State v. Stouffer

WILNER, Judge. This case arises out of the killing of Jeffrey Fiddler on February 26-27, 1989. Respondent Edward Stouffer was convicted of felony murder and kidnapping, the kidnapping being the underlying felony for the felony murder. A co-defendant, William Burral, who was tried separately and whose appeal is currently pending in this Court, was convicted of second degree murder.

The Court of Special Appeals concluded that, although there was legally sufficient evidence to sustain Stouffer’s conviction for kidnapping, there was insufficient evidence to establish that the killing was committed in the perpetration or course of the kidnapping. It thus affirmed the kidnapping judgment but reversed the judgment for felony murder. Stouffer v. State, 118 Md.App. 590 , 703 A.2d 861 (1997). We granted the State’s petition for certiorari to review the reversal of the felony murder judgment and Stouffer’s cross-petition to review the affirmance of the kidnapping judgment.

We shall affirm the Court of Special Appeals as to the kidnapping and reverse as to the felony murder, thereby sustaining the judgments entered by the circuit court. BACKGROUND This was not an easy case for the police to put together. Six years elapsed between the time Fiddler was murdered and the time Stouffer and Burral were indicted. Most of the people interviewed by the police and most of the non-police witnesses who ultimately testified were, at the time of Fiddler’s murder, part of a dysfunctional community of youngsters, in their twenties, who knew, lived for various periods with, were once married to, or had children with each other and who socialized and frequently “partied” together.

Some of them were associated with drugs, weapons, and other ¹⁰⁰ criminal activity conducted from an establishment known as Rocky’s Pizza, and there was evidence that Fiddler’s killing may have been connected with that activity—that the participants were concerned that Fiddler was saying more than was prudent about the activity, that their intent was to frighten him or teach him a lesson, and that the endeavor to do so got out of hand. There was also some evidence that Stouffer and others were simply upset over attention Fiddler was paying to one “Becky.” The direct evidence in this case of exactly what occurred is rather thin. No one claims to have witnessed the actual kidnapping, beating, or killing of Fiddler. No weapon was recovered.

No fingerprints linking Stouffer or anyone else to the murder were recovered. No confession was obtained. The State’s evidence as to where the beating or the killing occurred was in dispute. There was some evidence indicating that it may have occurred in or just outside of Robert Schell’s apartment at 12 Elizabeth Street, in Hagerstown; other evidence suggested that it occurred in a field or parking lot.

Ultimately, the State abandoned the notion that the beating or killing occurred at 12 Elizabeth Street. There was evidence that Schell was involved and evidence that he was not involved. The various witnesses, some of whom had consumed a great deal of alcohol on the night in question, gave different stories of who was involved, what happened, and where it happened. Some of those stories changed over time—trial was held more than seven years after the murder—and a good bit of the evidence was in the form of earlier written statements made to the police that were inconsistent with the witnesses’s trial testimony.

Much of the evidence was in the form of inculpatory statements allegedly made by Stouffer after Fiddler’s death that were overheard and, six years later, reported to the police. Some facts were not in substantial dispute. Fiddler’s body was discovered early on the morning of February 27, 1989, in a ditch by the side of an entrance ramp to Interstate 81, just over the Pennsylvania-Maryland line. He was clad in pants, a sweatshirt, and unlaced shoes, but had on no socks or under ¹⁰¹ wear.

It was not Fiddler’s common practice to go without socks or underwear or to wear his shoes unlaced. There were two stab wounds in the chest, one about eight inches deep, defensive wounds on the right hand, a bruise on the back of the neck, and abrasions on the buttocks and left leg. Based on his entire examination, including blood patterns on the body, the clothes, and the shoes, grass and leaves on the ball of Fiddler’s left foot, and greasy and granular material on Fiddler’s back, the medical examiner opined that (1) Fiddler died of the large stab wound to the chest, which punctured a lung; (2) that wound would have caused extensive bleeding; (3) the stabbing did not occur where the body was found; (4) Fiddler was probably wearing the sweatshirt, but not the pants or shoes, when stabbed; (5) the pants and shoes were placed back on the body after the stabbing; (6) before Fiddler died and without his pants on, his body had been dragged across a rough granular black surface; and (7) death was not instantaneous, but ensued from bleeding within a half hour after the stabbing. The conclusion that the stabbing occurred elsewhere was supported by the fact that there was very little blood found in the ditch where the body was discovered.

