Kilmon v. State

¹⁷⁰ WILNER, J. Maryland Code, § 3-204(a)(l) of the Criminal Law Article (CL) makes it a misdemeanor for a person recklessly to engage in conduct that creates a substantial risk of death or serious physical injury to another person. The question before us is whether the intentional ingestion of cocaine by a pregnant woman can form the basis for a conviction under that statute of the reckless endangerment of the later-born child. The answer is “no.” BACKGROUND We deal here with two prosecutions in the Circuit Court for Talbot County. In August, 2004, the State’s Attorney filed a criminal information charging Regina Kilmon with second degree child abuse, contributing to conditions that render a child delinquent, reckless endangerment, and possession of a controlled dangerous substance.

All four charges were based on evidence that Ms. Kilmon had ingested cocaine while pregnant with her child, Andrew Kilmon. The reckless endangerment count charged that Ms. Kilmon, “on or about the 3rd day of June through the 4th day of June, 2004, in Talbot County, Maryland, did recklessly engage in conduct, to wit: using cocaine while pregnant with Andrew Kilmon that created a substantial risk of death and serious physical harm to Andrew Kilmon.” In January, 2005, Ms. Kilmon entered a plea of guilty on the reckless endangerment count in exchange for the State’s commitment to nol pros the other charges. At the hearing on the plea agreement, the State’s Attorney offered, in pertinent part, the following statement of facts in support of the guilty plea: “On June the 3rd, 2004, the Defendant ... gave birth at the Easton Memorial Hospital to a baby boy subsequently named Andrew W. Kilmon. At the time of the birth the baby weighed 5.5 pounds.

The baby was tested through a drug screen which at the hospital which showed the presence of cocaine at the level of 675 nanograms per milliliter ¹⁷¹ ... [T]he minimum sensitivity level for cocaine is 300 nanograms per milliliter. The State would have produced expert testimony that the result of using cocaine by a pregnant woman ... is as follows: that they are more likely to experience premature separation of the placenta, spontaneous abortion and premature delivery. That cocaine may cause blood clots to develop in the brain of the fetus. May also interfere with the development of the fetus.

And that low birth weight in bab[ies] born with cocaine in their system may lead to many health problems versus normal size babies. There would be further testimony that the only source of cocaine in the baby’s system would have been that as derived from the blood stream of the mother prior to birth.... These events occurred in Talbot County.” Upon that statement, and after assuring itself that the plea of guilty was knowing and voluntary, the court accepted the plea, found Ms. Kilmon guilty of reckless endangerment, and sentenced her to four years in prison. Ms. Kilmon filed an application for leave to appeal, which the Court of Special Appeals granted.

Before any significant proceedings commenced in that court, however, we granted certiorari. In April, 2005, the State’s Attorney filed a similar criminal information charging that “Kelly Lynn Cruz, on or about the 13th day of January, 2005, in Talbot County, Maryland, did recklessly engage in conduct, to wit: using cocaine while pregnant with Denadre Michael Thomas Cross that created a substantial risk of death and serious physical injury to Denadre Michael Thomas Cross....” As in Kilmon’s case, the State also charged second degree child abuse, contributing to conditions that render a child delinquent, and possession of a controlled dangerous substance but later entered a not pros to those charges. Cruz pled not guilty to the reckless endangerment charge but consented to proceed on an agreed statement of facts, which, in pertinent part, was as follows: “On January 13th, 2005, the Defendant ... was admitted to the Easton Memorial Hospital ... which is located in Easton, Talbot County, Maryland. She was complaining of stomach pains.

She then delivered a 3 pound 2 ounce baby ¹⁷² boy. According to hospital records she was approximately 29 weeks pregnant at the time____ Toxicology screening test was administered to the baby who tested positive for cocaine. The baby was then transported to Mercy Hospital in Baltimore which confirmed the toxicology results. Subsequently and while still at Easton Memorial Ms. Cruz was likewise tested for cocaine.

She too tested positive ... Ms. Cruz denied that she used cocaine and indicated that she had recently been around people who had used cocaine, which is why she believed she would have tested positive. All these events took place in Talbot County.” The court denied Cruz’s motion to dismiss for lack of sufficient evidence, stating that “while the instrumentality of the risk of serious bodily injury to the baby may well have been launched prior to the birth of the child, the person suffering the risk of serious bodily injury was the infant child after its birth.” It found her guilty and imposed a sentence of five years in prison, with two-and-a-half years suspended in favor of five years of supervised probation and drug treatment commencing on release from prison. Ms. Cruz appealed and, as in Kilmon’s case, we granted certiorari prior to any proceedings in the Court of Special Appeals, to consider the common issue of whether ingesting cocaine while pregnant constitutes a violation of CL § 3-204(a)(l).

