Harris v. State

Dawnta Harris v. State, No. 1515, September Term, 2019, Opinion by Graeff, J.

CRIMINAL LAW — FELONY MURDER — MANSLAUGHTER BY VEHICLE —
PREEMPTION

Relying on State v. Gibson, 4 Md. App. 236 (1969), and Blackwell v. State, 34 Md. App.
547 (1977), appellant argues that the manslaughter by vehicle statute, now codified as Md.
Code Ann., Criminal Law Article § 2-209 (2012 Repl. Vol.), preempts a charge of common
law felony murder when a motor vehicle is involved. Gibson and Blackwell found
preemption in situations involving “unintended homicides resulting from the operation of
a motor vehicle.”

Felony murder, however, is not an unintended homicide. To be sure, intent to kill is not a
required element of felony murder. For a homicide to constitute murder, however, the
homicide must be committed with malice, a mental state that includes an intent to do the
“death-producing act in the course of the commission, or attempted commission, of a
felony.” Under the felony-murder rule, “the malice involved in the underlying felony is
permitted to stand in the place of the malice that would otherwise be required with respect
to the killing.” Felony murder is not, therefore, within the scope of an unintended
homicide. Accordingly, felony murder is not preempted by the manslaughter by
automobile statute when the homicide involves a motor vehicle.

CRIMINAL LAW — JUVENILLE LIFE SENTENCING — FELONY MURDER —
INDIVIDUALIZED CONSIDERATION — CRUEL AND UNUSUAL
PUNISHMENT

Pursuant to this Court’s decision in Hartless v. State, 241 Md. App. 77 (2019), a sentencing
court is not required to conduct an individualized hearing to consider a defendant’s “youth
and all of its attendant circumstances” before imposing a sentence of life imprisonment
with the possibility of parole on a juvenile convicted of felony murder.

Appellant’s sentence of life with parole was not grossly disproportionate and did not
constitute cruel and unusual punishment where his conduct, in driving over a person while
fleeing the scene of a burglary, caused the person to lose her life.
Circuit Court for Baltimore County
Case No. 03-K-18-002254

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1515

September Term, 2019

______________________________________

DAWNTA HARRIS

v.

STATE OF MARYLAND
______________________________________

Graeff,
Kehoe,
Zic,
JJ.
______________________________________

Opinion by Graeff, J.
______________________________________

Filed: July 28, 2021

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-07-28 10:16-04:00

Suzanne C. Johnson, Clerk
 On May 1, 2019, Dawnta Harris, appellant, was convicted by a jury in the Circuit

Court for Baltimore County of first-degree felony murder, first-degree burglary, and theft

less than $25,000. These convictions were based on his actions on May 21, 2018, when he

struck and killed a Baltimore County Police officer with a stolen car during the commission

of a burglary with three other individuals. Appellant, who was 16 years old at the time of

the crime, was sentenced to life in prison with the possibility of parole.

On appeal, appellant presents the following questions for this Court’s review, which

we have rephrased slightly, as follows:

1. Has an unintentional, common law felony murder that was perpetrated
by the operation of a motor vehicle been preempted by statute, thus
precluding the common law offense from serving as a basis for a crime
in Maryland?

2. Did the circuit court abuse its discretion and commit a constitutional
violation by declining to instruct the jury that, in determining the
voluntariness of appellant’s statement to the police, it may consider as
a factor whether there was denial of a parent at the juvenile’s
interrogation?

3. Is an automatic life sentence for a juvenile convicted of felony murder,
without consideration of the juvenile’s youth and attendant
circumstances and penological justifications, unconstitutional under
the Eighth Amendment’s prohibition against cruel and unusual
punishment?

4. Is the felony murder rule, as applied to juveniles, constitutional under
the Fifth and Fourteenth Amendments’ Due Process Clauses and
Article 24 of the Maryland Declaration of Rights?

For the reasons set forth below, we shall affirm the judgments of the circuit court.
 FACTUAL AND PROCEDURAL BACKGROUND

I.

Factual History

On May 18, 2018, Kirk Thomas arrived at his home on Linwood Avenue in

Baltimore City to discover that it had been burglarized, and the spare key to his 2016 Jeep

Wrangler was missing. He called the police, but just before they responded, another officer

arrived at his door to investigate a hit-and-run involving that vehicle. He reported the

vehicle as stolen, but he had no personal knowledge of who took it.

Three days later, on May 21, 2018, appellant, Darrell Ward, Derrick Matthews, and

Eugene Genius skipped school and drove Mr. Thomas’ black Jeep Wrangler from

Baltimore City to the Parkville area in Baltimore County.1 Several burglaries connected

to a black Jeep occurred that afternoon.

The first, at approximately 12:30 p.m., occurred on Ardmore Avenue. Home

surveillance video captured Mr. Genius stealing a package from a porch.2 A neighbor

observed a black Jeep at the residence and saw a person take the package. Although the

windows of the Jeep were “heavily tinted,” the neighbor could distinguish the silhouettes

of four people in the Jeep as it drove by his home.

1
All four of the young men were juveniles at the time. Evidence adduced at trial
showed that the license plates on the Jeep had been switched. The tags belonged to a van
registered in East Baltimore, but the Jeep was registered with the MVA to Mr. Thomas.
2
Because appellant was not convicted of the theft at Ardmore Avenue or the
burglary at Northwind Road, see infra, we need not recite those events in detail.
2
 An hour later, at approximately 1:30 p.m., a black Jeep was observed outside a

residence on Northwind Road. The homeowner was not present at the time, but she called

the police after she returned home at approximately 4:00 p.m. and found her home

“ransacked.” She reported several stolen items, including an “old gaming system,” a

candlestick holder, jewelry, coins, a bottle of wine, and some snacks.3

At approximately 1:50 p.m., Kristin Roller observed a black Jeep Wrangler parked

on Linwen Way, and she saw a male individual that she did not recognize looking into one

of the houses on the street. She took a picture of the Jeep with her cell phone and texted it

to the homeowners, who were not home at the time, to ask if they were expecting any

visitors. They immediately called her back, and she called 911 when she observed two

additional individuals exit the rear of the Jeep.4

The three individuals proceeded to walk around the sides of the house looking into

windows, while a fourth individual remained in the Jeep. Ms. Roller described them to the

911 dispatcher as “African American kids.” While she was waiting inside for the police to

3
A shattered wall clock in the foyer was frozen at 1:35 p.m., suggesting that this
was the time when the burglary occurred. A neighbor testified that he observed someone
wearing an orange shirt standing outside the home by a “dark colored” Jeep in the
driveway.
4
Ms. Roller testified that one of the individuals was wearing a bright, orange
sweatshirt, another was wearing a white T-shirt, and the third was wearing a black T-shirt.
Police subsequently extracted from her cell phone pictures that she had taken of the three
individuals and the Jeep. The State introduced some of these photos at trial.
3
arrive, she could see that they had entered the home. Ms. Roller called 911 again and

witnessed the events described below from her window.5

At approximately 2:10 p.m., Officer Amy Caprio of the Baltimore County Police

Department responded to Linwen Way. As she approached the Jeep, it drove away, but it

soon returned to Linwen Way, which ended in a cul-de-sac. Officer Caprio positioned her

squad car so it was partially blocking the exit to the cul-de-sac, and she got out of the car.

The Jeep turned around at the end of the cul-de-sac and drove toward her. As

discussed in further detail, infra, Officer Caprio drew her service weapon as the car

continued to approach, pointed it at the driver, and instructed him to stop and get out of the

car. The Jeep stopped inches in front of her, and she again yelled at the driver to get out.

The driver’s door opened, and Officer Caprio stepped in front of the Jeep. The door to the

Jeep closed slightly, and then the Jeep accelerated, struck Officer Caprio, and drove away.

Officer Caprio fired one gunshot, which struck the front windshield of the Jeep.6

5
Ms. Roller called 911 three times; first to report the individuals out front, second
to report that they were going around the sides of the house, and a third time to inform
police that the individuals were inside the house.
6
The timing of Officer Caprio’s gunshot is somewhat unclear from the evidence
presented at trial. Detective Barton testified that stills from the body-worn camera footage
showed gunpowder and smoke coming out of the gun after the Jeep accelerated towards
her the second time but before she fell to the ground. Ms. Roller initially testified that she
heard the gunshot and then saw the Jeep drive off, but she then testified that the two events
occurred “simultaneously.” On appeal, the State asserts that the body-worn camera footage
showed that appellant accelerated and struck her before she discharged her firearm.
Appellant, however, contends that the gunshot was fired prior to accelerating. The
resolution of this factual dispute does not affect the issues presented to us on appeal.
4
Bystanders, including Ms. Roller, rushed to the scene and attempted to administer first aid.

Paramedics transported Officer Caprio to the hospital, where she was pronounced dead.

