Plummer v. State

THIEME, Judge. McCarthy Plummer, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of automobile manslaughter and related offenses. On appeal, he raises the following issues, which we shall slightly rephrase: 1. Was the evidence sufficient to sustain the appellant’s convictions for automobile manslaughter and reckless driving? 2.

Did the trial court err in instructing the jury that flight from the scene could show consciousness of guilt? 3. Did the trial court err in refusing the appellant’s request for a Bill of Particulars? Because w 7 e agree that the evidence was insufficient to sustain the appellant’s convictions for automobile manslaughter and ²⁴⁶ reckless driving, we reverse the judgment of the lower court. Accordingly, we need not reach the merits of the other issues raised on appeal.

I. BACKGROUND We shall save for that portion of our opinion dealing with the sufficiency of the evidence a detailed recounting of the facts in the instant case. For present purposes, suffice it to say that the appellant was charged by indictment with manslaughter by vehicle, failure to remain at the scene of an accident, failure to give information and render aid, and failure to control speed to avoid a collision. In July of 1996 the appellant was tried before a jury for the foregoing offenses, but a hung jury resulted. Thereafter, the appellant was retried for all offenses except failure to control speed to avoid a collision. 1 The second trial took place from 18 January through 15 January 1997.

At the conclusion of the retrial, the appellant was found guilty on all counts, as well as reckless driving and negligent driving. Subsequently, the appellant was sentenced to six years incarceration with four years suspended for the automobile manslaughter conviction, one year consecutive for failure to remain at the scene of an accident, and was placed on unsupervised probation for five years. The remaining conviction was merged. This timely appeal followed.

II

SUFFICIENCY OF THE EVIDENCE A. The Facts The appellant first complains that the evidence was insufficient to sustain his convictions of automobile manslaugh ²⁴⁷ ter and reckless driving. Because automobile manslaughter necessarily incorporates the lesser included offense of reckless driving, see Pineta v. State, 98 Md.App. 614, 622 , 634 A.2d 982 (1993), we shall first discuss whether the evidence was, in fact, legally sufficient to support his conviction of automobile manslaughter. The evidence at trial established the following facts. On 22 December 1995 at approximately 2:30 p.m., twelve-year-old Brooke Williams (“the victim”) was proceeding home from school on a sidewalk parallel to Piney Branch Road in Takoma Park.

The configuration of the area was described at trial as a highway running north and south, with one lane in each direction and a common median lane marked by yellow lines. On the right side of the roadway is a white shoulder line; approximately eight feet separated the shoulder line from the beginning of the curb. The curb, referred to as a “quarter rim,” was, instead of a concrete curb perpendicular to the roadway, more of a gradual slope made of asphalt approximately three inches in height. While walking with several of her friends, the victim was struck from behind by the appellant’s vehicle.

From the force of the collision the victim was propelled backward, struck the hood of the appellant’s vehicle, and was thrown to the street where she lay unconscious and dying. The victim’s friends immediately began calling for help, and moments later various adults arrived to administer aid. Charles Hawkins, the only eyewitness to the events immediately prior to and following the accident, was the driver of the vehicle directly behind the appellant’s vehicle at the time of the accident. Mr. Hawkins estimated the speed of his vehicle, as well as the appellant’s, as “[bjetween 25 and 35 miles per hour” in a 30-mile~per-hour zone.

When questioned on direct examination, Mr. Hawkins further illuminated the events of that afternoon: Q: Now did there come a time when you noticed something specifically about this vehicle that alarmed you? ²⁴⁸ A: I notice[d] the vehicle starting to drift to the right side of the road. He * • He He He He Q: Now when you saw the vehicle start to drift to the right, did you do anything? A: I started blowing my horn and I figured — it was kind of cold during this time of year so I figured his windows were up and my windows were up. I kept blowing the horn and didn’t get a response or anything so I started flashing my high beams to try to get his attention.

Q: And did the driver of the vehicle have any reaction to what you did? A: No. There was none until after the accident. Q: Now did you see anyone on the sidewalk as you were flashing your beams and blowing your horn? A: Yes____ School must have just let out because there were kids walking up and down Piney Branch and probably about 20 to 25 feet in front of us there was a group of kids there, about three or four, off to the right, in the direction that the car was headed.

