Watkins v. State

SALMON, Judge. Article 27, section 410, of the Maryland Annotated Code (Supp.1998), provides, in relevant part: “[A]ll murder which shall be committed in the perpetration of, or attempt to perpetrate, any ... robbery ... shall be murder in the first degree.” The first question addressed in this opinion concerns this felony-murder statute and arises due to an unusual factual scenario, viz: A, B, and C conspire to rob X. During the course of the robbery, A struggles with X and shoots him; he then turns his gun on B and kills him, too. Later, A says his reason for killing B was to eliminate him as an eyewitness to the robbery. Prior to the robbery, C did not know that A would kill B, or for that matter, anyone else.

Is C guilty of the felony murder of B? Two more routine issues must also be considered: Did the trial court err in denying the motion to suppress appellant’s incriminating statements to the police? Did the trial court err in responding to a jury note? L FACTS Appellant, Mark Watkins, was convicted by a jury in the Circuit Court for Prince George’s County of two counts of felony murder, two counts of use of a handgun in the commission of a crime of violence, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon.

After merging the robbery with a deadly weapon conviction into one of the felony-murder convictions, the court imposed consecutive life sentences for the murders, consecutive twenty-year sentences for the handgun violations, and a consecutive twenty-year term for the conspiracy charge. The crimes for which appellant was convicted occurred on January 5, 1997. John Whittington and Derrick Hilliard were ⁵⁵⁹ murdered that morning in Room 160 of a Motel 6 in Camp Springs, Maryland. Approximately five-and-a-half months later, at 4 p.m. on June 23, 1997, appellant was arrested pursuant to an arrest warrant for the murder of Whittington and Hilliard.

The arrest was made outside appellant’s home in Washington, D.C. Appellant was taken forthwith to a District of Columbia police station. A. The Suppression Hearing Appellant moved to suppress the statements he gave to the police in the nineteen-hour period immediately following his arrest. A hearing on the suppression motion was held, with the Honorable G.R. Hovey Johnson presiding. The four detectives who questioned appellant at the District of Columbia police station were John McCann, Ismail Canales, Norman Miller, and Richard Fulginiti, all of whom were members of the Prince George’s County Police Department.

They questioned appellant between 6:30 p.m. on June 23,1997, and 11:10 a.m. the next day. During this sixteen-hour and forty-minute period, appellant was allowed to sleep in a chair for two hours between 7 and 9 a.m. on June 24th, and there were two bathroom breaks. One of the breaks was for twenty minutes commencing at 11:20 p.m. on June 23 rd, and the second was for seven minutes starting at 5:40 a.m. on the 24th. He was also left alone between 4 a.m. and 4:12 a.m. and between 5:55 and 6:07 a.m. on the 24th.

The questioning of appellant was quite fruitful. He gave the police three written statements and several oral ones concerning the murders of Whittington and Hilliard. 1. The First Written Statement When he was initially questioned, appellant was fully advised of his Miranda 1 rights by Detective McCann. Appellant waived his rights and gave the detective some background information about Whittington and Hilliard.

He initially de ⁵⁶⁰ nied, however, knowing who murdered the two men. By 10:30 p.m. on June 23rd, appellant had changed his story and had completed his first written statement. That statement read in pertinent part as follows: [Eric Jenkins] told me that he was going to rob [Whitting-ton] for the money. And when he robbed [Whittington and Hilliard] he showed me the rings and the watch. [Jenkins] told me that he killed them.

He told me that him [sic] and [Whittington] got in a struggle and he didn’t want to leave no [sic] witnesses to the murder, um, I mean to the robbery Q. When did [Jenkins] tell you he was going to rob [Whittington] and [Hilliard]? A. One day before they got killed. 2. The Oral Statement to Detective Miller At 12:35 a.m., Detective Canales was replaced by Detective Miller. Miller questioned appellant from 12:35 a.m. until 1:35 a.m.

Appellant told Detective Miller, inter alia, that Jenkins had committed the murders, that Jenkins said he killed Hilli-ard so as not to leave any witnesses, and that Jenkins asked appellant to be a lookout, but appellant refused. 3. The Second Written Statement Detectives Canales and Miller questioned appellant between 1:35 and 3:30 a.m. on the 24th, at which time appellant gave a second written statement. One major change in the second story was that appellant said that Hilliard was an accomplice to the robbery of Whittington. In appellant’s original statements, Hilliard was said to be merely a witness.

According to the second written statement, Hilliard told Jenkins that Whittington carried a lot of money. After hearing this, appellant, Jenkins, and Hilliard plotted to rob Whit-tington. The plan was that Jenkins and Hilliard were to take Whittington’s money and leave together. Appellant said that Jenkins drove to the motel accompanied by Whittington and Hilliard.

