Schlossman v. State

BLOOM, Judge. At a bench trial before the Honorable Robert Heller in the Circuit Court for Anne Arundel County, appellant, Adam Schlossman, was convicted of involuntary manslaughter. The court sentenced appellant to seven years imprisonment, with all but eighteen months suspended, appellant being placed on supervised probation for a period of five years. One of the conditions of probation was that two and one-half years thereof be served under “house arrest.” In this appeal from that judgment, appellant presents the following issues for our determination: I. Whether the evidence was sufficient to support appellant’s conviction of involuntary manslaughter.

II

Whether the trial court erred in admitting expert testimony without a proper foundation.

III

Whether the trial court admitted improper rebuttal evidence.

IV

Whether the trial court imposed an illegal condition of probation. FACTS On an undetermined evening in July 1992, as appellant entered his home in Annapolis, where he lived with Christian Walton, Gene Kirshner, Isaac Kumer, Allan Tucker, and Willis Usilton, he complained about “bums” sleeping in the woods ²⁸¹ nearby. Approximately fifteen minutes later, appellant and Usilton left the house with a baseball bat and a flashlight, entered the woods, and proceeded to get into an argument with one of two men there. Appellant pushed one of the men off of the property, but the other man, Arch Baldwin, who was unconscious and appeared to be severely intoxicated, remained in the woods.

Appellant returned to his house and stated that there was someone “passed out in the woods.” Usilton, Walton, Theodore Reshetiloff, and appellant then went into the woods to find Baldwin. When they found him, they taunted him, poked him with sticks, urinated on him, and poured paint on him. 1 At one point, Baldwin appeared to open his eyes briefly, but then lost consciousness again. Appellant and his companions rolled Baldwin into a ditch four feet deep, threw stones and a mattress at him, and kicked dirt and trash on him. Baldwin subsequently attempted to crawl out of the ditch but was unsuccessful.

Reshetiloff then threw a piece of a cinder block at him. When appellant and the other assailants left Baldwin, he was still alive. The following day, appellant and Usilton returned to the woods and observed that Baldwin was dead. Later, appellant, Usilton, Reshetiloff, and Walton dug a hole at a location farther in the woods, transported Baldwin’s body there, and tried to put it into the hole.

To get the body to fit, appellant had to break one of Baldwin’s legs with a shovel. After appellant covered the body with dirt, he stated that, if anyone ever told the police what had occurred, he would “take care of them.” Near the end of July, Officer Pete Medley of the Annapolis Police Department received a missing persons report for Arch Baldwin, described as a sixty-two year old man who often slept in the woods. On 5 April 1993, the police searched the area near appellant’s home and located Baldwin’s body. The ²⁸² body appeared to be well preserved and was identified as that of Baldwin through a comparison of fingerprints.

On 7 April 1993, Baldwin’s body was examined at the Office of the Chief Medical Examiner in Baltimore. Mario Golle, Jr., M.D., an assistant medical examiner, supervised the autopsy. The autopsy revealed that portions of Baldwin’s coronary arteries were almost entirely obstructed by atherosclerosis and that the body had several fractures and lacerations, any or all of which may have occurred post mortem. Initially, Dr. Golle was unable to specify the cause of death because he had not yet received copies of the police report and witness statements.

After Officer Medley gave Dr. Golle a copy of the police report and witness statements, Dr. Golle concluded that Baldwin had died of severe coronary artery disease and that the manner of death was homicide. According to Dr. Golle’s testimony at appellant’s trial, Baldwin essentially died of a “heart attack while involved in an altercation.” Dr. Golle also testified that Baldwin was a chronic alcoholic, and had a history of cirrhosis of the liver, alcohol liver disease, delirium tremens, seizures, and chronic obstructive pulmonary disease. The grand jury charged appellant, in a five count indictment, with manslaughter, accessory after the fact to manslaughter, assault with intent to maim, reckless endangerment, and assault and battery. Prior to trial, the reckless endangerment and assault and battery charges were dismissed.

