State v. Thomas

Adkins, J. The past twenty years have seen a dramatic increase in heroin use, abuse, and accessibility. 1 Unsurprisingly, Maryland has experienced a correlating spike in heroin and opioid-related deaths. 2 Our State, and Marylanders alike, seek tools to combat this epidemic. We are asked to consider under what circumstances the dangers of heroin would justify holding a dealer liable for involuntary manslaughter for supplying the means by which his customer fatally overdoses. The issue is fraught. The perception of an epidemic cannot solely dictate its legally recognized danger.

As our role requires, we address the issue in the specific context of this sale of heroin to determine where the act falls on the continuum of culpability. The question presented is at once straightforward and weighty: whether the evidence in the trial court was sufficient to sustain Patrick Joseph Thomas' ("Thomas") conviction for involuntary manslaughter. 3 We resolve this case in favor of Petitioner, holding that there was sufficient evidence to convict Thomas of gross negligence involuntary manslaughter. BACKGROUND The State charged Thomas with three counts: distribution of heroin, reckless endangerment, and involuntary manslaughter. Thomas entered, what we have termed before, a "hybrid plea," wherein the parties "agree to the ultimate facts," while "maintain[ing] the ability to argue legal issues, as well as sufficiency." Bishop v. State , 417 Md. 1 , 22, 7 A.3d 1074 (2010).

"The State's proffer may not contain disputes of material fact, because the judge cannot resolve credibility issues on a mere proffer." Id. at 24 , 7 A.3d 1074 . These agreed factual findings were read into the record by the State's Attorney and are quoted at length below. As an initial matter, Thomas objects to the State's citation of "at least ten journal articles, newspaper reports, and internet websites" to support its argument, because, he asserts, we are confined to the record "as presented to the lower court." Moreover, Thomas states that he "does not agree to the facts identified by the State" in its brief, particularly considering that they are not placed in the context of the time in which this incident occurred, 2015. We agree with Thomas that newspaper articles-excepting those referenced in the agreed statement of facts-play no role in consideration of this case.

Still, this Court is able to take judicial notice of facts "not subject to reasonable dispute" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Maryland Rule 5-201(b). We may take such notice on request or sua sponte , see id. 5-201 (c), regarding a range of reliable scientific and historical data. See, e.g. , Faya v. Almaraz , 329 Md. 435 , 445, 620 A.2d 327 (1993) (Surgeon General's Reports issued by the U.S. Department of Health and Human Services); B.N. v. K.K. , 312 Md. 135 , 139-40, 538 A.2d 1175 (1988) (reports issued by the Centers for Disease Control and Prevention, as well as other academic publications); Gillespie-Linton v. Miles , 58 Md. App. 484 , 499, 473 A.2d 947 (1984) (life expectancy tables). Agreed Findings of Fact 4 [O]n June 26th of 2015, at approximately 3:19 in the morning, Worcester Central received a 911 call from Tammy Colleen Matrey [ ("Tammy") ], who resides ... [in] Ocean Pines, Worcester County, Maryland.

Tammy advised that she had located her son, Colton Lee Matrey [ ("Colton") ], locked in her bathroom. Colton was unresponsive, had no pulse and was not breathing. Tammy would testify that she had previously seen Colton earlier that day, alive and well, and had found him at this particular time of evening or early morning hours of the 26th of June unresponsive. At 3:27 in the morning Ocean Pines Emergency Medical Services and Ocean Pines Police Officer Kerrigan arrived at the residence and located Colton seated on the toilet in the bathroom with his head propped on the vanity top.

They pronounced Colton deceased. Because of the scene, it was determined that Colton died of a probable heroin overdose. And, therefore, the Worcester County Criminal Enforcement Team was contacted and asked to respond to conduct a criminal investigation of the circumstances surrounding Colton's death. At approximately 4:30 in the morning, Detective Jeff Johns [ ("Johns") ] of the Ocean City Police Department, assigned to the Worcester County Criminal Enforcement Team, arrived at the residence.

Without objection, Johns would have been offered and accepted as an expert in the valuation and identification of controlled dangerous substances [ ("CDS") ], the common practices of users and dealers of [CDS] and [CDS] investigations generally. Johns arrived at the residence, went into the bathroom of the residence, observed Colton, determined that Colton's body had not been moved.... Johns located one white wax paper bag inside of Colton's right hand. There were three additional identical white wax paper bags on the ground directly beneath Colton between the toilet and the vanity.

Each one of these bags was stamped ["banshee"] in blue, with a blue-colored emblem. Those packages contained trace amounts of suspected contraband [and] are what Johns knows is commonly used to contain heroin. * * * [State's exhibits] reflect the photograph of Colton's right hand which contained the one empty package of banshee and the other photograph depicts what was found in Colton's pants pocket, which was a syringe. * * * Colton's bedroom was searched with the consent of his mother. And located in Colton's bedroom were four additional hypodermic syringes, a spoon and a Q-tip inside of a folded pair of Colton's jeans in the closet. These were identified by Johns as heroin paraphernalia.

There was also a prescription pill bottle with the label torn off that contained six 50-milligram tramadol pills, which is a Schedule IV [CDS]. It was determined that Colton did not have a prescription for the tramadol pills and possibly had taken these pills, unknowingly, from his mother. * * * Johns spoke with the individuals who were present in the residence at the time [of Colton's death]. In addition to Tammy, ... there was also James Godino [ ("Godino") ], who was the boyfriend of Tammy, and Carissa Koons [ ("Koons") ], who was the girlfriend of Colton. It was determined ... by interrogating or questioning those three individuals that Colton had been abusing heroin for approximately four[-]and[-]a[-]half years.

He resided in Pennsylvania up until February of 2015, when he moved to Ocean Pines, Maryland to live with his mother.... Koons had been in a relationship with Colton for four years. She advised that Colton had always had a heroin addiction. Approximately two[-]and[-]a[-]half years ago Colton had overdosed after being released from a halfway house where he had become clean of opiates.