DISCUSSION We pointed out in Holbrook v. State, 364 Md. 354, 365 , 772 A.2d 1240, 1246 (2001), that “[rjeckless endangerment is purely a statutory crime” in Maryland. It exists and is defined solely by CL § 3-204. Because the issue is therefore entirely one of statutory construction, it is necessary to determine whether, in enacting § 3-204(a)(l) and its relevant antecedents, the General Assembly intended that the statute include the conduct charged. As we most recently confirmed in Mackey v. Compass, 391 Md. 117, 141 , 892 A.2d 479, 493 (2006), “[i]f the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as written____If, however, the ¹⁷³ statutory text reveals ambiguity, ‘then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all of the resources and tools of statutory construction at our disposal.’ ” Id., quoting, in part, from Price v. State, 378 Md. 378, 387 , 835 A.2d 1221, 1226 (2003).

The relevant part of CL § 3-204, subsection (a)(1), makes it a misdemeanor for a person recklessly to “engage in conduct that creates a substantial risk of death or serious physical injury to another.” By “another,” it obviously meant another person. 1 Aware of the Constitutional issues that may arise from regarding a fetus or embryo as a person, the State, in its briefs, makes clear its position that, for purposes of the convictions under § 3-204(a)(l), the “person” allegedly endangered by each appellant’s conduct was not the fetus, but the child, after the child’s live birth. The offense, in this context, according to the State, is that the prenatal ingestion of cocaine recklessly endangers the child immediately upon and after his or her live birth. 2 ¹⁷⁴ The reckless endangerment statute was first enacted in Maryland in 1989 as Art. 27, § 120. See 1989 Md. Laws, eh. 469. As we have pointed out on a number of occasions, it was modeled after § 211.2 of the Model Penal Code, first proposed by the American Law Institute in 1962.

See Holbrook v. State, supra, 364 Md. at 365 , 772 A.2d at 1246 . The later-published Commentary to § 211.2 notes that specific kinds of reckless conduct had previously been made criminal in various States — everything from reckless driving to shooting at an airplane to placing an obstruction on railway tracks — and that § 211.2 was intended to “replace the haphazard coverage of prior law with one comprehensive provision” that “reaches any kind of conduct that ‘places or may place another person in danger of death or serious bodily injury.’ ” Model Penal Code and Commentaries, Part II (1980) at 195-96. We have tended to construe the Maryland statute in that manner as well. In Minor v. State, 326 Md. 436, 443 , 605 A.2d 138, 141 (1992), we held that guilt under the statute does not depend on whether the defendant actually intended that his reckless conduct create a substantial risk of death or serious injury, but whether his conduct, viewed objectively, “was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.” In State v. Pagotto, 361 Md. 528, 549 , 762 A.2d 97, 108 (2000), we confirmed the further point made in Minor that the statute was “aimed at deterring the commission of potentially harmful conduct before an injury or death occurs.” Unquestionably, the proscription against recklessly endangering conduct is, and was intended to be, a broad one.

Whether it was intended to include conduct of a pregnant woman that might endanger in some way the child she is carrying is not so clear, however, as that brings into play some ¹⁷⁵ important policy-laden considerations not relevant with respect to acts committed by third persons. In support of its argument that the statute should be read as including that conduct, the State observes that an injury committed while a child is still in útero can produce criminal liability if the child is later born alive and, citing Williams v. State, 77 Md.App. 411 , 550 A.2d 722 (1988), aff'd, 316 Md. 677 , 561 A.2d 216 (1989), notes that the Legislature was cognizant of that precept when it first enacted the reckless endangerment law. In Williams , the defendant shot an arrow at an intended victim. The arrow struck instead a bystander who was nine months pregnant and who died from a massive loss of blood caused by the wound.

