McMillan v. State

BELL, J. The petitioner, Nathaniel Paul McMillan, was tried by a jury in the Circuit Court for Prince George’s County for the murder of Herman Haiss, a former neighbor. His defense at trial was that his participation — knocking on the victim’s door, which allowed his two acquaintances to gain entrance — in the crimes with which he was charged, first-degree premeditated murder, first degree felony murder and second-degree murder, 1 was coerced. Accordingly, he requested that the jury be ³³⁹ instructed on the defense of “duress.” The trial court refused to give to the jury the requested duress instruction. Acquitted of first-degree premeditated murder and second-degree murder, but convicted of first-degree felony murder, the petitioner noted an appeal to the Court of Special Appeals, where he argued that the trial court’s refusal to instruct the jury with respect to duress was error.

That court affirmed the judgment of the Circuit Court, McMillan v. State, 181 Md. App. 298, 362 , 956 A.2d 716, 754 (2008), although rejecting, in the process, the State’s argument that the defense of duress is not applicable to felony murder. Id., 181 Md.App. at 328 , 956 A.2d at 734 . Neither the petitioner nor the State was completely happy with that result. Accordingly, when the petitioner filed, in this Court, a Petition for Writ of Certiorari, to challenge the intermediate appellate court’s application of the duress defense, the State cross-petitioned for certiorari, seeking review of that court’s threshold determination as to the applicability of the defense.

We granted both the petition and the cross-petition. McMillan v. State, 406 Md. 744 , 962 A.2d 370 (2008). Therefore, before us for decision is the threshold issue of whether the defense of duress is an available, viable one to the charge of felony murder. If it is, we then must decide whether, in this case, the Court of Special Appeals correctly defined the elements of the defense, and whether, in a criminal case, an element of the duress defense is that the defendant have attempted at the earliest possible opportunity to stop or thwart the offense he was compelled to commit.

We agree with the Court of Special Appeals and, therefore, shall hold that, in Maryland, duress is a defense to felony murder. On the other hand, we side with the petitioner with regard to its application in this case and hold that, to establish and be entitled to the defense, a defendant need not first prove that he or she attempted to stop or thwart the offense that he or she alleged that he or she was compelled to commit. ³⁴⁰ Therefore, we shall reverse the judgment of the Court of Special Appeals and remand for a new trial. I. Duress As Defense To Felony Murder The victim, on November 16, 2005, was found dead in his home on Cree Drive, in Forest Heights, Maryland, by his daughter-in-law. He had been bludgeoned to death with a baseball bat, which was found next to his corpse.

The house had been ransacked, and most of the numerous weapons, including a .357 caliber pistol, three modern rifles, three shotguns, and three muzzleloaders, that the victim, a hunter, kept stored in a home safe, were missing. The word “Crips” was spray painted on a wall near the victim’s body. The petitioner was arrested about a month later, on December 16, 2005, in connection with the murder. Approximately 12 years earlier, he had been the victim’s neighbor, living with his aunt and uncle in the house next to the victim’s home.

Thus, the petitioner knew the victim and his grandchildren and, during the two years he lived next door to him, had spent time in the victim’s home. After he had been interrogated for seven hours and given the police detectives several conflicting stories about what happened on the evening of the murder, the petitioner was charged with, and subsequently tried for, the victim’s murder. The petitioner maintained throughout the interrogation that he did not go into the victim’s home; that he never threatened or attacked the victim; and that, other than knocking on the door, he did not participate in the robbery in any way. No DNA or fingerprint evidence connecting the petitioner to the crimes was recovered from the scene.

At some point during the interrogation, which was recorded, the petitioner professed to being afraid of his two acquaintances, “S.O.” and “Vel,” and what they would do to him if he did not do what they wanted him to do: facilitate their entry into the victim’s house by knocking on the door. The petitioner thus began to suggest, which became the basis of his contention at trial, that whatever he did was done under ³⁴¹ duress. The petitioner told one of the detectives that S.O. and Vel picked him up in a green SUV at his place of work and that he asked them to give him a ride home. When, shortly thereafter, he noticed that S.O. was not driving toward his home, but in the direction of Forest Heights, he said he protested, “I don’t live this way.” S.O.’s response was that they were all going to Forest Heights so that the petitioner could knock on the victim’s door.