Narcan, or naloxone, was administered, and he had survived that overdose. However, Koons advised that he continued to abuse heroin after that overdose. In February of 2015[,] Colton moved out of the Pennsylvania area and into his mother's home in an attempt to isolate himself from the lifestyle of heroin abuse in Pennsylvania.... [O]n June 25th[,] Colton had asked his mother to borrow her debit card. Tammy allowed Colton to have her debit card so that he could rent a couple of movies.

After his death, she checked her bank transactions. She observed that Colton had rented two movies and then withdrew $ 40 in U.S. currency. This $ 40 in U.S. currency was withdrawn at 11:59 in the evening on the 25th of June .... On June 25th of 2015[,] at approximately 11:50[,] Koons woke up from her sleep and observed that Colton had her car keys....

He then left the residence.... Approximately five minutes after Colton left the residence, Koons called Colton. He did not answer. She woke up at approximately [1:00] in the morning, noticed that Colton was not in the bedroom with her and called him again.

He did not answer, and she fell back asleep. At approximately 3:10 to 3:15 in the morning[,] Koons woke up again. Colton was still not back in the bedroom. She then checked the bathroom and noticed that the door was locked, looked under the door crack and observed Colton's shoes.

She then woke up Colton's mother, Tammy, and Godino. Godino removed the door hinges, at which time they were able to locate Colton's body in the bathroom. He was checked for a pulse. It was determined that he was not breathing and that's when 911 had been called.

Johns, as part of the investigation, seized Colton's black in color cellular telephone.... Tammy granted Johns permission to search the contents of the phone in an attempt to identify Colton's supplier of heroin.... Later in the day[,] Tammy contacted Johns and advised that she had found a piece of paper inside Colton's wallet that had two names and phone numbers written down.... The names and numbers written down on this piece of paper was [ sic ] the name Pat, with the number ..., and also the name G - G ... and his number ....

Johns, utilizing the LInX Law Enforcement database, input the number that corresponded with the name of Pat. The database search identified Patrick Joseph Thomas [ ("Thomas") ], with a date of birth of 8/16/56, a 58-at the time-year old white male as the owner of the phone. * * * [Koons] indicated [to Johns] that when she woke up at approximately 11:50 on June 25th of 2015, and Colton was still in the house, she heard Colton complaining that Pat was not answering the phone. This was right before Colton left the residence in Koon's car. There was no real familiarity with Pat.

Koons had never met Pat. * * * A physical examination of Colton's phone ... shows that an individual by the name of Pat was saved as one of his contacts. And the phone number ... corresponded with the number found in Colton's wallet. Johns then looked through the ... call log on Colton's phone and observed the following: On June 25, 2015, starting at 11:45 in the evening, [23:45] hours, Colton called Thomas 27 times ... between 11:45 and 12:07 a.m. All of those call durations, except for the last one, were zero seconds, indicating no answer, no contact.

That last call was 27 seconds long, indicating contact. Additionally, there were text messages sent from Colton's cellular telephone sent to the number associated with Thomas. Those text messages were sent on June 25, 2015, at [23:46] hours, which stated, "I got $ 30, man, call me, please." June 25, 2015, at [23:48] hours, "Call me." June 25, 2015, [23:48], "I'll come to you." June 26, 2015, at two minutes past midnight, ... "I'm here, I need 4." ...

June 26, 2015, at [00:05] hours, "Yo, I'm here." Johns would testify, based on his training, knowledge, and experience ... that these were outgoing cell phone calls and text messages reaching out to Thomas, inquiring about purchasing five 5 [ sic ] bags of heroin during those several minutes.... [F]rom Colton's last communication until the time he's pronounced dead, the only person he attempted to communicate with was Thomas. Based on that information, a search and seizure warrant was authored by Johns. And on July 2nd of 2015, a search and seizure warrant was executed on the person of Thomas and [his residence.] * * * Johns located a total of 60 individual white wax paper bags. These bags were stamped ["banshee"] in blue, with a blue emblem.

These bags were identical in appearance to the bags recovered from Colton from the date that he expired. These bags were on a table that was directly next to the chair where Thomas was seated during the warrant execution. Each of these bags contained a light brown powdery substance that was suspected heroin.... [E]ight bags were loose on the table, and there were another 52 bags that were packaged in four bundles. * * * There were several hundred empty ... wax paper bags[ ] on the floor directly next to the chair where Thomas was seated and on the table next to Thomas.... Johns noticed a combination of the following: ... wax paper bag[s] stamped "banshee" in blue with a blue emblem[;] ... white wax paper bags stamped "banshee" in blue with no emblem[;] ... white wax paper bags stamped "New York" in black with a black mask emblem[;] ... blue wax paper bags stamped "Gucci" in red with a red emblem[;] ... [and] blue wax paper bags stamped "slam" ... in red with no emblem. * * * Also seized from Thomas was an LG brand cellular telephone that was on the table next to where he was seated. * * * [Johns examined Thomas' phone.] [A] screen shot of the LG phone ... identified as Thomas' identif[ied] an individual logged ... as a contact.

The name is "Colton".... [The number] corresponds with Colton's cellular telephone. * * * Toll records show that the cellular telephone that was in Thomas' possession received 28 incoming phone calls from Colton's phone number, starting as [23:45] hours, or 11:45, on the evening of June 25th of 2015, and continued through seven minutes after midnight on June 26th of 2015.... Johns would testify that the inconsistency, meaning there was 27 versus 28 [calls], would be that one of those calls would have been deleted by Colton accidentally. * * * The 60 bags recovered from Thomas' residence [were] ... submitted ... for testing and analysis.... [T]hat report reflects that the gross weight was 13.10 grams.... Five specimens were analyzed separately, resulting in the conclusion that those items contained the substance of heroin, a Schedule I [CDS]. * * * [H]ad this matter gone to trial, ... the State would have introduced the postmortem examination of the Office of the Chief Medical Examiner.... [The] autopsy [was] performed by [Theodore M. King, M.D. ("King") ].... [T]he toxicology report and findings [stated:] "This 23-year-old white male, Colton Lee Matrey, died of alcohol and narcotic (free morphine ) intoxication.

