Roary v. State

²²² GREENE, Judge. On August 1, 2003, Michael Roary (“Roary”) was convicted of second-degree felony-murder with first-degree assault as the underlying felony, involuntary manslaughter, first and second-degree assault, conspiracy, and transporting a handgun in a vehicle. His conviction is based upon the events of December 27, 2001, in which Roary and three friends chased the victim, Charles Banks, III, and then tripped, kicked, and dropped a boulder on his head twice. 1 Mr. Banks died ten months later as a result of injuries sustained during the beating. Roary presents the following questions for our review: 1.

Did the trial court err in ruling that first-degree assault is a viable underlying felony for common-law second-degree felony-murder, and in submitting that count to the jury? 2. Did the trial court err in its instructions to the jury? 3. Did the trial court consider impermissible criteria in imposing sentence? We hold that first-degree assault is a proper underlying felony to support a second-degree felony-murder conviction.

The assault for which Roary was found to have committed qualifies as a “dangerous to human life” felony pursuant to our holding in Fisher v. State, 367 Md. 218 , 786 A.2d 706 (2001), and, therefore, we decline to modify the common law of this State to adopt the so-called “merger” doctrine. Further, we hold that the trial court neither erred in its instructions to the jury nor considered impermissible criteria in imposing sentence. I. On December 27, 2001, Roary, his cousin Charles Peters, a.k.a. “Man,” and a friend, Charles Lucas, a.k.a. “Bootsey,” ²²³ were standing on a corner in Baltimore City when Bootsey mistakenly identified Mr. Banks as someone who recently robbed him. Bootsey said he was going to get a gun and Man said he would “handle” it.

When the victim left his mother’s house across the street, Man chased him around a car, firing several shots at him. Mr. Banks fled with the three men chasing him. The fourth co-conspirator, Randolph Sheppard, a.k.a. “Ink,” was standing nearby on Smithson Street in an area known as “the bricks.” In response to a cry to stop Mr. Banks, Ink tripped and began kicking and punching Mr. Banks. 2 Once they arrived at “the bricks,” Man, Bootsey, and Roary joined in the beating. At one point during the altercation, two of Roary’s co-conspirators dropped a two and one-half foot wide and 20-30 pound boulder on Mr. Banks’s head. 3 According to Roary’s first statement to police, Man produced the boulder “out of no where” and said to “watch out [sic] clear it out and then [he] mashed his head with the brick.” In a subsequent statement to police, Roary added that after Man dropped the boulder on Mr. Banks’s head, Bootsey picked it up and dropped it on him a second time.

Although Roary identified Man and Bootsey as the two who dropped the boulder on Mr. Banks’s head, an eye witness testified that it was Ink, not Bootsey, who actually dropped the boulder. Based on the briefs and trial transcript, the State appears to have adopted the witness’s account of who dropped the boulder. It is undisputed, however, that Roary’s participation in the actual beating was limited to kicking Mr. Banks in the leg. Following the attack, Roary and Bootsey recovered the gun used by Man while he was chasing the victim around the car. ²²⁴ After recovering the weapon, Roary and Bootsey were picked up in a car by the other two co-defendants and attempted to leave the area.

A police chase ensued, and all of the participants were subsequently apprehended. Ink and Man entered guilty pleas to second-degree murder and conspiracy to commit first-degree assault. They received 25 years with all but 15 years suspended. Bootsey’s trial was scheduled to begin after Roary’s. 4 Prior to Roary’s trial there were discussions between the State and Roary regarding his testifying against his co-conspirators.

When Roary learned that he would have to testify in open court, he refused to do so. A Baltimore City jury found Roary guilty of second-degree felony-murder in the course of a first-degree assault, involuntary manslaughter, first and second-degree assault, conspiracy, and transporting a handgun in a vehicle. The jury acquitted Roary of “intent to kill” second-degree murder and transporting a handgun on his person. 5 Roary was sentenced to 30 years on the second-degree felony-murder charge, five years consecutive on the conspiracy charge, and three years concurrent on the handgun offense. Roary filed a timely appeal in the Court of Special Appeals, however, we granted certiorari on our own motion before consideration of the matter in that court.

