Owens v. State

ADKINS, J. As appellant Maurice Owens threatened two would-be heroin buyers at gunpoint, one of Owens’ companions opened fire. The question of first impression raised by Owens in this appeal is whether he can be convicted of attempted second degree murder for aiding and abetting in the shooting, even though the person charged as the shooter was previously acquitted of that crime. Following the lessons of Jeter v. State, 261 Md. 221 , 274 A.2d 337 (1971), aff'g, 9 Md.App. 575 , 267 A.2d 319 (1970), in which the Court of Appeals held that a defendant may be convicted as a principal in the second degree despite the subsequent acquittal of an alleged principal in the first degree, we shall hold that a prior acquittal of the alleged first degree principal does not bar conviction of the second degree principal. FACTS AND LEGAL PROCEEDINGS On August 5, 2002, Thomas Faulkner and Keith Wheeler drove to the 2500 block of Woodbrook Avenue in Baltimore City.

Planning to buy heroin, they left two other companions in Faulkner’s parked car. As they walked into the area, about forty people cleared out, leaving only six or seven remaining. Faulkner viewed this as a “red flag” that something was wrong. The two began to walk back to the car, but a group of “five to seven guys” approached.

One of them, later identified as Owens, ordered Faulkner and Wheeler to pull up their shirts. Faulkner did so quickly, but Wheeler reacted more slowly. Owens asked what they were doing there. Faulkner replied that they wanted to “buy dope[.]” Owens responded, “well, ⁹⁶ buy it then,” and pulled out a gun.

At that point, someone stepped out from behind the line of men that had formed behind Owens and began to shoot. Wheeler was hit in the chest and the leg. WTieeler and Faulkner turned and ran back to their car. Faulkner drove Wheeler to a hospital, where he was treated for his wounds.

Police investigation focused quickly on Maurice Owens and Anthony Coker as suspects. On August 13, 2002, both were picked up for questioning. Although they denied involvement in the crime, both were eventually arrested and charged with attempted first degree murder and attempted second degree murder. Coker was accused of being the shooter.

He went to trial first and was acquitted on all charges. Owens was accused of being the person who initiated the incident by accosting Faulkner and Wheeler. At Owens’ trial, the State relied on the testimony of Faulkner, Wfiieeler, and their two companions who were in the car during the incident — Clyde Adams and Maria Williams. All four testified similarly that Owens was the man who pulled out a gun and pointed it at Faulkner.

Adams and Williams could not hear the assailants and were not able to identify the shooter. But Faulkner and Wfiieeler identified Owens as the man who commanded them to lift their shirts and Coker as the person who shot Wheeler. For the defense, Coker testified that he had been tried and acquitted. He claimed that, although he heard the shots fired, he was just in the area that night and was not involved with the shooting in any way.

Despite his alleged absence and lack of involvement, he admitted telling the police that Owens had some involvement in the crime. At the end of the prosecution’s case-in-chief, defense counsel moved for a judgment of acquittal as to all charges: There has been no evidence whatsoever of any concert of action between the person who is alleged to be the shooter, Mr. Coker, and Mr. Owens, none. ⁹⁷ There has been no showing of any premeditation. There has been no showing of any existence of any discussions prior to this event, that he had any knowledge of the shooting. It’s two events that are connected in time somewhat and that is it.

There is no other connection and there is certainly no premeditation. The trial court concluded that there was sufficient evidence that Owens aided and abetted the shooting, but granted the motion with respect the attempted first degree murder charge: I’m going to grant the motion with regard to first degree murder because I think it’s stretching it too far — looking at the evidence most favorable to the State, he’s out there with ... friends or associates of his. I don’t know that he’s going to anticipate that the person who is behind him or next to him is going to shoot somebody. I think the premeditation is not there with regard to first degree.

With regard to the second degree, he knows, or by inference could know, that his friend had a gun and he shoots a guy because he’s slow. I think that is a stretch, but I think there is enough evidence looking at it in a light most favorable to the State. The following morning, Owens elected not to testify in his own defense. Defense counsel renewed the motion and the following occurred: [Defense Counsel]: ...

As to the argument on the motion for judgment of acquittal, in those counts where Mr. Owens is being prosecuted as an accessory [for] aiding and abetting. I move to dismiss both because of a lack of participation and because as [to] the principal in the first degree, he’s been acquitted. So, if no principal in the first degree has been tried, it wouldn’t make a difference. But in this case, the principal in the first degree was tried and was acquitted of the charges.

And if there is no principal in the first degree, how can you have somebody identify aiding and abetting. ⁹⁸ [The Court]: There is one. That person may not have been apprehended. [Defense Counsel]: Anthony Coker was indicted and prosecuted as a principal in the first degree. A jury does not return a verdict on the issues by saying we find him not guilty because he wasn’t the person. They merely found him not guilty generally.

