State v. Bowers

RAKER, Judge. Melvin Roberts Bowers was indicted by the Grand Jury for Howard County on the charges of involuntary manslaughter in violation of Maryland Code (1957, 1996 RepLVol., 1997 Supp.) Article 27, § 387, 1 reckless endangerment in violation of Article 27, § 12A-2 and inhaling a harmful substance in violation of Article 27, § 301, all arising from the death of Geneva Marie Hodge. A jury found him guilty of reckless endangerment and not guilty of inhaling a harmful substance. The jury was unable to reach a unanimous verdict on the manslaughter charge, and the court declared a mistrial on that count.

The ⁷¹³ State exercised its right to retry Bowers on the manslaughter count. 2 At the second trial, the court denied Bowers’s request to instruct the jury on the lesser included offense of reckless endangerment. The issue we must decide in this case is whether the prior conviction of the lesser included offense of reckless endangerment precluded an instruction for that offense at the second trial. We conclude that the trial court correctly refused to instruct the jury on reckless endangerment. I. On September 6,1993, members of the Howard County Fire and Rescue Department responded to a 911 call for a possible “D.O.A.” at 2821 Southview Road in Ellieott City.

Melvin Robert Bowers met them at the doorway of his home and showed them upstairs. There, Lieutenant Sharp found the body of Geneva Hodge lying lifeless on a blue tarp. Howard County Police Officer William Vogel arrived shortly thereafter. As he entered the bedroom, Officer Vogel observed the woman’s body, noticing bruises on her neck and that the bed had been stripped.

The clothes were exceptionally neat “as if she had been recently dressed.” Officer Vogel placed Bowers under arrest. Bowers told the police that he had picked up his girlfriend, Geneva Hodge, at 10:00 p.m. on September 5, 1993. They subsequently returned to his house and engaged in sadomasochistic sexual relations. In the early morning hours, Hodge informed Bowers that her teeth hurt.

According to Bowers, Hodge asked him to get her the bottle of chloroform which he kept for lower back pain. She had tried it several months earlier, and she insisted on using it that night. Bowers maintained that they both held the chloroform-soaked cloth ⁷¹⁴ over her mouth while she inhaled. Bowers then fell asleep, only to awaken approximately a half hour later to find Hodge was cold to the touch.

He listened for a heartbeat and tried C.P.R. Realizing it was hopeless, he called a pastor and then an attorney. Bowers also admitted to washing the sheets and the comforter and moving Hodge onto the tarp. Several hours later, he called the police. The jury convicted Bowers of reckless endangerment, acquitted him of inhaling a dangerous substance, and was unable to reach a unanimous verdict on involuntary manslaughter.

The State elected to retry Bowers on the involuntary manslaughter charge, and the trial court deferred sentencing pending the outcome of the second trial. At the second trial, defense counsel requested that the trial court submit the charge of reckless endangerment to the jury, arguing that reckless endangerment is a lesser included offense of involuntary manslaughter. Defense counsel argued: This could be a situation where a jury listens to this case and believes that Melvin Bowers is guilty of something. That Melvin Bowers did something wrong.

That Melvin Bowers—that the conduct of Melvin Bowers was such that—it should run afoul of the criminal law. And if they believe that, then that jury will be inclined to convict him of an offense. Under the present circumstances, the only offense before them is manslaughter. And as a result, the jury would be more inclined to return a verdict of guilty of manslaughter than if there were a lesser included offense submitted to them as well.

Defense counsel asked the court to “make a verdict sheet that says, count one, manslaughter, count two, reckless endangerment. And I want the Court to take a verdict of not guilty or guilty as to each of those two counts.” The State opposed Bowers’s request to submit reckless endangerment to the jury, arguing that defense counsel was “asking the Court to create a legal fiction that the Court just has no authority to do.” In response to the Court’s concern ⁷¹⁵ about a subsequent finding of “not guilty” on the reckless endangerment charge, defense counsel responded: I don’t know what would happen then. It could well be that the prior conviction would preclude enforcement of the ... subsequent not guilty verdict. I don’t know what would happen then, but I do know that to fail to submit that count to this jury would be unfair.