The petitioner then said that he told S.O. he didn’t want anything to do with a robbery, to which S.O. responded, “it’s GBA [guilt by association], you get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do?” Given that choice, the petitioner indicated that he acceded, telling them, “I’ll knock on the door.” A portion of the interrogation, including a short colloquy between Detective Nelson and the petitioner, that was played for the jury, further addressed and supported the petitioner’s fear and the petitioner’s contention that his actions in connection with the murder and other related crimes committed on the victim were coerced: “DET. NELSON: You felt pressure to do that [knock on Haiss’s door] for them [S.O. and Vel]. If you didn’t do it, you’d probably be dead right now, don’t you think? “MCMILLAN: I probably be dead because they killing everybody. “DET. NELSON: And that’s why you did it.” Later in the interview, the petitioner said that he was “forced to go get the door open,” that he was “compelled” to open the door, and that if he refused, he would be killed.

Still later, when recounting his interaction with S.O. and Vel the day after the murder, the petitioner recalled an event that confirmed his fear and the basis for his feeling coerced. He said that once S.O. and Vel had told him the details of how the victim ultimately was murdered, S.O. went into a back room of the petitioner’s home and loaded a .357 pistol with bullets. When S.O. re-emerged, the petitioner said that S.O. asked the petitioner whether the petitioner had told anyone what hap ³⁴² pened the night before. When the petitioner responded, “No,” S.O., he related, said, “Good, because I don’t want any harm to come to you.” This was, the petitioner argued at trial, “some evidence” of duress, sufficient to support a jury instruction.

There was, to be sure, evidence that contradicted the notion that the petitioner was coerced or acted under duress. Much of that evidence came from the same source as that upon which the petitioner relied: his own statement. When first arrested, the petitioner did not claim that he was forced to knock on the victim’s door or was, in any way, coerced. Indeed, the petitioner maintained that he was not involved in the crimes at all.

He did say, however, that he had heard that his acquaintance, “S.O.,” was responsible. 2 To support that statement, he told Detective Hollowell that S.O. tried to sell him a .357 pistol that allegedly came from the victim’s home. Later in the interview, the petitioner admitted that he drove 5.0. and another acquaintance, Vel, to the victim’s home because he was familiar with the victim, and it was likely the victim would open his door for the petitioner. He also acknowledged that, as soon as the victim opened the door, S.O. and Vel entered the home and robbed him. The petitioner admitted, as well, that prior to the incident, 5.0. and Vel asked him for specific information about the victim, such as his age, his daily routine and schedule, whether he had an alarm system and weapons in the house, and whether he had family in the home.

According to the petitioner, S.O. and Vel told him that they were going to knock on the victim’s door and “[fjuck him up once he opened the door.” As indicated, the petitioner knocked on the door, and it was in response to that knock that S.O. and Vel gained entry to the victim’s home. The petitioner gave inconsistent statements as to what happened after that. He said variously that he left the house immediately after knocking on the door; that he left the house and sat in the SUV; or that, after waiting in the ³⁴³ SUV, he went back to the house to tell S.O. and Vel to hurry. After the crimes had been committed, the petitioner reported that the three men drove back to a house to “play” with the stolen weapons, and that S.O. later drove the petitioner home.

In his statement, the petitioner said that, on the day after the murder, S.O. and Vel came to his house and, while there, described in detail what happened to the victim once they gained entry to his home: first, Vel beat the victim, and then Vel and S.O. located one of the victim’s weapons; the victim denied having other weapons, but Vel and S.O. found the gun safe and, by threatening to cut off his fingers and beating his head with a baseball bat, forced the victim to open it. At trial, Thomas Gray, who lived across the street from the victim, testified for the State. He testified that, on November 15, 2005, he saw three or more young men in white t-shirts, whose faces he did not see, walking up and down Cree Street near a green SUV. Approximately 30 to 40 minutes later, he saw the men running down the street carrying bags.

Gray did not, and could not, identify the young men. Devonshire Majors, who was acquainted with the petitioner, also testified as a State witness. Her testimony tended to implicate the petitioner as a principal, and a voluntary one, in the crimes. She said that, around Thanksgiving of 2005, she heard the petitioner tell her boyfriend that he “got a move to go on with something.” She explained that a “move” refers to any type of crime, including robbery.

Majors also testified that she overheard the petitioner say that the “move” was going to be against someone on his “old street,” Cree Drive. Majors said that, some time after she heard about the murder on television, McMillan told her boyfriend that he had to “roll out” and “can’t come around no more.” Other State witnesses, Antonio Gooding and Victoria Wynn, contradicted the petitioner’s duress defense. Gooding testified that, around Thanksgiving of 2005, after the murder, the petitioner offered to sell him a weapon for $300 or $400. Wynn, S.O.’s girlfriend at the time of the murder, testified that she let S.O. drive her green SUV, that, around Thanks ³⁴⁴ giving of 2005, she saw the petitioner and S.O., in her house with guns, and that, at that time, the petitioner did not look scared or threatened.

The petitioner did not put on a case. His defense of duress was based on his statement and cross examination of the State’s witnesses. Believing the issue to be a jury question, that the record contained some evidence that would permit the jury to find that the actions he took in furtherance of the crimes committed by S.O. and Vel were coerced and, therefore, that he acted under duress, the petitioner requested that the trial judge instruct the jury on duress. He requested that the Pattern Instruction, Maryland Criminal Pattern Jury Instructions (“MPJI-CR”) 5.03 3 be given.

This prompted the following discussion between counsel and the trial judge: “DEFENSE COUNSEL: I am also ... requesting ... the duress instruction, because at the point when he realizes ... they brought him to the scene, then he realizes the man is home and they threaten him. ³⁴⁵ “THE COURT: My recollection is that the law is very clear that duress must be imminent. “DEFENSE COUNSEL: Correct, Your Honor. “THE COURT: — a threat of direct physical harm to the individual at that moment. “DEFENSE COUNSEL: Correct. That’s absolutely correct. “THE COURT: Not weeks later, or weeks before. “DEFENSE COUNSEL: Correct. “THE COURT: And I don’t think there was any evidence of, he was in immediate and impending danger of death or serious bodily harm if he did not participate in this crime. “DEFENSE COUNSEL: Well, I would beg to differ on that. Even the Detective’s testimony, I mean— “THE COURT: The Detective’s testimony ... was it was only after the fact were they threatening him not to tell. “DEFENSE COUNSEL: No. No. His testimony was, he talked about, ‘You felt compelled to do it. You felt compelled.’ And then the Detective actually said, ‘You thought you would be dead if you didn’t.’ “THE COURT: Right. “DEFENSE COUNSEL: That’s at the time of the event. “THE COURT: Then he changed his story after that.

I mean, that was just to get the Defendant to give a statement, and then the Defendant’s ultimate statement was different than that. But the bottom line is, in order for duress to occur, there has to be a situation in which someone is, in effect, holding a gun to his head at the time he commits the crime, and that didn’t happen. There is no evidence that that happened. “DEFENSE COUNSEL: I agree, Your Honor, but— “THE COURT: And the testimony, even taken in the light most favorable to the Defendant, is what it says here as the defense of duress is not established by proof that the Defendant had been threatened with violence at an earlier time. So the mere fact that he was threatened— ³⁴⁶ “DEFENSE COUNSEL: I’m not arguing harm after, or harm before.

I’m saying that the Detective’s statement was, ‘While you’— “THE COURT: Don’t tell me about the Detective’s statement, tell me what the Defendant said. “DEFENSE COUNSEL: The Defendant acknowledged that statement to be true. He said “Yeah, they’re killing everybody.’ “THE COURT: And that was midway through what he said, and that— “DEFENSE COUNSEL: Well, I think that’s a factual— that’s a fact. Those are the facts in evidence that I can argue to the jury as far as his intent. Plus, it goes even further, because, I mean, we have an aiding and abetting which requires, one of the elements is willful participation— “THE COURT: Okay.

So, you’ve got the aiding and abetting, 4 so we’ve already covered that. As far as I’m concerned, aiding and abetting is already covered. Whether or not the jury finds that he was a voluntary participant. If they find he wasn’t a voluntary participant, then they can say that they found that he did not aid and abet the murder of Mr. Haiss.

And that is where it will go. But— “DEFENSE COUNSEL: That’s why I’m asking. ³⁴⁷ “THE COURT: and [the jury] may also feel that he was not a willing participant in the robbery. And if they do, then they will find him not to be guilty of the offense----I’m not going to give them a separate instruction on duress. “DEFENSE COUNSEL: Just so the record is clear— “THE COURT: You may take exception to that. “DEFENSE COUNSEL: — because of the underlying felony of robbery, duress would be usable in that. Had Mr. Haiss not died, the duress would be available under underlying robbery. “THE COURT: Under your theory.

And I’ve just said, no, I feel that it’s entirely covered by the aiding and abetting instruction, which covers the voluntariness issue. I do not find that this case has any evidence that rises to the point of duress as an element, and I’m not going to instruct the jury to that extent. You may note your exception at this time. I will not give the duress instruction.” Urging affirmance of the judgment of the Circuit Court, the State, as a threshold matter, argues in this Court, as it did in the Court of Special Appeals, that a duress defense does not apply in this case, since the petitioner was charged with and tried for murder.

Accordingly, it submits, an instruction on the defense was neither viable nor available. The State relies on Frasher v. State, 8 Md.App. 439 , 260 A.2d 656 (1970), cert. denied sub norm., McLaughlin v. Director, Patuxent Inst., 400 U.S. 959 , 91 S.Ct. 360 , 27 L.Ed.2d 269 (1970) and Wentworth v. State, 29 Md.App. 110 , 349 A.2d 421 (1975). Also relying on WentwoHh, and a number of decisions of our sister courts in other States reaching that result, e.g. People v. Anderson, 28 Cal.4th 767 , 122 Cal.Rptr.2d 587 , 50 P.3d 368 (Cal.2002); Wright v. State, 402 So.2d 493 (Fla.Ct.App.1981); People v. Serrano, 286 Ill.App.3d 485 , 222 Ill.Dec. 47 , 676 N.E.2d 1011 (1997), cert. denied, 173 Ill.2d 541 , 226 Ill.Dec. 137 , 684 N.E.2d 1340 (1997); State v. Dunn, 243 Kan. 414 , 758 P.2d 718 (1988); People v. Campos, 108 A.D.2d 751 , 484 N.Y.S.2d 907 (App.Div. 1985); Tully v. State, 730 P.2d 1206 (Okla.Crim.App.1986); Pugliese v. Commonwealth, 16 Va.App. 82 , 428 S.E.2d 16 ³⁴⁸ (1993), the petitioner argues the opposite, that duress is a defense to felony murder.

Neither this Court nor the Court of Special Appeals has addressed directly the question that this case presents, whether duress is a defense to felony murder. It is now well-settled, however, that the defense of duress is a viable defense in Maryland, but that it does not apply in the case of murder. Wentworth, 29 Md.App. at 117-19 , 349 A.2d at 426-28 ; Frasher, 8 Md.App. at 447-48 , 260 A.2d at 661 . See also MPJI-CR 5.03.