Hi Hs H* Hs Hi * Q: And what did you see after — after you blew your horn, what happened after that? A: I blew my horn and flashed my lights and in a matter of seconds the burgundy car struck one of the little girls that were there and also you could see — it was almost as if the girls were holding hands because you could see one girl’s hand go up in the air as the other one went up and over the top of the car. Mr. Hawkins further confirmed that all of the children, including the victim, were on the sidewalk at the time of the accident, and that, accordingly, the appellant’s vehicle was on the sidewalk when it struck the victim. When asked if he noticed anything unusual about the appellant’s car just before it struck the victim, Mr. Hawkins replied, ²⁴⁹ “Not other than the car just drifting.

That was it.” Mr. Hawkins also observed that the appellant’s vehicle had actually decreased in speed when it began to approach the school area. Immediately after the accident, the appellant made a U-turn on Piney Branch Road so that the appellant’s car and Mr. Hawkins’s car were alongside one another. At that point, Mr. Hawkins testified: I put my window down and told him — I said [“]you just hit the little girl back there[”]---- He said [“]I’m going back[”] and pointed in the direction back towards [where] the accident had happened. Despite the appellant’s assertions that he was going to return to the scene, Mr. Hawkins observed that the appellant “[j]ust sped up and kept going.” Mr. Hawkins had in the meantime called 911, and because he had followed the appellant for a short distance he was able to provide police with the appellant’s license plate number before stopping alongside the road and waiting for the police to arrive.

On cross-examination, Mr. Hawkins confirmed the previous facts. He further noted that by the time his and the appellant’s vehicles had made the U-Turns and passed the accident scene several cars had stopped to render assistance and various adults had arrived at the scene: Q: So it wasn’t a situation where the child was simply left out on the roadway. There were actually people there to start to do whatever could be done under the circumstances. A: Yes. * * * * Hs Q: And you have already indicated that the whole process of the vehicle starting to drift, from the time that it started to drift until it struck the child was just a matter of seconds?

A: Yes. Q: A very quick thing? ²⁵⁰ A: Yes. Also called as witnesses for the State were various students who were walking home along the same sidewalk that the victim had been using. The students gave their accounts of the impact.

They were unable to observe the appellant’s vehicle prior to the accident, however, because they were walking away from the vehicle, and hence, their backs were turned toward the vehicle. The student witnesses confirmed, however, that at no time did the vehicle that struck the victim stop or render any assistance. Officer Brian Rich of the Prince George’s County Police Department arrived at the scene approximately two hours after the accident. On investigating the license plate number provided by Mr. Hawkins, Officer Rich was able to locate the appellant’s vehicle that same evening in a residential area of the District of Columbia.

The vehicle had damage to the hood and the front end, and arrangements were made for it to be impounded for further investigation. Three days later, at 3:30 a.m. on Christmas morning, the appellant turned himself in at the Oxon Hill Police Department. On arrival at the station the appellant informed the police, “I think I am involved in an accident where a 12-year-old girl was killed on Piney Branch Road.” During the booking process, the appellant commented at least two times that he wished he were dead, said that he felt like dying, and made other remarks of the same nature. Various other police officers, who were assigned the task of reconstructing the accident at trial, also testified.

From their testimony it was established that at the time of the collision the appellant’s vehicle was traveling at between 33 to 37 miles per hour. Accounting for a margin of error, one officer admitted that the appellant’s speed could have been as low as 31 miles per hour at the time of the accident. In fact, the State conceded to the jury in its opening argument that “this case ... is not about high speed.” ²⁵¹ At the close of the State’s case-in-chief, the appellant made a Motion for Judgment of Acquittal, arguing insufficiency of the evidence. Specifically, defense counsel commented: [W]ith the evidence at this juncture we have a case I think that is unlike any case in which vehicular homicide has ever been sustained on appeal in Maryland.

This is a civil negligence case. This is perhaps a negligence case for negligent driving, failure to exercise care and prudence in the operation of a motor vehicle. However, how could it possibly be evidence of gross negligence? Although noting the difficulty presented by the facts in the instant case, the trial court ultimately denied the appellant’s motion.