Christopher Squires was sitting on his patio a short distance from Linwen Way when

he observed a Jeep traveling quickly down his quiet street. He saw the Jeep park behind a

neighbor’s car, and he observed the driver, a thin African American male wearing a black

sweatshirt, exit the vehicle and quickly walk away. Although he was unaware of the events

that had just taken place on Linwen Way, Mr. Squires notified the police because he could

see that the back window of the Jeep was damaged, and he thought it was suspicious that

someone would leave their car there without going into a house. He subsequently observed

a bullet hole in the windshield on the driver’s side.

Officer Michael Deremiek was en route to the scene at Linwen Way when he

observed “a teenaged black male casually walking down the sidewalk.” After arriving on

the scene and hearing a description of the suspect from the neighbors, he suspected that the

young man he passed on the street might have been involved. He went to look for the

young man and saw him walking towards Belair Road and talking on a cell phone. Officer

Deremiek got out of the car and began to approach him. He heard the young man,

appellant, saying: “Where are you? Where are you?”

After some brief questioning, Officer Deremiek took appellant into custody. Officer

Deremiek seized a “small black grocery bag” of loose change from appellant’s person.

5
Police then brought Mr. Squires to appellant’s location for a show-up, and Mr. Squires

identified appellant as the young man he had seen leave the Jeep on his street.7

The police took appellant to headquarters, and at 3:30 p.m., they placed him in an

interview room. The police seized two cell phones, which contained calls and messages

from the other young men. One of the phones was registered to Mr. Ward, and appellant

stated that he bought it from Mr. Ward because his phone was broken.

At approximately 6:30 p.m., appellant was read his rights and signed the Miranda

waiver form. Detective Alvin Barton, a member of the County Homicide Unit, interviewed

appellant. He did not attempt to contact appellant’s parents prior to the interview.

Appellant did ask to make a phone call, but he did not request the presence of a parent or

an attorney, and he indicated that he understood each item on the Miranda waiver form as

they were read to him.

7
James Kolb, a neighbor on a nearby street, was sitting on his front porch when he
saw three young men, subsequently identified as Mr. Matthews, Mr. Ward, and Mr. Genius,
peering into empty houses shortly after 2:00 p.m. The young men ultimately left his street
without entering the homes, but Mr. Kolb proceeded to follow them in his car because he
thought that they were suspicious. As he was driving, Mr. Kolb also observed appellant
walking down the road, but he did not make a connection between the three young men
and appellant at the time. The young men subsequently were seen on surveillance cameras
from various businesses at the Perry Hall Square shopping center off Belair Road.
Detective Barton identified the young men on the surveillance videos as Mr. Matthews,
Mr. Ward, and Mr. Genius.
The video showed the three individuals entering a taxicab. Police located the taxi
driver, who testified that he picked up three young men at a Chinese restaurant in the
shopping center and transported them to Frederick Douglas High School in Baltimore City.
The driver further testified that one of the young men repeatedly attempted to call someone
and told the others: “He’s not answering the phone.” One of the individuals threw what
appeared to be a gun magazine out the window at some point during the ride.
6
 Appellant told Detective Barton that he was 16 years old, he lived with this mother

and sister in Baltimore City, and he was in ninth grade at Francis M. Wood High School.

He said that he had spent the previous night at Mr. Ward’s house in East Baltimore and

went to Baltimore County at approximately 8:30 a.m. that morning to visit his girlfriend.

He remained at her house for “an hour or two,” and he was walking down the street toward

the 7-11 to call his cousin for a ride home when he was picked up by the police.

Appellant initially claimed that he did not know anything about the Jeep. He then

stated that, while he was walking, he saw the Jeep parked near where he was stopped by

police. It was running, so he briefly got into the car, but he then noticed that the back

windshield was broken, and realizing it may have been stolen, he got out of the vehicle.

Appellant then changed his story. He told Detective Barton that he was with Mr.

Ward and a mutual friend named Ke’andre at Mr. Ward’s house that morning. Mr. Ward

left and came back with the Jeep and called for them to get in. Appellant declined and

instead took the city bus with Ke’andre to Patterson High School.

After Ke’andre went into the school, appellant took the bus to a gas station on

Orleans Street, where he was approached again by Mr. Ward, who was in the Jeep with his

friend, Mr. Genius. Mr. Ward again asked appellant if he wanted to get into the car.

Appellant stated that he was skeptical at first, but Mr. Ward said that “his people’s had

gave it to him,” so appellant did not question it further and got in the car. When they

7
stopped at another station for gas, Mr. Ward’s friend Derrick Matthews joined them in the

Jeep, and the four young men drove north to Baltimore County.8

The young men eventually pulled up to a house. The others got out, but appellant

remained in the car. The other individuals were gone for 10 to 15 minutes, and appellant

was unsure what they were doing, but he knew they were doing something that they were

not “suppose[d] to be doing.” When they returned to the Jeep, Mr. Genius was carrying a

brown cardboard box containing alcohol bottles, and Mr. Matthews had a “little green bag.”

The young men also had taken a “little black bag” containing loose change.

Appellant stated that Mr. Matthews then drove the Jeep to another gas station

approximately 10 minutes away and put gas in the car. The young men, with Mr. Genius

driving, then went to a second house on Linwen Way. Mr. Genius and Mr. Matthews got

out, and Mr. Ward and appellant remained in the car.9 The Jeep’s engine was turned off,

but the key was in the ignition and the battery was on so he and Mr. Ward could listen to

the radio. Appellant told Detective Barton that he then told Mr. Ward: “Let’s go back this

time, because I don’t feel safe around here. . . . I don’t even know what ya’ll doing. Ya’ll

just getting out and getting back in.” He stated: “If anything happened, we all could get

8
Appellant stated that he had only met Mr. Genius and Mr. Matthews once prior to
these events, and they were friends of Mr. Ward. Appellant provided a description and
photo identification of all three of these individuals during his interview with Detective
Barton.
9
Appellant stated that he stayed in the car when they stopped at both houses and
did not go inside either house. The forensic evidence supported appellant’s statement that
he did not physically enter either burglarized home.
8
locked up for something.” Mr. Ward responded that he was not going to do anything

“dumb” to get himself “locked up.”

Mr. Genius eventually came back to the car and got Mr. Ward, leaving appellant

alone in the Jeep. While the other individuals were in the house, appellant got out of the

Jeep to stretch his legs, and when he got back inside on the front passenger side, he hopped

over the center console into the driver’s seat and reclined the seat backwards so that he

could not be seen.

At some point while he was waiting, appellant stuck his head up and saw a Baltimore

County Police car approaching him. When the police car pulled up alongside him, he

started the Jeep and drove off. The police car followed him while he did a U-turn and

returned to Linwen Way. He then observed a female police officer get out of the car and

point a gun at him. Appellant described the following:

[APPELLANT:] [T]hat’s when I had put my head down and closed my eyes.

DETECTIVE: She’s saying something to you, right?

[APPELLANT:] Yeah.

DETECTIVE: What is she telling you?

[APPELLANT:] I couldn’t really hear her. I did hear, “Get out of the car.”

DETECTIVE: Okay. All right. Did you get out of the car at any point?

[APPELLANT:] No, I was too scared to get out.

DETECTIVE: Did you start to get out [of] the car?

[APPELLANT:] Yes, I did open the door.

DETECTIVE: All right. Then what happened?

9
[APPELLANT:] I was just too scared. I was paranoid, too paranoid, I didn’t
know what to do. I just did whatever came to my head, which to – at least,
try to pull off.

DETECTIVE: Okay. But she’s she’s [sic] blocking the road though.

[APPELLANT:] Yeah, but not really blocked it, but kind of is.

DETECTIVE: Like, explain it to me, I’m trying to understand.

[APPELLANT:] When I went this way, the car is like this and I stop here so
I had to go around and back.

DETECTIVE: You were gonna go around it?

[APPELLANT:] Yeah.

DETECTIVE: Okay. All right.

[APPELLANT:] The only reason I didn’t hear what she was saying because
it was music playing a little bit –

DETECTIVE: Okay. All right.

[APPELLANT:] – and all the windows was rolled up.

DETECTIVE: You heard her say, “Get out of the car.” You heard part of
what she said. She’s got the road blocked, and had to maneuver to the right
and then back around again to fit in the spot that she had left open?

[APPELLANT:] Yeah, but when I put my head down and closed my eyes, I
didn’t – I didn’t move the wheel. Like, I just –

DETECTIVE: Well, you didn’t do that in the beginning. I mean you would
have driven around in the car at first with your eyes open, or you would have
never made it.

[APPELLANT:] Correct, yeah.

DETECTIVE: Okay.

[APPELLANT:] All I did was –

10
 DETECTIVE: Then she’s in the way.

[APPELLANT:] All I did was – the car never got put back in park, it stayed
in drive. So all I did was just put my head down because I had seen a gun
that was pointed directly at me.

DETECTIVE: Okay.

[APPELLANT:] So, I had put my head down and I was just gripping the
wheel – the steering wheel, but I didn’t want to pull off or anything. I was
just – I don’t know, I was getting even scareder [sic], and I ain’t know what
to do at all.

DETECTIVE: Okay.

[APPELLANT:] So, I had pulled straight off.

DETECTIVE: Well, did you stop when you hit her?