So, I suppose—that if the jury returned a not guilty verdict as to reckless endangerment here, it would be superseded by the first verdict. Although I don’t have any case law that I’ve looked at yet for that proposition. The court denied the request. Defense counsel then suggested: In that case, Your Honor, I would ask the Court’s permission, and then I would have to think about whether I want to actually do this or not, to make this jury aware, either by introducing a docket sheet or introducing some item of evidence, that in my discretion, make the jury aware that Mr. Bowers has been convicted of reckless endangerment.

So that, if that is their position, that they believe some crime has been committed, that they would know that he has been convicted of that crime, and then they could potentially consider the manslaughter count with that knowledge. Although the court gave counsel additional time to consider whether he wished to proceed in that manner, 3 defense counsel never requested the court to advise the jury that Bowers had been convicted of reckless endangerment. Bowers was ⁷¹⁶ convicted of involuntary manslaughter, and, at sentencing, the court merged the reckless endangerment and involuntary manslaughter convictions. Bowers appealed to the Court of Special Appeals.

In an unreported opinion, the intermediate appellate court affirmed the reckless endangerment conviction and vacated the manslaughter conviction. The court resolved the threshold question of whether reckless endangerment is a lesser included offense of involuntary manslaughter in Bowers’s favor, concluding “[t]he parties do not dispute that reckless endangerment is a lesser included offense of involuntary manslaughter.” The court reasoned that, based on Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989) and Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989), under ordinary circumstances Bowers would be entitled to have the lesser included offense of reckless endangerment submitted to the jury. The only impediment in this case, the Court of Special Appeals noted, was that Bowers “earlier had been convicted of reckless endangerment and submission of that charge to the jury would have placed him in jeopardy a second time as to that charge.” Finding that Bowers’s request to have reckless endangerment submitted to the jury amounted to a waiver of his double jeopardy protections, the intermediate appellate court reasoned: ⁷¹⁷ We granted the State’s petition for certiorari to consider the question of whether the Court of Special Appeals erred in ruling that, in the interest of fairness, the trial court was required to submit the lesser included offense instruction on the charge of reckless endangerment in the retrial for involuntary manslaughter. ⁷¹⁶ Had such a waiver been permitted, the second verdict as to reckless endangerment, whether guilty or not guilty, would have been a nullity. While, as the prosecutor complained, the waiver would indeed have created a “legal fiction,” such a “legal fiction” was necessary to protect appellant’s rights under the Hook/Hagans rule.

In sum, fundamental fairness required that the lesser included offense of reckless endangerment be submitted to the jury. Appellant’s double jeopardy protections created an impediment to the submission of that offense. Appellant attempted to waive those protections, however, and thus removed the impediment. Under the circumstances, the trial court erred by refusing to permit the waiver and to submit reckless endangerment to the jury. ⁷¹⁷ II.

At common law a defendant could be convicted of a lesser offense included in the offense charged. Hagans, 316 Md. at 444-45 , 559 A.2d at 799 -800 (citing Weighorst v. State, 7 Md. 442, 452-53 (1855) and State v. Flannigan, 6 Md. 167, 171-72 (1854)); see also Beck v. Alabama, 447 U.S. 625, 633 , 100 S.Ct. 2382, 2387 , 65 L.Ed.2d 392 (1980) (citing: 2 M. Hale, Pleas of the Crown, 301-02 (1736); 2 W. Hawkins, Pleas of the Crown 623 (6th ed. 1787); 1 J. Chitty, Criminal Law 250 (5th Am. ed. 1847); T. Starkie, Treatise on Criminal Pleading 351-52 (2d ed. 1822)); James A. Shellenberger and James A. Strazzella, The Lesser Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies, 79 Marq. L.Rev. 1, 98 (1995); Janis L. Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brook. L.Rev. 191, 195 (1984).