There is no principal in the first degree in this case like there is no co-conspirator. (Emphasis added.) The trial court observed that “[tjhere is at least a case that talks about the subsequent acquittal of the alleged principal in the ... first degree — as not having any effect on a conviction of an accomplice^]” but questioned whether there is any Maryland case that “prohibits the conviction of Mr. Owens as an accessory to the fact.” The court then denied the defense motion, explaining: There may have been many reasons why Mr. Coker was acquitted. He may have been the shooter, he may not have been the shooter. Somebody else may have been the shooter.

But there was a shooter. So, the question, as I see it, is — and the State has the burden of proving guilt beyond a reasonable doubt — is Mr. Owens an accomplice to that shooter? (Emphasis added.) The jury concluded that he was. It found Owens guilty of attempted second degree murder, first degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and carrying a handgun.

Under the terms of a pre-trial stipulation, the court then found Owens guilty of possessing a regulated firearm after having been convicted of a felony. Owens challenges his convictions for attempted second degree murder, first degree assault, and handgun crimes, raising three issues for our review: I. Did the trial court err in submitting the charge of attempted second degree murder to the jury even though the person Owens was alleged to have aided and abetted had already been acquitted of the crime? ⁹⁹ II. Was the evidence legally insufficient to sustain Owens’ conviction for attempted second degree murder?

III

Did the trial court commit prejudicial error by limiting defense cross-examination of a prosecution witness who saw the shooting? We answer no to all three questions and affirm the convictions. DISCUSSION I. Effect Of Acquittal Of Alleged Principal In First Degree A. Criminal Responsibility Of Accomplices “Under Maryland law, one may commit an offense as either a principal in the first degree, or a principal in the second degree[.]” Evans v. State, 382 Md. 248 , 264 n. 11, 855 A.2d 291 (2004). A first degree principal is the actual perpetrator of the crime.

See Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure § 21.0 (1983 & Supp.1985); Md. Pattern Jury Instr.— Crim. 6:01 cmt (MPJI-Crim). “A second degree principal must be either actually or constructively present at the commission of a criminal offense and aid, counsel, command, or encourage the principal in the first degree in the commission of that offense.” State v. Raines, 326 Md. 582, 593 , 606 A.2d 265 , cert. denied, 506 U.S. 945 , 113 S.Ct. 390 , 121 L.Ed.2d 299 (1992). “The activity of a principal in the second degree is generally referred to as aiding and abetting, and the aider or abettor is usually called an accomplice.” MPJI-Crim. 6:01 cmt. (collecting authorities). There is no practical distinction between principals in the first and second degrees “insofar as indictment, conviction, and punishment is concerned.” Id.; Gilbert & Moylan, supra, § 21.1; see Cooley v. State, 157 Md.App. 101, 117 , 849 A.2d 1026 , cert. granted, 383 Md. 211 , 857 A.2d 1129 (2004). “An ¹⁰⁰ accomplice ... who knowingly, voluntarily, and with common interest with the principal offender, participates in the commission of a crime .... is a guilty participant, and in the eye of the law is equally culpable with the one who does the act.” Woods v. State, 315 Md. 591 , 615 n. 10, 556 A.2d 236 (1989); Grandison v. State, 305 Md. 685, 703-04 , 506 A.2d 580 (1986). See also Odum v. State, 156 Md.App. 184, 192 , 846 A.2d 445 (2004)(“A person may be guilty of a felony, as a principal in the second degree, by aiding, counseling, commanding, or encouraging, either actually or constructively, the commission of the felony in the person’s presence”).

B. Effect Of Prior Acquittal Of Alleged Principal In The First Degree Owens argues that “the trial court erred in submitting the charge of attempted second degree murder to the jury where the appellant was charged only as an aider and abetter and the person he was alleged to have aided and abetted was previously acquitted of the crime.” He posits that, “under current Maryland law a prior acquittal of a principal in the first degree will preclude the conviction of a principal in the second degree where the only theory advanced by the [Sjtate is one of aiding and abetting.” The State acknowledges that Owens was charged with attempted second degree murder for his role as a second degree principal. It argues that, even though Coker was acquitted of the same charges, there was ample evidence from which the jury could conclude that Owens aided and abetted whichever of his companions was the shooter. The Court of Appeals addressed the effect of a subsequent acquittal in Jeter v. State, 261 Md. 221, 223-24 , 274 A.2d 337 (1971). Jeter was convicted of premeditated murder based on his participation in a storehouse breaking during which one of his three accomplices shot and killed a security guard.

The Court of Appeals agreed with this Court’s conclusion that, even though a co-defendant who was accused of being the ¹⁰¹ “triggerman and principal in the first degree” had been acquitted of all homicide charges while Jeter’s appeal was pending, that post-trial development “had no effect on Jeter’s conviction.” See id. at 223 , 274 A.2d 337 . We explained why: Jeter alleges ... that Robinson, the actual killer according to this record, has been acquitted of murder, and claims he, Jeter, should also be acquitted. Although one cannot be convicted as an accessory after the fact until the principal has been convicted, the rule does not apply to a principal in the second degree, who is considered the same as a principal in the first degree for all practical purposes. Unfortunately, at times, an accused is improperly acquitted of a crime; sometimes due to the unavailability of important testimony or technical reasons which do not directly bear upon his actual guilt or innocence.