[APPELLANT:] No, I didn’t even know I hit her.

DETECTIVE: Well, you knew she was standing when you put your head
down.

[APPELLANT:] Yeah, I knew she was standing there, but I didn’t know I hit
her.

DETECTIVE: That’s when you hit the gas, you just put your head down and
didn’t look?

[APPELLANT:] No, I didn’t look at anything. I was too scared to look,
because I didn’t know if I was gonna crash, hit the police car or hit the police,
I didn’t know if I was gonna get shot or not.

Appellant stated that, while the gun was pointed at him and the officer was

instructing him to get out, he “didn’t want anything bad to happen,” and he “just wanted to

go home.” He further stated that, after he hit the gas pedal, he heard the gun go off and

thought he had been shot. When he “hit the corner,” he did not know where to go, but he

11
did not feel safe there, so he kept driving and abandoned the Jeep on a nearby street and

continued on foot.10 Appellant stated that he did not see the other three individuals again

that day.11

II.

Procedural History

On May 30, 2018, appellant was charged in the Circuit Court for Baltimore County

with first-degree murder (count 1); with respect to Linwen Way, first-, third-, and fourth-

degree burglary, conspiracy to commit first-degree burglary, and theft of at least $1,500

but less than $25,000 (counts 2 through 6); with respect to Northwind Road, first-, third-,

and fourth-degree burglary, conspiracy to commit first-degree burglary, and theft of at least

$100 but less than $1,500 (counts 7 through 11); with respect to Ardmore Avenue, fourth-

degree burglary and theft under $100 (counts 12 and 13); theft of at least $1,500 but less

than $25,000 for the stolen Jeep Wrangler (count 14); theft under $100 for a stolen license

plate (count 15); and related firearms charges (counts 16 through 19).

A jury trial commenced on April 22, 2019, and it continued for eight days. In

addition to witness testimony discussed supra, a crime scene technician for the State

testified that the following items were recovered from the abandoned Jeep: clothing, a

10
The key to the Jeep was discovered on appellant’s person during the interview
with Detective Barton.
11
Mr. Ward, Mr. Genius, and Mr. Matthews were taken into custody the following
day. The record on appeal does not reflect their charges, but appellant proffered in his brief
that those three young men pled guilty to felony murder and were given life sentences with
all but 30 years suspended.
12
cardboard box of electronics (including a Nintendo game system and 12 games), coins, a

school folder labeled “Eugene Genius,” alcohol bottles, and a package addressed to the

home on Ardmore Avenue.12

The owner of the home on Linwen Way testified that a brick had been thrown

through the glass door in the rear of his home. Approximately $3,370 worth of items were

stolen, including an X-box, an Amazon Echo Dot, an Amazon Firestick, a laptop, two

iPads, an Apple Watch, a backpack, and a handgun and two magazines.

Denise Wallace, a fingerprint examiner, testified that she collected fingerprint

samples from all four young men and compared them to the prints lifted from various

locations and items relevant to the burglaries. Fingerprints from Mr. Matthews, Mr. Ward,

and Mr. Genius were found inside the Linwen Way house. Appellant’s prints were not

found inside the home. Appellant’s prints were present, however, inside the Jeep on the

front driver’s side door and on one of the Nintendo games taken from Northwind Road.

The prints from the other young men also were found in the Jeep.

Mr. Ward was wearing a GPS bracelet monitored by the Department of Juvenile

Services on the day in question. An expert testified that, based on the GPS data, Mr. Ward

was present at Ardmore Avenue, Northwind Road, and Linwen Way around the time of

the burglaries on May 21, 2018. Cell phone location data from the phones of Mr. Ward,

Mr. Genius, and Mr. Matthews corroborated their presence at these locations.

12
The recovered clothing included a distinctive striped jacket that matched the one
worn by Mr. Genius in surveillance video from the gas station and the door camera at
Ardmore Avenue.
13
 The video captured by Officer Caprio’s body-worn camera at the time of the

incident was played for the jury and entered into evidence as State’s Exhibit 27A. The

video showed that, at 2:11 p.m., Officer Caprio’s body-worn camera was activated as she

turned onto Linwen Way. She followed the Jeep, and just before the circle at the end of

the cul-de-sac, she stopped her car and got out. Officer Caprio positioned herself in the

road adjacent to the left side of her squad car and in the direct path of the Jeep.

As the Jeep turned around at the end of the cul-de-sac and continued to drive toward

her, Officer Caprio drew her service weapon and pointed it toward the driver and repeatedly

yelled “stop.” As the Jeep approached, she took a few steps backwards, and the Jeep

stopped an arm’s length in front of her. In the video, Officer Caprio is heard yelling: “Stop,

stop. Get out of the car. 10-3. Get out of the car. Get out of the car right now. Get out of

the fucking car. Get out of the car. Get out[.]” As she gave this instruction, she moved

laterally toward the back end of her squad car so that she was no longer squarely in front

of the Jeep. The driver’s side door to the Jeep then opened, but no one got out. As the

door opened, she moved back toward the center of Jeep.13

The video then shows the car advancing toward her, the body-worn camera falling

to the pavement, and voices of bystanders calling for help and attempting to render aid.

One bystander said: “That guy just ran her over.” The video shows the Jeep leaving the

13
Detective Barton testified that Officer Caprio likely stepped back in front of the
Jeep to provide herself cover from the individual that appeared to be exiting the vehicle as
the door opened.
14
scene with the driver’s side door still open. The driver of the vehicle is not visible at any

point during the video.

The medical examiner testified that Officer Caprio’s cause of death was multiple

injuries, including numerous fractured ribs, extensive lacerations of the liver, and

hemorrhaging in various locations. These injuries were consistent with “being run over by

a vehicle.” The manner of death was ruled a homicide.

Detective Barton testified regarding the investigation and his interview with

appellant on the evening of the arrest. The video of that interview, which included

appellant’s confession, discussed supra, was entered into evidence as State’s Exhibit 67

and played for the jury. On cross-examination, Detective Barton acknowledged that there

was no indication from his investigation that appellant planned the two burglaries or the

package theft, or that appellant drove the Jeep prior to his encounter with Officer Caprio.

Additionally, there was no evidence that appellant had stolen the Jeep from Mr. Thomas.

In closing argument, the State argued that the case against appellant on the burglary

charges was based on his knowledge, complicity, and aid of the actions of the other young

men, either as a primary actor or, at the very least, as an accomplice. In that regard, the

prosecutor highlighted that appellant’s fingerprints were found on some of the stolen items,

and he was arrested with stolen change in his pockets.

With respect to the first-degree felony murder charge, the State noted that it did not

have to prove an intent to kill. Rather, it had to prove only that Officer Caprio was killed

during the course of the burglary.

15
 Addressing the theft charge for the Jeep, the State argued that appellant “willfully

and knowingly obtained and exerted unauthorize[d] control” over stolen property by

“driving [the Jeep] from location to location.” In support of its arguments, the State re-

played numerous portions of the interview video.

On May 1, 2019, the jury found appellant guilty of first-degree felony murder, first-

degree burglary of the home on Linwen Way, and theft of the Jeep. On August 21, 2019,

the court sentenced appellant to life in prison with the possibility of parole on the

conviction of first-degree felony murder, 20 years (concurrent) on the conviction for first-

degree burglary, and five years (concurrent) for theft.14

This appeal followed.

DISCUSSION

I.

Preemption

Appellant contends that his conviction for felony murder should be vacated because

the “misdemeanor manslaughter by automobile statute,” Md. Code Ann., Criminal Law

Article (“CR”) § 2-209 (2012 Repl. Vol.), “preempts all unintended homicides committed

by motor vehicle.” In support, appellant cites State v. Gibson, 4 Md. App. 236, aff’d, 254

Md. 399 (1969), where this Court held that the manslaughter by vehicle statute preempted

the common law offense of misdemeanor manslaughter by operation of a motor vehicle,

and all unintended homicides resulting from the use of a vehicle, and Blackwell v. State,

14
The court noted that it would recommend that appellant be allowed to participate
in the “Youthful Offender’s Program” at the Patuxent Institute.
16
34 Md. App. 547, cert. denied, 280 Md. 728 (1977), in which we held that the manslaughter

by vehicle statute preempted second-degree murder when the killing was the unintended

result of the operation of a motor vehicle. Appellant urges this Court to “extend the

holdings of Gibson and Blackwell to the common law offense of felony murder by

continuing to find that the statutory preemption applies to all unintended homicides

resulting from the operation of a motor vehicle.”

Appellant did not argue below that he could not be convicted of felony murder

because he could be prosecuted only for a violation of the misdemeanor manslaughter

statute. He argues, however, that the issue is preserved for appellate review because it

involves a challenge to the court’s subject matter jurisdiction, which may be raised for the

first time on appeal. Alternatively, he requests this Court to review the issue under the

doctrine of plain error.

The State makes several arguments in support of its contention that appellant’s

conviction of felony murder should be affirmed. Initially, it argues that, because the issue

was not raised below, it is not preserved for this Court’s review. Moreover, it argues that

the common law felony murder doctrine was not preempted by the enactment of the

manslaughter by vehicle statute for three reasons.

