Pope v. State

Lowe, J., delivered the opinion of the Court. Having sinned by silence when the circumstances cried out for her to protest a mother’s prolonged and inhumane treatment of a three-month-old child, the appellant, Joyce Lillian Pope, was convicted in the Circuit Court for Montgomery County of child abuse and misprision of felony. Although we find that the record contained insufficient evidence upon which the child abuse conviction can be sustained, there is ample to sustain the misprision conviction. That, in itself, may be a cause for concern to the contemporarily indifferent or the uninvolved sophisticates, who deny being their brothers’ keepers. 1 Most lawyers know, if only vaguely from law school recollection that misprision of felony is the concealment and/or nondisclosure of the known felony of another.

Perkins, Criminal Law 512, et seq. (2nd ed.). The crime has ⁵²² never been recognized in the appellate courts of Maryland however, and we are confronted here with the question of whether it is an indictable offense in this State. Since there is no statute here so proclaiming, we must look to the Common Law of England or her statutes as they existed on July 4, 1776, for that is the law to which the inhabitants of Maryland are entitled.

Md. Const., Art. 5, Deck of Rights. Recognizing that it is generally a foolish thing to make a long prologue and be short in the story itself, because of appellant's denial of the existence of such an offense, we must overlook that Apocryphal admonition. The Prologue "... it is plain that there is and always has been an offense of misprision of felony and that it is not obsolete.” H. L. Sykes v. Director of Public Prosecutions, 3 All E.R. 33, 40. Whether particular parts of the common law are applicable to our local circumstances is a question for our courts to decide.

Gilbert v. Findlay College, 195 Md. 508, 513 ; State v. Buchanan, 5 H & J 317. Such discretionary power to reject acknowledged common law concepts may exist in appellate courts, e.g., Holland v. State, 302 So. 2d 806 (Fla. App. 1974), however, as an appellate court with less than final jurisdiction we seldom analyze the philosophical appropriateness 2 of clear concepts of common law to present-day social conditions, Hans v. Franklin Square Hosp., 29 Md. App. 329, 335 , cert. denied, 276 Md. 744 , and never address such questions raised in the abstract. The primary question asked in this case is whether misprision of felony is “an indictable offense under the constitution and laws of this State.” The argument raises the questions of whether that crime was one recognized under the Common Law of England when Maryland adopted that body of law, and if so, has the crime since been abandoned for obsolescence by its apparent non-use here.

See State v. ⁵²³ Magliano, 7 Md. App. 286,293 . There is no argument made that this crime which is in the nature of a criminal cover-up is “inconsistent with the spirit of the Constitution and the nature of our political institutions”, see Gilbert v. Findlay College, supra, at 513, or that it is: “ . . . inconsistent with or repugnant to the spirit and nrinciples of republican institutions, whose strength lies in the virtue and integrity of the citizen to correct the morals and protect the reputation, rights, and property of individuals, . . . .” Price v. Hitaffer, 164 Md. 505, 510 . Appellant contends only that if viable in 1776 and thus adopted by Md. Const., Art. V, it has since atrophied to obsolescence by disuse. Our prologuizing then, is restricted to determining whether misprision of felony was an offense known to the common law and subject to adoption by Art. 5 of the Declaration of Rights, since the facts here are inimical to a philosophical rejection of the crime for want of substantial justice in the case.

If misprision is to be declared in the abstract philosophically repugnant to contemporary life, we leave that policy consideration for the Legislature, which may abrogate it by statute, or to the Court of Appeals which may change the common law when that law has become unsound in the circumstances of modem \if. Hearst Corp. v. St. Dep’t of A.& T., 269 Md. 625, 643-644 . It will suffice in this case simply to determine if misprision was a crime under the common law of England when we adopted it as our own in 1776 and leave whether it “should be” a crime for a more appropriate policy determination. With that in mind, we necessarily look to England, the fountainhead of the common law.

Fortune smiles upon our search. In 1061, the House of Lords was faced in H. L. Sykes v. Director of Public Prosecutions, supra, with the question of whether misprision of felony was an offense known to the law. Their answer: “My Lords, it has been an offence for the last seven hundred years or more, not always under the name ⁵²⁴ ‘misprision of felony’, but still an offence. Ever since the days of hue and cry, it has been the duty of a man who knows that a felony has been committed to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice.” Id. at 36-37.