At the conclusion of the trial, which lasted from 14 February to 4 March 1994, the court found appellant guilty of manslaughter but not guilty of assault with intent to maim. The charge of accessory after the fact was dismissed. On'4 May 1994, sentence was imposed and this appeal followed. I. Appellant contends that “the evidence was insufficient to support [his] conviction of involuntary manslaughter” for two reasons.

First, he asserts that the State failed to establish that he committed involuntary manslaughter based on the commission of a criminal homicide during the perpetration of ²⁸³ an unlawful act because the State did not prove that appellant committed “an unlawful act dangerous to life.” Second, he maintains that the State did not present sufficient evidence establishing that his actions were the legal cause of the victim’s death. When reviewing a question of the sufficiency of the evidence, we must 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.’ ” Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781, 2788-89 , 61 L.Ed.2d 560 (1979)); see also Wilson v. State, 319 Md. 530, 535 , 573 A.2d 831 (1990). “In this regard, under Maryland Rule 8-131(c), we defer to the factual findings of the trial judge in a non-jury case, unless they are clearly erroneous, giving due regard to the opportunity of the trial judge to observe the demeanor of the witnesses and to assess their credibility.” Wiggins, 324 Md. at 567 , 597 A.2d 1359 . With these considerations in mind, we shall address appellant’s two arguments seriatim. A. Unlawful Act Dangerous to Life Appellant contends that, where a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act itself must be dangerous to life.

Because “there was no evidence [that he committed] an [unlawful] act inherently dangerous to human life,” appellant argues, the evidence was insufficient to support his conviction for involuntary manslaughter. Under Maryland common law, the crime of involuntary manslaughter is divided into three distinct categories. In Neusbaum v. State, 156 Md. 149, 155 , 143 A. 872 (1928) (quoting 2 Bishop on Criminal Law. par. 629), the Court of Appeals characterized the crime as including those cases in which one unintentionally kills another without malice “[1] while needlessly doing anything in its nature dangerous to life, [2] or ... causes death by neglecting a duty imposed either by ²⁸⁴ law or by contract, [3] or in the course of committing a crime or even a civil wrong.” These distinct classes of involuntary manslaughter were also set forth in State v. Gibson, 4 Md.App. 236, 242 , 242 A.2d 575 (1968), as follows: Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. See 1 Warren on Homicide (Perm.Ed.1938), 420, 421; 26 Am.Jur.

Homicide, Sec. 18, 44; 40 C.J.S. Homicide, Sec. 55, and cases therein cited. To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum.... Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton’s Criminal Law and Procedure, (Anderson Ed.), Vol. 1, Sections 289-292, 296, and cases therein cited. Similarly, in Wilson v. State, 28 Md.App. 168, 172 , 343 A.2d 537 (1975) (quoting Clark and Marshall, Law of Crimes § 10.12 (7th ed. 1967)), we delineated the classifications in the following manner: 1.

Commission of a criminal act not amounting to a felony, nor naturally tending to cause death or grievous bodily harm. 2. Omission to perform a legal duty, under circumstances evidencing criminal-culpable negligence. 3. Performing lawful act with criminal culpable negligence. The first classification of involuntary manslaughter, known as unlawful act involuntary manslaughter or misdemeanor manslaughter, can broadly be stated as occurring where one commits a criminal act not amounting to a felony that unintentionally causes the death of another.

This overly simplistic statement of the rule is misleading, however, because the rule’s specific requirements hinge upon whether the unlawful ²⁸⁵ act was malum in se or malum prohibitum. See United Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539 , 182 A. 421 (1935); Gibson, 4 Md.App. at 242 , 242 A.2d 575 . “An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community,” Garnett v. State, 332 Md. 571 , 603 n. 12, 632 A.2d 797 (1993); it is an act that is wrongful in itself “without any regard to the fact of its being noticed or punished by the laws of the state.” Black’s Law Dictionary 959 (6th ed. 1990). Unlawful acts that are wrong only because they are prohibited by statute are considered to be malum prohibitum acts.

