State v. Allen

³⁹¹ RAKER, J. Jeffrey Edward Allen was convicted of first degree felony-murder in the Circuit Court for Charles County. The Court of Special Appeals reversed his conviction on the grounds that a defendant cannot be found to have committed felony-murder on the basis of a determination that he formed the intent to rob the victim only after he inflicted the fatal injuries. Allen v. State, 158 Md.App. 194 , 857 A.2d 101 (2004). We granted the State’s petition for writ of certiorari to decide the following question: “Can a defendant be found guilty of felony-murder, even if he did not form the intent to steal until after the application of force that resulted in the victim’s death, so long as the taking of personal property was ‘part and parcel’ of the same episode, and if so, did the Court of Special Appeals err in reversing Allen’s conviction of felony-murder because the court so instructed the jury?” State v. Allen, 384 Md. 448 , 863 A.2d 997 (2004).

We agree with the Court of Special Appeals and shall affirm the judgment of that court. I. In the late evening of October 23, 2001, a car pulled up next to respondent Jeffrey Edward Allen near the corner of 5th and H Streets, N.W., Washington, D.C. Allen was aware that this neighborhood (“The Stroll”) was a frequent meeting place for men, and he had “a pretty good idea” of why a car would stop next to him. One or more of the vehicle’s three occupants asked Allen if he wished to go with them to La Plata, Charles County, Maryland. Allen agreed and got into the car.

After stopping to pick up another individual, the vehicle proceeded to a residence in La Plata, where it discharged three of the passengers. The driver, John Butler, agreed to meet one of the departing passengers at 9:00 the following morning to attend a funeral. Butler and Allen then continued on to Butler’s residence in Port Tobacco, Charles County. ³⁹² Butler and Allen engaged in consensual sex and fell asleep on Butler’s bed. Allen described the next morning’s events three times: in an oral statement to police, in a written statement to police, and in his testimony at trial.

These accounts were relatively consistent with one another. According to Allen, he awoke around 9:00 a.m. and asked Butler if he still planned to attend the funeral. Butler replied that he did not, which upset Allen because he wanted to leave the house. Butler told Allen to “chill out” in the kitchen and have a beer.

Allen went to the kitchen and opened the refrigerator, in which he discovered a live rat. This discovery increased Allen’s desire to leave, and he asked Butler to get up and drive him back to Washington, D.C. Butler remained in bed. In his written statement Allen told police: “So I tried again to get him up, and he just wouldn’t get up. So I thought I saw his keys on the stove, so I thought if he heard the keys jingling, and I told him I’d drive myself out of here, I thought that would make him get up.

So I picked the keys up and said that I’ll drive this mother fucker out of here myself. So I picked the keys up and they jingled, and I heard him say wait a minute dammit. And I heard something like some fidgeting or something, so I headed back toward the room where he was. And as I was headed in, he was headed out to where he was.

He [had] the blanket draped over his arm ... and he had it not balled up, but draped over and it was lifted up and he was carrying it like, it wasn’t like it was balled up, but it was picked up. And when I saw that, I threw the keys down, well I dropped the keys, and looked on top of the refrigerator and saw some knives. I just reached up there and grabbed the knife, then he came at me with his left arm up, under the blanket. And I went and pushed him, I pushed him back into the room.

And his arm was still up like he was trying to grab me or something, he fell down to the bed, and looking up I could still see his arm coming, then I just kept stabbing him.... So I ran toward the telephone, and remembered him telling me that the telephone was not on. ³⁹³ So I ran into the kitchen and picked up the car keys off the floor, ran out the door, and got into the car and drove off. I was scared, I didn’t know where I was, and really at the time, what to do.” Consistent with this statement, Allen testified at trial that he had not intended to take Butler’s car when he jingled the keys or during the ensuing struggle. While looking for a place to call the police, Allen lost control of Butler’s car and ran it into a ditch.

He flagged down a passing motorist, who drove him to a fire station. Finding no one there, the motorist took Allen to a store in Ironsides, Charles County, where Allen proceeded to call 911. In his 911 call, Allen reported a slightly different version of events vis-avis his movements with the car keys: “[T]hen he said, well I’m not taking you home. So I grabbed the keys, it, which was in the, in the kitchen and I was going outside to the car and he came at me.” Butler died of his injuries, and Allen was indicted by the Grand Jury for Charles County.