The manner of death could not be determined. Autopsy detected increased levels of alcohol and a drug (free morphine ) in the heart blood of the deceased and also showed evidence of heart disease and injuries to the head, neck, back, upper extremities and lower extremities. The additional finding in the prostate gland was incidental to the man's death. The deceased had been consuming alcoholic beverages and heroin (a drug) a [ sic ] prior to death.

Post mortem testing for additional drugs was negative." * * * During Johns' testimony, ... inquiry would have been made regarding the general public awareness regarding the dangers of heroin. It would be his testimony that Worcester County, this particular region, and the State of Maryland has been consumed with heroin overdoses, some resulting in deaths, and that these overdoses have resulted in an acute awareness of the dangers of heroin. Simply put, he would say, heroin kills, and everyone knows it. * * * He would also testify that even ... outside of the drug use or abuse realm, it is still commonly known. He would testify that one local paper is currently running a weekly series of articles regarding the dangers of heroin use ....

He would testify that the community itself has come together and formed groups in order to address the opioid and heroin problems facing this particular community. 6 It would be his testimony ... that anyone in Thomas' situation would understand the dangers of heroin, and its propensity to harm physically, if not kill, individuals who are ingesting it. Following Thomas' arrest, he was transported to the Worcester County Sheriff's Office.... Corporal Wells [ ("Wells") ] and [other officers] ... met with Thomas at the sheriff's office in the processing room. Wells advised Thomas of his Miranda rights .... [T]here is no argument as to the voluntariness of [Thomas'] statement. * * * Wells asked Thomas, "How many bags of heroin do you use a day?" Thomas replied, "About 12." Wells asked Thomas, "How many bags do you use in a single shot?" Thomas replied, "Four." Wells advised Thomas that investigators were aware that he was travelling to Delaware to get his supply of heroin.

Wells asked Thomas, "How often do you go to Delaware to get heroin?" Thomas replied, "Every two to three days." Wells asked Thomas, "How many bundles do you get at a time?" Thomas replied, "Five." Wells asked Thomas, "How much ... did you pay today for the five bundles?" Thomas replied, "Three hundred dollars." A bundle ... would be testified by Johns as [being] ... anywhere from ten to thirteen ... individual bags of heroin. They are rubber-banded together and sold as a bundle.... Wells asked Thomas, "When did you last go to Delaware to get heroin?" Thomas replied, "Today." ... Wells asked Thomas, "How much do you sell a bag of heroin for?" Thomas replied, "Ten to fifteen dollars." Wells asked Thomas, "So out of the five bundles you got today, how many bags would you normally sell?" Thomas replied, "About 30." Wells asked Thomas, "What is the best heroin out there now?" Thomas replied, "Banshee." Wells asked Thomas, "How long have you been selling the banshee bags?" Thomas replied, "A month or a month and a half." Wells advised Thomas, "We saw you sell some heroin to a boy named Colton, or something like that, the other week." Thomas replied, "Yeah, you mean Colt." Wells asked Thomas, "What do you know about Colt?" Thomas replied, "He is a young boy.

He told me he did some prison time in Pennsylvania." Wells asked Thomas, "How many times have you sold heroin to Colt?" Thomas advised, "A few times." Wells told Thomas, "When we saw you sell to Colt, it was like midnight. Do you remember that?" Thomas replied, "Yeah, it was late." Wells asked Thomas, "Is that what time you normally meet with Colt?" Thomas replied, "No, that was weird. I usually met him earlier." Wells asked Thomas, "So that was the only time you sold heroin to Colt at around midnight?" Thomas replied, "Yeah." Wells advised Thomas, "Do you remember how many bags you sold him?" Thomas replied, "Four." * * * Wells asked Thomas, "Where did you meet with Colt on this night?" Thomas replied, "I can't remember where I met him. It could have been the Food Lion parking lot.

No, I think I met him on the street in Ocean Pines." Wells asked Thomas, "Was Colt driving a car?" Thomas replied, "No, he was walking." Wells asked Thomas, "What kind of bag did you sell Colt?" Thomas replied, "Banshee bags." Wells then showed Thomas a photograph taken of Colton. This photograph depicted Colton deceased in the bathroom of Colton's mother's house. Wells asked Thomas, "Is this the person you know as Colt?" Thomas looked at the photograph and replied, "Yeah, that's him." Thomas has a puzzled look on his face. Thomas asked Wells, "Is he dead in that picture?" Wells replied, "Yes.

This picture was ... taken just hours after [Colton] met with you and bought heroin." Thomas replied, "He couldn't have overdosed off what I sold him. I only sold him four bags." Wells then showed Thomas a picture of four banshee bags of heroin that were recovered from the bathroom that Colton was found deceased in. Wells asked Thomas, "You mean these four bags?" Thomas' eyes opened widely. * * * Wells asked Thomas, "Do you know how old Colt was?" Thomas replied, "I think he was like 19." [ 7 ] Wells and Thomas sat quietly for a moment. Wells asked Thomas, "What do you think?" Thomas said, "I feel bad." Detective Trader [ ("Trader") ] advised Thomas, "You got to live with this on your conscience." Thomas replied, "I know." ...

