Stouffer v. State

DAVIS, Judge. On October 10, 1995, a grand jury of Washington County filed an eleven-count indictment, charging appellant Edward Charles Stouffer, inter alia, with first degree premeditated murder, murder committed in the perpetration of a kidnapping, and kidnapping. Appellant, on March 28, 1996, filed a Suggestion for Removal and a Response to State’s Request for Discovery. The court, after disposing of several pre-trial motions, denied appellant’s suggestion for removal.

On November 4, 1996, the jury returned verdicts of guilty as to first degree felony murder and kidnapping. Appellant, on November 12, 1996, moved for a new trial, and, after a hearing was held, the motion was denied. ⁵⁹⁶ Appellant, on February 3, 1997, was sentenced to life imprisonment for the first degree felony murder conviction and to a concurrent thirty years for the kidnapping conviction. On February 26, 1997, appellant noted this appeal. Appellant presents seven questions for our review: I. Was the evidence sufficient to support appellant’s convictions?

II

Did the trial court err by repeatedly restricting defense cross-examination?

III

Did the trial court err in allowing the State to use prior statements of witnesses under the guise of refreshing their recollection or impeachment?

IV

Did the trial court err in allowing hearsay evidence concerning appellant allegedly threatening a key State’s witness? V. Did the trial court err in its instructions to the jury?

VI

Did the trial court err by failing to grant appellant’s suggestion for removal?

VII

Did the trial court err in withholding, for some time, information from appellant that one of the jurors had been indirectly contacted by the deceased’s father during the trial? Because we hold the evidence indicates the homicide was not committed in the perpetration of the underlying felony, we shall reverse the judgment of conviction for felony murder. FACTS In mid-January, Jeffrey Fiddler moved out of his father’s West Virginia home and into the Young Men’s Christian Association (YMCA) in Hagerstown, Maryland. Fiddler had ¿Iso lived, off and on, at 12 Elizabeth Street in Hagerstown with Robert Schell (also known as Robert Starr).

On the morning of February 27, 1989, Fiddler was found dead by the side of a road near the Maryland-Pennsylvania State line. According to Pennsylvania State Police Trooper Edward Vymazal, who responded to the crime scene, Fiddler’s ⁵⁹⁷ death was the result of a homicide, but no weapon was recovered. An autopsy revealed that Fiddler had two stab wounds to the chest, some defensive wounds to the hand, a contusion or bruise to the back of the neck, and abrasions to the buttocks, left thigh, and left leg. There was evidence that Fiddler bled to death and that death could have taken up to one-half hour.

Dr. Neil Hofman, the forensic pathologist who performed the autopsy, and Pennsylvania State Police Trooper Donald Paul, testified that with such wounds large amounts of blood would be expected at the scene. Trooper Paul, who discovered Fiddler lying in a grassy area, however, rolled him over and saw very little blood. Due to the small amount of blood at the scene and the position of Fiddler’s body, Trooper Paul testified that he believed Fiddler had been transported and dumped at the scene, after being killed somewhere else. Through a joint investigation, it had been determined that Fiddler’s murder took place in or near Maryland and that he had been dumped in Pennsylvania.

Fiddler’s body had been found without underwear, socks, or a jacket. Hofman testified that, during the stabbing, Fiddler’s pants and shoes were off. Before his death, Fiddler was dragged, without his pants, across a rough granular black surface having a different composition from that found at the scene. He was later redressed.

The clothes, taken from Fiddler’s body during the autopsy, were maintained at the Pennsylvania State Police Department until September 1989, when all of the evidence was turned over to the Hagerstown Police Department. From that time, the evidence was then maintained in the Hagerstown Police Department’s evidence locker. Shortly after the homicide, Sergeant Richard Johnson of the Hagerstown Police went into Fiddler’s room at the YMCA, where he retrieved Fiddler’s clothes and shaving kit. He unzipped the shaving kit and saw that it contained, among other grooming items, a hair brush.