One commentator summarized the origin of the doctrine as follows: The notion of the lesser included offense has its roots in common law. As early as 1554, an English jury in a murder case was permitted to return a guilty verdict in a form of homicide carrying a less severe sentence than the crime originally charged. By 1772, English juries could consider the possibility of conviction for an offense consisting of the same, but fewer, elements of the crime for which the defendant was brought to trial in noncapital cases as well. This concept made its way into the evolving body of American jurisprudence and, in 1872, became the rule governing all federal criminal trials when Congress enacted a statute, the significant language of which is now embodied in Federal Rule Criminal Procedure 31(c) (Rule 31(c) or Rule). 4 In ⁷¹⁸ pertinent part, the Rule provides that a “defendant may be found guilty of an offense necessarily included in the offense charged.” Ettinger, supra, at 195 (footnotes omitted).

Today, “the [lesser included offense] doctrine has been universally accepted in the federal system and in all the states.” Shellenberger and StrazzeUa, supra, at 110; see Beck, 447 U.S. at 633-34 , 100 S.Ct. at 2387-88 . Under Maryland common law, a defendant charged with a greater offense can be convicted of an uncharged lesser included offense as weU as the charged offense. Hagans, 316 Md. at 444-45 , 559 A.2d at 799-800 . Although at one point in the development of the common law, this general rule did not apply when the greater offense was a felony and the lesser was a misdemeanor, “[w]ith the disappearance of the common law procedural distinctions between felonies and misdemeanors, courts no longer adhere to the original common law limitation upon the rule permitting convictions on lesser included offenses.” Id. at 446-47 , 559 A.2d at 800 .

In federal trials, a defendant’s right to a lesser included offense instruction was also grounded in the common law, and recognized by the Supreme Court as early as 1896 in Stevenson v. United States, 162 U.S. 313, 323 , 16 S.Ct. 839, 843 , 40 L.Ed. 980 (1896). “In the federal courts, it has long been ‘beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’ ” Beck, 447 U.S. at 635 , 100 S.Ct. at 2388 (quoting Keeble v. United States, 412 U.S. 205, 208 , 93 S.Ct. 1993, 1995 , 36 L.Ed.2d 844 (1973)). ⁷¹⁹ Applying the principles of Hook and Hagans , Bowers contends that in his second trial, the trial court deprived him of a fair trial by refusing to instruct the jury on the lesser included offense of reckless endangerment. Although Hook dealt with the authority of the State to enter a nolle prosequi to a lesser included charge, and Hagans dealt with whether a jury may convict a defendant of an uncharged lesser included offense, we agree with Bowers that a trial judge’s obligation to instruct a jury on an uncharged lesser offense is evaluated in light of the principles established in those cases and their progeny. See Ball v. State, 347 Md. 156, 191-92 , 699 A.2d 1170, 1186 (1997); Burch v. State, 346 Md. 253, 280 , 696 A.2d 443, 456 (1997). We disagree, however, with Bowers’s view of those cases.

A. In Hook , the defendant was charged with felony murder and first degree premeditated murder. Hook admitted the killings, but maintained that he lacked the requisite specific intent for premeditated murder because he was intoxicated at the time of the killings. Over the defendant’s objection, the State entered a nolle prosequi to the second degree murder charge at the end of the State’s case, thereby precluding the jury from considering the lesser included offense of second degree murder, leaving to the jury only the first degree murder counts of premeditated murder and felony murder, as well as armed robbery and the handgun counts. We held that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder.

Hook, 315 Md. at 44 , 553 A.2d at 243 . We reiterated the principles expressed in Keeble, 412 U.S. at 212-13 , 93 S.Ct. at 1997-98 , enunciated in Beck, 447 U.S. at 636-37 , 100 S.Ct. at 2389-90 , explicated in Hopper v. Evans, 456 U.S. 605, 610-12 , 102 S.Ct. 2049, 2052-53 , 72 L.Ed.2d 367 (1982), and applied in Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154, 3159-60 , 82 L.Ed.2d 340 (1984), all capital cases, that when a jury is presented with an “all-or-nothing” choice and “[wjhere one of the elements of the offense charged remains in doubt, but the ⁷²⁰ defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of a conviction.” Hook, 815 Md. at 39, 553 A.2d at 241 (internal quotation marks and citations omitted). Recognizing the long protected right in Maryland to a fair trial, based on Maryland common law, we concluded that the fairness concept addressed in the federal cases as to lesser included offenses in capital cases should encompass noncapital cases as well. Hook, . 315 Md. at 43 , 553 A.2d at 243 .