After electing to call no witnesses on its behalf, the defense rested and the case was submitted to the jury. B. Standard of Review When presented with a claim of insufficiency of the evidence on appeal, the reviewing court is not to “ask itself whether it believes the evidence at the trial established guilt beyond a reasonable doubt”; rather, the duty of an appellate court is only to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979)) (emphasis in original); Oken v. State, 327 Md. 628, 661 , 612 A.2d 258 (1992); Goldring v. State, 103 Md.App. 728, 732 , 654 A.2d 939 (1995). The evidence must be viewed in a light most favorable to the State, “giving due regard to the trial court’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” ²⁵² Albrecht, supra, at 478 , 649 A.2d 336 ; State v. Raines, 326 Md. 582, 589 , 606 A.2d 265 , cert. denied, 506 U.S. 945 , 113 S.Ct. 390 , 121 L.Ed.2d 299 (1992). With regard to the specific offense at hand, manslaughter by automobile is set forth in section 388 of article 27.

It provides, in pertinent part: Every person causing the death of another as the result of the driving, operation or control of an automobile ... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as “manslaughter by automobile ...,” and the person so convicted shall be sentenced to jail for not more than 10 years, or be fined not more than $5,000 or be both fined and imprisoned. Md.Ann.Code, art. 27 § 388 (1996 Repl. Vol). 2 The common law standard of “gross negligence” has been adopted in cases of automobile manslaughter as the minimum requirement for a conviction. Faulcon v. State, 211 Md. 249, 257 , 126 A.2d 858 (1956); State v. Gibson, 4 Md.App. 236, 242-43 , 242 A.2d 575 (1968), aff'd, 254 Md. 399 , 254 A.2d 691 (1969).

Gross negligence in this context has been defined as “a wanton or reckless disregard for human life.” Kramer, supra, at 580, 569 A.2d 674 ; Pineta v. State, 98 Md.App. at 622 , 634 A.2d 982 . In Kramer, the Court of Appeals quoted with approval the language in its earlier opinion of Duren v. State, 203 Md. 584 , 102 A.2d 277 (1954), in which Judge Hammond further explained the concept of gross negligence: Obviously, what must be looked for in each case is whether, by reason of the speed in the environment, there was a lessening of control of the vehicle to the point where such a ²⁵³ lack of effective control is likely at any moment to bring harm to another. If there is found such lack of control, whether by reason of speed or otherwise, in a place and at a time when there is constant potentiality of injury as a result, there can be found a wanton and reckless disregard of the rights and lives of others and so, criminal indifference to consequences. Id. at 592 , 102 A.2d 277 (internal citation omitted).

In sum, Judge Orth, writing for the Court of Appeals in State v. Kramer, 318 Md. 576, 590 , 569 A.2d 674 (1990), explained the modicum of proof necessary to sustain a conviction for manslaughter by motor vehicle: In each case, as a matter of law, the evidence must be sufficient beyond a reasonable doubt to establish that the defendant was grossly negligent, that is, he had a wanton or reckless disregard for human life in the operation of an automobile. It deals with the state of mind of the defendant driver. Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind. Simple negligence will not be sufficient — even reckless driving may not be enough.

Reckless driving may be a strong indication, but unless it is of extraordinary or outrageous character, it will ordinarily not be sufficient. See also Nast v. Lockett, 312 Md. 343, 351 , 539 A.2d 1113 (1988). The reversal of any conviction due to an insufficiency of the evidence carries with it a heavy burden. Indeed, it was not until fairly recently in Maryland’s jurisprudence that an appellate court of this State even had the power to review a conviction for sufficiency of the evidence.

See Gray v. State, 254 Md. 385, 387 , 255 A.2d 5 (1969), cert. denied, 397 U.S. 944 , 90 S.Ct. 961 , 25 L.Ed.2d 126 (1970) (In 1950, section 5 of Article XV of the Maryland Constitution was amended so that, “although the jury remained the judge of the law as well as the fact, ‘the Court may pass upon the sufficiency of the evidence to sustain a conviction.’ ”). The only remedy on appeal is a reversal; no retrial may be had, regardless of how ²⁵⁴ egregious the offense alleged or how harsh the consequence of literally allowing the accused to go free. In re Petition for Writ of Prohibition, 312 Md. 280, 313 , 539 A.2d 664 (1988) (“[I]nsufficiency of the evidence is today a singularly inappropriate basis for ordering a new trial, because if the evidence was insufficient to go to the jury in the first place, double jeopardy principles preclude a new trial.”). 3 Nevertheless, both this Court and the Court of Appeals have on more than one occasion found such a reversal necessary when, even by viewing all evidence in the light most favorable to the State, no rational trier of fact could have found guilt beyond a reasonable doubt. Regrettably, we are presented with such a situation here.