Trader then began walking Thomas to a holding cell.... Thomas stated to Trader that he felt bad about Colt's death. Trader advised, "Who wouldn't?" And Thomas replied, "Someone without a conscience." * * * By agreement, if this case were to go to trial, Thomas would testify ... and his testimony would include the fact that he personally had used the same product, the banshee heroin, [prior to Colton's use,] and had not overdosed and, obviously, had not died from his use of it. Procedural Posture The trial court found Thomas guilty of distribution of heroin, reckless endangerment, and involuntary manslaughter.

The State presented two possible theories for an involuntary manslaughter conviction: unlawful act manslaughter and gross negligence manslaughter. The court determined that Thomas could be convicted under either theory. Specifically, the judge concluded that Thomas was grossly negligent because the testimony would have shown that "it is well known that, in fact, the use of heroin can cause death," and Thomas' statement to police demonstrated that he was so aware. Alternatively, the judge stated that he reached the same result under an unlawful act analysis.

Thomas appealed the trial court's ruling to the Court of Special Appeals, challenging the sufficiency of the evidence to sustain his involuntary manslaughter conviction. Thomas v. State , 237 Md. App. 527 , 531, 186 A.3d 857 (2018). The intermediate appellate court first held that the State failed to establish causation sufficient to convict Thomas of unlawful act manslaughter. Id. at 535-36 , 186 A.3d 857 .

The State does not challenge this determination and we do not review it. Addressing gross negligence manslaughter, the Court concluded that "the State failed to carry its burden of proof in two regards." Id. at 536, 186 A.3d 857 . First, it held that, though there might be evidence of negligence, there was not sufficient evidence of gross negligence. See id. at 537, 186 A.3d 857 .

Additionally, the intermediate appellate court held that the defendant must be the "but for" cause of the victim's death, but "the causal chain was broken." Id. The State appeals to this Court. DISCUSSION Standard of Review The trial court convicted Thomas of manslaughter under both an unlawful act and gross negligence theory. It is our task only to review that court's determination for whether there was sufficient evidence in the record to support it.

While it is typically cautioned that we must not "undertake a review of the record that would amount to, in essence, a retrial of the case," State v. Albrecht , 336 Md. 475 , 478, 649 A.2d 336 (1994), there was no "trial" in the present case in the traditional sense. Rather, this case proceeded on an agreed statement of facts. So, like the trial court, we accept the parties' agreed "ultimate facts" and "simply appl[y] the law to the facts agreed upon[.]" Taylor v. State , 388 Md. 385 , 396-97, 879 A.2d 1074 (2005) (citation omitted). We ask only "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." Albrecht , 336 Md. at 479 , 649 A.2d 336 (quoting Jackson v. Virginia , 443 U.S. 307 , 318-19, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) ).

Gross Negligence Involuntary Manslaughter In Maryland, involuntary manslaughter is a common law felony, though punishments are doled out in accordance with Maryland Code (2002, 2012 Repl. Vol.), § 2-207(a) of the Criminal Law Article ("CR"). Involuntary manslaughter is the unintentional killing of a human being, irrespective of malice. See Albrecht , 336 Md. at 499 , 649 A.2d 336 .

There are generally thought to be three varieties of involuntary manslaughter: (1) unlawful act manslaughter-"doing some unlawful act endangering life but which does not amount to a felony"; (2) gross negligence manslaughter-"negligently doing some act lawful in itself"; and (3) "the negligent omission to perform a legal duty." Id. (citations omitted). For the latter two categories of involuntary manslaughter, "the negligence [must] be criminally culpable"-i.e., grossly negligent. Mills v. State , 13 Md. App. 196 , 200, 282 A.2d 147 (1971).

The present case involves only the second variety: gross negligence involuntary manslaughter. The State must also demonstrate a "causal connection between such gross negligence and death ... to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended." Albrecht , 336 Md. at 499 , 649 A.2d 336 (citation omitted). This includes actual, but-for causation and legal causation. The legal cause analysis "turns largely upon the foreseeability of the consequence" of the defendant's acts or omissions and whether "the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Palmer v. State , 223 Md. 341 , 352-53, 164 A.2d 467 (1960) (citation omitted).

The State has made clear that its "sole argument before this Court is that the evidence was sufficient to convict Thomas of grossly negligent involuntary manslaughter." Consequently, we do not review the Court of Special Appeals' determination regarding unlawful act involuntary manslaughter. Instead, we focus only upon whether the evidence introduced in the trial court was sufficient to convict Thomas of gross negligence involuntary manslaughter-in other words, to vault Thomas' conduct over the theoretical bar separating ordinary negligence from criminal gross negligence. The Gross Negligence Standard As Judge Charles Moylan, a venerated scholar of Maryland criminal law, explained, "[f]rom the beginning, the Maryland caselaw describing the 'gross negligence' necessary to support a conviction for involuntary manslaughter equated 'gross negligence' with a 'wanton or reckless disregard for human life.' " Charles E. Moylan, Jr., Criminal Homicide Law § 12.4, at 226 (2018); see also Albrecht , 336 Md. at 499 , 649 A.2d 336 (citation omitted). There is no obvious or empirical definition of "wanton and reckless disregard for human life," but our cases have attempted to describe the "feel" of it.

See Pagotto v. State , 127 Md. App. 271 , 280 n.2, 732 A.2d 920 (1999), aff'd , 361 Md. 528 , 762 A.2d 97 (2000) ("As a practical matter, jurors and judges alike are frequently able to 'sense' or to 'feel' the difference between depraved-heart murder and gross-negligence manslaughter," as opposed to define it). In general, the "gross negligence" mens rea is established by asking "whether the accused's conduct, 'under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others ....' " Albrecht , 336 Md. at 500 , 649 A.2d 336 (citation omitted). The defendant must commit an act "so heedless and incautious as necessarily to be deemed unlawful and wanton ...." Id. (citation omitted).