Roary v. State, 381 Md. 674 , 851 A.2d 593 (2004).

II

Roary’s primary argument on appeal relates to his conviction for second-degree felony-murder. He argues that, [fjirst-degree assault, on a theory of intent to inflict serious physical injury under § 3-202 of the Crim. Law Art., which is part and parcel of any intentional homicide, is not an ²²⁵ underlying felony which sustains a conviction for common law second-degree felony murder. Accordingly, this theory of criminal homicide should not have been submitted to the jury, and the resulting conviction must be reversed.

He relies on cases from other jurisdictions which have adopted the so-called “merger” doctrine and urges this Court to do the same. For the reasons expressed herein, we decline to do so. A. Preservation Before consideration of this matter on the merits, we first address the issue of preservation. The State argues that Roary failed to preserve the issue of whether first degree assault is a proper underlying felony for a second-degree felony-murder conviction by failing to object to the issue below.

The State notes that Roary’s counsel approved both the felony-murder jury instruction and verdict sheet. The State further argues that when they informed the defense and the court that it had prepared a verdict sheet that included a second-degree felony-murder instruction based on Fisher v. State, 367 Md. 218 , 786 A.2d 706 (2001), the defense did not object. Roary concedes that “at trial, the point was not made quite so clearly,” but contends that at the motion for a new trial hearing, defense counsel “squarely argued that first degree assault is not a proper underlying felony.” Based on our review of the trial transcript, we conclude that Roary failed to properly raise the issue of whether first-degree assault is a proper underlying felony for a second-degree felony-murder conviction. Furthermore, we are unable to determine if the issue was “squarely” raised at the hearing on the motion for a new trial because the transcript of the hearing was not included in the record.

Nevertheless, we choose to exercise our discretion to consider the issue on appeal. Md. Rule 8-131 (a) provides that an appellate court will ordinarily not decide any issue unless it was raised in or decided by the trial court. We may, however, “decide such an issue if necessary or desirable to guide the trial court or to ²²⁶ avoid the expense and delay of another appeal.” Md. Rule 8-131(a). In Fisher , we exercised our discretion to consider the unpreserved issue of whether child abuse is a proper underlying felony to support a conviction for second-degree felony-murder.

Fisher, 367 Md. at 225 , 786 A.2d at 710 . Although the issue was not raised at trial, we acknowledged that “a sentence imposed under an entirely inapplicable statute ‘is an illegal sentence which may be challenged at any time.’ ” Fisher, 367 Md. at 239-40 , 786 A.2d at 719 (quoting Moosavi v. State, 355 Md. 651, 662 , 736 A.2d 285, 291 (1999)). We concluded that, if the felony murder doctrine has no application to a homicide resulting from child abuse, then the thirty year sentence for murder in the second degree imposed on the petitioners would be similarly illegal, because, by the special verdict, the findings of guilty of murder were based solely on felony murder. Fisher, 367 Md. at 240 , 786 A.2d at 719 .

The same rationale applies to the case at bar. If first-degree assault is not a proper underlying felony for a second-degree felony-murder conviction, then Roary’s sentence of thirty years would likewise be illegal because the sole basis for the second-degree murder conviction was felony-murder, as the jury acquitted Roary of second-degree intent-to-kill murder. Moreover, if the sentence for second-degree felony-murder constitutes an illegal sentence, Roary could raise that issue on a motion for reconsideration or on a petition for post conviction relief. In either scenario, if Roary did not prevail the case would be subject to an application for appellate review.

In the interest of avoiding the expense and delay of another appeal we invoke our jurisdiction to resolve the issue. B. Felony-Murder “At common law one whose conduct brought about an unintended death in the commission or attempted commission of a felony was guilty of murder.” Wayne R. LaFave, Substantive Criminal Law § 14.5 (2nd ed. 2003). The modern felony-murder rule is “intended to deter dangerous con ²²⁷ duct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill.” Fisher, 367 Md. at 262 , 786 A.2d at 732 . The doctrine recognizes that in society’s judgment, “an intentionally committed [felony] that causes the death of a human being is qualitatively more serious than an identical [felony] that does not.” Crump & Crump, In Defense of the Felony Murder Doctrine, 8 Harv.

J.L. & Pub. Pol’y 359, 363 (1985). In Jackson v. State, 286 Md. 430 , 408 A.2d 711 (1979), we stated: At common law, to which the inhabitants of Maryland are entitled, Md. Const. Declaration of Rights, Art. 5, homicide is the killing of a human being by another human being; criminal homicide is homicide without lawful justification or excuse; criminal homicide with malice aforethought is murder; malice aforethought is established, inter alia, upon commission of criminal homicide in the perpetration of, or in the attempt to perpetrate, a felony.

Thus at common law, homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice. Jackson, 286 Md. at 435 , 408 A.2d at 714-15 (internal footnotes and citations omitted). See also Campbell v. State, 293 Md. 438 , 441—12, 444 A.2d 1034, 1036-37 (1982) (quoting Jackson with approval). To obtain a conviction for felony-murder, the State is required to prove the underlying felony and that the death occurred during the perpetration of the felony.

Newton v. State, 280 Md. 260, 269 , 373 A.2d 262, 267 (1977). “Without proof of the underlying felony, there can be no conviction for felony murder.” Hook v. State, 315 Md. 25, 32 , 553 A.2d 233, 236 (1989). The seminal ease in Maryland regarding common law second-degree felony-murder is Fisher v. State, 367 Md. 218 , 786 A.2d 706 . Fisher involved the death of a nine-year-old girl by ²²⁸ dehydration and malnutrition as a result of child abuse. Two. of the three defendants in Fisher were convicted of second-degree felony-murder with child abuse as the underlying felony.

We accepted certiorari to answer the question of whether Maryland law recognizes the common law doctrine of felony-murder in homicides committed in the perpetration of a felony other than the ones enumerated in the first-degree murder statutes. 6 Fisher, 367 Md. at 225 , 786 A.2d at 710 . We answered the question in the affirmative, holding that “child abuse of the character and degree described in the evidence of this case is inherently dangerous. Accordingly, the circuit court did not err in submitting to the jury second degree felony murder based upon child abuse.” Fisher, 367 Md. at 263 , 786 A.2d at 733 . See also, Deese v. State, 367 Md. 293, 296 , 786 A.2d 751, 752 (2001) (Affirming second-degree felony-murder conviction based on the felony of child abuse and noting that the Court in Fisher “held that felony murder in the second degree, predicated on child abuse, or on any other inherently dangerous felony not enumerated in the first degree murder statutes, is a cognizable offense under the common law of this State.”).

The Court in Fisher began by recognizing that the felonies identified by the first-degree murder statute are not the exclusive felonies that may be a predicate for felony-murder. Fisher, 367 Md. at 251 , 786 A.2d at 726 . 7 Next, the ²²⁹ Court concluded that the felonies that would support a conviction for common law second-degree felony-murder are not limited to those felonies that existed at common law. Fisher, 367 Md. at 253-54 , 786 A.2d at 727 . Lastly, we concluded that the underlying felony must be sufficiently dangerous to life to justify application of the doctrine and “that the danger to life of a residual felony is determined by the nature of the crime or by the manner in which it was perpetrated in a given set of circumstances.” Fisher, 367 Md. at 263 , 786 A.2d at 733 . “If the felonious conduct, under all of the circumstances, made death a foreseeable consequence, it is reasonable for the law to infer from the commission of the felony under those circumstances the malice that qualifies the homicide as murder.” Fisher, 367 Md. at 262 , 786 A.2d at 732 . 8 We have repeatedly held that “under the felony-murder doctrine a participating felon is guilty of murder when a homicide has been committed by a co-felon.” Campbell, 293 Md. at 442 , 444 A.2d at 1037 (citing Stevens v. State, 232 Md. 33, 41 , 192 A.2d 73, 78 , cert, denied, 375 U.S. 886 , 84 S.Ct. 160 , 11 L.Ed.2d 115 (1963); Boblit v. State, 220 Md. 454, 457 , 154 A.2d 434, 435 (1959); Brady v. State, 222 Md. 442 , 160 A.2d 912 (1960); Shockley v. State, 218 Md. 491, 497 , 148 A.2d 371, 374 (1959)).

Campbell involved the question of whether a co-felon could be held criminally liable for the death of a fleeing co-felon caused by a police officer or the felony victim. We held that, “ordinarily, under the felony-murder doctrine, criminal culpability shall continue to be imposed for all lethal acts committed by a felon or an accomplice acting in furtherance of a common design. However, criminal culpability ordinarily shall not be imposed for lethal acts of nonfelons that are not ²³⁰ committed in furtherance of a common design.” Campbell, 293 Md. at 451-52 , 444 A.2d at 1042 . In the present case, the underlying felony is first-degree assault.

Section 3-202(a)(l) of the Maryland Code defines the crime of first-degree assault. It provides, in relevant part, that “[a] person may not intentionally cause or attempt to cause serious physical injury to another.” Md.Code (2002) § 3-202(a)(l) of the Criminal Law Article. 9 “Serious physical injury” is physical injury that: “(1) creates a substantial risk of death; or (2) causes permanent or protracted serious: (i) disfigurement; (ii) loss of the function of any bodily member or organ; or (iii) impairment of the function of any bodily member or organ.” Md.Code (2002) § 3-201(c). 10 Applying the Fisher standard to the case at bar, first-degree assault would support a common law second-degree felony-murder conviction if the nature of the crime itself or the manner in which it was perpetrated was dangerous to human life. We do not hesitate to hold that first-degree assault is dangerous to human life. The nature of the crime committed, a crime which “creates a substantial risk of death,” is undoubtedly dangerous to human life.

Furthermore, the manner in which the crime was committed in this instance, an assault by four men that included dropping a 20-30 pound boulder repeatedly on the victim’s head, is also clearly dangerous to human life. Based on the standard we enunciated in Fisher and reaffirmed in Deese , first-degree assault is a proper underlying felony to support a second-degree felony-murder conviction. 11 ²³¹ Maryland is unique in that, our “common law basis for felony murder ... distinguishes our jurisprudence from that of states that have adopted a criminal code in lieu of the common law crimes.” Fisher, 367 Md. at 251 n. 10, 786 A.2d at 726 n. 10. As recently as 2001, we reiterated the fact that in Maryland, ‘“the felony-murder doctrine is the common law rule — defining one of at-least three varieties of implied malice — which raises a homicide resulting from the perpetration or attempted perpetration of a felony to the murder level generally.’” Fisher, 367 Md. at 250-51 , 786 A.2d at 725 (quoting with approval Evans v. State, 28 Md.App. 640 , 686 n. 23, 349 A.2d 300 , 329-30 n. 23 (1975)). Judge Rodowsky, writing for the Court in Fisher , noted that “the common law of felony murder has changed since colonial times, but, in Maryland, it has done so as a matter of common law evolution and not as a result of [legislation].” 12 Fisher, 367 Md. at 249 , 786 A.2d at 724.

The harshness of the rule has been ameliorated by limiting its application to those felonies that are dangerous to human life either because of their inherent nature or by the manner in which the felony is perpetrated; however, the basic ²³² rule still applies: a criminal homicide committed in the perpetration of or in the attempted perpetration of a dangerous to life felony will supply the element of malice necessary to raise the homicide to the level of murder in this State. Roary, however, urges this Court to adopt the position taken by a number of other state courts which do not permit assault to be an underlying felony in a felony-murder conviction. 13 The position is commonly referred to as either the “merger” doctrine or the “collateral-felony” doctrine. 14 See Missouri v. Williams, 24 S.W.3d 101, 114-15 (Mo.Ct.App. 2000). In California v. Hansen, 9 Cal.4th 300 , 36 Cal.Rptr.2d 609 , 885 P.2d 1022 (1994), the Supreme Court of California summarized the doctrine: ²³³ Prior to our decision in [California v. Ireland, 70 Cal.2d 522 , 75 Cal.Rptr. 188 , 450 P.2d 580 (1969)], the “merger” doctrine had been developed in other jurisdictions as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or “predicate”) felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that “merged” with the resulting homicide.