During the robbery, and while in a motel room, ⁵⁶¹ Jenkins straggled with Whittington and then shot him, using a handgun that fired both 9 mm. and 38 caliber bullets. Jenkins then shot Hilliard. After taking Whittington’s watch and rings, Jenkins left the motel in Whittington’s car. Appellant was not at the motel when the shooting occurred but was waiting down the street at a 7-Eleven — close enough to the motel to hear gunshots.

Appellant admitted that he waited at the 7-Eleven as a look-out for Jenkins and Hilliard. After the murder, Jenkins showed appellant the watch and rings he had stolen from Whittington. Appellant said that he saw Jenkins hide them at the home of a girl named Lisa. This statement was completed at 4 a.m. 4.

The Third Written Statement Appellant made a third written statement at 10:24 a.m. on the 24 th. The third written statement differed from the second in that appellant admitted that he was not outside the 7-Eleven store but was outside the motel room as a lookout at the time of the shooting. Appellant heard Jenkins say, “Give me the money now.” Afterwards, appellant heard two shots, and about fifteen seconds later, Jenkins came out of the motel room with a gun in his hand. Jenkins then drove away in Whittington’s car. 5.

Circumstances Surrounding the Custodial Interrogation of Appellant Appellant had an eleventh-grade education and by June 23, 1997, had been arrested on four prior occasions. It was not established, however, whether appellant had been questioned by the police as a result of any of his previous arrests. All of the detectives who interviewed appellant on June 23 and 24, 1997, testified at the hearing. They were unanimous in their opinion that appellant appeared to have made his statements voluntarily.

Detective McCann emphasized that appellant was never denied anything during the period he was interrogated; moreover, he never asked to be left alone or said that he needed sleep. If appellant had asked to be left alone or to be allowed to sleep, his request would have been ⁵⁶² granted, according to Detective McCann. Detective Canales testified that appellant never complained that he was sleepy nor did he appear to be tired until approximately 7 a.m. — at that point, Detective Canales felt that it was necessary that Watkins should get some rest, and Watkins was allowed to sleep for two hours. 6. The Rejection of Appellant’s Motion to Suppress Appellant elected not to testify or to call any witnesses at the suppression hearing.

Nevertheless, at the conclusion of the hearing, defense counsel argued that, given the duration of the interrogation and the fact that appellant was deprived of sleep and interrogated throughout the night by a team of rotating officers, his statements were involuntary and should be suppressed. Judge Johnson rejected this contention, stating: Ms. Sullivan [defense counsel], I didn’t see a thing wrong. It took a long time, but [appellant] he got whatever he asked for. If he was hungry, you know, he could have asked for more food.

He didn’t.... According to the testimony I heard, whenever he did request anything, he got it. So, time alone, I don’t think, would cause it to be involuntary. And I don’t think that ... there are cases that [hold that] you cannot get a team.

And team number one goes in and questions him for three or four hours. And then team number one goes and gets some sleep while team number two is doing this. And then team number two goes and gets some sleep while team number three goes in. And he never is allowed to sleep.

I don’t think that is really what happened here. And he never, ever once said: I’m tired. I need to get some sleep. At least that didn’t come out during the hearing.

So he was not forcibly denied anything, so I’m not suppressing that. ⁵⁶³ Additional facts will be added in order to answer the questions presented.

II

ANALYSIS A. The Felony-Murder Issue In his second and third written statements to the police, appellant said that he and Hilliard were part of the group that conspired to rob Whittington. There was no evidence that appellant ever intended that anyone should be killed in the robbery. Appellant nevertheless admits that under the felony-murder rule his lack of intent makes no difference in regard to the killing of Whittington. He claims, however, that his lack of intent does make a difference as to his responsibility for the death of Hilliard — an alleged co-felon.

Appellant stresses that as to Hilliard the agreed-upon plan was that Jenkins and Hilliard were to rob Whittington of his money and then leave together. Yet Jenkins did not act according to the plan and killed Hilliard. During a bench conference concerning jury instructions, defense counsel requested, with regard to the count charging felony murder of Hilliard, a “Mumford-type [Mumford v. State, 19 Md.App. 640 , 313 A.2d 563 (1974),] instruction” regarding “foreseeability.” Judge Johnson refused to give the requested instruction and prohibited counsel from arguing it to the jury. The court instructed the jury in relevant part as follows: First degree felony murder.