In Frasher , the Court of Special Appeals, explaining that it follows from a proposition central to our jurisprudence, that “[i]t is essential to a crime that the defendant committed a voluntary act,” 8 Md.App. at 447 , 260 A.2d at 661 , recognized that “it is a defense as to all crimes except taking the life of an innocent person that the defendant acted under a compelling force of coercion or duress.” Id., 8 Md.App. at 447-48 , 260 A.2d at 661 , citing 1 Wharton’s Criminal Law (Anderson) § 123, p. 261. Although acknowledging that duress could be caused by necessity, arise from circumstances, id., 8 Md.App. at 448-49 , 260 A.2d at 662 , the court’s focus, in Frasher , was on the other, more common form of duress, that which occurs “by the application of duress on the defendant by another person.” Id., 8 Md.App. at 448 , 260 A.2d at 661 . As to that branch of the defense, the intermediate appellate court defined its elements: “In order to constitute a defense, the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape.

Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time. The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury. 1 Wharton’s Criminal Law, supra, § 123, pp. 262-64.... However, there appears to be accord that the defense cannot be claimed if ³⁴⁹ the compulsion arose by the defendant’s own fault, negligence or misconduct[ 5 ] 1 Wharton’s Criminal Law, supra, § 123, p. 264; 16 C. J., Criminal Law, § 59, p. 91; 22 C.J.S. Criminal Law, § 44, p. 136; Ross v. State, 169 Ind. 388 , 82 N.E. 781 (1907); State v. Clay, 220 Iowa 1191 , 264 N.W. 77 (Iowa 1935); State v. Patterson, 117 Or. 153 , 241 P. 977 (1925); People v. Merhige, 212 Mich. 601 , 180 N.W. 418 (1920).” Id., 8 Md.App. at 449 , 260 A.2d at 662 . (Footnote omitted).

The issue in Frasher was whether duress was a defense to possession of narcotics, where the defendant was compelled to enter the State by a bail bondsman who was surrendering him, id., 8 Md.App. at 444-45 , 260 A.2d at 659-60 , at a time when he had the drags on his person. Thus, the court’s ³⁵⁰ pronouncement with regard to the applicability of the duress defense to murder was dictum. The issue of the applicability of the duress defense to murder was squarely presented in Wentworth, 29 Md.App. 110 , 349 A.2d 421 . There, the defendant was charged with, and convicted of, murder.

Id., 29 Md.App. at 111 , 349 A.2d at 423 . Her defense was duress. Id., 29 Md.App. at 116 , 349 A.2d at 425 . The intermediate appellate court confirmed its prior holding and the analysis in Frasher with regard to the viability of the duress defense.

Id., 29 Md.App. at 118 , 349 A.2d at 426 . It, then, turned to the crime of murder, recalling its dictum as to murder prosecutions: “There is one critical limitation upon the defense of duress, which leaves the appellant here utterly bereft in terms of possible total exculpation as to the murder. Whatever the psychological reality may be, the law, as a matter of social policy, has declared that the defense of duress may not extend to the taking of an innocent person’s life.” Id., 29 Md.App. at 118 , 349 A.2d at 426 . The court also explored the rationale for the exception: “As Sir William Blackstone put it in 4 Commentaries, an accused ‘ought rather to die himself than escape by the murder of an innocent.’ Perkins, [Rollin M. Perkins, Criminal Law (2d ed., 1969) ], provides a modern rationale for the refusal of the common law to recognize such a defense, at 952: ‘The refusal of the common law to excuse one who has intentionally taken an innocent life to save his own is due, not to any notion that the rule of law will serve as an effective deterrent in such an emergency, but to an unwillingness to place the stamp of approval upon such conduct.’ Whatever the rationale, the law is now clear.

