Kohler v. State

JAMES P. SALMON (Retired, Specially Assigned), J. After using mostly fake money to purchase marijuana, Donald Kohler immediately fled from the seller, Warren Jerome Yates. Upon discovering the deception, Yates ran after Kohler and fired a shot that killed Shirley Worcester, an innocent bystander. Based on the State’s theory that Kohler aided and abetted Yates’s felony distribution of marijuana, a jury in the Circuit Court for Baltimore County convicted Kohler of second-degree felony murder and conspiracy to distribute marijuana. 1 He was also convicted of possession of marijuana with intent to distribute. Kohler was sentenced to thirty years for the felony murder, five consecutive years for the conspiracy, and a concurrent five years on the possession charge.

In this appeal Kohler does not take issue with his conviction of possession with intent to distribute marijuana but claims that the evidence was insufficient to sustain his conviction for either second-degree felony murder or conspiracy to distribute marijuana. The question of whether the evidence was sufficient to support appellant’s conviction for felony murder presents an issue of first impression. No reported Maryland appellate case addresses whether a buyer of a controlled dangerous substance (“CDS”) may be convicted of distribution based on the theory that he or she “participated” in the sale as a second degree principal, i.e., as an aider or abettor of the distribution. Consequently, there is no reported Maryland case that addresses the felony murder question now before us—whether a ¹¹⁵ drug buyer, whose actions toward the seller in the course of the transaction precipitated the seller’s murder of an innocent victim, may be convicted of second degree felony murder. 2 For the reasons explained below, we conclude that the evidence presented by the State was insufficient to convict appellant of distributing marijuana, and therefore also insufficient to convict him of felony murder and conspiracy to distribute marijuana.

I. FACTS Evidence considered by the jury that convicted Kohler, viewed in the light most favorable to the State (see Maryland Rule 4-324), is summarized below. 3 On the morning of January 7, 2009, Kohler met Christopher Jagd and Justin Wimbush at a house in Baltimore County where Johnny Moore lived. Kohler said to Jagd and Wim-bush that he would like to steal some marijuana. Kohler inquired of Jagd and Wimbush if they knew anyone who might have “some pounds” of marijuana. Wimbush said that he needed to “make some calls” but believed “he could get it.” Wimbush and Jagd then left.

Later that day Wimbush, acting on Kohler’s behalf, called Warren Yates and the two negotiat ¹¹⁶ ed the sales price ($1,100.00 per pound) and the quantity of marijuana to be sold (four pounds). Wimbush and Yates then made arrangements concerning the time and place of the delivery. Ultimately it was agreed that the sale would occur at the townhouse on South Hawthorn Street where Johnny Moore lived. On the evening of January 7, 2009, Yates, accompanied by Billy Griffin, arrived at the townhouse in Yates’s car.

Yates and Griffin entered the basement of Johnny Moore’s house where they joined Jagd, Wimbush and others. Kohler stayed upstairs. He told Jagd that he wanted to see the marijuana before he bought it. Griffin gave Jagd a pound of marijuana, Jagd then gave the pound to Wimbush who went upstairs and showed it to Kohler.

Kohler then asked to see all four pounds, but his request was denied by Yates. Finally, tired of waiting, Griffin and Yates announced they were leaving and went upstairs. Just as Griffin and Yates were about to leave, Kohler said that he still wanted to buy the drugs. The marijuana was given to Jagd.

Jagd handed the drugs to Wimbush, who gave the contraband to Kohler. Kohler, in turn, gave Wimbush a bag with money in it. The bag went to Jagd, who gave it to Yates. Yates told everyone not to leave until he counted the money, but as soon as Jagd handed over the bag, Kohler grabbed the drugs and ran out the door.

Yates immediately reported to Griffin that the money Kohler gave to him in exchange for the drugs was fake. 4 Yates then chased after Kohler. During the chase Yates fired two shots, intending to hit Kohler. Kohler was not hit but one of the bullets went astray and killed Shirley Worcester, who happened to be standing nearby. ¹¹⁷ II. Discussion A. Second Degree Felony Murder Challenging the State’s theory that appellant abetted Yates in his distribution of marijuana, appellant argues that his second degree felony murder conviction must be reversed because the evidence was insufficient to convict him of the predicate felony of distribution.