And, [f]olks, there are two counts of that. First degree felony murder with respect to John Whittington and first degree felony murder with respect to Derrick Hilliard and they are questions three and five [on the verdict sheet]. Question five. Is the defendant guilty or not guilty of first degree felony murder?

Then I have in parenthesis, that is, did the defendant or an accomplice commit robbery with a deadly or dangerous weapon. Then again I tell you to see question two because you have already answered that. And, if so, did the defendant or an accomplice shoot ⁵⁶⁴ and kill Derrick Hilliard incidental or during the course of the robbery? Close parenthesis.

Your verdict will either be guilty or not guilty using a standard of beyond a reasonable doubt, and your verdict must be unanimous. Although appellant did not spell out the instruction he desired, he apparently wanted the instruction (with suitable modification) that the defendant asked for (and the trial judge rejected) in Mumford. As modified, the instruction would have been: If you find that Watkins could not have anticipated that Jenkins would kill Hilliard, then you must acquit Watkins of the murder of Hilliard. [2] In his brief, appellant asserts that if the jury believed his later statements to the police (as opposed to his first written statement) then Hilliard was a co-felon and Jenkins’s actions were not foreseeable. He posits that the actions were unforeseeable inasmuch as Jenkins was not acting within the common design of the three conspirators when he killed Hilliard because “[i]t cannot be seriously contended that the co-felons had a common design of killing one of their own numbers.” At this point, it is useful to note that if appellant’s argument were to prevail, the felony-murder doctrine could never be used to convict a surviving felon when one co-felon kills another while a felony is in progress.

Whether a surviving co-felon can be convicted of felony murder when a cohort is killed by another co-felon is an issue of first impression in Maryland. 3 The State maintains that a surviving co-felon may be convicted for the death of a co-felon; ⁵⁶⁵ it also asserts that the facts in Mumford are a far cry from those in the case at hand and that the Mumford rule applies only “when the defendants are engaged in a felony and one of the defendants decides to perpetrate an unrelated felony, resulting in death.” Here, the three conspirators agreed to engage in only one felony, but it resulted in two deaths. According to the State, if appellant “was an accomplice [to the robbery] his guilt [for the death of the cohort] was equal to that of the principal,” regardless of whether he knew that the principal intended to kill the cohort. Under the facts of this case, we agree with the State. 1. The Cabaltero Case One of the cases most factually apposite is People v. Ca-baltero, 31 Cal.App.2d 52 , 87 P.2d 364 (Cal.Dist.Ct.App.1939).

Cabaltero, Ancheta, Dasalla, and four others conspired to rob a farmhouse. See id. 87 P.2d at 366. During the robbery, Cabaltero waited in the getaway car; Ancheta and a cohort stood guard at the entrance to the farmhouse, and Dasalla and three others entered the farmhouse to commit the robbery. See id.

While the robbery was taking place, a car unexpectedly drove up to the farmhouse. See id. Ancheta told the two occupants of the car to remain inside the vehicle, but they did not heed his command. See id.

The two exited the car and ran. See id. While the two were fleeing, Ancheta fired two shots at them. See id.

As soon as the shots were fired, Dasalla came out of the farmhouse and shouted to Ancheta, “Damn you, what did you shoot for?” Id. Dasalla then shot Ancheta. See id. Dasalla and two others picked up Ancheta, took him to the getaway ear, and drove off.

See id. Ancheta died from his gunshot wound two weeks later. See id. Ca-baltero was charged with and convicted of the first degree felony murder of Ancheta.

See id. 87 P.2d at 365. On appeal, Cabaltero argued that because Dasalla intentionally shot Ancheta, Dasalla alone was responsible for his death, and “each of the coconspirators other than [Dasalla] should be acquitted, despite the fact that the shooting occurred while all ⁵⁶⁶ were participating in the robbery.” Id. 87 P.2d at 368 . The court rejected this claim. The Cabaltero court essentially classified all killings that occur while the felony is taking place as killings “in furtherance of’ the underlying felony.

The Court made no analysis of whether Ancheta’s shooting actually furthered the goals and purposes of the robbery — it simply asked the question: Did Ancheta’s shooting occur at the same time and place as the robbery? Because the answer to this question was clearly yes, the Cabaltero court had little difficulty concluding that the shooting was “in furtherance of’ the robbery and that all of Dasalla’s accomplices were guilty of felony murder. As will be seen, we rejected this time and place test in Mumford. See 19 Md.App. at 643-44 , 313 A.2d 563 . 2.

Mumford v. State In Mumford, the defendant and her four male cohorts burglarized a farmhouse. See id. at 641-42 , 313 A.2d 563 . Ms. Mumford was inside the house looking for items to steal when two of her male accomplices went out to a nearby garage/barn, presumably to look for additional loot. See id. at 642 , 313 A.2d 563 .