Garnett, 332 Md. at 603 n. 12, 632 A.2d 797 (citation omitted). In the case sub judice, appellant concedes that he committed “unlawful acts.” We now must determine whether those acts were malum in se or malum prohibitum. As noted supra, the victim was passed out in the woods near appellant’s home when he was confronted by appellant and his friends. According to Walton’s and Usilton’s testimony, appellant poked the victim with a stick, urinated on him, and kicked dirt and trash on him.

These acts clearly establish that appellant committed a common law misdemeanor battery against the victim. See Kellum v. State, 223 Md. 80, 85 , 162 A.2d 473 (1960) (stating that any unlawful force used against the person of another, no matter how slight, will constitute battery); Taylor v. State, 52 Md.App. 500, 504 , 450 A.2d 1312 (1982) (stating that a battery may be committed by the indirect application of force or the application of force indirectly). The State’s expert witness, Dr. Golle, testified that the stress induced by the victim’s altercation with appellant directly caused the victim to suffer a fatal heart attack. Thus, there was evidence to the effect that appellant’s criminal battery caused the victim’s death.

An intentional battery is an unlawful act that is malum in se. See, e.g., LaFave & Scott, Criminal Law § 7.13, at 681 (2d ed. 1986). Appellant’s acts, however, were not generally what would be considered acts “dangerous to life.” Thus, we must determine whether an unlawful act that is 'malum in se ²⁸⁶ but is not itself dangerous to life can support a conviction for involuntary manslaughter. That issue was addressed by the Court of Appeals in Worthington v. State, 92 Md. 222 , 48 A. 355 (1901).

In that case, Worthington had been indicted for manslaughter for causing the death of the victim while performing an abortion on her. At that time, performing an abortion was a malum in se common law misdemeanor. Id. at 237 , 48 A. 355 . Worthington demurred to the indictment, arguing that “the death of a woman resulting from a criminal abortion upon her, is, at common law, murder, and the indictment ... is defective, because it charges death as the result of the abortion, but charges the defendant with the crime of manslaughter instead of murder.” Id. at 235 , 48 A. 355 .

His demurrer was overruled, and he was convicted. On appeal, Worthington challenged the overruling of his demurrer. Initially, the Court of Appeals stated that, because performing an abortion is a misdemeanor, “causing the mother’s death in attempting an abortion, is only manslaughter at common law, if the attempt is not made in a way that endangers the mother’s life. In that case, it is murder.” Id. at 237 , 48 A. 355 (quoting Clark’s Criminal Law, p. 161).

The Court explained that “[i]f the intent was to kill or grievously injure her the offense is murder. It is manslaughter if the intent was only to produce the miscarriage, the agency not being one from which death or grievous injury would be likely to result.” Id. (citation omitted). Noting that “death is not now the usual ... consequence of an abortion,” and that the recipient is comparatively immune from danger, the Court held that Worthington properly was indicted for manslaughter.

Id. at 239 , 48 A. 355 . In reaching that holding, the Court necessarily concluded that, under Maryland common law, a person could be guilty of what was, in effect, involuntary manslaughter, based on the commission of a criminal act that was malum in se but not considered to be dangerous to human life. In United Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539 , 182 A. 421 (1935), two robbers beat the victim and ²⁸⁷ stole his money while he was working in his shop in Baltimore City.

Soon thereafter, the victim apparently suffered a nonfatal heart attack. The pain in his chest continued for several weeks and, approximately five weeks later, he died “due to a coronary thrombosis induced by the beating.... ” 169 Md. at 536-37 , 182 A. 421 . Prostic, the victim’s beneficiary under an insurance policy that provided double indemnity for accidental death if “such death shall not result from homicide,” sued for payment under the policy. 169 Md. at 536 , 182 A. 421 . Appealing from a judgment in favor of Prostic, United Life argued that, because the insured’s death was the result of a homicide, Prostic could not recover under the double indemnity provision of the policy.