In an opinion classic for its scholarship and commendable for its interest, Lord Denning relied upon jurisprudential forbears that strike awe into the heart of a legal scholar. Sir William Staundford, summarizing a precedent from two cases, one decided in 1315 and the other in 1457, in Plees Del Corone, said: “ ‘If anyone happens to be present, when another is killed, or when a felony is committed, and did not come there in the company of the felons, nor was part of their confederacy, but nevertheless did not intervene, or disturb the felons, or raise hue and cry, he is not on that account to be held a principal or accessory, for it is not a felony in him but only an offence for which he can be fined like trespass’ ” Sykes, supra, 3 All E.R. at 37. Lord Coke, in 1628, spoke upon the subject in his 3rd Institute p. Í39: “ ‘Now are we to speak of concealement or not discovery of felony. As in case of high treason, whether the treason be by the common law, or statute, the concealment of it is misprision of treason.

So in case of felony, whether the felony be by the common law, or by statute, the concealement of it is misprision of felony... And as the concealment of high treason is higher by many degrees then the concealment of felony, so the punishment for the concealment of the greater is heavier then of the lesser, and yet the concealment of felonies in sherifs, or bailifs of liberties is more severely punished then in others, viz. by imprisonment by one year, and ransome at the will ⁵²⁵ of the King. [This is clearly a reference to the Statute of Westminster, 1275, c. 9, and shows that COKE too had in mind the ‘hue and cry’ cases.] From which punishment if any will save himself he must follow the advice of BRACTON, to discover it to the King, or to some judge or magistrate, that for administration of justice supplieth his place, with all speed that he can ... And this is intended of a concealment, or not discovery [that is, non-disclosure] of his meer knowledge: for if in case of high treason, he that knoweth it, before it be done, and assenteth to it, is particeps criminis, and guilty of treason: and in case of felony, he that receiveth the thief, and assenteth to it, is accessory.’ ” Sykes, supra, 311 E.R. at 38-39. Chief Justice, Sir Matthew Hale, in 1670 added to this in his Pleas of the Crown, Vol. 1, p. 374: “ ‘By what hath been said touching misprision of treason we may easily collect what is the crime of misprision of felony, namely, that it is the concealing of a felony which a man knows, but never consented to, for if he consented, he is either principal or accessary in the felony, and consequently guilty of misprision of felony and more.’ ” Sykes, supra, 311 E.R. at 39.

Recalling, perhaps, that the Titans of Greek mythology unsuccessfully stacked only three mountains in their attempt to reach Heaven, Lord Denning piled on a fourth to assure attainment of his goal. Sir William Blackstone in the fourth book of his Commentaries combined the statements of Lord Coke and Sir Matthew Hale in his authoritative recognition of the crime: “ ‘Misprision of felony is also the concealment of a felony which a man knows, but never assented to; for, if he assented, this makes him either principal, or accessory. And the punishment of this, in a public officer, by the statute Westm. 1. 3 Edw. I. c. 9. is ⁵²⁶ imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king’s pleasure...’” Sykes, supra, 3 All E.R. at 39.

Nearly every author of any note from that day to this has followed these great names, and has said there is an offense of misprision of felony and described it in much the same terms 3 Sykes, supra, at 39. As explained interrogatorily by Lord Denning, “What need we of any further authority? If STÁUNDFORD, COKE, HALE AND BLACKSTONE all say there is such an offence as misprision of felony, are we to say the contrary?” Indeed, the United States has statutorily enacted such a crime in language not dissimilar to that describing the common law crime: “Misprision of felony. — Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.” 18 USC § 4 , and several states through the statutory inclusion of the common law of England have recognized the common law offense, State v. Flynn, 100 R. I. 520, 217 A. 2d 432 ; State v. Biddle, 2 W.W.Harr. 401 , 124 A. 804 ; State v. Wilson, 80 Vt. 249 , 67 A. 533 ; Commonwealth v. Lopes, 318 Mass. 453 , 61 N.E.2d 849 . But see Holland, supra; Lefkovitz, supra, and State v. Young, 7 Ohio App. 2d 194 , 220 N.E.2d 146 (Ohio has no common law crimes), where the doctrine is rejected outright.

