Fisher and Utley v. State

BLOOM, Judge,

Concurring and Dissenting.

I concur with most of the holdings of, and the reasons expressed in, the majority opinion. Specifically, I agree that Maryland recognizes the common law doctrine of felony murder applicable to unintended homicides in the perpetration of felonies other than those listed in the first degree murder statute; that statutory as well as common law felonies that are dangerous to life may be predicate felonies for second degree felony murder; that in determining whether a particular *283felony is sufficiently dangerous to life to be a predicate felony for second degree murder, the courts must look to the manner in which the felony was committed, rather than to the “abstract elements of the crime;” that child abuse, when committed in a manner inherently dangerous to life, as in this case, may be a predicate felony for second degree felony murder; that the trial court did not err in refusing to require the State to disclose Georgia Fisher’s whereabouts to petitioners; and that the trial court did not err in excluding Rose Mary Fisher’s proffered “psychological profile” evidence.

I respectfully dissent, however, from those portions of the majority opinion, and that part of the mandate, that affirm the judgment of the Court of Special Appeals insofar as that judgment affirms the sentences imposed on petitioners Utley and Fisher for child abuse of Rita Fisher. I believe that those sentences are barred by Maryland common law principles of double jeopardy and merger, as well as by the Double Jeopardy Clause of the Fifth Amendment, which was made applicable to state prosecutions by the Due Process Clause of the Fourteenth Amendment.

What the Double Jeopardy Clause of the Fifth Amendment provides is that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court announced a rule for determining whether two offenses are the same offense for double jeopardy purposes:

The applicable rule is that when the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.20

The Blockburger, or required evidence test, is now well settled Maryland law. Jones v. State, 357 Md. 141, 163-64, *284742 A.2d 493 (1999); State v. Lancaster, 332 Md. 385, 391, 631 A.2d 453 (1993); Biggus v. State, 323 Md. 339, 350, 593 A.2d 1060 (1991); Snowden v. State, 321 Md. 612, 616, 583 A.2d 1056 (1991). The required evidence test applies to both common law and statutory offense. Williams v. State, 323 Md. 312, 317, 593 A.2d 671 (1991); Snowden, 321 Md. at 617, 583 A.2d 1056. In Thomas v. State, 277 Md. 257, 267, 353 A.2d 240 (1976), quoted in State v. Ferrell, 313 Md. 291, 298, 545 A.2d 653 (1988), Judge Eldridge, writing for the Court explained:

The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.

Id. at 298, 545 A.2d 653 (citation omitted); see Lancaster, 332 Md. at 391-92, 631 A.2d 453; State v. Jenkins, 307 Md. 501, 517, 515 A.2d 465 (1986). On that basis, in Gianiny v. State, 320 Md. 337, 577 A.2d 795 (1990), the Court held that payment of a pre-set fine for negligent driving, as an alternative to appearing for trial on that charge, barred a subsequent trial on a charge of manslaughter by automobile because payment of the fine constituted a conviction (Md.Code, 1957, 1987 Repl.Vol., § 11-110(a)(4) of the Transportation Article), of the lesser included offense of negligent driving.

The protection against double jeopardy for the same offense, under Maryland common law as well as under the Fifth Amendment, is not limited to “classic” double jeopardy, i.e., successive prosecutions, which were formerly addressed by the pleas in bar of autrefois convict and autrefois acquit, but also prohibits multiple punishments for the same offense in a single prosecution. U.S. v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. *285Pearce, 895 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Newton v. State, 280 Md. 260, 263, 373 A.2d 262 (1977).

In a single prosecution, if, under the required evidence test two offenses are deemed to be the same for double jeopardy purposes, merger follows as a matter of course, Lancaster, 332 Md. at 411-12, 631 A.2d 453, and the offense having the fewer required elements — the lesser included offense — merges into the greater offense, i.e., the offense having the greater number of required elements, even if the lesser included offense carries a greater permissible sentence than the greater offense does. Thus, in Lancaster, a conviction for Unnatural or Perverted Sexual Practice (fellatio), under Md.Code (1957, 1992 Repl.Vol.), Article 27, § 554, which carried a maximum sentence of ten years, merged into conviction for Fourth Degree Sexual Offense, as proscribed by Art. 27, § 4640(a)(2), with a maximum sentence of one year, based on the defendant’s commission of a sexual act (fellatio) upon a person fourteen or fifteen years of age, the defendant being more than four years older than the victim. Likewise, solicitation of murder merged into being an accessory before the fact to the same murder, Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979); in companion cases, kidnapping and robbery merged into felony murders, State v. Frye and Jones v. State, 283 Md. 709, 393 A.2d 1372 (1978); attempted robbery merged into felony murder, Newton v. State, supra; common law assault merged into common law rape, Green v. State, 243 Md. 75, 220 A.2d 131 (1966); common law larceny merged into the statutory offense of breaking and stealing, Tucker v. State, 237 Md. 422, 206 A.2d 691 (1965).

