Kouadio v. State

Deborah S. Eyler, Kehoe, Alan M. Wilner, (Senior Judge, Specially Assigned), JJ. Wilner, J. ⁶²³ Appellant was convicted by a jury in the Circuit Court for Montgomery County of the second-degree murder of his infant son, Amir, along with three counts of child abuse, for which he was sentenced to 40 years imprisonment. He complains in this appeal that: (1) the instructions given to the jury on second-degree murder were erroneous; (2) the evidence was legally insufficient to sustain the convictions; (3) the court erred in admitting a statement by the child's mother that, when appellant learned that she was pregnant, he wanted her to have an abortion; and (4) after admitting in evidence testimony regarding part of a statement appellant gave to the police, the court erred in not allowing the introduction of the rest of the statement. Finding no reversible error, we shall affirm the Circuit Court judgment.

BACKGROUND Amir was born on December 14, 2013. Appellant was his father; Asli Iman was his mother. The couple were not married ⁶²⁴ and, until Amir was born, did not live together. Although the pregnancy was not planned, Ms. Iman was happy with it.

When appellant was informed, he told Ms. Iman that "[h]e did not want me to have the baby. He wanted me to have an abortion," which she refused to do. The pregnancy was uneventful. Ms. Iman received prenatal care, but the delivery was through a C-section.

Although appellant was present at the birth, Ms. Iman said that he contributed nothing during her pregnancy and "never bought a single item for the child at all." About two weeks after Amir's birth, the family moved in with appellant's mother. The mother used a bedroom on the first floor of the house. Appellant, Ms. Iman, and the baby used the two bedrooms on the second floor. Ms. Iman returned to work three weeks after Amir's birth.

Appellant's mother also worked. Appellant, who neither worked nor attended school, watched Amir during the day. Ms. Iman usually left the house around 6:00 a.m. and returned between 6:30 and 7:00 p.m. Upon her return, she watched the baby until she went to bed around 11:00.

She would then wake appellant to let him know that the baby was asleep. Ms. Iman testified that the child ³²⁵ was in perfect health and had been seen by a pediatrician and a WIC unit. 1 During the time the family was together, there were three disturbing incidents involving appellant and Amir. On one occasion, Ms. Iman placed Amir on a downstairs couch while she was folding clothes. She went upstairs to get some more clothes, and, when she returned, appellant acknowledged sitting on Amir, saying he did not see him.

The child was not injured. On a second occasion, while on a bus with Amir, Ms. Iman prepared to give him a bottle and noticed that his upper gum was bruised. She texted appellant to inquire and was told that, while sleeping, appellant had "elbowed" the baby. Near the end of January, appellant awakened Ms. Iman and told her that, while trying to give Amir a bath, he nearly ⁶²⁵ dropped the baby into the bathtub.

Appellant said that, to break the fall, he grabbed Amir by the head or face, with the child's body dangling down, and acknowledged that he "almost killed my son." During that episode, the child's head hit a towel rack. Ms. Iman noticed that the whole left side of Amir's face was bruised. She treated the bruise with an ice pack and a day or two later took him to a health care center where he was examined by a nurse and released. The events leading to this case occurred on the evening of February 3-4, 2014, when Amir was seven weeks old.

After returning home from work, Ms. Iman fed Amir, gave him a bath, and held him while watching television until 11:00, when she put him in his basinet and informed appellant that she was going to bed. Ms. Iman said that Amir was fine at that time-he was eating and fell asleep as usual. Around 2:00 a.m., appellant awakened her. She went to Amir, saw that he was "lifeless," had blood coming out of his nose, and picked him up.

She then noticed that he had on only a diaper and one sock, which were not the clothes she had put him to bed with. His lips were so blue that she put him on the floor and began CPR. 2 She started with infant CPR but when she blew breath in him and pushed on his chest, blood bubbles emerged from his mouth. She then commenced adult CPR while appellant watched. When she asked appellant what had happened, he replied that he was in the shower and didn't know.