Furthermore, language in our own Court of Appeals indicating that an agreement to prevent the apprehension of ⁵²⁷ a criminal would be illegal in Maryland, provides some philosophical direction concordant with the philosophy of misprision of felony. See Schirm v. Wieman, 103 Md. 541 . See also Jackson v. State, 10 Md. App. 337, 339 , cert. denied, 260 Md. 721 , where this Court acknowledges the crime of misprision of felony. “In the light of this history, it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete.” Sykes, supra, 3 All E.R. at 40. We hold, therefore, that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights.

The contention that it has become obsolete or abandoned by disuse, is without merit. See State v. Buchanan, supra, 5 H & J at 359. A dearth of appellate cases is not proof that the crime has not been charged at trial level. Indeed, assuming disuse, we know of no limitations period placed upon the use of the common law.

In Jones v. Harris, 35 Md. App. 556 , this Court, and in Harris v. Jones, 281 Md. 560 (1977), the Court of Appeals, recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use. Abandonment and laches do not apply to common law concepts. “My Lords, it was said that this offence is out of date. I do not think so. The arm of the law would be too short if it was powerless to reach those who are ‘contact’ men for thieves or assist them to gather in the fruits of their crime; or those who indulge in gang warfare and refuse to help in its suppression.

There is no other offence of which such persons are guilty save that of misprision of felony. I am not dismayed by the suggestion that the offence of misprision is impossibly wide; for I think it is subject to just limitations. Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a ⁵²⁸ felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential.

Likewise with doctor and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student.

But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported. In 1315, it was held that it was the duty of a brother to raise hue and cry against his brother and he was fined for not doing so; see 24 Selden Society, pp. 144, 145: and in 1938 a mistress was found guilty of misprision for shielding her lover (Mrs. Casserley’s case (21)). The judges have not been called on further to define the just, limitations to misprision, but I do not doubt their ability to do so, if called on." Sykes, supra, 3 All E.R. at 42. Because appellant questions the sufficiency of the evidence to convict of misprision of felony (as well as of child abuse), we must touch upon the elements of the crime prerequisite to conviction.

Sykes, supra, acknowledges only two necessary elements; knowledge and concealment. We agree with that general appraisal; however, there are nuances of each element wherein some would depart from the English view. Knowledge. The accused must know that a felony has been committed by someone else.

This knowledge is provable as in other criminal cases, i.e., by asking whether a reasonable man with the same facts and information before him would have known that a crime had been committed. If the answer is in the affirmative and the serious crime a felony, the proof of knowledge is sufficient. ⁵²⁹ Concealment. The accused must have concealed or kept secret his knowledge. Evidence must show that he failed or refused to perform his duty when there was a reasonable opportunity available to him to disclose to proper authorities all material facts known to him relative to the offense — except when the Fifth Amendment eliminates the duty to disclose such information.

Cf. United States v. Daddano, 432 F. 2d 1119 , cert. denied, 402 U. S. 905 ; United States v. Pigott, 453 F. 2d 419 . When and whether there was a “reasonable opportunity available” to the accused to disclose (which determines the time element of when the duty becomes manifest) are factual issues for determination by the factfinder. The lack of reasonable opportunity to disclose is or may be a valid defense because, while it is implicit that the duty arises at the first opportunity, that opportunity must be apparent and without risk of harm to the accused.

No penalty is to be imposed for a failure to accomplish the impossible. In Sykes there was at issue the question whether the concealment ingredient required some active conduct, and it was held that in England misprision requires nothing active. The failure or refusal to disclose the felony is enough. But in America we are faced with strong dicta from a civil case opinion written by a former Chief Justice of the United States in Marbury v. Brooks, 20 U. S. 556, 575 , to the effect that mere silence is insufficient to sustain an indictment. “It may be the the [sic] duty of a citizen to accuse every offender, and proclaim every offense which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man.” Under the federal misprision statute, 18 USC § 4 , in six jurisdictions the conjunctive terms have been held to mean that both the act of concealment of a felony and the omission to make it known must be proved to support a federal statutory conviction.