The State’s theory was that Stouffer, Burral, and perhaps others in the group kidnapped Fiddler in Hagerstown, that they took him to a field where they forced him to partially disrobe, that they beat him and, possibly to avert his attempt to escape, stabbed him, that they then drove him, as he lay dying, to the Interstate ramp, where they dumped the body. It is not necessary for us to recount all of the evidence in support of that theory, much of which is marginal. We note, however, the following. Rebekah Kogar, who was Stouffer’s girlfriend at the time, testified that, on the evening Fiddler was killed, she, Stouffer, Burral, and others were at James Russell’s apartment in Hagerstown, that Stouffer, Burral, and Russell left in the late afternoon or evening (as late as between 10:30 and 11:00) and did not return until early the next morning.

Upon his return, Burral had “some kind of red stuff all over him,” and he changed his clothes. Ms. Kogar overheard a conversation between Stouffer and Burral— ¹⁰² “[something that happened up at Elizabeth Street I think it was. Something got out of hand.” They mentioned Fiddler. Barbara Kelly told the jury that, on the evening before she heard that Fiddler had been killed, she was in downtown Hagerstown, near Rocky’s Pizza, when she saw four men, including Stouffer and someone she knew as Billy (inferentially Burral), chasing Fiddler and that she heard Stouffer warn Fiddler to stay away from “Becky.” She recalled seeing Stouffer and some men get into a white car, although she could not be certain if that was the same night as the chase.

In an earlier statement given to the police, she indicated that it was the same night as the chase. Evidence was presented that Stouffer then owned a white Volkswagen Rabbit. Although Stouffer had told Hagerstown Detective Johnson that Fiddler had never been in his car, FBI agent Wayne Oakes, a forensic scientist, testified that three hairs found in that car were microscopically indistinguishable from sample hairs taken from Fiddler’s hairbrush. 1 There was some evidence of a blood trace on the inside of the door of the car, but the sample was not taken until 1995, and it was not suitable for testing. Kathy Argo recalled a conversation in 1989 in which Stouffer told her that the police were trying to connect him to Fiddler’s murder, but “they can’t prove anything.” He added that there had been blood in his car, “but it’s been cleaned out.” Much of the evidence against Stouffer came from his own mouth, through statements made to or overheard by others.

Richard Ford recalled a conversation with Stouffer in 1990, in which Stouffer mentioned beating a person, for “sticking his nose where it didn’t belong.” Stouffer added that the beating took place in an alleyway around the corner from Rocky’s, that three other men, including Burral, were with him, and. that “they beat the heck out of him and he didn’t give a damn if he lived or died and said that he ... that they put him in the van ¹⁰³ and dropped him off at the interstate right there at State Line.” In an earlier written statement to the police, which was admitted as substantive evidence, Ford recounted that Stouffer had said that “I killed the fucking guy.” Fiddler’s name, in particular, was not mentioned. Brian Burchett recalled overhearing a conversation between his former girlfriend, Annette Bowman, Stouffer, and Russell in July, 1990, in which Stouffer remarked that “Jeff Fiddler was running his mouth too much and that he deserve[d] what he got.” Patricia Moore, who was part of the operation at Rocky’s and was a friend of Stouffer, gave a statement in June, 1995 to Detective Sterner—a statement that she disavowed at trial but which was admitted into evidence—recounting a conversation with Stouffer in which he admitted that he helped to beat Fiddler and that he rode around in a car with him. She recited in her statement Stouffer’s admission that “there was a struggle and [Fiddler] was trying to get away a couple of times” and “[t]hat’s where they stabbed him there at the field.” Stouffer boasted, according to her statement, that he “got a rush and a thrill,” that the police would never find out, that “he had gotten away with it,” that Fiddler had been in the trunk of the car, and that there were blood stains in the back of the trunk. Connie Minnick said she overheard a conversation between Stouffer and her sister in which Stouffer said that “he didn’t want it to go that far.” In an earlier statement to the police, she noted Stouffer’s further comments that “he just freaked out” and that “he didn’t know if [Fiddler] was dead or not.

And they were just scared.” Ginger Eavey, a friend of Stouffer, recalled hearing him say that Fiddler had been stabbed, put in a vehicle, and dumped “along the State line.” Robert Schell testified to a number of altercations with Stouffer. On the night Fiddler was killed, Schell returned downtown after a good bit of drinking and two previous altercations and encountered Stouffer, who threatened him to the point that he ran for safety into a hotel. Later that evening, he saw Stouffer again. Stouffer accused him of “narking” and warned him that “if I didn’t get out of his face I ¹⁰⁴ could be taken care of too.” At that point, a police officer came by and separated the two.