Judge Orth, writing for the Court, reasoned: When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant’s objection, to nol pros the lesser included offense. The same rationale, set out in detail supra, that supports the Supreme Court rule supports this view. In short, it is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense. Id. at 43-44/ 553 A.2d at 243 ; see also Jackson v. State, 322 Md. 117, 120-21 , 586 A.2d 6, 7-8 (1991); Fairbanks v. State, 318 Md. 22, 26-27 , 566 A.2d 764, 766 (1989).

In Hagans , the issue before the Court was whether, as a matter of Maryland common law, a defendant ordinarily can be convicted of an offense which is not charged but which is a lesser included offense of one that is charged. Judge Eldridge, writing for the Court, traced the history of the lesser included offense doctrine, and concluded that the rule permitting a conviction on an uncharged lesser included offense was well-established at common law, that it is accepted throughout the United States today, and that it generally promotes a just result in criminal cases. Hagans, 316 Md. at 447-48 , 559 A.2d at 801 . In addition, we observed that there are recognized limitations to which we also adhere.

Id. at 448 , 559 A.2d at 801 . ⁷²¹ In Hagans , this Court also explained that the right to have a lesser included offense presented to the jury is not limited to one party, and applies to both the State and the defendant. Id. Although the rule was initially accepted at common law as an aid to the prosecution, the right today is generally equally available to the defendant because the underlying value served by this rule is reliability of the guilt determining process. Id.; see also Beck, 447 U.S. at 688 , 100 S.Ct. at 2390 ; Shellenberger and Strazzella, supra, at 101; 8A James Wm.

Moore et al, Moore’s Federal Practice ¶ 31.03(1) (2d ed. 1992). From the defendant’s perspective, the underlying purpose of the rule is to avoid the danger that a jury, persuaded that the defendant’s conduct was illegal, but not convinced beyond a reasonable doubt that the State has proven all the elements of the greater offense, convicts simply because no other option exists, and the choice is either to acquit or to convict. See Keeble, 412 U.S. at 212-13 , 93 S.Ct. at 1997-98 . This Court noted the rationale underlying the lesser included offense rule as follows: The doctrine is a valuable tool for defendant, prosecutor and society.

From a defendant’s point of view, it provides the jury with an alternative to a guilty verdict on the greater offense. From the prosecutor’s viewpoint, a defendant may not go free if the evidence fails to prove an element essential to a finding of guilt on the greater offense. Society may receive a benefit because, in the latter situation, courts may release fewer defendants acquitted of the greater offense. In addition, the punishment society inflicts on a criminal may conform more accurately to the crime actually committed if a verdict on a lesser included offense is permissible.

Hagans, 316 Md. at 448, 559 A.2d at 801 (quotation marks and citation omitted). B. The inquiry in assessing whether a defendant is entitled to a lesser included offense jury instruction is a two-step process. The threshold determination is whether one ⁷²² offense qualifies as a lesser included offense of a greater offense. Maryland applies an “elements test” to determine what is a lesser included offense, i.e., all of the elements of the lesser included offense must be included in the greater offense. 5 Hagans, 316 Md. at 450 , 559 A.2d at 802 .

Once the threshold determination is made, the court must turn to the facts of the particular case. In assessing whether a defendant is entitled to have the jury instructed on a lesser included offense, the court must assess “whether there exists, in light of the evidence presented at trial, a rational basis upon which the jury could have concluded that the defendant was guilty of the lesser offense, but not guilty of the greater offense.” Ball, 347 Md. at 191 , 699 A.2d at 1186 ; Burch, 346 Md. at 279-80 , 696 A.2d at 456 ; Burrell v. State, 340 Md. 426, 434 , 667 A.2d 161, 164-65 (1995); Jackson, 322 Md. at 127-28 , 586 A.2d at 10-11 . The Hook rule is grounded in fairness, and