Her child was born alive but died shortly after birth as a derivative result of the mother’s blood loss. In an opinion filed in December, 1988 — just before commencement of the 1989 legislative session, at which the reckless endangerment statute was first enacted — the Court of Special Appeals concluded that the defendant could lawfully be convicted of two counts of manslaughter, one for the death of the mother and the other for the death of the child. The court began by observing that manslaughter is a common law crime in Maryland and that Article 5 of the Maryland Declaration of Rights guarantees to the inhabitants of the State the common law of England that existed on July 4, 1776, subject, of course, to modification by statute and by this Court. There being no relevant statutory enactments or pronouncements from this Court on the particular issue, the Court of Special Appeals looked to the state of the law in Eighteenth Century England and discovered two divergent views — one first enunciated by Edward Coke and the other by Matthew Hale.

Both men had served as Lord Chief Justice of the King’s Bench and both had authored oft-cited commentaries on English common law. Coke is perhaps most famous (other than for admonishing King James that even he was not above the law) as the author of The First Part, of the Institutes of the Laws of England, (1628). Hale authored Pleas of ¹⁷⁶ the Crown (1678), History of the Pleas of the Crown (1736-39), and History of the Common Law of England (1713). Coke wrote that, if a person assaulted a pregnant woman and, as a result, killed the unborn child, it was not murder, but that, if the child was born alive and then died from the injuries inflicted, it was murder, “for in the law it [the child] is accounted a reasonable creature in rerum natura, when it is born alive ... and so was the law holden in Bracton’s time.” 3 Coke, Institutes * 50 (1648), quoted in Williams v. State, supra, 77 Md.App. at 418 , 550 A.2d at 725 .

The Williams court characterized Coke’s view as the “born alive” rule. Hale believed otherwise — that it was not homicide, whether the child was killed in útero or died after being born alive. See 1 Hale, Pleas of the Crown 433 (1736). After surveying the writings of later English and American commentators — Stephens, Blackstone, Hawkins, Warren, and Wharton — and the decisions of some English and American courts, the Court of Special Appeals adopted Coke’s view and held that “when a child is born alive but subsequently dies as a result of injury sustained in útero the death of the child is homicide.” Id. at 420 , 550 A.2d at 726 .

By affirming the intermediate appellate court’s decision in Williams v. State, supra, 316 Md. 677 , 561 A.2d 216 , we ultimately sustained that view, though not until after the 1989 enactment. The importance of the case, from the State’s perspective, is that the “born alive” rule enunciated by the Court of Special Appeals was before the Legislature when it considered and enacted the reckless endangerment statute, and that the General Assembly therefore likely intended to engraft that rule into the statute. In making the reckless endangerment of another person criminal, says the State, the Legislature must have intended to mirror the common law view of manslaughter and also criminalize conduct committed by anyone, including a pregnant woman, that recklessly endangers the later-born child. The appellants respond that acceptance of the “born alive” rule with respect to the common law relating to homicides that arise from acts committed by others does not inform whether ¹⁷⁷ the Legislature intended CL § 3-204(a)(l) to criminalize conduct committed by a pregnant woman that might endanger the child she is carrying.

The statute itself, though certainly broad in its language, does not specifically address that question. In the absence of any direct evidence of legislative intent in this regard, either clear or implicit from the language of the statute, we look for other relevant indications, and there are some very cogent ones. Notwithstanding occasional flights of fancy that may test the proposition, the law necessarily and correctly presumes that Legislatures act reasonably, knowingly, and in pursuit of sensible public policy. When there is a legitimate issue of interpretation, therefore, courts are required, to the extent possible, to avoid construing a statute in a manner that would produce farfetched, absurd, or illogical results which would not likely have been intended by the enacting body.

Stated simply and in the affirmative, courts must attempt to construe statutes in a common sense manner. We have long and consistently held to that view. See, most recently, Gilmer v. State, 389 Md. 656, 663 , 887 A.2d 549, 553 (2005); Comptroller v. Citicorp, 389 Md. 156, 169 , 884 A.2d 112, 120 (2005); Moore v. State, 388 Md. 446, 453 , 879 A.2d 1111, 1115 (2005); Cain v. State, 386 Md. 320, 328 , 872 A.2d 681, 686 (2005). Keeping in mind that recklessness, not intention to injure, is the key element of the offense, if, as the State urges, the statute is read to apply to the effect of a pregnant woman’s conduct on the child she is carrying, it could well be construed to include not just the ingestion of unlawful controlled substances but a whole host of intentional and conceivably reckless activity that could not possibly have been within the contemplation of the Legislature — everything from becoming (or remaining) pregnant with knowledge that the child likely will have a genetic disorder that may cause serious disability or