LaFave and Scott, [Wayne R. LaFave et al., Criminal Law, 2d ed., 1986] points out, at 376: ‘It has been held that duress cannot justify murder — or, as it is better expressed (since duress may justify the underlying felony and so justify what would otherwise be a felony murder), duress cannot justify the ³⁵¹ intentional killing of (or attempt to kill) an innocent third person.’ ” Id., 29 Md.App. at 118-19 , 349 A.2d at 427 . The State relies on the Wentworth holding, its clear statement that duress does not totally exculpate as to the crime of murder, and the recognition that, “as a matter of social policy ... the defense of duress may not extend to the taking of an innocent person’s life.” 29 Md.App. at 118 , 349 A.2d at 426 . It takes solace, as well, in the statement in Frasher , that duress “is a defense as to all crimes except taking the life of an innocent person----” 8 Md.App. at 447 , 260 A.2d at 661 . The petitioner, on the other hand, finds support in the same case, its quotation of a passage from Professor LaFave’s Treatise, Criminal Law (1972), which, recognizing the difference between felony murder and common law murder, draws a distinction between “killing ...

(or attempting to kill) an innocent third person” and committing a felony from the commission of which accomplice liability, responsibility for the killing, is inferred. See id., 29 Md.App. at 119 , 349 A.2d at 427 . Also of significance to the petitioner is the difference between common law murder and felony murder. It is to the former, and not felony murder, that the duress defense exception discussed in Frasher and Wentworth relates, he submits.

Murder is a common law crime in Maryland, separated into first and second degrees for the purpose of punishment. Clemons v. State, 392 Md. 339 , 373 n. 2, 896 A.2d 1059 , 1079 n. 2 (2006). First degree murder includes murder that is committed in the perpetration, or attempt of, specific enumerated felonies, including robbery. 6 Under the felony murder ³⁵² doctrine, the common law mens rea requirement for murder is satisfied by the actual malice of a defendant while committing the underlying felony. Watkins v. State, 357 Md. 258, 267 , 744 A.2d 1, 5-6 (2000).

Accomplice liability for the murder extends to the participants in the underlying felony, even if they did not participate in the actual murder. Id., 357 Md. at 267 , 744 A.2d at 6 (finding that “[i]t has long been established that, under the felony-murder doctrine, a participating felon is guilty of murder when a homicide has been committed by a co-felon in furtherance of the underlying felony.”). The defense of duress is applicable to the crime of robbery. Frasher, 8 Md.App. at 450 , 260 A.2d at 663 .

That being so, the petitioner believes, therefore, that it should also apply when the robbery is the underlying felony in a felony murder charge. Pointing out that duress involves circumstances where a defendant is justified in committing a criminal act, including the felony of robbery, and absolves the defendant of criminal liability, Wentworth, 29 Md.App. at 118 , 349 A.2d at 426 , he finds Professor LaFave’s statement of the rationale instructive: “The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.” LaFave & Scott, Criminal Law 374-75 (1972). To that point, the Court of Special Appeals observed: “At common law, the rationale for barring the duress defense in a prosecution for murder was that a person ‘ought rather to die himself than escape by the murder of an innocent.’ 5 BLACKSTONE’S COMMENTARIES 30. ³⁵³ This rationale disappears when the sole ground for the murder charge is that the defendant participated in an underlying felony, under duress, and the defendant’s co-felons unexpectedly killed the victim, thereby elevating the charge to felony-murder.

We conclude that if duress would serve as a defense to the underlying felony, it is also available as a defense to a felony-murder arising from that felony, assuming the criteria for such a defense are otherwise satisfied.” McMillan, 181 Md.App. at 328 , 956 A.2d at 734 . We agree with the Court of Special Appeals. The intermediate appellate court has pointed out that a majority of jurisdictions that have addressed this issue have determined that duress is available as a defense. See id., 181 Md.App. at 328 , 956 A.2d at 734 .

We are persuaded by their reasoning. See e.g. People v. Sims, 374 Ill.App.3d 231, 267 , 312 Ill.Dec. 124 , 869 N.E.2d 1115, 1145 (2007), cert. denied, 226 Ill.2d 604 , 316 Ill.Dec. 549 , 879 N.E.2d 937 (2007), Arnold v. Virginia, 37 Va.App. 781, 787-88 , 560 S.E.2d 915, 918 (2002), MacKool v. State, 363 Ark. 295, 302 , 213 S.W.3d 618, 623