In explaining the basis for the merger doctrine, courts and legal commentators reasoned that, because a homicide generally results from the commission of an assault, every felonious assault ending in death automatically would be elevated to murder in the event a felonious assault could serve as the predicate felony for purposes of the felony-murder doctrine. Consequently, application of the felony-murder rule to felonious assaults would usurp most of the law of homicide, relieve the prosecution in the great majority of homicide cases of the burden of having to prove malice in order to obtain a murder conviction, and thereby frustrate the Legislature’s intent to punish certain felonious assaults resulting in death (those committed with malice aforethought, and therefore punishable as murder) more harshly than other felonious assaults that happened to result in death (those committed without malice aforethought, and therefor punishable as manslaughter). One commentator explains that the merger rule applied to assaults is supported by the policy of preserving some meaningful domain in which the Legislature’s careful gradation of homicide offenses can be implemented. Hansen, 885 P.2d at 1028 (internal citations omitted).

Citing Hansen , the Supreme Court of Tennessee has noted that the merger doctrine has been interpreted by courts as a principle for discerning legislative intent. Tennessee v. Godsey, 60 S.W.3d 759, 774 (Tenn.2001). 15 ²³⁴ In Missouri v. Williams, 24 S.W.3d 101 , the intermediate appellate court of Missouri succinctly summarized the logic used by the various jurisdictions that have adopted the merger doctrine: As stated in [Kansas v. Lucas, 243 Kan. 462 , 759 P.2d 90, 93 (1988)], the purpose of the [felony murder] statute is to deter those engaged in felonies from killing negligently or accidentally^] and that doctrine should not be extended beyond its rational function which it was designed to serve. Second is the recognition of the fact that, as a practical matter, the vast majority of homicides have them genesis in some type of felonious assault. Given these propositions, various reasons have been given for the doctrine: (1) the application of the felony murder rule would work to eliminate the mens rea requirement for most homicide cases and circumvent the legislative gradation system for classes of homicides, including manslaughter.

If felonious assault could ... be used as the predicate felony for felony murder, every felonious assault resulting in death would be murder, and any lesser offense such as voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide would effectively be eliminated. The result would be that the prosecution would not have to prove that the defendant had a specific intent to kill in most murder cases, and (2) the rationale of the merger doctrine is consistent ²³⁵ with the purpose of the felony murder rule. Because homicide is usually the result of an assault, and because a felonious assault involves a risk of death, a felon would not be deterred from committing a dangerous and homicidal act for the reason that the felony itself is the homicidal act sought to be deterred. 16 Williams, 24 S.W.3d at 113-14 (internal citations and quotations omitted). As Williams pointed out, one reason given by courts that have adopted the merger doctrine is the concern that if felonious assault can support a felony-murder conviction then “every felonious assault resulting in death would be murder, and any lesser offense such as voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide would effectively be eliminated.” Williams, 24 S.W.3d at 114 .

In response to this concern, Georgia has adopted a modified version of the felony-murder doctrine. It precludes a felony-murder conviction only where it would prevent an otherwise warranted verdict of voluntary manslaughter. Edge v. Georgia, 261 Ga. 865 , 414 S.E.2d 463, 465 (1992). The court reasoned that “the strict liability element of felony murder, which allows the ‘bootsrapping’ of an assault charge to support a felony murder conviction, is unfair in those instances where the killings otherwise could have been reduced, on the ground of mitigation, to manslaughter.” Edge, 414 S.E.2d at 465 .

Whether Maryland should or needs to adopt a similar modification to the felony-murder rule, however, need not be decided today as the facts of the case do not remotely raise the issue of mitigation. “The acts which constitute felonious conduct [must] possess a sufficient danger to human life to justify the applica ²³⁶ tion of the felony murder doctrine.” Fisher, 367 Md. at 257 , 786 A.2d at 730 (quoting Massachusetts v. Matchett, 386 Mass. 492 , 436 N.E.2d 400, 410 (1982)). Here the facts are not in dispute, and they were sufficient for the jury to have found that the assault on the victim was committed under circumstances demonstrating that the participants contemplated that violence was necessary to carry out their common purpose. Thus a reasonable jury could have found beyond a reasonable doubt that Roary’s conduct was inherently dangerous. By applying the felony murder doctrine, our focus is on the conduct of the participants in the perpetration or attempted perpetration of the underlying felony.