The act must "manifest[ ] such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences." Id. (citation omitted). Moreover, the defendant, or an ordinarily prudent person under similar circumstances, should be conscious of this risk. See id.

See also Dishman v. State , 352 Md. 279 , 299, 721 A.2d 699 (1998) ; Rollin M. Perkins & Ronald N. Boyce, Criminal Law 107 (3d ed. 1982). Still, these definitions, while somewhat descriptive, are of limited practical use. It is difficult to draw an exact line dividing gross negligence from the lower ordinary negligence standard, or from the higher depraved-heart standard. Although, as recognized by Judge Moylan, these mentes reae exist one-after-the-other on a continuum of culpability.

See Moylan, Criminal Homicide Law § 12.3, at 225. The definitional difficulty lies in the fact that culpability, by its nature, is dependent on the observable forces at play in a given scenario. Our courts have discussed gross negligence involuntary manslaughter in four main contexts: automobiles, police officers, failure to perform a duty, and weapons. None of these provide a perfect analogue for heroin distribution, but, together, they create a helpful tableau depicting how we assess a defendant's level of negligence.

We review the most impactful of these cases below. In 1941, the General Assembly enacted a law specifically defining "manslaughter by vehicle" as causing the death of another by "driving, operating, or controlling a vehicle ... in a grossly negligent manner." CR § 2-209(b). Although this statute preempts any prosecution for such conduct as common law gross negligence manslaughter, see State v. DiGennaro , 415 Md. 551 , 565, 3 A.3d 1201 (2010), we have stated that it involves precisely the same "common law concept and meaning of gross negligence," Duren v. State , 203 Md. 584 , 588, 102 A.2d 277 (1954) (citation omitted). Thus, these cases are still relevant here.

Duren v. State may provide a useful low-water mark for successful manslaughter by vehicle prosecutions. The defendant, driving in a "heavily congested residential and business area" of Baltimore City, drove his car at 7:00 p.m. on a Sunday in December at a speed of at least 60 miles per hour, approximately 30 miles per hour over the speed limit. Id. at 588-89 , 102 A.2d 277 . Ultimately, he struck a pedestrian who had entered the street between two parked cars, hurling him onto the trunk of a nearby car and killing him.

See id. at 589 , 102 A.2d 277 . The Court found it significant that the car hit the victim with such force even after the defendant had apparently attempted to brake, leaving skid marks for 72-89 feet. See id. Concluding that the evidence was sufficient to convict the defendant of manslaughter by vehicle, the Court reasoned it was "plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time." Id. at 591 , 102 A.2d 277 .

What must be observed is "a lessening of the control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another." Id. at 592 , 102 A.2d 277 . Here, the Court could not say the trial court was "clearly wrong" when it found the defendant's speed, in the context of his environment, amounted to gross negligence, or "a disregard of the consequences which might ensue and indifference to the rights of others, and so was a wanton and reckless disregard for human life." Id. at 590 , 102 A.2d 277 . Duren was not an outlier. In State v. Kramer , 318 Md. 576 , 586-89, 569 A.2d 674 (1990), we again found evidence sufficient to support a conviction for manslaughter by automobile when a driver in a rural area, passing in a no-pass zone going at least 75 miles per hour, hit an oncoming vehicle-all the while talking and joking with his passengers. 8 We summed up the holding as follows: [T]he jury, weighing the speed in the light of the surrounding circumstances, could, again in the words of Duren , have found "such a lack of control, whether by reason of speed or otherwise, in a place and at a time when there [was] constant potentiality of injury as a result ...." In addition to speed and lack of control, the factor of lack of attention was present.

In his brief, Kramer concedes that it could be inferred from the evidence that Kramer "failed to keep a proper lookout and thus came upon the Lee vehicle so suddenly that he had to swerve to avoid it." Thus, the evidence was legally sufficient for the jury to find on Kramer's part a wanton and reckless disregard of the rights and lives of others and so a state of mind amounting to criminal indifference to consequences. Id. at 592-93 , 569 A.2d 674 . In a similar case with a divergent outcome, Johnson v. State , 213 Md. 527 , 530, 132 A.2d 853 (1957), the Court reviewed a scenario in which a passenger was ejected from the defendant's car and killed. The defendant, driving in a non-residential portion of Baltimore City at 1:50 a.m., hit a curb, side-swiped a pole, and ended up in a plot of grass.

See id. at 529-30 , 132 A.2d 853 . A witness testified that the defendant's car was going 60 miles per hour, but her testimony was severely undercut during cross-examination, and the defendant testified he was traveling at 35 miles per hour. See id. at 530 , 132 A.2d 853 . He had consumed two beers and officers smelled alcohol on his breath but did not believe that he was intoxicated.

See id. The central issue was "whether or not, in the circumstances existing at the time and place of the accident, the defendant was operating the automobile at such an excessive rate of speed as to constitute gross negligence within the meaning of [the statute]." Id. at 531 , 132 A.2d 853 . The Court focused, again, on "whether, by reason of the speed in the environment, there was a lessening of the control of the vehicle to the point where such lack of effective control is likely at any moment to bring harm to another." Id. at 532-33 , 132 A.2d 853 (citation omitted). Contrasting the case with Duren , the Court looked to environmental factors like the type of road traveled, the time of day, the traffic, the density and character of the neighborhood, and any safety precautions or warnings disregarded.

See id. at 533, 132 A.2d 853 . Based on these factors, it determined that there was insufficient evidence to conclude that the defendant was grossly negligent. See id. at 534 , 132 A.2d 853 . These cases turn on whether, as judged by a holistic view of the risk factors at play, the defendant's conduct was "likely at any moment to bring harm to another." While any one factor alone might not be enough to constitute gross negligence, the convergence of multiple factors creates an unacceptable threat of harm to others-with an emphasis on the one most likely to kill: speed-making an inference of wanton and reckless disregard for human life permissible.

Compare Goldring v. State , 103 Md. App. 728 , 734, 654 A.2d 939 (1995) ("[T]here was ample evidence to support a rational finding that appellant's decision to compete in a drag race on Sunny Side Road constituted grossly negligent conduct."), with Thomas v. State , 206 Md. 49 , 56-58, 109 A.2d 909 (1954) (where the driver consumed alcohol and drove a truck with brakes in need of repair, there was no gross negligence without evidence of speeding). See also Plummer v. State , 118 Md. App. 244 , 267, 702 A.2d 453 (1997) (noting the absence of alcohol or speed in overturning a manslaughter by vehicle conviction). Common law gross negligence involuntary manslaughter also appears in cases involving negligent police officer conduct resulting in death. Importantly, such cases are evaluated under a heightened "reasonable police officer under the circumstances" standard, rather than a reasonably prudent person standard.

Albrecht , 336 Md. at 487 , 649 A.2d 336 . Still, they provide further guidance concerning the line between ordinary and gross negligence. In State v. Albrecht , 336 Md. at 479 , 649 A.2d 336 , two officers responded to a report of the stabbing of a man with a broken bottle. One of the men involved in the stabbing, "Budd," was reported to have fled the scene in a car driven by Rebecca Garnett ("Garnett").

See id. The officers pursued the car and discovered it parked at a townhouse complex, with Budd and Garnett standing outside the vehicle. See id. at 480 , 649 A.2d 336 . Officer Albrecht yelled to the suspects, removed a shotgun fitted with a bandolier from his police cruiser, "racked" the gun, and "leveled" it at Garnett.

Id. at 481 , 649 A.2d 336 . Albrecht, with his finger on the trigger, testified that he "intended to swing the shotgun to the left" to aim it at another party, but the gun discharged, striking Garnett, who fell to the ground dead. Id. at 481-82 , 649 A.2d 336 . Albrecht, who claimed not to realize the gun discharged, continued yelling "I told you not to move" and racked a second round.

Id. at 482 , 649 A.2d 336 . Albrecht testified that he did not believe that Garnett posed a danger to him or others, another officer at the scene stated that Garnett had done nothing to warrant the shotgun being leveled at her, and an expert testified that officers are trained to keep their finger on the trigger guard, never the trigger. See id. at 504 , 649 A.2d 336 . Albrecht's conviction for grossly negligent involuntary manslaughter was upheld.

State v. Pagotto , 361 Md. 528 , 533, 762 A.2d 97 (2000), similarly dealt with an officer-involved shooting resulting in the death of an individual, but, this time, the Court affirmed the intermediate appellate court's reversal of the officer's conviction. The Court identified five factors distinguishing Pagotto from Albrecht : (1) Albrecht drew a shotgun, racked it, and fitted it with a bandolier making it unbalanced; (2) Albrecht purposefully brought his gun to bear on the victim; (3) Albrecht placed his finger on the trigger of the gun, which is nearly universally prohibited; (4) Albrecht had ascertained that the victim was not armed and did not present a threat; and (5) several adults and children were behind Garnett when Albrecht shot her. See id. at 554-55 , 762 A.2d 97 . These distinguishing factors are not unlike those provided in Duren and Johnson , above.

Though not phrased this way in the opinions, Albrecht's conduct created a situation "likely at any moment to bring harm to another," whereas Pagotto's conduct-as judged by a reasonable officer standard-was not as unwarranted, unsafe, or likely to cause injury or death. These environmental risk factors "elevated Albrecht's behavior from ordinary civil negligence to gross criminal negligence." Id. at 554 , 762 A.2d 97 . Finally, Mills v. State , 13 Md. App. 196 , 282 A.2d 147 (1971), provides perhaps the easiest comparison to the present case as it is a pure question of gross negligence involuntary manslaughter. In this case, a 16-year-old boy took his father's gun with him to a school dance.

See id. at 197 , 282 A.2d 147 . Unfamiliar with the operation of the weapon, the boy and his friends went to the bathroom to look at the gun and drink liquor. See id. Knowing there was one bullet in the chamber, the boy pointed the gun at his friend, who slapped the gun from the boy's hand.

See id. at 199 , 282 A.2d 147 . The gun hit the floor, discharged, and struck and killed another boy. See id. The Court of Special Appeals reasoned that the circumstances "plainly" demonstrated "a grossly negligent act dangerous to life ...." Id. at 202 , 282 A.2d 147 .

Moreover, the friend's "reaction when the gun was pointed in his direction was wholly predictable," and therefore not an independent supervening cause. Id. Significantly, in each of the above-enumerated cases, there is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence. Rather, the inherent dangerousness of the act engaged in, as judged by a reasonable person-or reasonable officer-is combined with environmental risk factors, which, together, make the particular activity more or less "likely at any moment to bring harm to another." Johnson , 213 Md. at 533 , 132 A.2d 853 .

For example, while bringing a gun to a school dance might be negligent, the additional facts that the individual had little experience with weapons, was drinking, and pointed it jokingly at another surmount the gross negligence bar. This objective reading of the conduct and circumstances determines whether an act is grossly negligent and creates a permissible inference of wanton and reckless disregard for human life. Another analogue useful in defining the requisite conduct required for gross negligence involuntary manslaughter is the crime of depraved-heart murder. We again turn to Judge Moylan, who noted that "gross negligence manslaughter is the junior varsity manifestation of depraved-heart murder." Moylan, Criminal Homicide Law § 12.1, at 223.

The actus reus -the killing-is identical, and the mens rea -the negligence-differs only as a matter of degree. Again, there is no "precise line" between the two offenses. Dishman v. State , 352 Md. 279 , 299, 721 A.2d 699 (1998). Yet, it suffices to say that gross negligence manslaughter "involve[s] quantitatively less culpability in the first instance" than does depraved-heart murder.

Moylan, Criminal Homicide Law § 12.2, at 224. In other words, it is "simply a little less wanton and a little less depraved ...." Id. The Maryland Pattern Criminal Jury Instructions distinguish the two offenses, describing second-degree depraved-heart murder as involving one whose conduct amounts to "extreme disregard" and a "very high degree of risk" to human life. § 4:17.8, at 699 (2018). The pattern instructions describe gross negligence involuntary manslaughter as consisting of "reckless disregard" and a "high degree of risk" to human life.

Id. § 4:17.9, at 704. Although the difference between "extreme" versus "reckless" disregard, and "very high" versus "high" risk, may seem amorphous, the circumstances in which the distinctions are relevant work to give them shape. See Alston v. State , 339 Md. 306 , 320-21, 662 A.2d 247 (1995) (defendant was liable for depraved-heart murder where he "engage[d] in urban warfare" in a residential neighborhood, resulting in the death of bystanders); In re: Eric F. , 116 Md. App. 509 , 521, 698 A.2d 1121 (1997) (defendant could be convicted of depraved-heart murder where he "plac[ed] [the victim] outside in the cold, dragg[ed] her to the woods, and [left] her there in an unconscious state" to die). In sum, when determining whether an individual has acted with the requisite grossly negligent mens rea to be found guilty of involuntary manslaughter, the State must demonstrate wanton and reckless disregard for human life.

This requires a gross departure from the conduct of an "ordinarily careful and prudent person" and a disregard or indifference to the rights of others. Albrecht , 336 Md. at 500 , 649 A.2d 336 (citation omitted). It also involves an assessment of whether an activity is more or less "likely at any moment to bring harm to another," Johnson , 213 Md. at 532 -33 , 132 A.2d 853 , as determined by weighing the inherent dangerousness of the act and environmental risk factors. This weighing must amount to a "high degree of risk to human life"-falling somewhere between the unreasonable risk of ordinary negligence and the very high degree of risk necessary for depraved-heart murder.

See Dishman , 352 Md. at 299 , 721 A.2d 699 (citation omitted). We review whether Thomas' conduct crosses this bar, infra . Thomas' Involuntary Manslaughter Conviction The matter of whether distribution of heroin can be the basis of a gross negligence involuntary manslaughter conviction is one of first impression in Maryland. To address it, we rely on the principles enumerated above, as well as relevant out-of-state case law, to determine whether sufficient evidence exists in the record to permit the trier of fact to conclude that Thomas was grossly negligent and that his conduct caused Colton's death.

But first, we address Thomas' curious contention that a conviction for gross negligence manslaughter cannot be premised upon the commission of a malum in se criminal act. (i) Gross Negligence Manslaughter and Malum in Se Offenses Thomas proposes that Maryland should not recognize gross negligence manslaughter when the defendant is accused of committing a malum in se offense, 9 as opposed to a malum prohibitum offense. 10 Distribution of heroin, says Thomas, is a malum in se offense and, consequently, may only be tried under the unlawful act theory of manslaughter. Thomas contends that allowing malum in se crimes to be charged as gross negligence manslaughter "hybridizes" the two involuntary manslaughter crimes, making them easier to prove. In other words, Thomas argues that charging malum in se crimes as gross negligence manslaughter allows the State to take advantage of the less stringent causation showing of gross negligence manslaughter, while benefiting from the higher culpability presumed in a malum in se offense.

The State disagrees, providing that "whether distribution of heroin is a malum in se or malum prohibitum only matters if the State is proceeding on the unlawful act variety of involuntary manslaughter," which it is not. Whenever a party is charged with gross negligence manslaughter, according to the State, the prosecution must prove that the act was grossly negligent, regardless of whether the crime at issue is malum in se or malum prohibitum . Moreover, the State characterizes Thomas' argument as "nonsensical," maintaining that it allows some perpetrators to escape criminal liability when they commit a malum in se offense in a grossly negligent manner-the gross negligence manslaughter mens rea -but death does not occur in the commission of, or escape from, the crime-a causation requirement for unlawful act manslaughter. We agree with the State.

First, we think Thomas is too eager to rely on lines that our cases have yet to clearly draw. In Schlossman v. State , 105 Md. App. 277 , 289-91, 659 A.2d 371 (1995), overruled in part and on other grounds by Bailey v. State , 355 Md. 287 , 298 n.10, 734 A.2d 684 (1999), the Court of Special Appeals concluded that malum in se offenses are sufficient, in themselves, to establish the mens rea for an unlawful act manslaughter charge. But, significantly, it did not decide whether an act "dangerous to life" would suffice for the charge, regardless of whether it was malum in se or malum prohibitum . See id. ; Moylan, Criminal Homicide Law § 11.5, at 215.

Thus, Thomas overstates the matter when he insists that malum in se offenses are the only kind that could ever suffice for an unlawful act involuntary manslaughter charge. See generally Moylan, Criminal Homicide Law § 11.5, at 213-15. Moreover, even if there was such a distinct line, it would only keep malum prohibitum offenses from being charged under unlawful act manslaughter, and not the reverse. In Schlossman , the intermediate appellate court stated that "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.' " 105 Md. App. at 288 , 659 A.2d 371 .

Thus, the intermediate appellate court reasserted the underlying rationale for the unlawful act-gross negligence manslaughter distinction-the State is relieved from the burden of demonstrating the higher level of culpability for unlawful act manslaughter due to the seriousness of the underlying offense. The inverse of this concept is also true. When the State seeks to proceed under a gross negligence manslaughter theory, it must demonstrate the higher level of culpability, irrespective of whether the underlying offense is malum in se or malum prohibitum . Consequently, the State does not benefit from any presumption in this circumstance-notwithstanding whether distribution of heroin is malum in se or malum prohibitum -and must prove the grossly negligent mens rea beyond a reasonable doubt.

(ii) Gross Negligence Mens Rea The State next argues that the Court of Special Appeals "usurped the role of the trier of fact and relied on unsupported assumptions" when it determined there was sufficient evidence of negligence, but not gross negligence. The State particularly takes issue with the intermediate appellate court's statement that drug dealers have "no rational interest" in making drug use more dangerous, as it believes this is "not supported by the record or reality." Specifically, the State points to the following facts to show sufficient evidence for the conviction: Thomas had no way of knowing the purity of the heroin he sold; the circumstances surrounding the timing of the sale; Thomas knew Colton was a "young boy"; Thomas knew that Colton was an addict who recently came to Maryland after a stay in prison; and Thomas knew that Colton was "desperate" for heroin and, "by inference," that he would likely consume all four bags. Thomas asserts that the evidence in this case cannot support his conviction under a gross negligence theory because it does "not show the requisite wanton disregard for human life necessary to constitute gross negligence." He states that, "absent proof that the accused or someone in his or her situation should know that amount of the substance is probably fatal," the evidence is insufficient to establish gross negligence. We have already discussed the general principles of gross negligence in Maryland, but, before this case, Maryland appellate courts have never been asked to apply them to the distribution of drugs.

Our search for law on this issue in other states has revealed only a few relevant decisions. While some states have reviewed this matter based on a theory of common law manslaughter, others have avoided such a ruling due to supervening legislation addressing drug distribution resulting in death. See, e.g. , Colo. Rev. Stat. § 18-3-102 (e) (West 2019); Ohio Rev. Code Ann. §§ 2903.04 (A), 2925.02(A)(3) (West 2019); Wis.

Stat. § 940.02 (2)(a) (West 2018). See also Wayne R. LaFave, Criminal Law § 15.4(e), at 1058-59 (6th ed. 2017). We review some relevant cases below to further investigate the line between ordinary negligence and criminal gross negligence in the context of the distribution of intoxicating substances. In Commonwealth v. Catalina , 407 Mass. 779 , 556 N.E.2d 973 (1990), the Supreme Judicial Court of Massachusetts faced a set of facts similar to those presented here.

There, the victim purchased three bags of a highly potent heroin, keeping one bag for herself. See id. at 975 . The defendant-dealer warned the victim not to "do a whole" bag because of the risk of an overdose. Id. at 974 .

Still, the victim returned home, injected herself, and died from a lethal combination of heroin and alcohol. See id. at 975 . Based on these facts, the Court determined that the evidence was sufficient to support an indictment for the Massachusetts equivalent of gross negligence involuntary manslaughter-an "unlawful homicide unintentionally caused by wanton or reckless conduct." Id. at 979 . The Court starkly characterized the dangers of heroin distribution, stating that "the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous and does carry a high probability that death will occur." Id. at 980 (quoting People v. Cruciani , 70 Misc. 2d 528 , 536, 334 N.Y.S.2d 515 (N.Y. Co. Ct. 1972) ). 11 More recently, a North Carolina court determined that a circumstance in which a dealer sells a person methadone, who then fatally overdoses, after the dealer, himself, "nearly died the month before from an overdose," could support a finding of reckless conduct for involuntary manslaughter. 12 State v. Barnes , 226 N.C.App. 318 , 741 S.E.2d 457 , 465 (2013). 13 Together, these cases display an approach to gross negligence manslaughter similar to the one used in Maryland-evaluating the dangers inherent in the defendant's underlying conduct in the context of attendant circumstances.

Certainly, some courts have reviewed particular factual scenarios and concluded that heroin distribution did not amount to gross negligence, but many cases are inapt, either because the standard for criminal gross negligence requires the State to demonstrate a higher "probability of harm" than the one borne out by our cases, see, e.g. , State v. Miller , 874 N.W.2d 659 , 663 (Iowa Ct. App. 2015) ("[C]riminal liability will not attach to conduct increasing the probability of the risk of harm unless the conduct made the proscribed harm 'more likely than not' to occur."); Lofthouse v. Commonwealth , 13 S.W.3d 236 , 241 (Ky. 2000) (there must be "a substantial risk that the amount of cocaine and heroin ingested by Buford would result in his death" and the fact that the amount ingested "could be fatal" was not enough); or involve murder charges requiring a higher level of culpability than gross negligence involuntary manslaughter, see, e.g. , Heacock v. Commonwealth , 228 Va. 397 , 323 S.E.2d 90 , 93 (1984) (cocaine dealer charged with second-degree felony murder); Napier v. State , 357 So. 2d 1011 , 1012 (Ala. 1978) (heroin dealer charged with first-degree murder); Commonwealth v. Bowden , 456 Pa. 278 , 309 A.2d 714 , 715 (1973) (heroin procurer charged with murder in the second degree). As we reflect upon Maryland gross negligence manslaughter law generally, we discern that the Maryland appellate courts have upheld convictions-for drag racing, speeding in a highly congested area, speeding and passing in a no-pass zone, driving after repeatedly "nodding off," 14 mishandling guns without intent to kill-when the conduct measured by the wanton and reckless standard posed no obviously greater risk than the one Thomas disregarded in distributing heroin to Colton. In none of these circumstances was the defendant's conduct proclaimed "probably fatal," the standard that Thomas urges us to adopt. Rather, their conduct posed a "high risk to human life"-or was "likely at any moment to bring harm to another." Johnson , 213 Md. at 533 , 132 A.2d 853 (citation omitted).

Still, we agree with Thomas that a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent. Instead, we must consider the inherent dangerousness of distributing heroin with the attendant environmental risk factors presented by each case. See also People v. Hall , 999 P.2d 207 , 218 (Colo. 2000) ("[I]n order to determine whether a risk is substantial, the court must consider both the likelihood that the harm will occur and the magnitude of potential harm ....").