There is little doubt in our minds that the actions of the appellant on 22 December 1995 were reprehensible, immoral, and callous. We can think of many other terms to describe the appellant for being directly responsible for the death of a twelve-year-old girl as she strolled home from school to enjoy the beginning of her Christmas vacation, a Christmas that she would never celebrate. “Murderer,” however, is not one of those terms. 4 We explain why. ²⁵⁵ c. The Law in Maryland Before returning to the facts in the instant case, it first behooves us to take a closer look at those cases in which automobile manslaughter convictions were challenged based on an insufficiency of the evidence. After examining those cases, we will be better able to determine what exactly constitutes the requisite mental state of gross negligence to support a conviction.

It is only after carefully studying the foundation that has been laid before us that the rationale underlying our inevitable holding will become clear. 1. Conviction for Automobile Manslaughter Affirmed We begin our case analysis in Maryland with our decision in Boyd v. State, 22 Md.App. 539 , 323 A.2d 684 (1974). We choose to use Boyd as our starting point because of Judge Moore’s succinct and thorough evaluation of what factors are properly considered when determining the sufficiency of the evidence for a charge of automobile manslaughter. In that case, Boyd struck and killed two teenage pedestrians who were crossing a street and who were, at the time of the collision, in the curb lane of the road.

The accident occurred at 3:10 a.m. in a residential area of Baltimore City. At the time of the collision, Boyd was heading home after having been bowling with his brother, the passenger in his vehicle. Witnesses estimated Boyd’s vehicle to be traveling at a high rate of speed in a zone posted 30 miles per hour. Various witnesses testified that immediately prior to the collision Boyd’s vehicle had been observed swerving between lanes.

From the force of the collision, the victims’ bodies were propelled some 56 feet and 126 feet, respectively, from the point of impact. After striking the teenagers, Boyd continued on in his vehicle without stopping to render any assistance. He returned to the scene approximately thirty minutes later and informed the police that he was the driver who hit the teenagers. 22 Md.App. at 540-44 , 323 A.2d 684 . ²⁵⁶ In addressing Boyd’s claim of insufficiency of the evidence, we explained: The factors properly discerned by the trial judge from the decided cases as directly relevant to the issue of guilt or innocence in a manslaughter by automobile case included: (a) drinking ...; (b) failure to keep a proper lookout and to maintain proper control of the vehicle; (c) excessive speed “under the circumstances;” (d) flight from the scene without any effort to ascertain the extent of the injuries; (e) the nature and force of impact; (f) unusual or erratic driving prior to impact; (g) the presence or absence of skid marks or brush marks; (h) the nature of the injuries and the damage involved to the vehicle or vehicles; (i) the nature of the neighborhood, the environment where the accident took place. 22 Md.App. at 550-51 , 323 A.2d 684 (emphasis by trial judge). Based on those factors, we held in that case that Boyd’s excessive speed, erratic driving, failure to keep a proper lookout, and flight, as well as the nature and force of impact and the area where the accident occurred, all provided the trier of fact with more than sufficient evidence to convict Boyd of manslaughter by automobile.

Id. at 551-53 , 323 A.2d 684 . Accordingly, our decision in Boyd and the nine factors enunciated in subsequent cases have served as guidance for future cases in determining what is properly taken into consideration when determining if, in fact, an automobile manslaughter conviction can stand. Recently, this Court has been faced with convictions for automobile manslaughter based on situations in which drivers elected to engage in the all-too-dangerous drag race. In fact, the most recent reported case in which a conviction for automobile manslaughter was affirmed based on sufficiency grounds deals with such a situation.

Goldring v. State, supra. In that case, Goldring had spent the earlier part of the day of the fatal collision drag racing at the Maryland International Raceway in St. Mary’s County. The race track closed before Goldring and another friend, Hall, had an opportunity to race each other. The two decided, therefore, that they would race ²⁵⁷ on a public road that had two lanes.

Accordingly, a portion of the road was marked off, a flagman was appointed, and some 50 to 75 bystanders gathered to watch. The race began, and at some point prior to its completion Hall’s vehicle struck Goldring’s vehicle and spun out of control. Both vehicles were traveling at speeds of over 100 miles per hour on a road with a posted speed of 45 miles per hour. Hall’s vehicle spun airborne out of control, struck two parked vehicles, and killed two bystanders.