In March, 1989, according to Schell, he encountered Stouffer in downtown Hagerstown. They had an argument, following which Stouffer began chasing Schell and allegedly pushed him into an oncoming truck. Angela Tobery saw Stouffer and others chasing Schell on that occasion, but she did not see the push. Stouffer was initially charged with premeditated first degree murder, a variety of first and second degree sexual offenses committed against Fiddler, kidnapping, and felony murder based on the sexual offenses and kidnapping.

The only counts submitted to the jury were first degree premeditated murder, of which appellant was acquitted, kidnapping, of which he was convicted, felony murder based on the kidnapping, of which he was convicted, and second degree murder, as to which no verdict was returned. As noted, the Court of Special Appeals affirmed the kidnapping judgment but reversed the felony murder judgment. DISCUSSION Evidence of Kidnapping As we indicated, the State contended that Stouffer and others abducted Fiddler in Hagerstown, forced him into Stouffer’s car, drove him somewhere where they beat and stabbed him, and then drove him into Pennsylvania, where they dumped his body. On the theory that the intent of this enterprise was to beat Fiddler in order to teach him a lesson, Stouffer urges that the asportation of Fiddler from where he was seized was simply to remove him to a place where he could be beaten, and that an asportation for that purpose does not constitute kidnapping.

Nor, he contends, would it constitute kidnapping to transport Fiddler’s dead body from the place of stabbing to the ditch in Pennsylvania. The evidentiary challenge, in other words, is not with respect to the proof of his criminal agency, but as to whether (1) the asportation of Fiddler, while still alive, was simply to facilitate the assault, or murder, and did not, therefore, constitute the separate crime ¹⁰⁵ of kidnapping, and (2) the asportation of his dead body, following the stabbing, can constitute kidnapping. Kidnapping is a statutory crime in Maryland. With an exception not relevant here, Maryland Code (1957 and 1996 Repl.Vol.), Article 27, § 337 makes it a felony to forcibly or fraudulently carry or cause “any person” to be carried out of or within Maryland with the intent to have the victim carried or concealed in or out of the State.

That statute, first enacted in 1809, enlarged the common law crime of kidnapping, which was limited to forcibly abducting or stealing a person and sending him or her to another country. See Midgett v. State, 216 Md. 26, 38-40 , 139 A.2d 209 (1958); Moore v. State, 23 Md.App. 540 , 329 A.2d 48 , cert. denied, 274 Md. 730 (1975). Although no cases are cited by either side, the State essentially concedes that one may not be convicted of kidnapping for carrying around a corpse. The statute speaks in terms of carrying “any person,” and, at least for purposes of this case, we shall assume that a corpse is not a “person” within the meaning of the statute.

The court below specifically instructed the jury that, to convict Stouffer of kidnapping, it must find that Fiddler was alive when the kidnapping occurred. The question thus focuses on what happened to Fiddler before he died. In that regard, the evidence, recounted above, suffices to show that Stouffer, together with others, in order to frighten Fiddler or “teach him a lesson,” abducted Fiddler from somewhere in Hagerstown, took him to a parking lot or field, beat him, stabbed him either to prevent his escape or because the beating enterprise “got out of hand,” put him in a car while he was bleeding to death, and dumped his body in Pennsylvania. The evidence permits a reasonable inference of at least two asportations: one from the point of initial abduction to the place where the beating and stabbing occurred, and a second from that point to the entrance ramp in Pennsylvania.

In light of the medical examiner’s testimony that Fiddler may have lived for as long as a half hour after he was stabbed, the evidence also permits a reasonable inference that he was still alive, for at least part of the time, while he was dragged into the car after being stabbed and driven to Pennsylvania. ¹⁰⁶ There are literally hundreds of reported decisions around the country dealing with whether, and under what circumstances, the detention, confinement, or asportation of a victim initially accosted for the purpose of robbery, sexual assault, or some other crime will suffice to sustain a separate conviction for kidnapping. See Frank J. Wozniak, Annotation, Seizure or Detention for Purpose of Committing Rape, Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R. 5th 283 (1996). Not only do the facts vary from one case to another, so do the State or Federal kidnapping statutes at issue. Some statutes proscribe the confining or restraining of a person, more akin to false imprisonment; others speak of “taking” a person; some, like the Model Penal Code (§ 212.1), include both a confinement and a taking or removal; some are divided into degrees, dependent in part on the defendant’s mental state or whether the kidnapping is for the purpose of ransom.