In support, appellant points out that, at trial, the State’s theory was not that appellant distributed the marijuana to others, but that appellant was “a participant” in the sale of marijuana by Yates because appellant was “the buyer” who “received it.” In appellant’s view, the State’s “participant” argument “demonstrates its concession” that appellant did not distribute marijuana. 5 The State maintains that “[ujnder the unique facts of this case, ... the evidence was sufficient to convict [appellant] of ¹¹⁸ distribution of marijuana and of the felony murder.” On appeal the State renews its trial argument that appellant “participated in the distribution ... as a second degree principal” who aided and abetted the transaction by seeking “out Yates, inquiring] as to whether he could purchase four pounds of marijuana, set[ting] up the details of the exchange, and, ultimately, fraudulently entic[ing] Yates to relinquish possession of the marijuana.” Of significance, the State argues, is the fact that appellant’s “intent to defraud Yates and essentially trick him into transferring the drugs” was what ultimately led to the shooting of Ms. Worcester. As the trial court pointed out at sentencing, “but for Mr. Kohler’s actions in seeking to have these drugs sold to him and all of the machinations about which we heard during the trial and his decision to effectuate the purchase in the way that he did[,]” “the victim in this case would not have been killedf.]” In these limited circumstances, the State posits, a buyer like appellant, who “takes an active role in soliciting the distributor and arranging the transaction,” which “is occurring in the middle of the distribution chain, and not between the seller and user, ... could be guilty of distribution.” “When reviewing the sufficiency of the evidence to sustain appellant’s convictions, we must determine, after viewing the evidence in the light most favorable to the State, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Yates v. State, 202 Md.App. 700, 712 , 33 A.3d 1071 (2011) (internal quotation marks and citations omitted). In Maryland, second degree felony murder is a common law crime premised on “the principle that a person participating in a felony is responsible for the natural and probable consequences of his or her criminal activity.” 6 Roary v. State, 385 Md. 217, 231, 236 , 867 ¹¹⁹ A.2d 1095 (2005). See Yates, supra, at 712-13 , 33 A.3d 1071 . “The modern felony-murder rule is ‘intended to deter dangerous conduct 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.’ ” Roary, 385 Md. at 226-27 , 867 A.2d 1095 (citation omitted). “To obtain a conviction for felony murder, the State is required to prove the underlying felony and that the death occurred during the perpetration of the felony.” Id. at 227 , 867 A.2d 1095 .

Moreover, “the underlying felony must be sufficiently dangerous to life to justify application of the doctrine,” so that the jury must be able to find beyond a reasonable doubt that “the felonious conduct, under all the circumstances, made death a foreseeable consequence[.]” Id. at 229 , 867 A.2d 1095 . It is not necessary, however, for the State to separately charge the defendant with the predicate felony. Id. at 227 , 867 A.2d 1095 . Maryland does not have an “aiding and abetting” statute.

Nevertheless, under established case law, a person who did not actually commit the crime in question may nevertheless be guilty to the same degree as the person who did. Handy v. State, 23 Md.App. 239, 250, 251-52 , 326 A.2d 189 (1974). Whereas principals in the first degree “commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent,” principals in the second degree are “present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it[.]” Id. at 251 , 326 A.2d 189 (citations omitted). “An aider is one who assists, supports or supplements the efforts of another in the commission of a crime.” Id. “An abettor is one who instigates, advises or encourages the commission of a crime.” Id. Here, the State charged appellant with conspiring with Yates and Griffin to distribute marijuana in violation of the statutory prohibition against distributing marijuana and with possession of marijuana with the intent to distribute, which is a statutory felony.