After retrieving Fiddler’s belongings, Sergeant Johnson personally gave them to Fid ⁵⁹⁸ dler’s father, who put them in his basement where they remained untouched. Sometime in March 1990, Fiddler’s father opened the shaving kit, removed the hair brush, and hand delivered the brush and sweaters to the Hagerstown Police Department, where the brush was immediately packaged. At appellant’s trial, several witnesses testified that they saw Fiddler just days before he died. One night in February 1989, downtown at the Hagerstown Square (Square), Barbara Kelly saw Fiddler being chased by appellant, William Burral, and “two other guys.” Fiddler had run behind her, across the street, down Washington Street, through the city parking lot and down by the alley, beside Rocky’s Pizza Restaurant.

She heard appellant tell Fiddler to “stay away from Becky.” On the Friday before Fiddler’s body was found, Gregory Scott Smith, Jr., saw Fiddler at the YMCA and Fiddler told him that he had received a death note, but did not say from whom. Sometime that same night, according to the testimony of Fiddler’s brother, Jimmy Fiddler (Jimmy), he saw Fiddler and they argued over $40 that Fiddler owed him for a car battery. On a Friday night in February 1989, at the Double T Lounge, Kathy May Argo saw Fiddler talking with appellant and James Russell. Burral and Schell were also there that night.

Argo said that she saw appellant making fun of Fiddler and Fiddler told her that “appellant and them” were harassing him. Fiddler told her that they were going to the river to party and, afterwards, Fiddler left with appellant, Schell, Burral, and Russell. Appellant, Burral, and Schell returned without Fiddler; they told Argo that Fiddler stayed at the party. Carol Ann Bussard, another resident of Elizabeth Street, heard “a lot of hollering and screaming” outside in the early morning hours of the night in question.

She looked out of her window and saw “two guys” fighting in the middle of the street — one was lying in the street and the other was strad ⁵⁹⁹ dling him and beating his head against the street. Bussard heard a woman screaming for help and telling one of the men to stop because he was going to hurt or kill the other man. A third man then came up the street, grabbed the assailant and began to fight him. Meanwhile, the victim rolled under a parked truck and, afterwards, the others were attempting to locate him because he was “in bad shape.” Concerning appellant’s whereabouts on the evening before Fiddler was found, one of appellant’s former girlfriends, Rebekah Knodle Kogar, testified that she, appellant, and others, were at a friend’s house on Broadway Street in Hagerstown when, later that afternoon, appellant, Russell, and Burral left together.

Burral returned about 3:00 a.m., covered with “red stuff,” and changed his clothes; appellant arrived sometime later that morning. The witness claimed to have overheard appellant talking with Burral about something that “got out of hand” on Elizabeth Street — they mentioned Fiddler and Schell. Schell also came by sometime that same morning. Schell testified that, after he and Jimmy partied with friends at Schell’s apartment on Elizabeth Street, around 10:00 p.m., he and Jimmy went to different bars where they were involved in two verbal altercations with “other guys.” Hagerstown Police officers interceded after the second altercation and an officer drove the pair home.

After the officer drove him to Elizabeth Street, Schell went back downtown looking for Fiddler. When he arrived downtown, appellant and “two other guys” approached him. Appellant told him that he was “messing up” and that he was “narking on people.” Appellant told Schell that, if he did not “get out of his face,” he was going to take care of him. When Schell started to walk up Washington Street, appellant and the “other guys” proceeded in the same direction; Schell ran inside of a hotel, where he stayed for fifteen or twenty minutes until he no longer saw appellant.

Later that night, Schell saw appellant and they began to argue, at which time a police officer arrived and told them to go their separate ways.. ⁶⁰⁰ Officer Brian Barnhart testified that, the altercation between Schell and appellant occurred at almost 3:00 a.m. The testimony of Schell and-Jimmy was consistent. On the night in question, they did not see Fiddler. Jimmy added that the ambulance was called because Melissa Bishop (Melissa) had hurt her back.

When Jimmy heard the ambulance, he rolled underneath a truck and stayed there for fifteen minutes to one-half hour, until the ambulance left. He came from underneath the truck, went into the. apartment, talked with Schell, and then went to sleep. A couple of hours after Melissa’s father, Richard Bishop, left, he got up and went to Melissa’s house on Main Avenue, leaving Schell at his apartment. On March 18, 1989, Officer Wayne L. Shank of the Hagerstown Police Department was called to a reported suicide at 12 Elizabeth Street.

When he arrived, Schell was bleeding from both wrists and told him that he had cut himself. Officer Shank testified that Schell had been drinking and told him that he was upset about being questioned about the Fiddler murder. At another time in March Í989, Schell, according to his own testimony, was downtown when appellant approached him and told him that he was “messing up.” At the same time, he saw two other people coming from across the street, so he started running and appellant was beside him. Schell ran towards Washington Street, was struck by a truck, and was taken to the hospital.

The same incident was described by other witnesses. Angela Tobery was down the street when Schell was hit by the vehicle. Appellant was about to hit Schell when Schell took off running. Tobery saw “a bunch” of people, including appellant, chase Schell.

She did not see Schell get pushed; however, she told the police that people coming down the street were saying that appellant was chasing Schell because Schell was “running his mouth” about Fiddler being killed and appellant was telling Schell to “keep his mouth shut.” Appellant told Schell that, if he said anything, he would “knock” ⁶⁰¹ Schell’s “teeth out” and Schell replied that he did not care because he was tired of it. According to Tina Murray Desjardins, one of appellant’s former girlfriends, appellant told her that Schell ended up in front of the truck to “keep his mouth shut.” Tobery also stated that appellant told her that if Schell “runs his mouth, he knows what he is going to get.” Appellant denied pushing Schell in front of the truck. Sometime in August 1989, the Hagerstown Police searched the apartment at 12 Elizabeth Street; at that time, no one was living there. Blood stains were found at various locations in the apartment, including on a carpet in the attic.

The evidence, however, did not reveal that any of the blood was Fiddler’s. During the search, the police found Fiddler’s bank card and clothing that may or may not have belonged to Fiddler. According to Jeffrey Kercheval, a Hagerstown Police Forensic Chemist, Fiddler’s bank card was sent to the Federal Bureau of Investigation (FBI) laboratory for analysis. During their investigation of Fiddler’s murder, the Hagerstown Police received a certified copy of a vehicle registration which indicated that, in January 1989, appellant had purchased a Volkswagen Rabbit.

In February 1989, Richard Miller bought the car from appellant for $50. Miller testified that the car’s drive shaft was broken. He also maintained that the car had been sitting in his driveway for approximately two weeks before he purchased it. In April 1990, according to Miller, the Hagerstown Police came to him about the car and he took it to the Police Department.

Detective William A. Baker stated that he towed the car from Miller’s residence to the Police Department’s Impound Lot. Miller testified that the police had the car approximately two months or longer. When the car was returned to him, the police had cut pieces, as big as quarters, out of the seat and the door. Miller drove the car a little longer, then junked it at Grimm’s Junkyard.

The car was examined in the underground garage of the Hagerstown Police Department from April 19 through April 20, 1990. Kercheval testified that he removed a small stain ⁶⁰² from the car and did a. presumptive test for blood that proved positive. He then sent the sample away for DNA testing, but the results indicated that it was not suitable for testing. In April 1991, car parts, that had been sent to the FBI, were returned, stored in the evidence locker at the Hagerstown Police Department, and later put back on the car.

In April 1995, after Fiddler’s body was exhumed, hair samples were obtained from the body and submitted to the FBI laboratory. Some of Fiddler’s clothing and other items were also sent to the FBI for analysis. Hagerstown Police Detective Kenneth R. Sterner testified that, in October 1995, the car was retrieved again — this time from Grimm’s Junkyard. Detective Sterner inspected the car and saw that the rear seat was missing.

The FBI performed tests and it was determined that there was human blood in the car, but it could not be classified. The FBI also analyzed fibers that had been lifted from Fiddler’s right heel. The fibers exhibited the same microscopic characteristics as the white wool fibers composing the carpet from 12 Elizabeth Street. An FBI report indicated, however, that white wool fibers “pretty much all look alike.” Investigators had used hair from the hairbrush as the known standard from Fiddler.

An FBI forensic scientist testified that a single hair found on the right passenger seat of the car was consistent with Fiddler’s hair and the hair found on the rear bench seat of the car was also consistent with the hair from the same person. According to the witness, however, hair comparisons do not constitute a basis for absolute personal identification. There was evidence adduced at the trial that appellant claimed that Fiddler was never in his car and that he never lent his car to anyone. Connie Minnieh testified that, sometime in 1989, while partying on Jefferson Boulevard, she heard appellant tell her sister, whom he was dating at the time, that he “did not mean for it to go that far.” She had also overheard conversations between appellant and Russell and between appellant and another man, in which appellant declared that he “did not ⁶⁰³ want it to go that far,” and he just “freaked out.” Appellant said that he did not know if Fiddler was dead, they were just scared; that they had to stop, get out and go to the trunk, because he was in the trunk, and that they pushed him out into the ditch.

Appellant indicated to Minnich that they went out that night looking for Fiddler “to put a scare in him” because they thought he was a “narc.” At the time Minnich gave her statement to the Hagerstown Police, they promised her that they would give her $200 for her rent and they, in fact did after the statement. Detective Sterner testified that the $200 was given to Minnich approximately one month or one month and one-half after her statement was made, because she called and said that she was having trouble with her rent. According to Detective Sterner, the money was not given to her in exchange for her statement. In July 1990, Brian L. Burchett was visiting his daughter, at her mother’s house, on West Washington Street in Hagerstown where appellant, Russell, and other people had assembled.

Burchett overheard appellant and the others talking about somebody deserving something and there was mention of a leather jacket, a stabbing, a beating, and throwing [someone] out of a car. Everyone was talking at the same time about a car, about “a throwing” out on the median strip, about a stabbing with a knife, and about the knife being thrown in the water. Appellant said Fiddler was “running his mouth too much” and that he “deserved what he got.” Richard Ford moved to Hagerstown, in 1990, and one day in the Square, appellant was bragging to him about “having kicked some guy’s butt.” Appellant said that he “beat the guy up” because “the guy was sticking his nose” where it did not belong. Ford indicated that appellant told him that appellant, Burral, Baltimore, and Schell “took the guy around the corner” and they “beat the living heck out of him.” Appellant stated that he did not “give a damn if the guy lived or died” and that they put him in the van and dropped him on the interstate, at the state line.

Ginger Eavey heard appellant say that he knew who murdered Fiddler, that it happened in ⁶⁰⁴ West End, and that the reason he knew how and where it happened, was because they did it. Although he did not tell her directly, appellant said that Fiddler’s body was “dumped” along the state line. Argo, Minnich, and Desjardins testified that, as they walked past the Hagerstown Police Department’s Impound Lot, appellant told them that a car, covered with a blue tarp, was his. Argo related that appellant said that the police believed his car was used in a murder and, although Fiddler’s name was not mentioned at the time, appellant told her that the police were trying to connect him to Fiddler’s murder.

Appellant also told Argo that the police could not prove anything because there was “no blood or anything in the car, it had been cleaned out.” Patricia Moore, who claimed that she lied in her statement to Detective Sterner because she was being coached and threatened with two felony charges, testified that she told the detective that she heard appellant talking about Fiddler’s murder and that appellant was there that night. Moore told the detective that appellant helped beat Fiddler, that there was a struggle and Fiddler was trying to get away, and that is when they stabbed him at the field. Contrary to her testimony, Detective Sterner testified that Moore voluntarily came to the police station and he did not coerce her or threaten her, nor was he aware of any felony investigation of the witness. Appellant told Desjardins, in February 1989 when she was in the Washington County Detention Center, that he had fought with Fiddler at Schell’s apartment on Elizabeth Street.

She stated that appellant said he had been in a car that night with Burral, Schell, and someone named “Sky.” They were riding around looking for Fiddler to fight him and “to put a scare in him.” Desjardins also overheard a telephone conversation between Schell and her husband, in which Schell indicated that he had stabbed someone. Testifying for the defense concerning alleged statements made by Schell, Stephen Harris said that he walked downtown with Schell and Schell told him that he had stabbed someone ⁶⁰⁵ at his house. Roddy Pifer testified that, in 1990, when he was incarcerated with Schell, Schell said that he “had killed someone, wrapped them up in something, and dumped them along Interstate 81.” ANALYSIS I A. Sufficiency of Evidence to Establish Criminal Agency In urging us to find insufficient evidence to support his convictions, appellant initially attacks the lack of any evidence to “pinpoint the crime scene or establish appellant’s actual involvement in the murder” and the State’s reliance upon “general comments about the crime that anyone who listened to rumors or read the paper may have made.” While it is true that the State’s presentation was comprised of what appeared at times to be principally the scattered recollections of a local clique in the small Hagerstown community, it was only because the prosecution was forced to prove its case through accounts of hostilities observed between the victim and his assailants that were a prelude to the killing, and witnesses who were reluctant — in certain instances actually recanting prior statements incriminating appellant, as was the case with Patricia Moore. The test for evidentiary sufficiency is 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.

State v. Albrecht, 336 Md. 475, 479 , 649 A.2d 336 (1994). We examine whether the admissible evidence adduced at trial showed directly or supported a rational inference of the facts to be proved, from which the jury could be convinced, beyond a reasonable doubt, of the accused’s guilt. Thomas v. State, 32 Md.App. 465, 476 , 361 A.2d 138 , cert. denied, 278 Md. 736 (1976). As long as there was legally sufficient evidence by which the jury could be convinced of the accused’s guilt ⁶⁰⁶ beyond a reasonable doubt, we will not disturb its verdict on appeal.

Wilson v. State, 261 Md. 551, 556 , 276 A.2d 214 (1971). In other words, a guilty verdict may be set aside only if there is no legally sufficient evidence or inferences drawable therefrom on which the jury could find the accused guilty beyond a reasonable doubt. Barnes v. State, 31 Md.App. 25, 29 , 354 A.2d 499 (1976). Notwithstanding appellant’s assertion that the testimony represented general comments that were common knowledge in the Hagerstown community, these statements were specifically attributed to appellant, who was reported by Moore to have said “he got like a thrill, a rush,” that his knuckles were red and swollen from beating the victim, that appellant “figured well the cops aren’t going to know about it [because] they were like total jerks,” that appellant and two others tried to scare the victim “because of [sic] they was [sic] really into drugs,” that “they stabbed him there at the field ... there was [sic] spots of blood in the back of the trunk” of appellant’s car, and that “it was easy.

And I got away with it.” The statement of Ford recounted, “[a]nd ah Eddie [appellant] and his girlfriend came up to us and all and he started talking about it like it’s no big deal I killed the fucking guy, you know,” and “so Mickey Baltimore and Bobby Starr and that other guy killed his fucking ass and threw him along the park road.” Kogar and Russell had talked about something that “got out of hand” (apparently referring to the fact that Fiddler’s killers simply wanted to scare him). Appellant told Minnich that “he just freaked out and Jeff wound up getting stabbed,” that they put the victim in the trunk; “[appellant] did not know if he was dead or not”; “[appellant] and his cohorts were ‘hyped up’ and ‘just left him.’ ” ' Tobery told the police that “they were fighting him and putting a scare into him” and that “[appellant] had told her Billy, Bobby, and Sky were in the car with him.” Tobery also told the police that she saw appellant and others chasing Schell through the town square after the murder and appellant, according to Tobery, was yelling “mother fucker you say anything ... and I’ll ⁶⁰⁷ knock your teeth out” (ostensibly referring to reporting the circumstances of Fiddler’s killing to anyone). Burchett testified that he overheard appellant talking with others about the murder, saying that “Jeff Fiddler was running his mouth too much and that he did deserve what he got.” Finally, Argo asserted that appellant told her that the police could not prove anything about the murder and that “there was blood in there [referring to his car] but it’s been cleaned out.” It is doubtful that all of the above statements attributed to appellant could be categorized — as appellant suggests — as “general comments about the crime that anyone who listened to rumors or read the paper may have made.” They are, empirically, accounts of the witnesses’ firsthand impressions, subject to cross-examination as to the witnesses’ motives and biases in making the statements to the police or testifying as they did before the jury. Secondly, certain of the matters testified to would have been known only by the witnesses, rather than the general public.

Moreover, much of the argument presented by appellant goes to the weight of the evidence and the credibility of the witnesses, which were properly resolved by the fact-finder at trial. Finally, it is of no consequence that certain matters testified to were also reported in the media, so long as the statements attributed to appellant were offered by the witnesses under oath. The manner of recovery of the body as well as the manner of death and physical evidence adduced at trial were more than sufficient to satisfy the legal requirement that the admissions attributed to appellant by the State’s witnesses be corroborated. See Miller v. State, 251 Md. 362 , 247 A.2d 530 (1968); Franklin v. State, 8 Md.App. 134 , 258 A.2d 767 (1969).

Appellant, citing Hebron v. State, 331 Md. 219, 224 , 627 A.2d 1029 (1993), reminds us “[t]hat a conviction upon circumstantial evidence alone will not be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” He insists that the most compelling of the “numerous reasonable hypotheses consistent with inno ⁶⁰⁸ cence” generated by this case is that Schell was the murderer. In discussing Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990) and West v. State, 312 Md. 197 , 539 A.2d 231 (1988), Robert M. Bell, currently the Chief Judge, speaking for the Court of Appeals in Hebron noted: The cases referring to circumstantial evidence not excluding every reasonable hypothesis of a defendant’s innocence are cases in which there is circumstantial evidence of the defendant’s guilt and other evidence, either circumstantial or direct, tending to negate that evidence and no basis upon which a rational finder of fact could return a verdict of guilty without speculating as to which of the two versions is the correct version. A jury faced with that state of the evidence could not logically nor lawfully, return a guilty verdict; hence as the Court of Special Appeals pointed out, given that scenario, “there is nothing for the jury to decide and, upon proper motion, the judge is duty-bound as a matter of law, to enter a judgment of acquittal.” It should be noted that Wilson and West involved defendants who had access to stolen property and who attempted to cash a stolen money order, respectively. The Court of Appeals made clear that “critical to the resolution of both Wilson and West was the constitutional standard of review for sufficiency of evidence.” Hebron, 331 Md. at 231-32 , 627 A.2d 1029 .

Moreover, the Court concluded that applying the reasonable hypotheses of innocence “is not only unwarranted, but improper” when the circumstantial evidence consists of more than a single strand because, in such case, the circumstances, taken in view from the State’s perspective, are inconsistent with, although not absolutely dispositive of the defendant’s innocence. Id. at 228 , 627 A.2d 1029 . Based on the foregoing, we have in this case much more than a single strand of circumstantial evidence. Indeed, unlike West and Wilson, appellant’s convictions were not based on the inference flowing from the possession of stolen goods that the possessor was the thief or the robber.

While many of ⁶⁰⁹ the witnesses provided the circumstantial backdrop for the fatal assail, the admissions attributed to appellant, if believed, are more in the nature of direct evidence. Finally, the record is replete with testimony that the beating and stabbing were committed by appellant with the aid and assistance of at least three other cohorts. Thus, a conclusive showing that Schell was involved would not exculpate appellant from the role he played in the killing of Fiddler. That the evidence establishes appellant’s criminal agency for the crimes of premeditated murder, at worst, and a classic case of depraved-heart second degree murder, 1 at best, is for ⁶¹⁰ us a facile decision.

The jury, however, returned convictions for felony murder and kidnapping. B. Sufficiency of the Evidence to Establish Elements of the Kidnapping and Felony Murder In claiming an insufficiency of the evidence to sustain the kidnapping conviction, appellant asserts that the State presented conflicting evidence that the victim “voluntarily left a bar with appellant, Jimmy Russell, Billy Burral, and Bobby Schell or that appellant claimed that Jeffrey’s body was in the trunk of a car, or that Jeffrey was beaten and placed in a van.” In addition to appellant’s contention that there was no evidence the victim was forcibly carried away, he also asserts that the evidence fails to show that Fiddler was alive at the time that his body was transported to Pennsylvania. In support of this proposition, appellant cites the medical examiner’s testimony that the victim would have bled to death from his wounds within one-half hour of the time they were inflicted. The small amounts of blood found in the car and the utter lack of evidence about any crime scene other than 12 Elizabeth Street, according to appellant, compels the conclusion that Fiddler was not alive at the time his body was transported.

The State, in turn, alludes to the evidence that the victim in all probability did not die immediately from his wounds but probably died one-half hour after the wounds were inflicted; that the stabbing did not take place where the body was found; and that the victim was partially redressed after the stabbing and dragged down into the ditch where he was left. The State also refers us to the testimony of Ford, who said that “they beat the heck out of him and didn’t give a damn if he lived or died and said that he ... that they put in the van [sic] and dropped him off at the interstate right there at state line.” Our task, as we see it, is initially to determine whether the evidence supports the conviction for kidnapping and, secondly, ⁶¹¹ whether the homicide in this case was committed in the perpetration of the underlying felony, i.e., kidnapping. In Maryland, kidnapping is one of the predicate offenses for felony murder, set out in Maryland Code (1957, 1996 Repl. Vol.), art. 27, § 410: All murder which shall be committed in the perpetration of, or attempt to perpetrate ... kidnapping as defined in §§ 337 and 338 of this article ... shall be murder in the first degree.

Kidnapping is proscribed by Maryland Code (1957, 1996 RepLVol.), art. 27, § 337, which provides that every person, ... convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person, ... with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony____ At common law, kidnapping was the forcible abduction and carrying away of a man, woman, or child from his or her own country into another. Clark & Marshall, Law of Crimes § 10.23 (7th ed.1967); 4 W. Blackstone, Commentaries 219. We further explained in Tate and Hall v. State, 32 Md.App. 613, 615-16 , 363 A.2d 622 (1976): It is an aggravated form of false imprisonment, embracing all of the elements of that offense and adding to it an asportation of the victim out of his own country. See Hunt v. State, 12 Md.App. 286, 310 , 278 A.2d 637 , cert. denied, 263 Md. 715 (1971); Perkins, Criminal Law 176 (2d ed.1969).

The principal source of the aggravation lies in the carrying of the victim beyond the protection of the laws of his country. See 1 R. Anderson, Wharton’s Criminal Law and Procedure § 371 (1957). We further noted in Tate and Hall that the determinative element under § 337 is the “carrying” itself, rather than “an abduction, a forcible carrying away.” Id. at 616, 363 A.2d 622 . We ultimately concluded that ⁶¹² [i]n sum, whatever might be said of the common law offense, it is apparent, in light of the changes wrought by § 337, that the gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim.

Cf. Collier v. Vaccaro, 51 F.2d 17, 19 (4th Cir.1931). The initial assaultive taking of the person and the carrying out of the state required at common law are not part of the § 337 offense. Applying the above principles to the instant case, appellant, Burral, Baltimore, and Starr sought to inflict grave injury upon Fiddler for the purpose of intimidating him.

Varying accounts indicate that he was “sticking his nose where it didn’t belong” or that he was a “narc.” Regardless as to why this bellicose band sought to intimidate the victim, the record clearly does not show any particular design to “carry” Fiddler from one location to another. 2 In a word, inflicting bodily injury and, ultimately, when things “went too far,” concealing and disposing of the body were their two goals. Nevertheless, we need not concern ourselves -with the reason or motive for any movement of Fiddler at a point in time when he was still alive, since kidnapping, under Maryland law, is accomplished, as noted, once there is “confinement coupled with transportation of the victim.” In that regard, Ford testified: ⁶¹³ [PROSECUTOR]: Did he mention anything about what they did with the person? [WITNESS]: Well the way I have been told and everything .... [PROSECUTOR]: Now from [appellant] sir. [WITNESS]: From [appellant]. [PROSECUTOR]: Uh huh. [WITNESS]: He told me that they took him around the comer and beat the living heck out of this guy. [PROSECUTOR]: Did he mention what corner? [WITNESS]: Right ... he didn’t really mention what corner but it was right around the corner of Rocky’s. [PROSECUTOR]: Around the corner of Rocky’s is that where you understood him to refer to? [WITNESS]: In the alleyway. [PROSECUTOR]: Is that what you’re saying? [WITNESS]: Yeah. [PROSECUTOR]: Okay. What else did he tell you? [WITNESS]: He just said that they beat the heck out of him and didn’t give a damn if he lived or died and said that he ... that they put [sic] in the van and dropped him off at the interstate right there at State Line. [PROSECUTOR]: Did he tell you who else was present when this happened Mr. Ford? [WITNESS]: The way I understand it was supposed to be him [appellant], Billy Burral, Mickey Baltimore and Bobby Starr. Appellant argues, however, that when Fiddler accompanied his assailants around the corner, it could have been voluntary and that the evidence fails to show that he was alive when he was transported in the van to the Pennsylvania State line.

It can reasonably be inferred from the totality of the circumstances, including all of the hostilities leading up to the confrontation at Rocky’s, that Fiddler did not go willingly and, the fact that the physical evidence indicated the onset of death occurred over a period of one-half hour as a result of excessive ⁶¹⁴ bleeding would give rise to an inference that Fiddler was still alive when he was placed in the van and driven to the Pennsylvania State line. More cogently, however, the statement of Moore, who had attempted to recant what she told the police, was received as substantive evidence at trial. She testified: [PROSECUTOR]: And then he asked you, “He [appellant] said that he was riding around in the car with him [Fiddler] that night? ” Your answer, ‘Yeah he was there that night.” Is that what your answer was? [WITNESS]: Yes but I didn’t know that. [PROSECUTOR]: And then Detective Sterner said, “Okay did he [appellant] say about that Jeff got beat up?” And your answer, “Yeah Jeff had gotten beat up because he was a part of it because his knúckles, he said his knuckles were red and swollen and stuff.” Do you remember saying that to Detective Sterner? [WITNESS]: Yes. [PROSECUTOR]: And then you were asked, “So [appellant] helped beat him [Fiddler] up because he said his knuckles were sore?” And your answer was, ‘Yes.”? [WITNESS]: Like I said I was talked into that. [PROSECUTOR]: And then you volunteered, “He [appellant] said there was a struggle and he was trying to get away a couple of times.” Jeffrey Fiddler was trying to get away. Officer Sterner said, “Okay.” And you said, “That’s where they stabbed him there at the field.” Remember saying that to Detective Sterner? [WITNESS]: Yes.

From the above, appellant had told Moore that he was riding around with the victim that night and that there had been a struggle during which Fiddler was attempting to escape. It is inexorably pellucid from the latter excerpt that (1) Fiddler was still alive and (2) he sought to escape indicating confinement against his will subsequent to being transported to the field where he was stabbed. ⁶¹⁵ We next turn to the question that is more problematic, i.e., was the homicide in this case committed in the perpetration of a felony? Although we have noted, citing Tate and Hall, supra, that unlawful confinement coupled with transportation of the victim is sufficient to constitute kidnapping under § 337 of art. 27, substitution of the felony for the elements of premeditation and malice to sustain a first degree murder conviction presents a different question from a determination of the requisite intent to sustain a conviction for kidnapping. Specifically, while the intent under the Maryland kidnapping statute has been held to be proven so long as the act is intentional, the critical question, based on the rationale under-girding felony murder, is whether the homicide occurred because of the particular criminal event undertaken.

As we said in Higginbotham v. State, 104 Md.App. 145, 152 , 655 A.2d 1282 (1995), citing Butler v. State, 91 Md.App. 515, 523 , 605 A.2d 186 (1992), [t]he murderous mens rea under [the theory of felony murder based on armed robbery] does not entail any intent to kill at all but only the intent to perpetrate the underlying felony.... Second-degree murder, by contrast, requires the specific intent either to kill or to commit grievous bodily harm against the victim. Moreover, the Court of Appeals opined in Campbell v. State, 293 Md. 438, 445-46 , 444 A.2d 1034 (1982), citing Commonwealth v. Redline, 391 Pa. 486, 495-96 , 137 A.2d 472 (1958): The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. “It is necessary ... to show that the conduct causing death was done in furtherance of the design to commit the felony.[”] [I]n order to convict for felony-murder, the killing must home been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. ⁶¹⁶ • Although Campbell dealt with the culpability of a felon for the death of his co-felon during the perpetration of a robbery, and although the case discussed, at length, applying a proximate cause theory to the felony-murder doctrine, Campbell is instructive in that it makes clear the requirement that the felony be more than incidental to the homicide. More apropos to the issue presented sub judice, we discussed the nexus required between the homicide and the underlying felony in Jackson v. State, 87 Md.App. 475, 488 , 590 A.2d 177 (1991): As Wharton said in his classic treatise, in order for felony murder to apply, the killing: “must have been done in pursuance of the unlawful act, and not collateral to it.

The killing must have had an intimate relation and close connection with the felony, and not be separate, distinct, and independent from it____ The death must have occurred as a result or outcome of the attempt to commit the felony. ” Wharton, Homicide § 126 (3d ed.1907) at 184. In no sense can Fiddler’s death be viewed as the “result or outcome” of a kidnapping that appellant and his bellicose band intended to perpetrate. An excerpt from LaFave most succinctly and precisely depicts the causation required between