Holding that the insured was the victim of a criminal homicide, the Court of Appeals stated that the robbers committed involuntary manslaughter at least, and that they may also have committed first or second degree murder. Id. at 539-40 , 182 A. 421 . In reaching its conclusion that an involuntary manslaughter had occurred, the Court stated that when the person acting has no intention to injure anybody, but death is a result of unlawful action endangering life, there is manslaughter, at least. “It is not necessary that he should have intended the particular wrong which resulted from his act. If he intends to do an unlawful and wrongful act, which is punishable because it is wrong in itself, and in doing it he inflicts unforeseen injury, he is criminally liable for that injury.” Commonwealth v. Hawkins, 157 Mass. 551, 553 , 32 N.E. 862 ; State v. Lehman, 131 Minn. 427, 430 , 155 N.W. 399 ; Killian v. State, 184 Ark. 239, 242 , 42 S.W.

(2nd) 12 . Id., 169 Md. at 539 , 182 A. 421 . The Court’s language in Prostic, albeit dictum, indicates that a defendant who commits an act that is “punishable because it is wrong in itself,” that is, malum in se, will be criminally liable for the injury caused by his act. The language employed by the Court does not indicate a requirement that the malum in se act be one that is dangerous to life to ²⁸⁸ render the actor criminally liable.

We note that the Court did state that “when the person acting has no intention to injure anybody, but death is a result of unlawful action endangering life, there is manslaughter, at least.” 169 Md. at 539 , 182 A. 421 (emphasis added). When viewed in the context of the facts of the case, however, this statement was simply addressing the fact that, by beating the insured “mercilessly,” id. at 536 , 182 A. 421 , the robbers had committed acts that endangered life. We interpret Worthington and Prostic as establishing that a homicide resulting from the perpetration of a malum in se unlawful act not amounting to a felony is manslaughter, regardless of whether the unlawful act was “dangerous to life.” Because appellant’s battery against the victim was a malum in se criminal act, we hold that the State was not required to prove that appellant’s acts were dangerous to life in order to establish a prima facie case of involuntary manslaughter. Appellant relies on State v. Gibson, 4 Md.App. 236, 243, 242 A.2d 575 (1968), aff'd, 254 Md. 399 , 254 A.2d 691 (1969), in support of his contention that, when a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act must itself be dangerous to life, even if the act is malum in se.

In Gibson , we held that the statutory crime of manslaughter by motor vehicle, Maryland Code (1957, 1967 Repl.Vol.), Art. 27, § 388, preempted charging a defendant with “common-law misdemeanor-manslaughter” where the operation of a motor vehicle unintentionally resulted in the death of the victim. 4 Md.App. at 245 , 242 A.2d 575 . In reaching that holding, this Court recited the following principles governing the common law crime of involuntary manslaughter: Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. See 1 Warren on Homicide (Perm.Ed.1938), 420, 421; 26 Am.Jur. Homicide, Sec. 18, 44; 40 C.J.S. Homicide, Sec. ²⁸⁹ 55, and cases therein cited.

To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum, and as to the second and third classes of the offense, that the negligence be criminally culpable, ie., that it be gross. Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton’s Criminal Law and Procedure, (Anderson Ed.), Vol. 1, Sections 289-292, 296, and cases therein cited. It is likewise clear that the Maryland cases have generally recognized that a charge of involuntary manslaughter at common law could in some circumstances at least be based on the doing of an unlawful act. In Neusbaum v. State, supra, the court, in defining a felonious homicide, characterized the crime so as to include those cases where one takes the life of another unintentionally and without excuse “while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong.” 156 Md. at page 155 [ 143 A. 872 ], To like effect, the court in Insurance Company v. Prostic, 169 Md. 535 [ 182 A. 421 ], in discussing a felonious homicide, held at page 539 that “when the person acting has no intention to injure anybody, but death is the result of unlawful action endangering life, there is manslaughter, at least.” What appellant relies upon is the following language in Gibson , which he refers to as “a rule”: Neusbaum and Prostic seemingly share a common legal thread—that where a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act must itself be dangerous to life.