Eventually, appellant called 9-1-1 and advised Ms. Iman to get dressed. He then took over the CPR. The first assistance to arrive was Amos McPherson, an EMT. He picked the baby up, saw no chest rise, and immediately started CPR.

He noticed blood and some clear fluid coming from one of the child's nostrils and summoned the paramedics, who were outside. Paramedic Mark Grant entered the home and started CPR. The baby had no pulse, and the paramedics were unable to intubate Amir or establish access ⁶²⁶ for an IV line. When they attempted to insert a laryngoscope, they observed blood in the airway and were unable to see the vocal cords.

They transported the child to Holy Cross Hospital. Appellant followed the medical unit to the hospital in the back of a fire truck. During the trip, he told one of the firefighters, Russel Miles, that he had fed Amir and, when finished, wrapped him in some blankets and put him in the basinet. ³²⁶ The baby made some "whimpering noises" for a while but then was silent. Appellant checked on him about 15 minutes later and saw blood coming from his nose.

The baby was unresponsive and not breathing. Appellant said that he then called 9-1-1 and started CPR. 3 Amir arrived at the hospital around 4:00 a.m. Dr. Mark Roddy, an attending physician at the pediatric emergency department, observed that Amir was not breathing or moving and appeared to be blue in the face. The staff was able to resuscitate him and get a spontaneous heart rate, but, as the hospital had no intensive care unit for children, it transported Amir to the Children's National Medical Center, where he spent about two months but then was moved for a while to a hospice.

He later was transferred back to the Medical Center because he was still on life support and a breathing ventilator. Amir received a variety of medications-to regulate his breathing, to prevent seizure, for muscle spasms and stool softeners, and to regulate his heartbeat and body temperature-and he had a feeding tube. Still, he was not stable. Ms. Iman testified that, during the time Amir was at the Medical Center, appellant "wasn't even in the room ... [but was] ⁶²⁷ about in the hallway, and then sometimes he would go into the conference rooms on his phone." Ms. Iman was shown a CAT scan of Amir's brain so she could see the significant damage to her son's brain.

After struggling with the decision and upon the recommendation of the doctors, who believed that Amir would never recover, she agreed to have him taken off life support. Appellant initially objected to that, but he was incarcerated at that point and was not part of the decision. Amir died three days after the withdrawal of life support. DISCUSSION Instructions on Second-Degree Murder Murder is a single common law crime in Maryland that has been defined as "the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation." Ross v. State , 308 Md. 337 , 340, 519 A.2d 735 (1987) ; Harrison v. State , 382 Md. 477 , 488, 855 A.2d 1220 (2004).

By statute, the crime has been divided into two degrees for purposes of punishment. Burch v. State , 346 Md. 253 , 274, 696 A.2d 443 (1997). All murder-first and second-degree-requires proof of malice. Gladden v. State , 273 Md. 383 , 388, 330 A.2d 176 (1974).

As related to murder, malice has been defined as "the intentional doing of a wrongful act to another without legal excuse or justification" and as including "any wrongful act done willfully or purposely." Id. , quoting from Chisley v. State , 202 Md. 87 , 105, 95 A.2d 577 (1953). The Gladden Court confirmed that malice may be express or implied from the circumstances, that a specific intent to kill is not necessary, and that malice may be implied "from the attendant circumstances in some unintentional killings." Id. Malice is a malevolent state of mind. The kinds of malevolent states of mind that qualify for murder are "(1) the intent to kill, (2) the intent to do grievous bodily harm, (3) the intent to do an act under circumstances manifesting extreme ³²⁷ indifference to the value of human life (depraved heart), or (4) ⁶²⁸ the intent to commit a dangerous felony." Harrison v. State , supra , 382 Md. at 488 , 855 A.2d 1220 .