Hall himself was also killed in the collision. 103 Md.App. at 730-31 , 654 A.2d 939 . On appeal, Goldring argued the evidence was insufficient to sustain his conviction for automobile manslaughter because (1) both vehicles had previously undergone safety checks at the racetrack, (2) the race had occurred on a pre-measured and marked off stretch of a county road, and (3) the bystanders, because of their willing participation in watching the race, “like the racers, did not think that their participation demonstrated a wanton and reckless disregard of their own lives.” 103 Md.App. at 732 , 654 A.2d 939 . This Court, however, had little difficulty finding ample evidence to sustain Goldring’s conviction. Judge Salmon, writing for this Court, pointed out that the speed of the vehicles, the configuration of the road, 5 the lack of proper registration of either vehicle, 6 as well as the drag race itself, constituted more than enough evidence for a fact-finder to have convicted the appellant.

As in Goldring , this Court was once again presented with a case of drag racing gone deadly in Pineta v. State, supra. ²⁵⁸ And, as previously, the evidence was held sufficient to sustain Pineta’s conviction for automobile manslaughter. Pineta and another individual decided to race one night. Beginning at an intersection of a road that was three lanes wide in each direction, the two drivers “revved” their engines and began to race one another, reaching speeds of between at least 60 to 70 miles per hour in an area with a posted speed limit of between 35 and 45 miles per hour. The other vehicle involved in the race, however, lost control while attempting to negotiate a left turn and struck an oncoming vehicle.

Both occupants of the oncoming vehicle were killed. 98 Md.App. at 618-19 , 634 A.2d 982 . This Court pointed to the excessive speed of the vehicles, as well as the initiative to drag race, as evidence that “the victims’ deaths were the direct consequence of gross negligence on the part of both [drivers].” 98 Md.App. at 626 , 634 A.2d 982 . 7 Other instances of erratic driving or failure to obey simple traffic laws enacted for the safety of all on public roads have sustained convictions for automobile manslaughter. One such instance occurs when a vehicle fails to stop for a red light or stop sign. In Taylor v. State, 83 Md.App. 399 , 574 A.2d 928 (1990), for example, Taylor’s conviction was affirmed where the evidence showed that he was driving on a highway at a high rate of speed, he was weaving to pass other vehicles, and he failed either to slow down or to stop for a red light at an intersection, thus colliding with another vehicle and killing the driver of that vehicle. 83 Md.App. at 400, 404 , 574 A.2d 928 .

Similarly, this Court in Tefke v. State, 6 Md.App. 139 , 250 A.2d 299 (1969), was presented with a situation in which Tefke was driving his vehicle in Baltimore City at speeds of between 50 and 55 miles per hour in a 30 mile per hour zone when he, without slowing down, proceeded through a red light at an intersection and struck a vehicle crossing the intersection. 6 ²⁵⁹ Md.App. at 142-44, 250 A.2d 299 . This Court noted that the excessive speed, the failure to stop for a red light, the absence of skid marks, and Tefke’s own admission that he had been drinking prior to the collision served as sufficient evidence of guilt. Id. at 147-48, 250 A.2d 299 . Pierce v. State, 227 Md. 221 , 175 A.2d 743 (1961), also involved a situation in which Pierce failed to stop at a stop sign at a “T” intersection before attempting to make a right angle turn.

Because Pierce’s vehicle was proceeding at a speed of between 90 and 100 miles per hour, he lost complete control, and the vehicle proceeded through the intersection, through a steel guard rail, and down a ravine until his vehicle was stopped only by a tree some 80 feet from the roadway. The passenger in Pierce’s vehicle was killed as a result of the collision. 227 Md. at 224 , 175 A.2d 743 . Pierce also admitted to having consumed six to eight bottles of beer during the three hours prior to the accident, and an officer found a half pint of gin in the vehicle. Although Pierce subsequently denied that he was the operator of the vehicle and instead maintained that the deceased had been the operator, the court found sufficient circumstantial evidence that Pierce was, in fact, behind the wheel and accordingly affirmed the lower court’s conviction.

Id. at 226-27 , 175 A.2d 743 . The Court of Appeals was again confronted with such a “failure to stop” case in Lilly v. State, 212 Md. 436 , 129 A.2d 839 (1957). In that case, Lilly’s car collided with a bus at an