Shannonhouse, Misprision of a Federal Felony, 4 Balto. Law Rev. 59, 69-70. In both Vermont (Wilson, ⁵³⁰ supra) and Massachusetts ( Lopes, supra), the element of “evil motive” or mens rea has been added in lieu of active conduct. See also 1 Bishop, Criminal Law § 721 (a) (9th ed. 1923). 3A Since Maryland has never met these tangential questions, it would seem that we must adhere to the common law of England as it was in 1776, as set forth in Art. 5 of the Declaration of Rights, rather than judicially legislate that for which we have no authority.

We are told by the House of Lords that: “ ... misprision requires nothing active. The failure or refusal to disclose the felony is enough.” Sykes, supra, 3 All E. R. at 41. While we are not bound by current opinions of the House of Lords, its view of what comprised the elements of its common law prior to 1776 is hard to gainsay. If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say.

The issue was not raised in the case before us in any event, perhaps because the facts implicitly indicated an active concealment. Mrs. Pope’s failure to respond fully when questioned by the police on the cause of the child’s death was almost as active a concealment of the truth as was the denial of Jesus by the Apostle Simon-Peter. The Story Following a Friday evening service at the Christian Tabernacle Church, the appellant, Joyce Lillian Pope, agreed to permit Melissa Norris and her 3-month-old child, Demiko, to stay at appellant’s home. During that evening and the following morning appellant assisted Melissa with the child by assuming some of the maternal functions such as preparing its bed (in a dresser drawer), changing the child and feeding him.

Melissa’s conduct that evening and the following day ⁵³¹ sporadically indicated some sort of mental distress. She would at times seem caught up in a religious frenzy with a wild look about her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions. This changing back and forth continued throughout the following day, Saturday, even during a “shower” party that evening attended by the mother, the child and the appellant.

Because of this strange conduct, appellant admitted some concern for the child’s safety and watched it “like it was [her] own”, prevailing upon Melissa to let the child sleep in a dresser drawer, rather than in bed with the mother, as Melissa had suggested, because she feared the mother might roll over on the child during the night. The following morning Melissa’s episodes of “changing to God” became more and more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of appellant’s son, and fearful that by breaking in Melissa would frighten him, appellant unfastened the door to permit entry.

Loudly exhorting Satan to leave the premises, Melissa “annotated” appellant’s son with oil, placing some of the oil in this child’s mouth. She subsequently repeated the process with appellant’s daughter. When dressed, appellant’s children left the house expeditiously, lingering only long enough to embrace their mother. Melissa’s changing process continued.

Finally, while still appearing to be herself, she prepared a water tub to bathe the baby. Then, from her suddenly changed voice and appearance, appellant knew Melissa had changed again to “God”. Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable.

In her religious frenzy of apparent exorcism, Melissa poked the child’s vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag. ⁵³² Appellant, Joyce Lillian Pope, watched but did nothing else during this entire episode. She neither participated in the abuse nor tried to prevent it. Whether from fear or fervor, her abstinent conduct manifested total indifference.

Her testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference. Her sister, Angela, came to the door as Melissa’s frenzy diminished, and was let in by appellant who tried to tell Angela what had happened — but couldn’t. Appellant, on advice from Angela, locked the door so that Angela’s children would stay in the yard with appellant’s. 4 Angela wrapped the dead or dying child in a towel, held the comatose body over her head and prayed. Although the record is not clear as to when, sometime during or soon after its ordeal, the child mercifully expired.

The three adults (appellant, her sister and Melissa) left with the child, destined ultimately for the church located in the District of Columbia. Angela drove to the home of Melissa’s grandfather, with whom Melissa had lived. According to the grandfather both appellant and Melissa were in a religious frenzy. “Q Who was saying that they were Jesus Christ at this point? A Melissa and Joyce Pope.

Q All right. And what happened then? A They just carried on and carried on. So Joyce ⁵³³ — I mean Joyce kept telling me there was a dead baby in the car, and for me to