In Burch, supra , 346 Md. at 274 , 696 A.2d 443 , the Court applied these principles specifically to second-degree murder, declaring: "Second degree murder embraces a killing accompanied by any of at least three alternative mentes reae [guilty mind]: killing 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; killing another person with the intent to inflict such serious bodily harm that death would be the likely result; and what has become known as depraved heart murder-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.' " (citations omitted). and "As Judge Moylan pointed out in [citations omitted], the intent to inflict serious bodily harm and the recklessness required for depraved heart murder have been regarded as a form of malice, sufficiently blameworthy in the eyes of the law to cause the homicidal conduct to constitute murder." The Circuit Court initially had some difficulty explaining this to the jury in its instructions on second-degree murder. Ultimately, it informed the jury that there were three possible intents that would suffice to constitute second-degree murder and explained what they were. The court instructed that, for a juror to find guilt, he or she had to find beyond a reasonable doubt each of the elements of the intent he or she believed applicable-that a juror could not mix the elements of one intent with the elements of another. Appellant did not object to those instructions.

The issue before us stems from the further instruction that all 12 jurors did not have to agree on the specific intent possessed by appellant so long as all 12 found beyond a reasonable doubt the elements of at least one of them-that some could find all of the elements of an "intent to kill," others could find the elements of an intent to inflict ⁶²⁹ serious bodily harm, and others could find the elements of depraved heart. Appellant complains that those instructions "conflate[s] three separate offenses, treating them as a single crime, and improperly permitted the jury to render a seemingly unanimous verdict without ensuring actual juror unanimity as to the elements of a single charged offense." That argument, in an analogous context, was considered and rejected by the Supreme Court in Schad v. Arizona , 501 U.S. 624 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) and, relying in part on Schad , by the Court of Appeals in Crispino v. State , 417 Md. 31 , 47-49, 7 A.3d 1092 (2010). Schad involved a conviction for first degree murder in Arizona. That State, like Maryland, treated murder as a unitary crime divided into two degrees and regarded as alternative mentes reae for first-degree murder a premeditated homicide and a killing committed in the course of certain enumerated felonies.

The issue before the Supreme Court relevant here was whether jury instructions that did not require unanimous agreement on which mens rea the defendant possessed were Constitutionally deficient. Both theories had been advanced at trial. The trial court instructed the jurors that either would constitute first-degree murder and that all 12 had to agree on a verdict, but it did not instruct that all 12 had to agree on the particular mens rea possessed by the defendant. Against the ³²⁸ same argument made here, the Arizona Supreme Court affirmed, holding that, although a defendant is entitled to a unanimous verdict, he or she is not entitled to unanimity on the precise manner in which the act was committed, and the Supreme Court affirmed.

In a plurality Opinion by Justice Souter, for himself, Chief Justice Rehnquist, and Justices O'Connor and Kennedy, and over a dissent by Justices White, Marshall, Blackmun, and Stevens, the four Justices first observed that it was a "long-established rule of criminal law that an indictment need not specify which overt act, among several named, was the means ⁶³⁰ by which a crime was committed" and that the Court had "never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission." Id. at 631 , 111 S.Ct. 2491 . Those cases, the plurality said, involved alternative ways of proving actus reus but there was no reason "why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea. " Id. at 632 , 111 S.Ct. 2491 . Having reached that conclusion, the plurality Opinion acknowledged that there were due process limits on a State's ability to define different courses of conduct or states of mind as merely alternative means of committing a single offense and offered two analytical considerations for determining those limits-whether the State's particular way of defining a crime has a long history or is in widespread use and whether there was some "moral equivalence" in the alternative methods.

The plurality concluded that the Arizona approach (which is Maryland's approach) satisfied both of those tests, holding, as to the first, that "there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first degree murder to persuade us that Arizona has not departed from the norm." Id. at 642 , 111 S.Ct. 2491 . With respect to the second consideration-moral equivalence-the Opinion said that "[i]f, then, two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance." Justice Scalia, concurring in the judgment, took issue with the plurality's reliance on moral equivalence and its view that "neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through centuries insulates it from constitutional attack." Although acknowledging ⁶³¹ that may be true with respect to some Constitutional attacks, he found the plurality's approach wanting in a due process context. He asserted that a " '[f]undamental fairness' analysis may appropriately be applied to departures from traditional American conceptions of due process" but not "an American tradition that is deep and broad and continuing." Id. at 650 , 111 S.Ct. 2491