See generally Md.Code (2002), § 5-602(1) of the Criminal Law Article (“Crim.”) (“a person may not ... ¹²⁰ distribute or dispense a controlled dangerous substance”); Crim. § 5-602(2) (“a person may not ... possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance”); Crim. § 5-607(a) (“a person who violates a provision of §§ 5-602 through 5-606 of this subtitle is guilty of a felony”). Cf. Rudder v. State, 181 Md.App. 426, 434 , 956 A.2d 791 (2008) (conspiracy is a common law misdemeanor); Crim. § 1-102 (“The punishment of a person who is convicted of conspiracy may not exceed the maximum punishment for the crime that the person conspired to commit.”). Although appellant was not charged with distribution in violation of Crim. § 5-602(1), the State argued throughout trial that the second degree felony murder charges against both appellant and Yates were predicated on distribution, and that appellant was guilty of distribution as a second degree principal, based on his role in arranging the sale and receiving the marijuana from Yates. 7 Defense counsel argued to the trial court, in support of his unsuccessful motions for acquittal, and to the jury in closing, that appellant could not be guilty of distribution or felony murder because a buyer cannot be convicted of distributing marijuana to himself. 8 ¹²¹ The trial court instructed the jury that “the State must prove that the Defendant[,] or another participating in the crime with the Defendant^] committed or attempted to commit the crime of distribution of marijuana, which is a felony.” 9 The court did not define “distribution” or further explain who might qualify as “another participating in the crime with the Defendant^]” In this Court, appellant points out that the Supreme Court unanimously rejected an analogous “drug buyer as facilitator” theory in Abuelhawa v. United States, 556 U.S. 816 , 129 S.Ct. 2102, 2105 , 173 L.Ed.2d 982 (2009), and that courts in other states have similarly rejected the notion that a buyer can be convicted of CDS distribution as a second degree principal.

We agree that these cases are instructive. In Abuelhawa , the issue was whether a buyer’s use of his cell phone to arrange drug purchases “facilitated” the seller’s felony drug distribution, in violation of a federal statute criminalizing the use of communication devices in “facilitating the ¹²² commission of ... a felony[.]” See Abuelhawa, 129 S.Ct. at 2104 ; 21 U.S.C. § 843 (b). A unanimous Supreme Court held that the buyer, whose two separate purchases of one gram were misdemeanors, could not be convicted of the “facilitation” felony under that theory. Abuelhawa, 129 S.Ct. at 2104 .

The Abuelhawa Court rejected the Fourth Circuit’s holding that the buyer’s use of his cell phone to purchase cocaine qualified as facilitation “because it ‘undoubtedly made [the seller’s] cocaine distribution easier; in fact, ‘it made the sale possible.’ ” Id. (quoting United States v. Abuelhawa, 523 F.3d 415, 421 (4th Cir.2008)). Although “on the literal plane, the phone calls could be described as ‘facilitating’ drug distribution[,]” the Court concluded that “stopping there would ignore the rule that, because statutes are not read as a collection of isolated phrases, ‘[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.’ ” Id. at 2105 (citations omitted). In Abuelhawa’s case, the Court explained, the Government’s literal sweep of “facilitate” sits uncomfortably with common usage.

Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan.

Id. The Court also pointed out that “[t]he common usage that limits ‘facilitate’ to the efforts of someone other than a primary or necessary actor in the commission of a substantive crime has its parallel in” case law recognizing that “where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature[.]” Id. at 2106. Explaining that Congress intended the meaning of the term “facilitate” to be “equivalent” to judicially interpreted “terms like ‘aid,’ ¹²³ ‘abet,’ and ‘assist[J ” id. at 2106, the Court reasoned that the Government’s “broader reading of ‘facilitate’ would for practical purposes skew the congressional calibration of respective buyer-seller penalties[,]” by ignoring that “Congress meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony.” Id. at 2106-07. In Hyche v. Indiana, 934 N.E.2d 1176, 1177 (Ind.Ct.App.2010), a buyer (Hyche) made telephone arrangements to purchase ecstasy, then sent two accomplices to complete the transaction.

During the exchange, one of the sellers was shot and killed. Although Hyche was not present during the transaction or shooting, he was convicted of dealing and felony murder. The Indiana Court of Appeals held that, “[b]ecause the record is devoid of any evidence that Hyche was acting in any capacity other than that of a purchaser, it is insufficient to support a dealing conviction and therefore a felony murder conviction based thereon.” Id. at 1180 . Interpreting a statute that defines “dealing” as a “ ‘transfer from one (1) person to another of a controlled dangerous substance,’ ” the court reasoned that Hyche acted as the transferee, not the transferor.