As the Prostic court observed, if the person causing the death of another “intends to do an unlawful and wrongful act, which is punishable because it is wrong in itself, and in doing it he inflicts an unforeseen injury, he is criminally ²⁹⁰ liable for that injury” [since] “[t]here are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them causing death by such conduct will be guilty of manslaughter.” 169 Md. at page 539 [ 182 A. 421 ]. 4 Md.App. at 242-43 , 242 A.2d 575 (footnotes omitted). Appellant’s reliance on that passage in Gibson is misplaced. As stated supra, in Gibson we were concerned with whether the statutory crime of vehicular manslaughter preempted the common law in cases where the operation of a motor vehicle results in an unintentional homicide. We did not address what types of acts are encompassed within the phrase “unlawful act” as that term is used in the definition of involuntary manslaughter.

Consequently, the “rule” upon which appellant relies is dictum at best. Furthermore, we disagree with appellant’s interpretation of that dictum in Gibson . In effect, appellant contends that our statement that the unlawful act “must itself be dangerous to life,” id. at 243 , 242 A.2d 575 , refers to all unlawful acts, those unlawful acts that are malum in se as well as those unlawful acts that are malum prohibitum. To give the Court’s language the broad meaning advocated by appellant, however, would conflict with the earlier, more specific, definition of unlawful act involuntary manslaughter enunciated in the case.

Specifically, we defined involuntary manslaughter as being “the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony,____” Id. at 242 , 242 A.2d 575 . We then added the following: “To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum. ...” Id. at 242 , 242 A.2d 575 (citations omitted). Viewing the term “unlawful act” in the context of the entire opinion, we interpret it to be referring exclusively to unlawful acts that are merely malum prohibitum. ²⁹¹ The dictum in Gibson , upon which appellant relies has been referred to in subsequent cases by both of this State’s appellate courts. See State v. Albrecht, 336 Md. 475, 499 , 649 A.2d 336 (1994) (involuntary manslaughter based on gross negligence in performing lawful act); Cox v. State, 311 Md. 326, 331-32 , 534 A.2d 1333 (1988) (conviction for attempted voluntary manslaughter); Cox v. State, 69 Md.App. 396, 401 , 518 A.2d 132 (1986), aff'd, 311 Md. 326 , 534 A.2d 1333 (1988) (same); Wilson v. State, 28 Md.App. 168, 172, 343 A.2d 537 (1975) (involuntary manslaughter based on gross negligence in performing lawful act); Mills v. State, 13 Md.App. 196, 201 , 282 A.2d 147 (1971), cert. denied, 264 Md. 750 (1972) (same).

Like the decision in Gibson , however, these cases never actually addressed what unlawful acts would suffice to sustain a conviction under the category of unlawful act involuntary manslaughter. Thus, the courts rendering these decisions were never required to analyze or apply the language in Gibson that appellant refers to as a “rule,” and their citations to Gibson add no support to appellant’s position in the present case. Rolfes v. State, 10 Md.App. 204 , 268 A.2d 795 (1970), is the lone decision in Maryland that involved involuntary manslaughter that was based on a malum in se unlawful act and that cited Gibson for the proposition that an unlawful act must be dangerous to life to support an involuntary manslaughter conviction. In that case, we concluded that Rolfes’s “assault upon her husband with the .knife was an unlawful act dangerous to life.” Id. at 208, 268 A.2d 795 .

Because appellant’s unlawful act was one dangerous to life, it fit neatly into the Gibson “rule,” whether it was malum prohibitum or malum in se; it was not necessary for us to scrutinize the “rule” or distinguish between conduct that is merely unlawful and conduct that is punishable because it is wrong in itself in order to affirm the conviction. Because it quoted and