This is no reason to acquit a second person who is also guilty of the crime. Jeter v. State, 9 Md.App. 575, 582 , 267 A.2d 319 (1970) (citations omitted). The Court of Appeals affirmed our decision, stating that this “analysis of the applicable law ... is sound and in accordance with the almost unanimous opinion of the authorities as enunciated by the courts of other jurisdictions and the criminal law treatises.” Jeter, 261 Md. at 223-24 , 274 A.2d 387 (citations omitted). Thus, “the subsequent acquittal of a principal in the first degree does not affect the trial or conviction of a principal in the second degree.” Id. at 223, 274 A.2d 337 (emphasis added).

As both the defense and the State recognize, there is no reported Maryland precedent on the “flip side” question presented by this case — whether the prior acquittal of a first degree principal precludes conviction of a second degree principal. In other words, once an alleged first degree principal has been acquitted of the crime, can another person charged as a principal in the second degree be convicted for his role in aiding and abetting the commission of that crime? The clear answer given by other courts and treatise writers is “yes.” ¹⁰² At common law, a principal in the second degree could be tried and convicted before the trial and conviction of the principal in the first degree; he could even be tried and convicted after the trial and acquittal of the principal in the first degree. But, in order to convict the principal in the second degree for aiding and abetting, the commission of the prohibited act by the principal in the first degree had to be proved. 1 Charles E. Torcía, Wharton’s Criminal Law § 34 (15th ed. & database updated through Nov. 2004)(footnotes and citations omitted; emphasis added).

See also Wayne R. LaFave & Walter R. Scott, Criminal Law § 65, at 517 (West 1972)(“it is now generally accepted that an accomplice may be convicted notwithstanding the fact that the principal in the first degree has been acquitted or has not yet been tried”). Courts and commentators generally have agreed that the acquittal of the principal presents no impediment to the trial and conviction of a person charged with aiding and abetting the commission of the crime .... because one who aids or abets the commission of a crime is guilty as a principal of a substantive, independent offense. The proof must establish that the offense was committed by some one and that the person charged as an aider and abettor, aided and abetted in its commission. However, it is not necessary to identify the actual perpetrator of the crime.

He may be unknown. Von Patzoll v. United States, 163 F.2d 216, 219 (10th Cir.), cert. denied, 332 U.S. 809 , 68 S.Ct. 110 , 92 L.Ed. 386 (1947)(cited with approval in Jeter, 261 Md. at 224 , 274 A.2d 337 ). One of the cases cited by the Court of Appeals in Jeter in its “representative list of authorities” directly addresses the “pri- or acquittal” scenario presented by this case. See Jeter, 261 Md. at 224 , 274 A.2d 337 .

We find it instructive. In North Carolina v. Whitt, 113 N.C. 716 , 18 S.E. 715, 716 (1893), the Supreme Court of North Carolina held that the prior acquittal of an alleged shooter whom the defendant was ¹⁰³ charged with aiding and abetting did not bar the defendant’s conviction for second degree murder. In doing so, the court followed English precedent dating back three hundred years. Wallis’ Case, 1 Salk. 334, is an authority exactly in point.

He was tried at Old Bailey in 1703. The indictment was against A. for murder, and against Wallis and others as persons present aiding and abetting A. therein. A. was first tried, and acquitted. When Wallis was afterwards put on trial and convicted, Holt, C. J., determined that though the indictment be against the prisoner for aiding and assisting and abetting A., who was acquitted, yet the indictment and trial of that prisoner (Wallis) was well enough, for all are principals, and it is not material who actually did the murder.

Id. (emphasis added). The Supreme Court of the United States has applied this rule in federal criminal cases. See, e.g., Standefer v. United States, 447 U.S. 10, 16 , 100 S.Ct. 1999, 2004 , 64 L.Ed.2d 689 (1980)(discussing common law origin of federal rule that “in felony cases a principal in the second degree [can] be convicted notwithstanding the prior acquittal of the first-degree principal”).

The Model Penal Code also adopts this position. See Model Penal Code § 2.06(7)(2001)(aceomplice can be convicted “though the person claimed to have committed the offense ... has been acquitted”). Another case cited by Wharf,on’s Criminal Law illustrates why convicting a second degree principal should not depend on whether a first degree principal is ever convicted. In United States v. Caplan, 123 F.Supp. 862 (D.Pa.1954), vacated on other grounds, 222 F.2d 875 (3d Cir.1955), the defendant was a bank customer who allegedly schemed with a bank officer to defraud the bank of $1.8 million.

The bank officer committed suicide before he was charged with any crime. The federal trial court recognized that conviction of the alleged first degree principal was not essential to the aiding and