The fact that he called another person to request drugs no more makes him a dealer in ecstasy than it would make a customer who calls the florist a dealer in flowers. The State’s cited cases are factually distinguishable because each involved a defendant involved on the distribution side of the transaction. The record is devoid of any evidence that Hyche was acting on the distribution side. Thus, he cannot be said to have organized the delivery of ecstasy under the statute.

Id. at 1179 (citations omitted). In Rhode Island v. Oliveira and Hill, 882 A.2d 1097 (R.I.2005), the Supreme Court of Rhode Island interpreted a statutory felony murder scheme in which the “sale, delivery, or other distribution” of controlled dangerous substances qual ¹²⁴ ifies as a predicate for first degree felony murder, whereas the possession of CDS with the intent to manufacture or deliver constitutes a predicate for second degree felony murder. In that case, the prosecution presented evidence that after Oli-veira and Hill arranged to buy $43,000 worth of cocaine from a seller who traveled from Texas to make the delivery, the seller was shot and killed. The two buyers were charged with first degree felony murder based on the State’s theory that “the killing occurred during the course of the ‘attempted receipt and redistribution of the drugs.’ ” Id. at 1107 .

At trial, Oliveira and Hill argued that “no reasonable reading of the statute encompasse[d] their actions because all the evidence ... demonstrated that they were unsuccessfully attempting to purchase or possess a controlled substance, not to manufacture, sell, deliver, or distribute it.” Id. at 1108 . The trial court agreed with the State, however, that the two buyers could be found “guilty of an attempt to distribute cocaine, based on the fact that they attempted to purchase over $43,000 worth of cocaine for further distribution.” Id. The Supreme Court of Rhode Island reversed, holding that the distribution statute did “not encompass one who attempts to purchase or receive a controlled dangerous substance from a seller, distributor, or deliverer, absent proof that the purchaser or receiver has taken a substantial step toward reselling, redelivering, or redistributing the controlled substances.” Id. at 1117-18 . The Court reasoned that “the terms ‘sell,’ ‘deliver,’ and ‘distribute’ all refer to the actions of one who transfer to another, and are the opposite of one who purchases or receives from another.” Id. at 1112.

Moreover, it was not “absurd for the Legislature to distinguish between ‘delivery’ or ‘attempted delivery’ from ‘possession with intent to deliver’ for purposes of exposing a defendant to the mandatory sentence of life imprisonment” imposed under the first degree felony murder statute. Id. at 1117 . Although the evidence tying [Hill] and Oliveira to the attempt to possess a substantial quantity of cocaine was overwhelming and the intent to deliver element can be inferentially established from the quantity of cocaine they sought to acquire, ¹²⁵ the record is devoid of any evidence that establishes, either directly or inferentially, that [Hill] or Oliveira took any action in an effort to further distribute or deliver the cocaine. Consequently, we are constrained to conclude that their motions for judgment of acquittal on the first-degree felony-murder count, should have been granted.

Id. at 1118 . 10 Like the subject case, Graves v. Kentucky, 17 S.W.3d 858 (Ky.2000), concerned a “drug deal gone wrong.” In Graves , the three defendants attempted to buy a kilogram of cocaine in order to resell it. After they delivered the $27,000 purchase price to the sellers in a parking lot, the sellers drove away without delivering the cocaine. In two vehicles, the buyers chased the sellers at high speeds through Louisville streets, until one of the buyers’ vehicles struck and killed two innocent occupants of a vehicle that crossed its path. All three buyers were convicted of trafficking and “wanton murder,” which is Kentucky’s codified version of felony murder. ¹²⁶ The Supreme Court of Kentucky held that there was sufficient circumstantial evidence to support the murder convictions against all three buyers based on the predicate felony of drug trafficking, which is a statutory felony encompassing both the attempted sale or transfer of CDS and the attempted possession of CDS with intent to sell or transfer.

Id. at 862-63 . Although the court did not specifically identify the buyers’ attempted possession of the cocaine as the factual basis for the trafficking charges against them, the evidence