While these two accomplices were inside the garage/barn, the woman who owned the farmhouse drove into the garage/barn, whereupon the two accomplices raped and fatally strangled her. See id. At trial, Ms. Mumford admitted to participation in the burglary but denied that she ever entered the garage/barn or that she had any knowledge that her companions intended to rape or kill. See id.

At the conclusion of trial, defense counsel requested the instructions quoted, supra. The trial judge refused to give the requested instructions, and the defendant was convicted of felony murder. We reversed Mumford’s conviction and said: Each person engaged in the commission of the criminal act bears legal responsibility for all consequences which naturally and necessarily flow from the act of each and every participant. Veney v. State, 251 Md. 159, 174 , 246 A.2d 608 ⁵⁶⁷ (1968)....

Consequently, a killing, even if unintentional, by one, in furtherance of or pursuant to the common object for which they combine, extends criminal liability for murder in the first degree to each and every accomplice. The application of this doctrine, however, is circumscribed by “causation” requirements which must be satisfied before the felony-murder rule may be applied: There 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. 1 Wharton, Criminal Law and Procedure, § 252, at 547 (Anderson ed.1957). In sum, there must be 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, 19 Md.App. at 643-44 , 313 A.2d 563 ; see also Jackson v. State, 286 Md. 430, 443-44 , 408 A.2d 711 (1979) (stating that Mumford accurately states the law regarding the connection required between the homicide and the underlying felony). The Mumford Court went on to hold that if the trial judge had given the requested instruction; the jury could have chosen not to believe that the death occurred pursuant to the burglary, but rather from rape, fresh and independent of the common design. This factual issue should have been presented to the jury, in accordance with appellant’s exception. “The question of what is or is not a natural probable consequence is a question of fact for the trier of facts.” Jeter v. State, [ 9 Md.App. 575, 580 , 267 A.2d 319 (1970) ]. Mumford, 19 Md.App. at 644 , 313 A.2d 563 . 3.

Campbell v. State The case of Campbell v. State, 293 Md. 438 , 444 A.2d 1034 (1982), although not factually on point, does give some useful guidance as to how the felony-murder rule should be applied in the case at hand. ⁵⁶⁸ In Campbell , the Court held that criminal liability under the felony-murder doctrine ordinarily does not extend to the lethal acts of non-felons. See id. at 452 , 444 A.2d 1034 . An exception to this rule is the so-called “shield” situation in which a felon uses a hostage as a shield or otherwise puts the victim in a place of mortal danger. See id. at 451 n. 3, 444 A.2d 1034 .

Thus, when a co-felon is killed by pursuing police officers or a resisting victim, the surviving co-felons cannot be convicted of felony murder for the death of their accomplice. See id. at 442-52 , 444 A.2d 1034 . The Campbell Court adopted an “agency” theory of felony murder. See id. at 443 , 444 A.2d 1034 .

Under this approach, each participant in the felony is viewed as an agent for the others, making each felon liable for all acts committed by his/her accomplices “for the furtherance or in prosecution of the common object and design for which they combined together.” Id. at 444 , 444 A.2d 1034 (quoting Commonwealth v. Campbell, 89 Mass. 541, 544 (1863)). The Campbell Court also quoted with approval from People v. Wood, 8 N.Y.2d 48 , 201 N.Y.S.2d 328 , 167 N.E.2d 736, 738 (1960): “Thus, a felony murder embraces not any killing incidentally coincident with the felony but only those committed by one of the criminals in the attempted execution of the unlawful end. Although the homicide itself need not be within the common design, the act which results in death must be in furtherance of the unlawful purpose.” Campbell, 293 Md. at 447 , 444 A.2d 1034 (emphasis in original). The Campbell Court held: [OJrdinarily, under the felony-murder doctrine, criminal culpability shall continue to be imposed for all lethal acts committed by a felon or an accomplice acting in furtherance of a common design.

However, criminal culpability ordinarily shall not be imposed for lethal acts of nonfelons that are not committed in furtherance of a common design. Id. at 451-52, 444 A.2d 1034 (emphasis added) (footnote omitted). ⁵⁶⁹ 4. Other Authorities Appellant relies on an excerpt from a treatise by Professors Wayne R. LaFave & Austin W. Scott, Jr., entitled Substantive Criminal Law, in which the professors use a hypothetical example where A, B, and C agree to rob X: What if B, angry perhaps at C’s inept manner of assisting in the robbery of X, should intentionally shoot C; B would be liable for C’s murder, of course, of the intent-to-kill type; but would A be liable for