First, it asserts that the statute deals with the subject of “unintentional homicides”

by motor vehicle. It argues that, because felony murder can occur whether death was

intended or not, “felony murder does not fall within the ‘subject matter’ of ‘unintended

homicides’” contemplated by the statute.

17
 Second, the State argues that the rationale for this Court’s decision in Gibson, 4

Md. App. at 246–47, interpreting the manslaughter by vehicle statute as preempting

common law manslaughter was to prevent a “nonsensical incongruity” where a prosecutor

could choose to charge a person with the common law felony of manslaughter, with a ten-

year penalty, or the statutory misdemeanor, with a three-year penalty, even where the proof

to justify conviction was the same. It contends that there is no such incongruity with felony

murder, which is intended to deter individuals from engaging in a felony, and the

manslaughter by vehicle statute, which “contemplates punishment only for the act of

dangerous driving.”

Third, the State asserts that this Court must presume that the General Assembly did

not intend to preempt the common law felony murder doctrine absent a clear legislative

intent to do so, and there was no evidence of such intent here. Moreover, the State notes

the illogical result that would occur in this case if appellant’s position was accepted. Where

the three co-defendants pled guilty to felony murder, it would not make sense that

appellant, the one who directly caused the victim’s death, would avoid a murder conviction.

Finally, the State contends that, even if this Court accepts appellant’s argument that

the manslaughter by vehicle statute preempted the common law felony murder doctrine

where the killing was unintentional, there was no preemption here because there was

evidence that appellant intended to run over Officer Caprio. Accordingly, the State argues

that it could prosecute and convict appellant of felony murder.

We first address the State’s argument that the issue of preemption is not preserved

for appellate review because it was not raised in the circuit court. Generally, an appellate

18
court will not address an issue not raised in or decided by the trial court. Lane v. State, 348

Md. 272, 278 (1997). Accord Md. Rule 8-131(a). One exception to this general rule of

preservation, however, applies where the challenge is to the circuit court’s subject matter

jurisdiction. Such a challenge may be brought at any time, even if it was not raised at trial,

because “where no cognizable crime is charged, the court lacks fundamental subject matter

jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances

to inquire into the facts, to apply the law, and to declare the punishment for an offense.”

Williams v. State, 302 Md. 787, 791–92 (1985). Accord Lane, 348 Md. at 278 (reviewing

question of whether second-degree rape of a spouse was a crime because “a court may not

validly enter a conviction on a charge that does not constitute a crime and . . . the deficiency

in any such judgment is jurisdictional in nature”).

In this case, appellant does not argue that first-degree felony murder is not a

cognizable crime. It clearly is a cognizable crime, and appellant’s reliance on subject

matter jurisdiction as a basis to excuse his failure to raise the issue below is misplaced.

We conclude, however, that the issue is properly before this Court for a different

reason. If appellant’s contention is correct, and the manslaughter by automobile statute

preempted a charge of felony murder when the homicide was committed by motor vehicle,

then appellant’s argument that he should not have been charged, convicted, or sentenced

for the conviction of felony murder could be construed as an argument that he was given

an illegal sentence. See Roary v. State, 385 Md. 217, 225–26 (2005), overruled on other

grounds by State v. Jones, 451 Md. 680, 704 (2017) (A “sentence imposed under an entirely

inapplicable statute is an illegal sentence which may be challenged at any time.”). Accord

19
Fisher v. State, 367 Md. 218, 239–40 (2011) (reviewing claim that felony murder doctrine

is inapplicable to a homicide resulting from child abuse because, if true, the sentence

imposed on the felony murder conviction would be an illegal sentence); Moosavi v. State,

355 Md. 651, 662 (1999) (“[W]here a defendant has been charged and convicted under an

entirely inapplicable statute, but has not raised the issue on appeal, this Court has reviewed

the issue on the theory that the resulting sentence under the inapplicable statute is an illegal

sentence which may be challenged at any time.”). Accordingly, we will consider this issue,

even though it was not raised below.

Appellant argues that the manslaughter by vehicle statute, now codified as CR § 2-

209, preempts a charge of felony murder when a motor vehicle is involved.15 In support,

he relies on Gibson and Blackwell, supra.

In Gibson, 4 Md. App. at 238–40, this Court addressed whether the manslaughter

by automobile statute (codified at the time as § 388 of Article 27 of the Maryland Code

(1967 Repl. Vol.)) preempted the common law manslaughter offenses with which the

15
CR § 2-209 provides, in pertinent part:

(a) In this section, “vehicle” includes a motor vehicle, streetcar, locomotive,
engine, and train.

(b) A person may not cause the death of another as a result of the person’s
driving, operating, or controlling a vehicle or vessel in a grossly negligent
manner.

(c) A violation of this section is manslaughter by vehicle or vessel.

(d)(1) Except as provided in paragraph (2) of this subsection, a person who
violates this section is guilty of a felony and on conviction is subject to
imprisonment not exceeding 10 years or a fine not exceeding $5,000 or both.
20
defendant was charged after he killed a woman while drunk driving. We answered that

question in the affirmative, explaining as follows:

We believe that the Legislature in enacting Section 388 to punish persons
who cause the death of another ‘as the result of the driving, operation or
control of an automobile [. . .] in a grossly negligent manner,’ intended to
treat all unintended homicides thereby resulting in the same way,
without regard to whether the homicide occurred in the course of doing a
lawful or an unlawful act, or whether such act was malum in se or merely
malum prohibitum. To otherwise conclude would be to attribute an intention
to the Legislature to permit the prosecution of offenders either for the felony
of common law manslaughter, with its ten-year penalty, or for the statutory
misdemeanor of manslaughter by automobile, with its three-year penalty,
even though, where the prosecution is based upon gross negligence, the proof
necessary to justify a conviction in either case would be precisely the same
(a wanton or reckless disregard to human life). . . . We conclude, therefore,
that in enacting Section 388, the Legislature intended to deal with an
entire subject matter[––]unintended homicides resulting from the
operation of a motor vehicle[––]and that the common law crime of
involuntary manslaughter, when based on homicides so occurring, is in
conflict with the statute and must yield to it to the extent of the inconsistency.

Id. at 246–47 (emphasis added). The Court went on to state, however, that the

manslaughter by automobile statute did not “abrogate the crime of manslaughter in those

cases where the killing was accomplished by intentionally running over the victim in an

automobile.” Id. at 248 n.5.

In Blackwell, 34 Md. App. at 555, this Court extended Gibson’s preemption

principle to apply to second-degree murder involving a motor vehicle. In that case,

Blackwell killed a cyclist while driving drunk, and he was convicted of second-degree

murder. Id. at 549. On appeal, this Court noted its prior holding in Gibson that, “in

enacting the manslaughter by automobile statute, the legislature intended to preempt the

21
subject matter of unintended homicides resulting from the operation of a motor vehicle.”

Id. at 554 (citation omitted). We then stated:

In the absence of evidence of intentional homicide, we hold that the
statutory preemption applies as well to second degree murder as it did in
[Gibson] to manslaughter. We hasten to add on the other hand, that under
proper circumstances where the resultant death was intended, a conviction
for murder may result, notwithstanding the use of an automobile as the
instrumentality of death.

Id. at 555.

Appellant urges this Court to extend the preemption principle to felony murder

when it is committed using a motor vehicle. As noted, the cases to which appellant cites

found preemption in situations involving “unintended homicides resulting from the

operation of a motor vehicle.” Blackwell, 34 Md. App. at 554; Gibson, 4 Md. App. at 247.

Felony murder, however, is not an unintended homicide.

To be sure, intent to kill is not a required element of felony murder. See State v.

Allen, 387 Md. 389, 398 (2005) (“[T]he State need not prove that the defendant intended

to commit murder, it must establish that the defendant intended to commit the predicate

felony.”); Whittlesey v. State, 326 Md. 502, 520–21 (“[A]n intent to kill is not a necessary

element” of felony murder.), cert. denied, 506 U.S. 894 (1992); Newton v. State, 280 Md.

260, 272 (1977) (“Once the State proves a killing during an enumerated felony, the offense

of first degree murder is necessarily established, regardless of any evidence relative to

wilfulness, deliberation and premeditation.”). For a homicide to constitute murder,

however, the homicide must be committed with malice, a mental state that includes an

intent to do the “death-producing act in the course of the commission, or attempted

22
commission, of a felony.” Selby v. State, 76 Md. App. 201, 210 (1988), aff’d, 319 Md. 174

(1990). A person acting with this intent is guilty of felony murder. Id.

The Court of Appeals has explained that, under the felony-murder rule, “the malice

involved in the underlying felony is permitted to stand in the place of the malice that would

otherwise be required with respect to the killing.” Allen, 387 Md. at 402. Accord Charles

E. Moylan, Jr., Criminal Homicide Law § 5.1 (2002). Felony murder is not, therefore,

within the scope of unintended homicides. Accordingly, felony murder is not preempted

by the manslaughter by automobile statute when the homicide involves a motor vehicle.