He was tried by a jury in the Circuit Court for Charles County for first degree premeditated murder, first degree felony-murder, second degree murder, robbery with a dangerous or deadly weapon, robbery, theft, and two counts of carrying a weapon openly with intent to injure. At trial, the court instructed the jury as follows on the crimes of first degree felony-murder and robbery: “There is a statute meaning an enactment of the legislature which says that if you cause or if a murder is caused by your involvement in the commission of any of a list of felonies then that is first degree murder regardless of what your intention was, regardless of whether you were the individual whose act caused the death, period. Regardless of what you intended other than in connection with the commission of that felony. Suffice it to say for our purposes in this case robbery is one of the felonies on that list.

To convict the defendant of first degree felony-murder in this case, the State must prove that the defendant committed robbery, that his project involving] the robbery ³⁹⁴ resulted in the killing of John Butler, it is abbreviated here but the principle applies regardless of how many people are involved, and lastly that the act resulted in death. That is what I was talking about a second ago occurred during the commission of that robbery. As I said also felony-murder does not require the State to prove that the defendant intended the victim’s death. On[ly] that it resulted from the robbery project.

Okay. Let’s talk about robbery, which is on the next page. Robbery is the taking of personal property from another person or from his presence and his control by force or the threat of force, with intent to steal the property. The elements are pretty simple and straightforward.

To convict someone of robbery the Government must prove that the defendant in this case took the car and keys from Mr. Butler or from his presence and control and they have to prove that he did so by force or the threat of force and that in doing so he intended to steal the property, that is to deprive John Butler of the property.... That they intended to deprive him of the property.... Acts inconsistent with the other person’s right to own or possess. Because there was a death here we throw in the additional language at the bottom of that page, or the bottom of that other language, even if the intent to steal here was not formed until after the victim had died taking his property thereafter would still be robbery, if it was part and parcel of the same occurrence which involved the death.” (Emphasis added.) Defense counsel objected to the instruction, particularly the italicized portion.

The jury convicted Allen of first degree felony-murder, second degree murder, robbery with a dangerous or deadly weapon, robbery, theft, and the two weapons counts. It found him not guilty of first degree premeditated murder. The court sentenced Allen to life in prison without the possibility of parole on the first degree felony-murder count, and to a term of imprisonment of thirty years for second degree murder, ³⁹⁵ twenty years for robbery with a deadly weapon, and three years for each weapons count, all to be served concurrently. 1 Allen noted a timely appeal to the Court of Special Appeals. He argued, inter alia, that the court erroneously instructed the jury that the requisite connection between the use of force and intent to deprive the victim of property was satisfied as long as the two were “part and parcel of the same occurrence which involved the death.” According to Allen, the trial court’s instruction was an inaccurate statement of the law regarding robbery, which affected his robbery and first degree felony-murder convictions.

The State argued that the instruction was a correct statement of the law. The Court of Special Appeals reversed Allen’s first degree felony-murder conviction. The court held as follows: “[A]n ‘afterthought’ robbery ... cannot support a conviction for felony murder. Put another way, appellant could not be found to have committed felony-murder on the basis of a determination that he formed the intent to rob the victim only after he inflicted the fatal injuries.

It follows that the court erred by instructing the jury that appellant could be found guilty of felony-murder ‘even if the intent to steal here was not formed until after the victim had died,’ because ‘taking his property thereafter would still be robbery, if it was part and parcel of the same occurrence which involved the death.’ Because we have no way of knowing whether the jury unanimously agreed that appellant formed the intent to rob prior to or while in the commission of the murder, we cannot sustain the felony-murder conviction.” Allen, 158 Md.App. at 246-47 , 857 A.2d at 132 .

II

In Maryland, in a criminal case, upon request of a party, the trial court is required to instruct the jury as to the ³⁹⁶ law applicable to the case. See Md. Rule 4—325(c). The main purpose of jury instructions is to aid the jury in understanding the case, to guide the jury’s deliberations, and to help the jury arrive at a correct verdict. Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727, 729 (1994).

