended.” Id. at 730 , 919 A.2d 678 . To ascertain that “intent,” we employ an objective standard, specifically: whether “a reasonable person, under the circumstances,” could or should have “foreseen that death would likely ensue as a result of his or her conduct.” Id. at 713 , 919 A.2d 678 . In sum, the elements of second-degree murder with the intent to inflict serious bodily harm, as articulated by the Court of Appeals, are: first, that the defendant’s conduct caused the victim’s death, and, second, that the defendant, at the time he engaged in the conduct, intended to inflict such serious bodily harm that the victim’s death would be the likely result of the defendant’s conduct. 5 ⁶¹² B. We next turn to the offense for which the State now wishes to prosecute Jones: second-degree felony murder based on first-degree assault. Second-degree felony murder, the fourth of the four “types” of second-degree murder recognized under Maryland law, Thornton, 397 Md. at 721 n. 6, 919 A.2d 678 , is a homicide “committed in the perpetration of a felony other than one enumerated in the first degree murder statute,” Fisher v. State, 367 Md. 218, 225 , 786 A.2d 706 (2001), which we shall refer to as either the “underlying felony” or the “predicate felony.” Recognizing second-degree felony murder as an offense in Maryland furthers the “primary purpose of the modern felony murder rule,” explained the Court of Appeals, by punishing as murder “a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill.” Id. at 262 , 786 A.2d 706 . “If the felonious conduct,” that is, the underlying felony or predicate felony, “under all of the circumstances, made death a foreseeable consequence, it is reasonable,” Maryland’s highest Court excogitated, “for the law to infer from the commission of the felony under those circumstances the malice that qualifies the homicide as murder.” Id.

The foreseeability of death “is determined by the nature of the crime or by the manner in which it was perpetrated in a given set of circumstances.” 6 Id. at 263 , 786 A.2d 706 (emphasis in original). Subsequently, in Roary v. State, the Court of Appeals was asked to determine whether a first-degree assault that ⁶¹³ required, under section 3-202(a)(l) of the Criminal Law Article, 7 the intent to “cause or attempt to cause serious physical injury to another,” was a “proper underlying felony to support a second-degree felony-murder conviction.” 385 Md. 217, 230 , 867 A.2d 1095 (2005). In concluding that the assault in that case — specifically, Roary’s repeatedly dropping a 20-30 pound boulder on the victim’s head — could support such a conviction, the Court stressed that, to secure a conviction for second-degree felony murder, the underlying felony must be “sufficiently dangerous to life to justify application” of the felony-murder doctrine. Id. at 222, 229-30 , 867 A.2d 1095 .

The Roary Court then observed that a first-degree assault that “intentionally cause[s] or