Moreover, we note that, although appellant argues that the killing here was

unintentional, the jury in this case was not asked to, and it did not specify, whether it found

an unintentional homicide. The State argued, and the facts would have permitted a finding,

that appellant intended to run over Officer Caprio when he hit the gas while she was

standing in front of the car. Accordingly, we reject appellant’s argument that his felony

murder conviction should be vacated because the manslaughter by vehicle statute (CR § 2-

209) preempted his felony murder conviction.

II.

Jury Instruction

Appellant’s next contention pertains to a requested jury instruction regarding

parental notification when juveniles are in police custody. At trial, Detective Barton

testified that he did not attempt to contact appellant’s parents after appellant was taken into

custody and prior to the interview. At the conclusion of all evidence, appellant’s trial

counsel requested a jury instruction tracking language in Md. Code Ann., Courts & Judicial

23
Proceedings Article (“CJ”) § 3-8A-14(b) (2013 Repl. Vol), which provides that, “[i]f a law

enforcement officer takes a child into custody, the officer shall immediately notify, or cause

to be notified, the child’s parents, guardian, or custodian of the action.” Counsel argued

that an instruction tracking this statute was necessary because it went to the voluntariness

of appellant’s statements to Detective Barton during the interview.16

The State argued that the instruction was not necessary because Maryland Pattern

Jury Instruction (“MPJI-CR”) 3:18 discussed all the factors the jury needed to consider to

determine whether a statement was voluntary. It asserted that the statute cited by appellant

“merely says the police should contact the parent,” and “it has nothing to do with state of

mind of [appellant] or coercion.”

The circuit court denied appellant’s request for an additional instruction. It stated

that MPJI-CR 3:18 “sufficiently quantified the issues in this case” with regard to

appellant’s statements to police. It then instructed the jury consistent with that pattern

instruction, as follows:

You’ve heard evidence that the defendant made a statement to the police
about the crime charged.

The State must prove beyond a reasonable doubt that the statement
was voluntarily made. A voluntary statement is one that under all
circumstances was given freely. To be voluntary, a statement must not have
been compelled or obtained as a result of any force, promise, threat,
inducement or offer of reward. If you decide that the police used force, a
threat, promise or inducement in obtaining Defendant’s statement, then you
must find that the statement was involuntary and disregard it, unless the State
has proven beyond a reasonable doubt that the force, threat, promise or

16
Appellant’s trial counsel proffered that he had suggested language for the
requested special instruction, but he could not immediately locate it. He then stated that
he wanted the language from CJ § 3-814.
24
 inducement did not in any way cause the Defendant to make the statement.
If you do not exclude the statement for one of these reasons, you then must
decide whether it was voluntary under the circumstances.

In deciding whether the statement was voluntary, consider all of the
circumstances surrounding the statement, including the conversations, if any,
between the police and the Defendant; whether the Defendant was advised
of his rights; the length of time that the Defendant was questioned; who was
present; the mental and physical condition of the Defendant; whether the
Defendant was subjected to force or threat of force by the police; age,
background, experience, education, character, and intelligence of the
Defendant; and any other circumstances surrounding the taking of the
statement.

If you find beyond a reasonable doubt that the statement was
voluntary, then you must give it such weight as you believe it deserves. If
you do not find beyond a reasonable doubt that the statement was voluntary,
you must disregard it.

See MPJI-CR 3:18.

On appeal, appellant contends that the circuit court “abused its discretion by failing

to instruct the jury that it may consider whether there was a denial of a parent at the

juvenile’s interrogation in determining whether [appellant’s] statement to the police was

voluntary.” He asserts that the failure to so instruct deprived him “of due process and

protection against self-incrimination pursuant to the Fifth and Fourteenth Amendments of

the United States Constitution and Articles 22 and 24 of the Maryland Declaration of

Rights.” He argues that the requested instruction was a correct statement of law, and it was

not properly covered by the instruction provided because, although it instructed the jury to

consider who was present in the interrogation, it did not inform the jury that it may consider

“who was not present.” Appellant further contends that the requested instruction was

25
“factually generated by ‘some evidence’” because Detective Barton testified that he did

not inform appellant of his right to contact a parent.

The State contends that this issue is not preserved for review. In any event, it argues

that the circuit court properly denied appellant’s request for the special instruction.

We begin with the State’s preservation argument. Initially, the State notes that CJ

§ 3-814, the statute cited below and on appeal, does not contain language regarding

notification of parents, and it is inapplicable here because it refers solely to Child in Need

of Assistance (“CINA”) cases, not criminal cases. It asserts that the statute to which

appellant seems to be referring is an older version of CJ § 3-814, which was renumbered

to CJ § 3-8A-14 in 2001. See 2001 Md. Laws, Ch. 415. Because appellant cited, both at

trial and in his brief on appeal, the wrong statute, the State asserts that appellant’s argument

is technically unpreserved for review. See In re Kaleb K., 390 Md. 502, 512 (2006)

(Argument unpreserved because defense cited the wrong statute.).

We are not persuaded. Appellant’s counsel merely miscited the statutory provision

number. Because the substantive issue was raised and considered by the circuit court, we

will not treat this misstatement as a failure to preserve the issue.

The State further argues, however, that the issue is not preserved for review because

the argument advanced on appeal, that the court erred in failing to give an instruction that

the jury could consider that appellant was denied access to a parent, was not made below.

We agree.

“Ordinarily, the appellate court will not decide any . . . issue unless it plainly appears

by the record to have been raised in or decided by the trial court.” Md. Rule 8-131(a).

26
Accord Alston v. State, 414 Md. 92, 110–12 (2010) (Argument regarding jury instructions

was waived because it was not requested below.); Pitts v. State, 250 Md. App. 496, 528

(2021) (Appellant who never requested jury instruction could not argue on appeal that the

court should have given the instruction.).

Here, appellant argued in the circuit court that the court should instruct the jury that

the police are required to notify parents when a juvenile is taken into custody. That is

different from an instruction advising that the jury could consider, in assessing

voluntariness of a statement, that a juvenile was denied access to a parent prior to making

the statement. Accordingly, this issue is not preserved for review.

Even if the issue was preserved for review, we would conclude that it was without

merit. A trial court’s decision whether to give a jury instruction “will not be disturbed

except on a clear showing of an abuse of discretion, that is, discretion manifestly

unreasonable or exercised on untenable grounds, or for untenable reasons.” State v. Sayles,

472 Md. 207, 230 (2021). Appellant has not made such a showing here.

A trial court is required to give a specific instruction when “(1) the instruction is a

correct statement of law; (2) the requested instruction is applicable under the facts of the

case; and (3) the content of the requested instruction was not fairly covered elsewhere in

jury instructions actually given.” Wright v. State, __ Md. __, No. 40, Sept. Term 2020, slip

op. at 14 (filed July 13, 2021) (quoting Thompson v. State, 393 Md. 291, 302 (2006). An

instruction regarding the duty to contact a parent set forth in CJ § 3-8A-14(b) did not meet

those requirements because it is not applicable under the facts of this case.

CJ § 3-8A-14(b), which addresses children who are not CINAs, provides as follows:

27
 If a law enforcement officer takes a child into custody, the officer shall
immediately notify, or cause to be notified, the child’s parents, guardian, or
custodian of the action. After making every reasonable effort to give notice,
the law enforcement officer shall with all reasonable speed:

(1) Release the child to the child’s parents, guardian, or
custodian or to any other person designated by the court, upon
their written promise to bring the child before the court when
requested by the court, and such security for the child’s
appearance as the court may reasonably require, unless the
child’s placement in detention or shelter care is permitted and
appears required by § 3-8A-15 of this subtitle; or

(2) Deliver the child to the court or a place of detention
or shelter care designated by the court.

In Jones v. State, 311 Md. 398, 400 (1988), the Court of Appeals addressed whether

CJ § 3-8A-14(b)’s parental notification requirement (codified at the time at CJ § 3-814(b))

applied to a juvenile arrested and charged with first-degree murder.17 Mr. Jones argued

that the plain language and legislative intent of the provision was applied to all juveniles

taken into custody. Id. at 403–04. In rejecting this argument, the Court stated as follows:

Jones’s reading of [§ 3-8A-14] simply cannot be harmonized with its
immediate context, for it creates a strained and illogical transition from the
first sentence of [§ 3-8A-14(b)] to the second. The second sentence provides
for the release of the child to its “parents, guardian, or custodian or to any
other person designated by the court” or, alternatively, for delivery of the
child “to the court or a place of detention or shelter care designated by the
court.” We think it plain that the legislature, in enacting [§ 3-8A-14], did not
intend to require the release of a juvenile to the child’s parent or guardian
when, as here, the crimes charged—first degree murder and armed robbery—
were both beyond the jurisdiction of the juvenile court. There can be no doubt
that the statutory reference to “the court” means the juvenile court; the
“court” is so defined in [CJ § 3-8A-01(j)] and is consistently used with this
meaning throughout [§ 3-8A-14]. . . .