Reduced to its essence, the jury instruction at the heart of this case stated as follows: (1) If a death resulted from the defendant’s commission of an enumerated felony, the defendant is guilty of first degree murder regardless of whether he intended to cause the death; (2) Robbery is an enumerated felony; (3) Robbery is the taking of personal property from a person or that person’s presence by force or the threat of force, with intent to steal the property; (4) Stealing the property of a dead victim is robbery even if the intent to steal is not formed until after the victim has died, so long as the stealing is “part and parcel of the same occurrence which involved the death.” Under this instruction, the jury was permitted to find Allen guilty of first degree felony-murder if it concluded that he had intentionally robbed Butler and that Butler’s death had resulted from the robbery. The jury was permitted to find that Allen had robbed Butler even if it determined that he had formed the intent to steal the car only after Butler’s death, in other words, that he had committed what is known as an “afterthought robbery.” We must determine whether the instruction given in this case correctly stated the law of Maryland as to felony-murder. We answer that question in the negative, and hold that a defendant is guilty of first-degree felony-murder only if the defendant’s intent to commit the predicate enumerated felony arises prior to, or concurrent with, the conduct resulting in death. First degree' felony-murder is codified at Md.Code (2002, 2004 Cum.Supp.), § 2-201(a) of the Criminal Law Article. 2 That section provides, in pertinent part, as follows: ³⁹⁷ “A murder is in the first degree if it is: (4) committed in the perpetration of or an attempt to perpetrate: (i) arson in the first degree; (ii) burning a barn, stable, tobacco house, warehouse, or other outbuilding that: 1. is not parcel to a dwelling; and 2. contains cattle, goods, wares, merchandise, horses, grain, hay, or tobacco; (iii) burglary in the first, second, or third degree; (iv) carjacking or armed carjacking; (v) escape in the first degree from a State correctional facility or a local correctional facility; (vi) kidnapping under § 3-502 or § 3 — 503(a)(2) of this article; (vii) mayhem; (viii) rape; (ix) robbery under § 3-402 or § 3-403 of this article; (x) sexual offense in the first or second degree; (xi) sodomy; or (xii) a violation of § 4-503 of this article concerning destructive devices.” In order to sustain a conviction in this case under § 2-201, the State must prove, beyond a reasonable doubt, a robbery or attempted robbery, and a murder “committed in the perpetration of or an attempt to perpetrate” a robbery or attempted robbery.

The question of whether a felony committed as an “afterthought” to a killing may be the predicate for a felony-murder has been considered by many courts around the country. The majority view is that in order for a conviction for felony-murder to be sustained, the defendant must have intended to commit the underlying felony at the time the killing occurs. Under the majority view, there can be no felony-murder conviction when the felony occurs as an after ³⁹⁸ thought following the killing. See e.g., United States v. Bolden, 514 F.2d 1301, 1309 (D.C.Cir.1975); Ex parte Johnson, 620 So.2d 709, 713 (Ala.1993); Grigsby v. State, 260 Ark. 499 , 542 S.W.2d 275, 280 (1976); People v. Ainsworth, 45 Cal.3d 984 , 248 Cal.Rptr. 568 , 755 P.2d 1017, 1037 (1988); People v. Brannon, 194 Mich.App. 121 , 486 N.W.2d 83, 85-86 (1992), app. denied, 441 Mich. 887 , 495 N.W.2d 384 (1992); State v. Montgomery, 191 Neb. 470 , 215 N.W.2d 881, 884 (1974); People v. Joyner, 26 N.Y.2d 106 , 308 N.Y.S.2d 840 , 257 N.E.2d 26, 27 (1970); Commonwealth v. Legg, 491 Pa. 78 , 417 A.2d 1152, 1154 (1980); State v. Buggs, 995 S.W.2d 102, 106 (Tenn.1999); Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App.1993).

Although the State need not prove that the defendant intended to commit murder, it must establish that the defendant intended to commit the predicate felony. Underlying this requirement is the purpose of the modern felony-murder rule. The purpose underlying the modern felony-murder rule is one of deterrence; the rule is intended to deter dangerous conduct by punishing as a first degree murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill.