Watkins v. Maryland

WILNER, Judge. The issue presented to us is one of accomplice liability under the felony-murder doctrine. The assumed factual predicate from which that issue arises is that three persons— Jenkins, Hilliard, and petitioner Watkins — conspired to rob a fourth person, Whittington, that Watkins’s role was to serve as a lookout while Jenkins and Hilliard entered Whittington’s motel room to commit the robbery, that a struggle ensued between Whittington and Jenkins, leading Jenkins to shoot Whittington, that Jenkins then shot Hilliard, an alleged co-felon, in order to leave no witnesses, and that Watkins and Jenkins then made their escape. Whittington and Hilliard instantly died of their wounds.

As we shall see, the assertion that Hilliard was a co-conspirator, and therefore a co-felon, has only the barest foundation. ²⁶⁰ Watkins was convicted in the Circuit Court for Prince George’s County, among other things, of the felony-murder of both Whittington and Hilliard. He does not challenge his conviction for the murder of Whittington but complains that the trial court erred in failing to give a special foreseeability instruction with respect to the felony-murder charge concerning Hilliard. He urges that the deliberate killing of one co-felon by another is not foreseeable and therefore cannot be regarded as being in furtherance of the common scheme. Accordingly, he avers, as a third co-felon who had no direct part in that killing, he cannot be held liable for it under the traditional felony-murder doctrine.

He was entitled, he maintains, to have the jury consider whether, from his perspective and as a matter of fact, Jenkins’s killing of Hilliard was reasonably foreseeable. The Court of Special Appeals rejected his complaint, Watkins v. State, 125 Md.App. 555 , 726 A.2d 795 (1999), and so shall we. BACKGROUND On Sunday morning, January 5, 1997, the naked bodies of Whittington and Hilliard were found dead in Room 160 of the Motel-6 motel in Camp Springs, Maryland. Each of them had been shot in the head at close range.

Whittington was lying face-down on the floor, between the two beds in the room; Hilliard was face-down on one of the beds, partly covered by a sheet. Whittington was known to have a white Cadillac, which, along with the keys to the car, was missing. Also missing were some gold rings and a watch that Whittington was known to wear. Discovered under one of the beds, however, was $1,156 in cash.

Jenkins’s fingerprints were found on several items in the room. Three weeks later, Whittington’s car was found in the District of Columbia, about eight to ten blocks from Watkins’s home. The car was apparently unlocked, and there was no sign of tampering. Watkins’s fingerprints were found on the exterior of the left front door, and that, eventually, led to his arrest in June, 1997. ²⁶¹ The evidence indicated that Whittington and Hilliard were homosexual lovers.

Whittington had frequently stayed at the Motel-6, and testimony was produced that he and Hilliard had made plans to obtain an apartment together. On the evening of January 4 — Watkins said around 8:00 or 9:00 — Hilliard moved his belongings from his mother’s home into Whitting-ton’s car. Jenkins and Watkins were observed helping Hilli-ard put his property into the car and getting into the back seat of Whittington’s car as it left Hilliard’s mother’s home. That was the last public sighting of any of the men prior to the murders.

Upon his arrest, Watkins was interviewed by several Prince George’s County detectives, and he gave a series of materially inconsistent and progressively incriminating statements, some oral and some written. In his initial, oral statement, Watkins admitted to Detective McCann that he knew both Hilliard and Whittington, but he denied knowing who killed them. He confirmed that Whittington often stayed at the Motel-6 and said that Whittington and Hilliard were planning to get an apartment together. He said that he had stayed with Whit-tington and Hilliard at that motel on Friday night, January 3, that Whittington had nice diamond rings, and that he was known to “flash money around.” Watkins later added that he had helped Hilliard move his things into Whittington’s car and that Jenkins, whom he knew, was present as well.

Upon further questioning by Detectives McCann and Ca-nales, Watkins made the first of three written statements. In that statement, he denied any role in the robbery and murders. He said that Jenkins had told him on January 4 that he, Jenkins, intended to rob Whittington, that Jenkins later showed Watkins a watch and rings he had taken from Whit-tington, and that Jenkins acknowledged killing both Whitting-ton and Hilliard, stating that “him and [Whittington] got in a struggle and he didn’t want to leave no witnesses to the murder, um, I mean the robbery.” A short time later, Watkins confirmed orally to Detective Miller that Jenkins had committed the murders and had killed Hilliard in order not to leave any witnesses. In that statement, he added that Jenkins ²⁶² had asked him to be a lookout and that he had refused.

Watkins said that he had been in Whittington’s car about a week before the killings. After further questioning by Detectives Canales and Miller, Watkins gave a second written statement in which, for the first time, he cast Hilliard as a accomplice to the robbery of Whittington, and not solely a witness. He said that Hilliard had told Jenkins that Whittington carried a lot of money and that Jenkins, Hilliard, and Watkins then conspired to rob Whittington. Jenkins and Hilliard, he said, drove to the motel with Whittington but, during the robbery, Whittington struggled and Jenkins shot him and then Hilliard.

Following the shootings, Jenkins took Whittington’s rings and watch and left the motel in Whittington’s car. Watkins said that, although he served as a lookout, he was not at the motel, but waited at a nearby 7-Eleven store. In this version, he said that Jenkins called him from the motel on the evening of January 4, and stated that he was with Whittington and Hilliard. He asked Watkins to come to a 7-Eleven store near the motel.

Watkins and another friend, Matt, obtained a stolen pick-up truck and went to the store to wait for Jenkins, apparently to provide him with transportation. At some point, Jenkins drove by the store in Whittington’s Cadillac. Matt dropped Watkins at his (Watkins’s) girlfriend’s home. Jenkins came by later, showed Watkins the jewelry he had taken from Whittington, and told Watkins that “things got out of hand,” that he had killed Whittington and then killed Hilliard to eliminate witnesses.

Watkins acknowledged that he knew, when he went to the 7-Eleven, that he was to be the lookout and was to provide a means of escape for Jenkins. He did not anticipate that Jenkins would take Whittington’s car. In this statement, Watkins said that he waited at the 7-Eleven store but that he heard gunshots coming from the motel. 1 ²⁶³ Watkins’s final written statement was more incriminating, but somewhat ambiguous regarding Hilliard’s role. He first said that Jenkins announced a day before the killings his intent to rob both Whittington and Hilliard.

In the same statement, however, he said that he, Hilliard, and Jenkins “plotted to rob [Whittington].” Watkins said that Jenkins, Hilliard, Matt, and he went to the motel, that Watkins waited outside the room as a lookout while Jenkins and Hilliard went into the room to rob Whittington, that Watkins was standing right next to the door and could hear what occurred inside, that he heard Jenkins tell Whittington, “give me the money,” that Whittington struggled with Jenkins, and that Jenkins “started shooting,” that Jenkins came out with a gun, got into Whittington’s car, and drove away, and that he then entered the room and saw the victims. There were, of course, many discrepancies in these various statements, mostly bearing on the degree of Watkins’s participation, and there were further discrepancies between the statements and otherwise unchallenged extrinsic evidence. 2 Watkins and Jenkins were seen by an independent witness, with Hilliard and Whittington, in the back of Whittington’s Cadillac, heading toward the motel with Hilliard’s property. As noted, Watkins put this trip at around 8:00 or 9:00 on the evening of January 4. Watkins’s first statements indicate that he did not go to the motel but was called later by Jenkins to come to the 7-Eleven, although his last statement has the four of them proceeding together to the motel, with Matt following in a pick-up truck.

Although he wavered as to whether Hilliard — Whittington’s friend and apparent lover, with whom he was about to cohabit — was part of the conspiracy to rob Whittington, he was consistent throughout that Jenkins had informed him that Hilliard was killed in order to eliminate any witnesses to the robbery or murder of Whittington. The uncontradicted evidence, in other words, was that, whether or ²⁶⁴ not Hilliard was part of the conspiracy to rob Whittington, he was killed because he was a witness. Apart from that, Watkins’s statement that Hilliard was part of the conspiracy, that Hilliard accompanied Jenkins to the motel, and that he entered the room with Jenkins for the purpose of robbing Whittington, is wholly inconsistent .with the unchallenged testimony and photographic evidence that Hilliard was stark naked, lying face-down on the bed, when his body was discovered. In order to find that Hilliard was an accomplice in the manner described by Watkins in one of his several inconsistent statements, the jury would have to have found (1) that he accompanied Jenkins to the motel, on the evening of January 4, while naked, or (2) that he stripped and lay down on the bed after entering the room, while Jenkins was supposedly struggling with Whittington, or (3) that Jenkins stripped Hilliard before or after the killings.

The suggestion that Hilliard was an accomplice, in other words, at least in the manner asserted by Watkins, borders on the preposterous and hinges solely on one of Watkins’s several inconsistent statements that he contended were involuntary in any event. The issue now presented to us by Watkins arose initially during the course of argument on Watkins’s motion for judgment of acquittal. Relying to a large extent on Mumford v. State, 19 Md.App. 640 , 313 A.2d 563 (1974), he contended that, as Hilliard was an accomplice in the robbery of Whittington, it was not foreseeable that Jenkins would kill Hilliard and that he could not, therefore, be an accomplice to that murder. Apparently accepting the State’s argument that, -with Watkins’s conflicting statements on the matter, Hilliard’s status as an accomplice was in dispute and for the jury to resolve, the court denied the motion.

When dealing then with proposed jury instructions, Watkins requested a “Mumford type instruction.” He did not present to the court any particular instruction but apparently had in mind the kind of instruction that the Court of Special Appeals held should have been given in Mumford — that, if the jury were to find that Watkins could not have anticipated that Jenkins would kill Hilliard, it must ²⁶⁵ acquit him of Hilliard’s murder. The court refused to so instruct. The court guided the jury both through instructions from the bench and in the form of a verdict sheet. In its instructions, the court told the jury that the State was proceeding against Watkins on a theory of accomplice liability, that “when two or more persons participate in a criminal offense, each is responsible for the commission of the offense and for any other criminal acts done in furtherance of the commission of the offense or the escape therefrom for each offense committed.” (Emphasis added).

It emphasized that, in order to establish liability for other crimes committed during the commission of the principal offense, the State must establish that Watkins was an aider and abettor in the principal offense and that “the charged offense was done in furtherance of the commission of the principal offense or the escape therefrom.” These general instructions were given more particular focus on the verdict sheet. Question 2, directed at the robbery of Whittington, asked whether Watkins or another participating together and in concert with him robbed Whittington by use of a deadly or dangerous weapon. Question 5, which dealt specifically with the murder of Hilliard and to which no objection was lodged, asked whether Watkins “or an accomplice committed] robbery with a deadly or dangerous weapon (see Question 2) and, if so, did [Watkins] or an accomplice shoot and kill [Hilliard] incidental to or during the course of the robbery.” As noted, the jury returned a verdict of guilty in response to that question. DISCUSSION As the focus of attention in the trial court (and, to a large extent, in Watkins’s brief in this Court), was on Mumford v. State, supra, we shall begin there.

Mumford, a 15-year old girl, and four male confederates broke into a farmhouse for the purpose of stealing what was there. While Mumford and one of the boys were rummaging through the unoccupied house, the other two boys went into a garage located about 30 yards away. The owner, a 66-year old woman, returned home ²⁶⁶ and parked her car in the garage while the boys were there. They grabbed and raped her, and, during the rape, one or both of them strangled her to death.

There was no evidence that Mumford had any knowledge of what occurred in the garage until informed by the police the next day, but she was nonetheless charged with and convicted of the felony-murder of the victim, the State’s theory being that the murder arose from the burglary enterprise in which she was engaged. She asked for, and was denied, an instruction that, if the jury were to find that she could not have expected her companions to commit a rape and that the victim died as a result of a rape, it must find her not guilty of murder. Relying on a statement from 1 Wharton, Criminal Law and Procedure, § 252, at 547 (Anderson ed.1957) that “[t]here is no criminal liability on the part of the others when the homicide was a fresh and independent product of the mind of one of the confederates, outside of, or foreign to, the common design,” the Court of Special Appeals held that, under the felony murder doctrine, there must be a direct causal connection between the homicide and the felony: “Something more than mere coincidence in time and place between the two must be shown; otherwise, the felony-murder rule will not be applicable.” Mumford v. State, supra, 19 Md.App. at 644 , 313 A.2d at 566 . Noting, then, that there was medical evidence that the victim’s death ensued from the rape, the court concluded that, had the instructions as to felony murder “included a requirement of causal nexus between the underlying felony- and the resultant homicide, the jury could have chosen not to believe that death occurred pursuant to the burglary, but rather from rape, fresh and independent of the common design.” Id.

For that reason, it reversed the murder conviction against Ms. Mumford. Mumford was a correct decision, on the facts presented in that case. When there is a legitimate dispute over whether the killing was sufficiently in furtherance of the common enterprise to be chargeable to each of the co-felons, an issue of fact is presented for the jury, under proper ²⁶⁷