17
As indicated, in 2001, CJ § 3-814 was recodified as CJ § 3-8A-14 without
substantive change. 2001 Md. Laws, Ch. 415.
28
 Nor can Jones’s interpretation of [§ 3-8A-14(b)] be harmonized with
the purposes of the Juvenile Causes Act as a whole. Although the special
protections thereby afforded to children are not in express terms limited to
children within the jurisdiction of the juvenile court, it is clear the legislature
did not intend to extend these protections to all children. [CJ § 3-8A-02(a)]
states: “The purposes of this subtitle are: [(4)] To provide for the care,
protection, and wholesome mental and physical development of children
coming within the provisions of this subtitle. . . .” Manifestly, therefore, some
children were excluded from the protective ambit of the Act. Who these
children would be, if not those expressly removed from juvenile court
jurisdiction . . ., is opaque at best. We think a more natural interpretation of
[§ 3-8A-02(a)(4)] would find in it a recognition by the legislature that some
children are not in a position to benefit from the Act’s special treatment, and
that among these children are those, as here, expressly removed from juvenile
court jurisdiction. Thus, to extend the parental notification requirements of
[§ 3-8A-14(b)] to an individual charged with offenses beyond the juvenile
court’s jurisdiction would be inconsistent with the stated purposes of the
Juvenile Causes Act.

* * *

As [§ 3-8A-14(b)] has no application in this case, noncompliance with
its provisions had no direct bearing on the validity of Jones’s Miranda waiver
or the traditional voluntariness of his ensuing confession. The purpose of [§
3-8A-14(b)] is to protect the child from unnecessary separation from a parent
or guardian.

Id. at 405–07.

Here, as in Jones, CJ § 3-8A-14(b) did not apply because appellant was charged

with offenses beyond the juvenile court’s jurisdiction. Appellant, who was 16 years old at

the time of the crime, was charged with felony murder, which carries a sentence of life

imprisonment. See CR § 2-201(b)(1). CJ § 3-8A-03(d)(1) provides that a juvenile court

does not have jurisdiction over “[a] child at least 14 years old alleged to have done an act

that, if committed by an adult, would be a crime punishable by life imprisonment, as well

as all other charges against the child arising out of the same incident[.]” The court did not

29
abuse its discretion in declining to provide a jury instruction on this inapplicable statutory

provision.18

III.

Life Sentences for Juveniles

Appellant next contends that the circuit court erred in automatically sentencing him

to a life sentence “without proper consideration of his youth and all of its attendant

circumstances and the penological justification for imposing such a sentence” on a juvenile

convicted of felony murder. Appellant points to the developmental and cognitive

differences between juveniles and adults, which he asserts establishes the “diminished

culpability of a juvenile offender,” and he argues that a life sentence, imposed without

considering those factors, is “unconstitutionally cruel and unusual punishment,” in

violation of the Eighth Amendment of the U.S. Constitution and Articles 16 and 25 of the

Maryland Declaration of Rights.

18
Moreover, MPJI-CR 3:18, the instruction provided to the jury, “fairly covered”
appellant’s concern about the lack of parental notification and involvement in the interview
on the voluntariness of his confession. See Md. Rule 4-325(c). That instruction directed
the jury to consider “who was present” when the statement was made, “the mental and
physical condition of the defendant,” the “age, background, experience, education,
character, and intelligence of the defendant,” and “any other circumstances surrounding
the taking of the statement.” MPJI-CR 3:18. Accordingly, the instruction “provided ample
guidance for the jury” to consider the presence, or lack thereof, of a parent when
determining the voluntariness of appellant’s interview statements. See Dickey v. State, 404
Md. 187, 203–04 (2008) (Defendant was not entitled to jury instruction that testimony by
a witness who uses drugs must be examined with greater scrutiny than other witnesses
because the provided instructions on the consideration of the witness’ perception, memory,
and state of mind, coupled with his testimony regarding his drug use, “provided ample
guidance for the jury to make credibility assessments.”).
30
 Appellant further contends that a life sentence is particularly unjust for a juvenile

convicted of felony murder because the crime relies on transferred intent and is premised

on the idea that someone committing a dangerous felony should understand the risk that

someone could be killed, but juveniles lack the ability to fully consider the consequences

of their actions. As a result, he argues that an automatic life sentence is “grossly

disproportionate” for a juvenile convicted of felony murder, and he urges this Court to join

the “national shift in the applicability of the felony murder rule” with respect to juveniles.

The State contends that the sentencing court did not err in imposing a life sentence

with the possibility of parole for felony murder. It acknowledges that the Supreme Court

has held that the imposition of a mandatory sentence of life without parole, without

consideration of the characteristics of juveniles, violates the Eighth Amendment’s

prohibition on “cruel and unusual punishments.” Appellant, however, did not receive a

sentence of life without parole, but rather, he received a sentence of life with the possibility

of parole.

The State argues that this Court, in Hartless v. State, 241 Md. App. 77, 87–92, cert.

granted, 465 Md. 644 (2019), and appeal dismissed, __Md.__ (2021), rejected the

argument that an individualized sentencing process was required if the life sentence

included the possibility of parole. In any event, the State argues that the sentencing court

in this case considered appellant’s youth and its attendant circumstances before imposing

sentence.

The State further argues that Harris’s life sentence for felony murder is “not grossly

disproportionate, either generally or as applied to him.” It notes that a significant factor in

31
the proportionality analysis is the seriousness of the conduct involved, and appellant’s

actions here, driving over a police officer standing in front of his vehicle to flee the scene

of a burglary, was “extremely serious.” The State further challenges appellant’s assertion

that there is a “national consensus” against convicting juveniles of felony murder and

imposing life sentences, and it contends that changes to the felony murder doctrine are best

left to the legislature.

The Eighth Amendment to the United States Constitution prohibits the imposition

of “cruel and unusual punishments.” U.S. Const. amend. VIII. Similarly, Article 25 of the

Maryland Declaration of Rights prohibits the courts from imposing “cruel or unusual

punishment,” and Article 16 of the Maryland Declaration of Rights provides “[t]hat

sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State;

and no Law to inflict cruel and unusual pains and penalties ought to be made in any case,

or at any time, hereafter.”19

The issue of what constitutes cruel and unusual punishment in the context of

juvenile offenders has been the subject of much litigation. Before addressing appellant’s

specific claims, we will discuss that precedent.

19
Article 16 and 25 generally are given the same interpretation as the Eighth
Amendment, Miles v. State, 435 Md. 540, 552–55 (2013) (regarding Art. 16); and Thomas
v. State, 333 Md. 84, 103 n.5 (1993) (regarding Art. 25), but appellant has not offered any
argument that the protections afforded by the Maryland Declaration of Rights are different
or greater, so we analyze solely on the basis of the Eighth Amendment.
32
 A.

United States Supreme Court Precedent

In the past two decades, “the [United States] Supreme Court has issued a series of

decisions in which it held that the Eighth Amendment to the federal Constitution places

limits on the sentencing of juvenile offenders that do not apply to the sentencing of adult

offenders.” Carter v. State, 461 Md. 295, 308 (2018). These cases, although

distinguishable from this case, form the basis for the issues presented by appellant.

In Roper v. Simmons, 543 U.S. 551, 572–73 (2005), the Supreme Court held that

the Eighth Amendment’s cruel and unusual punishments clause prohibits the imposition of

the death penalty to an offender who committed a crime while he or she was a juvenile.

The Court noted, as appellant does here, various characteristics that distinguish juvenile

offenders from adult offenders, such as a “lack of maturity and an underdeveloped sense

of responsibility” resulting in “impetuous and ill-considered actions and decisions,” that

juveniles are “more vulnerable or susceptible to negative influences and outside pressures”

due, in part, to juveniles having less control over their own environments, and the

“character of a juvenile is not as well formed as that of an adult,” in that “[t]he personality

traits of juveniles are more transitory, less fixed.” Id. at 569–70. Accord Carter, 461 Md.

at 309. As a result, the Court concluded that the differences between juveniles and adults

“are too marked and well understood to risk allowing a youthful person to receive the death

penalty despite insufficient culpability.” Roper, 543 U.S. at 572–73.

In Graham v. Florida, 560 U.S. 48, 75 (2010), the Supreme Court held that the

“Eighth Amendment prohibits a State from imposing a life without parole sentence on a

33
juvenile nonhomicide offender.” As the Court of Appeals summarized in Carter, 461 Md.

at 310–11:

The [Supreme] Court [in Graham] first considered whether there were
“indicia of a national consensus” on the subject. After reviewing various
statistics on state laws concerning juvenile sentencing and actual practice,
the Court concluded that “life without parole sentences for juveniles
convicted of nonhomicide crimes is as rare as other sentencing practices
found to be cruel and unusual.” 560 U.S. at 66, 130 S.Ct. 2011. The Court
then considered whether the challenged practice serves legitimate
penological goals. The Court reiterated its analysis in Roper that juveniles
have “lessened culpability” in comparison to adults. It also distinguished
between homicide and non-homicide offenders, recognizing that “defendants
who do not kill, intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious form of punishment than are
murderers.” Id. at 69, 130 S.Ct. 2011. Accordingly, “when compared to an
adult murderer, a juvenile offender who did not kill or intend to kill has a
twice diminished moral culpability.” Id. The Court also noted that life
without parole is an “especially harsh” sentence for a juvenile defendant as
it condemns the juvenile to a larger percentage of the individual’s life in
prison than a much older individual who receives the same sentence. Id. at
70, 130 S.Ct. 2011.

The Court concluded that, although legislatures are not required to
adopt any particular penological theory, no theory could justify a sentence of
life without parole for a juvenile offender who had not committed murder.
560 U.S. at 71, 130 S.Ct. 2011. The Court considered the common purposes
of sentencing schemes: retribution, deterrence, incapacitation, and
rehabilitation. Retribution was insufficient because “the heart of the
retribution rationale is that a criminal sentence must be directly related to the
personal culpability of the criminal offender[,]” and that “the case for
retribution is not as strong with a minor as with an adult.” Id. (internal
citations and quotation marks omitted). Deterrence could not justify the
sentence because the characteristics that make juveniles more likely to make
bad decisions also make them less likely to consider the possibility of
punishment, which is a prerequisite to a deterrent effect. Id. at 72, 130 S.Ct.
2011. Incapacitation could not support the sentence because of the difficulty
in determining whether a juvenile defendant is incorrigible at the time of
sentencing – i.e., “to differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.” Id. at 72–73, 130 S.Ct. 2011
(quoting Roper). Finally, rehabilitation could not justify the sentence because

34
 it denies the prisoner the right to “reenter the community [based on] an
irrevocable judgment about that person’s value and place in society.” Id. at
74, 130 S.Ct. 2011.

Importantly, the Court stressed that “[a] State is not required to
guarantee eventual freedom” because some “who commit truly horrifying
crimes as juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives.” 560 U.S. at 75, 130 S.Ct. 2011.
However, a State must “give [juvenile] defendants . . . some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Id. The Court did not purport to dictate how a [S]tate must
provide that opportunity, stating that “[i]t is for the State, in the first instance,
to explore the means and mechanisms for compliance.” Id.

Two years later, in Miller v. Alabama, 567 U.S. 460, 465 (2012), the Court expanded

its reasoning to juveniles convicted of a homicide. It held that a “mandatory life without

parole [sentence] for those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.” The Court did not

categorically bar life sentences without parole for juveniles, but it held that “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders.” Id. at 479. It held that a court was required to take “into

account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480.20

20
As the Court of Appeals explained in Carter v. State, 461 Md. 295, 312 (2018):

Miller was not simply an extension of Graham, but rather a synthesis of two
distinct principles. The first principle is that “children are constitutionally
different from adults for purposes of sentencing.” 567 U.S. at 471, 132 S.Ct.
2455. The second principle is that individualized sentencing is required
before imposing harsh and immutable sentences. Id. at 475, 132 S.Ct. 2455.
“[T]he confluence of these two lines of precedent leads to the conclusion that
mandatory life-without-parole sentences for juveniles violate the Eighth
Amendment.” Id. at 470, 132 S.Ct. 2455.
35
 In Montgomery v. Louisiana, 577 U.S. 190, 208–09 (2016), the Supreme Court held

that Miller’s limitations on life without parole for juvenile offenders applied retroactively.

The Court noted that “[a] hearing where ‘youth and its attendant characteristics’ are

considered as sentencing factors is necessary to separate those juveniles who may be

sentenced to life without parole from those who may not.” Id. at 210. Trial courts were

not, however, required “to make a finding of fact regarding a child’s incorrigibility.” Id.

at 211.

Recently, in Jones v. Mississippi, 141 S.Ct. 1307, 1316, 1318 (2021), the Supreme

Court explained that Miller “required a discretionary sentencing procedure” and

mandated “only that a sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before imposing” a life-
without-parole sentence. Id., at 483, 132 S.Ct. 2455. In that process, the
sentencer will consider the murderer’s “diminished culpability and
heightened capacity for change.” Id., at 479, 132 S.Ct. 2455. That sentencing
procedure ensures that the sentencer affords individualized “consideration”
to, among other things, the defendant’s “chronological age and its hallmark
features.” Id., at 477, 132 S.Ct. 2455.

The Court held that “an on-the-record sentencing explanation is not necessary to ensure

that a sentencer considers a defendant’s youth” before imposing a sentence of life without

parole on a juvenile. Id. at 1319.

Appellant relies on these cases in discussing the differences between juveniles and

adults. These cases however, involved sentences of death or life without parole, whereas

appellant received a sentence of life with the possibility of parole. The Supreme Court has

never indicated that such a sentence in a homicide case would constitute cruel and unusual

punishment. Indeed, it has said: “[I]n a case involving an individual who was under 18

36
when he or she committed a homicide, a State’s discretionary sentencing system is both

constitutionally necessary and constitutionally sufficient.” Id. at 1313.

B.

Maryland Precedent

Maryland law provides that “[a] person who commits a murder in the first degree is

guilty of a felony and on conviction shall be sentenced to imprisonment for life without the

possibility of parole; or imprisonment for life.” CR § 2-201(b)(1). Accordingly, a first-

degree murder conviction carries a mandatory life sentence. State v. Crawley, 455 Md. 52,

54 (2017) (“All forms of first degree murder carry a statutorily-mandated life sentence.”).

The sentencing court, however, has the discretion to suspend any portion of the sentence if

the suspended portion includes a period of probation. Md. Code Ann., Crim. Proc. Article

(“CP”), § 6-222(a) (2018 Repl. Vol.).

In Carter, 461 Md. at 306–07, the Court of Appeals addressed three consolidated

cases in which the juvenile defendants argued that, although their sentences technically

were not life without the possibility of parole, they were “effectively serving a sentence of

life without parole, because the laws governing parole in Maryland do not provide [them]

with a ‘meaningful opportunity to obtain release.’” Id. at 307. As relevant to this appeal,

the Court rejected that contention with respect to the two defendants who received life

sentences with the possibility of parole. It held that the State’s parole system, “including

the statute, regulations, and [the Governor’s 2018] executive order, provides a juvenile

offender serving a life sentence with a ‘meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’” Id. at 365. Accordingly, it held that the life

37
sentences “do not inherently violate the Eighth Amendment and are not illegal for that

reason.” Id. 21

In Hartless, 241 Md. App. at 85, this Court considered appellant’s argument that his

life sentence was illegal because he was entitled to an “individualized sentencing process,”

at which the circuit court must “expressly consider his youth and attendant circumstances,”

regardless of whether he was given an opportunity for parole. We noted that Hartless did

not rely on Miller for this argument, stating: “Indeed, if a Miller violation can be remedied

simply by permitting a juvenile offender to be considered for parole, it is illogical to suggest

that Montgomery and Miller somehow require an individualized sentencing process for all

juveniles convicted of homicide, regardless of whether they are sentenced to life with or

without parole.” Id. at 87.

This Court then rejected Hartless’ reliance on Carter for this argument, explaining

as follows:

We find no support in Carter for Hartless’ proposition that all juvenile
offenders convicted of homicide have the right to an individualized
sentencing process that takes account of the offender’s youth. In our view,
the identification of Hartless’ proposed right is unsupported by the context
of the various examples of quoted language, as well as inconsistent with
Supreme Court authority. Carter held that a sentence of life imprisonment
with the possibility of parole for juvenile homicide offenders does not violate

21
Appellant’s argument on appeal addresses the sentence imposed, not whether he
has a subsequent meaningful opportunity for release. Nevertheless, we note that, in
addition to established opportunities for parole, recently enacted legislation provides that
appellant may file a motion to reduce the duration of his sentence after 20 years of
incarceration. See 2021 Md. Laws, Ch. 61 (CR §§ 6-235; 8-110, effective October 1, 2021)
(An individual that was convicted as an adult for an offense committed when the individual
was a minor, was sentenced for the offense before October 1, 2021, and has been
imprisoned for at least 20 years for the offense may file a motion to reduce the duration of
the sentence and receive a hearing.).
38
 the Eighth Amendment. This is the sentence Hartless received. We,
therefore, reject Hartless’ contention that his sentence is unconstitutional
because he did not receive an individualized sentencing hearing at which the
circuit court expressly considered his youth and attendant circumstances.

Id. at 91–92 (footnote omitted).22

In Holly v. State, 241 Md. App. 349, 352 (2019), this Court addressed Holly’s

argument that his life sentence with parole was unconstitutional because the parole system

did “not provide a right to state-furnished counsel at parole hearings, public funds for

experts, or judicial review of parole decisions.” In rejecting this argument, this Court noted

that the Court of Appeals had held that the “juvenile homicide offenders’ life sentences

with parole were legal because ‘the laws governing parole of inmates serving life sentences

in Maryland . . . allow a juvenile offender serving a life sentence a “meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.”’” Id. at 355 (quoting

Carter, 461 Md. at 307).