We decline to accept the invitation to limit the scope of the doctrine’s application to only those underlying felonies that are independent of the resulting death. Moreover, we are persuaded that the better policy is for the law to provide an additional deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a foreseeable risk of death. Fisher, 367 Md. at 256 , 786 A.2d at 728-29 (internal citation omitted). We reaffirm the principle that a person participating in a felony is responsible for the natural and probable consequences of his or her criminal activity.

We hold, that an assault in the first degree, when committed in a manner inherently dangerous to human life, as in this case, may be a predicate felony for second-degree felony-murder. Thus the trial court did not err in submitting to the jury second-degree felony-murder based upon an assault in the first degree. We recognize that our relatively strict adherence to the common law felony-murder doctrine is not favored by a number of other States as explained supra-, nothing in our case law or research, however, has persuaded us that the rule in Maryland should be otherwise.

III

Jury Instructions Md. Rule 4-325 states in relevant part that “[t]he court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supple ²³⁷ ment them at a later time when appropriate.” The decision to give supplemental instructions is within the sound discretion of the trial court and will not be disturbed on appeal, absent a clear abuse of discretion. See Mitchell v. State, 338 Md. 536, 540 , 659 A.2d 1282, 1284 (1995) (internal citations and quotations omitted). When reviewing a jury instruction we look to the instruction as a whole. State v. Foster, 263 Md. 388, 397 , 283 A.2d 411, 415 (1971), cert, denied, 406 U.S. 908 , 92 S.Ct. 1616 , 31 L.Ed.2d 818 (1972).

In Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983), we stated “[i]t is well settled that ‘when objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.’ ” Poole, 295 Md. at 186 , 453 A.2d at 1228 (quoting Foster, 263 Md. at 397 , 283 A.2d at 415 ). Roary’s first contention is that the trial court erred in instructing the jury regarding felony-murder. Specifically, Roary argues that if first-degree assault is not a proper underlying felony to support a felony-murder conviction, then it was error to give a felony-murder instruction in this case. For the reasons set forth in the previous section, we find no merit in Roary’s first contention.

Roary’s remaining objections to the jury instructions include a complaint that, assuming the court was correct in giving the felony-murder instruction, the court erred regarding the substance of the felony-murder instruction given and in its efforts to cure the problems. Roary argues that when the instructions are viewed as a whole, two prejudicial messages emerge: one of confusion and inconsistency and the other of repetition. With regard to the question of confusion and inconsistency, Roary notes that the instruction regarding the felony-murder count given by the court “could have been understood to mean that felony-murder requires no proof of criminal intent at all.” 17 Roary raised this objection with the court and the ²³⁸ court re-instructed the jury regarding the intent requirement. Specifically, the court instructed the jury that, [traditional, shall we say, murder in the second-degree requires as an element an intention to kill.

Felony-murder typically would not require an intent to kill because it was the commission of the felony which substituted, so to speak, for the intent to kill. The law said if you committed a murder in the course of a felony, that is murder and we are going to hold you accountable. The difficulty in this case is that the felony in the felony-murder is assault in the first degree. I did not want you to misunderstand as you consider that charge, assault in the first degree, that you remember it does require proof of intent, okay.

Now, first-degree assault, formally, the Defendant is charged with the crime of first-degree assault. In order to convict the Defendant of first-degree assault, the State must prove all of the elements of second-degree assault and must prove that the Defendant intended to cause — there is that word — serious physical injury in the commission of the assault. What does serious physical injury mean? It means an injury that creates a substantial risk of death or causes serious and permanent or serious and protracted disfigurement, impairment, harm to the body.

Having reviewed the transcript, we hold that the trial court did not err regarding the felony-murder instruction. Viewed in context, we find it clear that the court was comparing the various forms of second-degree murder alleged in the case, not implying that felony-murder required no intent. 18 Further ²³⁹ more, in light of the court’s re-instruction quoted above, any confusion in the jury’s mind regarding the issue of intent should have been clarified. Roary further objects to the court informing the jury that first-degree assault constitutes second-degree assault coupled with the use of a weapon. According to Roary, this explanation of first-degree assault was erroneous because the assault here in question was of the “intent to inflict serious physical injury” type and not the “firearm” type.

Both Roary and the State immediately informed the court of the error, and the court told the jury that first-degree assault could be proven either by use of a weapon or by offensive touching done with the intent to cause serious physical injury. The court expressly told the jury that it “shouldn’t have” given an example of first-degree assault by use of a weapon “because there was no weapon alleged by the State to have been used by the Defendant.” Roary expressed his objection regarding the instruction for a second time in a bench conference following the jury instructions but before the jury retired to deliberate. The court obligingly re-instructed the jury that when it previously made reference to a firearm in describing first-degree assault: I recited language from that formal statement of the law that read something that made some reference to a firearm. ²⁴⁰ Well, I did not mean to suggest to you, and I suspect that unanimously you were not confused, because there is no allegation in this case that a firearm was used to commit the crime of murder. But as I was reading the formal law, I did include that element, which is part of it but not in this case.

Assuming, arguendo, that the jury was confused regarding the elements of first-degree assault, we hold that by re-instructing the jury as it did, the court cleared up any confusion. Thus, we perceive no error. Roary’s third basis of error with regard to the jury instructions is that by re-instructing the jury regarding felony-murder and second-degree murder in general, the jury could have been left with the impression that “a guilty verdict of second-degree murder was appropriate.” Roary points out that the jury was told about second-degree felony-murder three times in the instructions and “intent-to-kill” second-degree murder twice. The repeated instructions given in the case were given to remove any potential confusion regarding the intent necessary for a felony-murder conviction, an instruction to which counsel for Roary had objected as being unclear.

Furthermore, Roary cites no cases in support of the proposition that re-instructing a jury when the initial instruction is objected to as being unclear .or incorrect, is error. On the contrary, Roary begins by acknowledging that it is within the sound discretion of the trial court whether to propound supplemental jury instructions.' Again, perceiving no error or abuse of discretion in the court’s decision to re-instruct the jury, we find no merit in Roary’s third argument. Roary’s final argument regarding the jury instructions is an objection to the trial court’s use of examples in explaining the relevant law. Specifically, Roary objects to the court using thé example of an unintentional death resulting to a teller during a bank robbery to illustrate felony-murder, the example of pushing someone down the stairs to illustrate first-degree assault, and the example of a drug organization to ²⁴¹ illustrate the concept of conspiracy.

Roary cites the case of Fagan v. State, 110 Md.App. 228 , 676 A.2d 1009 (1996), in support of his position that “use of ad-libbed examples, if prejudicial, merits reversal.” He argues that the examples given were “so far afield as to be confusing and misleading.” Fagan , however, is inapposite to the present case. The issue in Fagan arose when the jury sent a note asking for a clarification regarding the term corroboration. Over objections by both the State and the defense, the court had the jury brought back to the court room and gave them examples of corroboration using specific examples from testimony and evidence in the trial. Fagan, 110 Md.App. at 238 , 676 A.2d at 1013 .

The Court of Special Appeals held that, “in providing the jury with specific examples of corroboration from the evidence before it, the trial judge appeared to be favoring testimony of certain witnesses over that of others, and commented on the general weight of the evidence.” Fagan, 110 Md.App. at 245 , 676 A.2d at 1017 . The court concluded it was “unable to declare the error harmless.” Id. In the present case, however, the trial court gave examples of alternative ways in which the crimes charged could be proven. Although we are of the opinion that the jury instructions regarding the law without the examples was sufficient to inform the jury, we find no reversible error in the examples given by the court.

All of the examples given were correct statements of the law and caused no harm to the defendant. We hold that the trial court did not err in its instructions to the jury.

IV

Sentencing Roary contends that the trial court impermissibly considered the fact that he refused to testify against his co-conspirators in sentencing him in violation of his Fifth Amendment right not to incriminate himself. The State counters that the argument is waived because Roary failed to raise the objection before the sentencing court and, if preserved, the argument is without merit. Although we find that Roary failed to raise an objection below to the trial court’s discussion of Roary’s failure to testify ²⁴² against his co-conspirators, we nevertheless exercise our right to decide the issue. Md. Rule 8-131(a).

Based on our review of the record we hold that the trial court did not consider impermissible sentencing criteria in the instant case. In Jackson v. State, 364 Md. 192 , 772 A.2d 273 (2001), Judge Cathell, writing for this Court, summarized our standard for reviewing a criminal sentence: It is well settled that “[a] judge is vested with very broad discretion in sentencing criminal defendants.” However, “[a] judge should fashion a sentence based upon the facts and circumstances of the crime committed and the background of the defendant, including his or her reputation, prior offenses, health, habits, mental and moral propensities, and social background.” “The judge is accorded this broad latitude to best accomplish the objectives of sentencing— punishment, deterrence and rehabilitation.” It is also well settled that “[o]nly three grounds for appellate review of a sentence are recognized in this [SJtate: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits.” Jackson, 364 Md. at 199-200 , 772 A.2d at 277 (internal citations omitted). Notwithstanding the Court’s broad sentencing discretion, it is equally clear that a trial court may not punish a person because he has done what the law allows him to do, which in this instance is exercise his Fifth Amendment right not to incriminate himself. See Jennings v. State, 339 Md. 675, 684 , 664 A.2d 903, 908 (1995) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 , 98 S.Ct. 663, 668 , 54 L.Ed.2d 604, 610 (1978)) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort----”); Johnson v. State, 274 Md. 536, 542-543 , 336 A.2d 113, 117 (1975) (“Thus, in view of what is at stake for one who is charged with a crime, it is improper to conclude that a decision, constitutionally protected, not to plead guilty ... is a factor which ought to, in any way, influence the ²⁴³ sentencing judge to the detriment of the accused.”); Ridenour v. State, 142 Md.App. 1, 16 , 787 A.2d 815, 824 (2001) (“The sentencing court plainly erred in taking into consideration the appellant’s decision to exercise his Fifth Amendment right to remain silent in sentencing him.”).

Roary was an active participant in the crime in question, and there is no indication the State was offering him immunity for his testimony. Roary not only had a right to go to trial and require the State to prove his guilt beyond a reasonable doubt, but he also had the right to not incriminate himself by testifying to events that implicated him in a very serious crime. It would, therefore, be error on the part of the sentencing judge to consider Roary’s refusal to testify against his co-defendants in fashioning an appropriate sentence. Roary cites the following colloquy that occurred during his allocution to support his argument that the court held his failure to testify in his co-conspirators’ trials against him: THE COURT: Is your client testifying in this other trial?

THE STATE: He is not. MR. CARDIN: I don’t know, I mean, there has never been any discussion. I am not sure the other one — well, I don’t know what is going to happen with the other case tomorrow.

THE COURT: So you refused to testify in three cases so far where you know the truth of what took place, according to you anyway. As a consequence of your refusal to testify, two defendants got light sentences and the third defendant is on trial tomorrow. Is that a fair statement or do you think I am wrong? THE DEFENDANT: I’m saying, I don’t— THE COURT: Right, anything else that you want to say?

MR. CARDIN: I do not think he recognizes it that way. 1 think it is— THE COURT: I am sure it is not his perspective. MR. CARDIN: — a matter of personal safety or whatever.

I do not think— THE COURT: You really do not have a right, as far as I am concerned, not to testify if you are not yourself facing ²⁴⁴ charges, you understand. You have an obligation to tell the truth. But I am going to get— THE DEFENDANT: Yes, sir, I told you the truth, sir. THE COURT: I am not going to dwell on that point.

THE DEFENDANT: (inaudible) THE COURT: I just think it should be said