Maryland’s statute, as noted, requires a “carrying” and is not divided into degrees. Both because of the varying fact patterns and the different statutory provisions, one needs to be very careful in looking for precedential or persuasive decisions. Courts in dozens of State and Federal cases have followed what has been described as the “traditional rule in American jurisprudence” that “any asportation—i.e., carrying away—of the victim, no matter how short in distance or duration, was sufficient to establish the crime of kidnapping.” Government of Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir.1979); also Wozniak, supra, 39 A.L.R. 5th at 356. See, for example, State v. Vass, 191 Conn. 604 , 469 A.2d 767 (Conn.1983), where the defendant, a customer in a grocery story, ordered the clerk at knifepoint to a stockroom at the back of the store, where he attempted to rape her.

Rejecting his argument that he could not be convicted of kidnapping if that offense was “integral or incidental” to the crime of rape, the court concluded that, if the State proved all of the elements of kidnapping, the defendant could be convicted of that offense in addition to another felony “even though the two offenses arose out of the ¹⁰⁷ same conduct.” Id. at 774. See also State v. Jacobs, 93 Ariz. 336 , 380 P.2d 998 (Ariz.1963); Bailey v. State, 146 Ga.App. 774 , 247 S.E.2d 588 (1978); Wilson v. State, 253 Ind. 585 , 255 N.E.2d 817 (Ind.1970) Harris v. State, 78 Wis.2d 357 , 254 N.W.2d 291 (Wis.1977). The rationale behind that view is that it is the fact of the forcible removal, not its distance, that constitutes the separate crime of kidnapping. The statutory language is read literally and given its broadest meaning.

As the annotator points out, however, a majority of courts have moved away from that approach and now hold that “kidnapping statutes do not apply to unlawful confinements or movements ‘incidental’ to the commission of other felonies.” 39 A.L.R. 5th at 356. The rationale of that approach is the concern that a literal reading of the kidnapping statutes, which often carry significant penalties, can lead to an overzealous enforcement, with the result that “persons who have committed such substantive crimes as robbery or assault— which inherently involve the temporary detention or seizure of the victim—will suffer the far greater penalties prescribed by the kidnapping statutes.” Government of Virgin Islands, supra, 604 F.2d at 226 ; also People v. Levy, 15 N.Y.2d 159 , 256 N.Y.S.2d 793 , 204 N.E.2d 842 (N.Y.1965), observing that, if read literally, the kidnapping statute would “overrun” other crimes, such as robbery, rape, and assault; Cotton v. Superior Court, 56 Cal.2d 459 , 15 Cal.Rptr. 65 , 364 P.2d 241, 244 (Cal.1961) and People v. Daniels, 71 Cal.2d 1119 , 80 Cal.Rptr. 897 , 459 P.2d 225, 231 (Cal.1969), expressing concern that “every assault could also be prosecuted for kidnapping ... as long as the slightest movement was involved.” Although some courts have applied that principle to reverse kidnapping convictions even upon proof that a robbery or sex offense victim was taken a considerable distance and held for more than just a brief period of time, most courts following the majority view are more flexible and take a close look at the circumstances to determine whether the confinement or movement truly was “incidental” or “integral” to another ¹⁰⁸ crime. 2 Among other things, courts have looked at how long the victim was held, how far the victim was taken, where the victim was taken, whether the abduction exceeded what was necessary to the commission of the other crime, and whether the abduction itself substantially increased the risk of harm, beyond the risk inherent in the commission of the other crime. See State v. Farmer, 191 W.Va. 372 , 445 S.E.2d 759 (W.Va.1994); State v. St. Cloud, 465 N.W.2d 177 (S.D.1991). In an effort to guide judges and juries in determining when a separate conviction for kidnapping is permissible, some courts have devised standards or guidelines, focusing principally on distance, duration, and danger.

In Government of Virgin Islands v. Berry, supra, 604 F.2d 221 , the court reviewed earlier pronouncements and concluded, at 227: “We believe that despite the variance in terminology, four factors are central to each of these approaches. Those factors are: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during ¹⁰⁹ the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that