With that background, we address appellant’s argument on appeal.

22
On August 26, 2019, the Court of Appeals granted certiorari in Hartless. Hartless
v. State, 465 Md. 664 (2019). That appeal was stayed on March 11, 2020, pending the
Supreme Court’s decision in Jones v. Mississippi, 141 S.Ct. 1307 (2021). The Supreme
Court issued its decision in Jones on April 22, 2021. The Court held, as indicated, that a
judge must consider the defendant’s youth before sentencing a defendant to life without
the possibility of parole, but no on-the-record sentencing explanation is required. Jones,
141 S.Ct. at 1318–19. On May 27, 2021, the Court of Appeals issued an order lifting the
stay in Hartless and dismissing the appeal. We note that the parties’ briefs in this case
were filed, and oral argument occurred, while the appeal in Hartless was stayed in the
Court of Appeals and prior to the Supreme Court’s decision in Jones.
39
 C.

Individualized Sentencing

Appellant initially contends that his life sentence for felony murder is an illegal

sentence because the court failed to conduct an individualized hearing to consider his

“youth and all of its attendant circumstances and the penological justification for imposing

such a sentence.” As appellant acknowledges, this Court rejected a similar argument in

Hartless, 241 Md. App. at 92, holding that the constitutional requirement of

“individualized sentencing” where the defendant’s youth and its attendant circumstances

are considered is limited to the context of a sentence of life without parole. Accord Bowling

v. Director, Va. Dep’t of Corr., 920 F.3d 192, 199 (4th Cir. 2019) (“Miller and its lineage

gives rise to a constitutionally protected liberty in juvenile-specific Eighth Amendment

protections,” but those “juvenile-specific Eighth Amendment protections do not apply” to

juveniles sentenced to life with parole.), cert. denied, 140 S.Ct. 2519 (2020); State v. Seam,

823 S.E.2d 605, 610 (N.C. Ct. App. 2018) (“Miller specifically requires such an

individualized consideration of . . . mitigating factors only in cases where a juvenile

defendant has been sentenced to life imprisonment without the possibility of parole.”),

aff’d, 837 S.E.2d 870 (N.C. 2020).

In his brief, appellant stated that he was “hopeful” that Hartless would be reversed

by the Court of Appeals. As indicated, however, the Court subsequently dismissed the

petition for a writ of certiorari in that case, and our decision in Hartless controls.

40
 We further note that appellant’s youth was presented to the court for consideration

in the presentence investigation report (“PSI”) and by defense counsel.23 Counsel for

appellant acknowledged at oral argument that defense counsel’s argument below was not

limited in this regard, and the circuit court said that it had considered all the evidence and

all factors. Appellant’s contention that his sentence is unconstitutional because he did not

receive an individualized sentencing hearing is without merit.

D.

Disproportionate Sentence

Appellant next contends that “an automatic life sentence for a juvenile convicted of

felony murder is “grossly disproportionate” and unconstitutional. The State disagrees.

The Eighth Amendment encompasses a narrow proportionality principle prohibiting

“grossly disproportionate” sentences. State v. Stewart, 368 Md. 26, 31 (2002) (quoting

Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring)). Successful

challenges on this ground are “exceedingly rare.” Id.

Appellant did not argue below that his life sentence constituted cruel and unusual

punishment. He argues, however, that his sentence was illegal pursuant to the Eighth

Amendment, and therefore, the issue may be raised at any time. We agree that the issue is

properly before the Court even though it was not raised below. See Randall Book Corp. v.

State, 316 Md. 315, 322 (1989) (Appellant’s argument that the imposed sentences

“constitute[d] cruel and unusual punishment prohibited by the Eighth Amendment is

23
Because PSI reports are confidential, we will not discuss the details of this report.
Md. Code Ann., Corr. Servs. Article § 6-112(a)(2) (2017).
41
cognizable under a claim of an illegal sentence.”). Accord Hartless, 241 Md. App. at 84–

85 (motion to correct illegal sentence may be raised at any time). We review the

constitutional issue de novo. Bishop v. State, 218 Md. App. 472, 504 (2014) (An illegal

sentence, which may be corrected at any time, is reviewed by this Court de novo.), cert.

denied, 441 Md. 218 (2015).

This Court has set forth a two-step process for reviewing a proportionality

challenge:

[A] reviewing court must first determine whether the sentence appears to be
grossly disproportionate. In so doing, the court should look to the
seriousness of the conduct involved, the seriousness of any relevant past
conduct as in the recidivist cases, any articulated purpose supporting the
sentence, and the importance of deferring to the legislature and to the
sentencing court. See [State v.] Davis, 310 Md. [611,] 631–32, 530 A.2d
1223 [ (1987)] and Minor [v. State], 313 Md. [573,] 583–84, 546 A.2d 1028,
[(1988)].

If these considerations do not lead to a suggestion of gross
disproportionality, the review is at an end. If the sentence does appear to be
grossly disproportionate, the court should engage in a more detailed . . .
analysis. It may conduct an intra- and inter-jurisdictional analysis as a vehicle
for comparison and as a source of objective standards; it must, however,
remember that under principles of federalism, a state legislature may choose
to impose a more severe penalty than other states consider appropriate. In
order to be unconstitutional, a punishment must be more than very harsh; it
must be grossly disproportionate.

Howard v. State, 232 Md. App. 125, 175–76 (quoting Thomas v. State, 333 Md. 84, 95–96

(1993)), cert. denied, 453 Md. 366 (2017).

Pursuant to this analysis, “we look first to the seriousness of the defendant’s

conduct.” Stewart, 368 Md. at 34. Here, appellant’s particular conduct was extremely

serious. While fleeing the scene of a felony burglary, he drove over and killed a police

42
officer who was standing in front of his vehicle. Under such circumstances, a life sentence

was not “extreme,” and it did not raise an inference of gross disproportionality. See

Stewart, 368 Md. at 32. Indeed, the General Assembly’s determination that felony murder

committed during a burglary constitutes first-degree murder indicates the seriousness of

this offense. See Solem, 463 U.S. at 290 n.16 (“In view of the substantial deference that

must be accorded legislatures and sentencing courts, a reviewing court rarely will be

required to engage in extended analysis to determine that a sentence is not constitutionally

disproportionate.”).

Appellant’s life sentence does not pass the first step in the proportionality analysis.

Given that his conduct caused another person to lose her life, the life sentence does not

appear grossly disproportionate.

Accordingly, we need not engage in further proportionality review. See Stewart,

368 Md. at 38. We do note briefly, however, that the Supreme Court of Iowa recently

rejected an argument similar to that made by appellant, i.e., that there was a “national

consensus” against sentencing juvenile offenders convicted of felony murder to life with

parole. State v. Harrison, 914 N.W.2d 178, 198, 205 (Iowa 2018).

We hold that appellant’s sentence of life with the possibility of parole was not

grossly disproportionate, and it did not constitute cruel and unusual punishment.

IV.

Plain Error Review

Appellant’s final contention is that the felony murder doctrine, as applied to

juveniles, is unconstitutional because it violates the due process clauses of the Fifth and

43
Fourteenth Amendments and Article 24 of the Maryland Declaration of Rights.

Recognizing that the issue was not raised below, and therefore, that it is not preserved for

appellate review, appellant asks this Court to review the issue under the doctrine of plain

error.24

We decline to exercise our discretion to conduct plain error review. Although this

Court has discretion to review unpreserved errors, the Court of Appeals has explained that

“appellate courts should rarely exercise” their discretion under Md. Rule 8-131(a). Chaney

v. State, 397 Md. 460, 468 (2007). This is because considerations of both

fairness and judicial efficiency ordinarily require that all challenges that a
party desires to make to a trial court’s ruling, action, or conduct be presented
in the first instance to the trial court so that (1) a proper record can be made
with respect to the challenge, and (2) the other parties and the trial judge are
given an opportunity to consider and respond to the challenge.

Id. Accord Kelly v. State, 195 Md. App. 403, 431 (2010), cert. denied, 417 Md. 502 (2011),

cert. denied, 563 U.S. 947 (2011).

We reserve our exercise of plain error review for instances when the “unobjected to

error [is] ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a

fair trial.’” State v. Brady, 393 Md. 502, 507 (2006) (quoting State v. Hutchinson, 287 Md.

198, 202 (1980)). Accord Steward v. State, 218 Md. App. 550, 566–67, cert. denied, 441

Md. 63 (2014). Appellate review based on plain error is “a rare, rare, phenomenon.”

24
In his brief, which was filed in this Court prior to the most recent legislative
session, appellant stated that he “raises this issue to preserve what may soon be a
modification in Maryland’s law if a bill is re-introduced seeking abolition of traditional
first-degree felony murder convictions for juveniles.” This bill was reintroduced during the
2021 session (S.B. 395/H.B. 385), but it did not pass.
44
Morris v. State, 153 Md. App. 480, 507 (2003), cert. denied, 380 Md. 618 (2004). We are

not persuaded that this contention of error warrants the exercise of plain error review.

Accordingly, we shall not address it.

JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

45