As Judge Eldridge, writing for this Court in Newton, explained, in order to secure a conviction for murder under the felony murder doctrine, the State must prove the underlying felony plus the additional fact that the death of the murder victim occurred in the perpetration of that felony. The felony, therefore, is an essential ingredient of the murder conviction. The only additional fact necessary to secure the felony murder conviction that is not necessary to secure a conviction for the underlying felony is proof of the death. The evidence needed *286to secure the felony murder conviction is, absent the proof of death, the same evidence required to prove the underlying felony. Therefore, as only one offense (murder) requires proof of a fact that the other (the underlying felony) does not, under the required evidence test the underlying felony and the murder merge. Newton, 280 Md. at 269, 373 A.2d 262.

If the murder conviction, however, is premised upon independent proof of wilfulness, premeditation, and deliberation (first degree murder), or an intent to kill without any necessary consideration of premeditation or deliberation (second degree intemtional murder), or an intent to inflict grievous bodily harm (second degree murder), or, in the language of Maryland Criminal Pattern Jury Instructions (MPJI Cr 4:17.8), proof that the defendant’s conduct that caused the death of the victim and that the defendant, conscious of such risk, acted with extreme disregard of the life endangering consequences (second degree depraved heart murder), the offense would not merge because each offense would then require proof of a fact that the other did not. Id.

Petitioners, unlike their co-defendant, Frank E. Scarpola, who was convicted of second degree depraved heart murder, were convicted of felony murder, with the statutory crime of child abuse being the underlying felony. Under the Fifth Amendment Double Jeopardy Clause and Maryland common law double jeopardy and merger doctrines, the convictions for child abuse that were the underlying felonies for their murder convictions merged, as a matter of course, into the murder convictions.

The problem is that each of the petitioners was convicted under two counts of child abuse of Rita Fisher: one count charging abuse on June 24 and June 25, 1997, and one count charging abuse during the period of April 15 through June 23, 1997. As to each petitioner, either conviction might have been the felony conviction that must merge into the murder conviction. And as to each petitioner, it might appear at first glance to be more likely that the jury would have based the felony murder conviction on the child abuse that occurred on June- 24 *287and June 25, since those dates coincide with the dates in the counts for murder. But that assumption is by no means the basis for a definite conclusion.

The medical examiner told the jury that the cause of Rita Fisher’s death was malnutrition and dehydration. Between those two contributing causes, dehydration would take effect first, killing the victim before malnutrition would be lethal. On the basis of electrolyte changes in the child’s body, the doctor concluded that the fatal dehydration was not an acute or sudden condition, but “chronic dehydration,” a process that takes days, or even weeks. There was a loss of about fifteen percent of the child’s body water.

After the court had instructed the jury, petitioner Fisher complained that the instruction on second degree felony murder, because the indictment charged her with two counts of child abuse, would permit the jury to convict her of murder based upon a conviction of only one of those counts even if the jury were to find that Rita’s death resulted from abuse that occurred during the time covered by the other child abuse count. Recognizing that there might be merit in that complaint, the trial judge reinstructed the jury. He explained that, in order to be guilty of felony murder, a defendant must not only be guilty of some act of child abuse but of a particular phase of child abuse that was the underlying predicate felony. He said:

In order to convict the defendant of this type of second degree murder the State must prove one, that the defendant committed a child abuse. Two, that the defendant or another participating in the crime killed Rita Fisher. And three, that the act resulting in the death of Rita Fisher occurred during the commission of child abuse and the defendant participated in the child abuse.

In view of the medical examiner’s testimony and the instructions to the jury with respect to second degree felony murder, which pointedly did not indicate that a second degree felony murder conviction had to be based upon either one or the other counts of child abuse or any specific act or acts occur*288ring within the time specified in either child abuse count, conviction of each petitioner for second degree felony murder may have been based upon acts of denying Rita Fisher life-sustaining food and drink over the periods of time covered by both counts charging each petitioner of child abuse of Rita Fisher. At the very least, there is an ambiguity as to which child abuse felony was the underlying predicate felony for each petitioner’s murder conviction. Any doubt as to which of the underlying felonies, or whether a combination of both, is the predicate felony or felonies for each petitioner’s murder conviction must be resolved in favor of the petitioner. See Snowden v. State, 321 Md. 612, 619, 583 A.2d 1056 (1991), in which an ambiguity as to whether a conviction for robbery was based upon an assault by putting the victim in fear or upon a separate battery required the merging of both assault and battery into the robbery conviction.

There is one fundamental difference in the double jeopardy protection against subsequent prosecutions for the same offense and the protection against multiple punishments for the same offense. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court held that, with respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the Legislature intended. Chief Justice Burger, writing for the majority, stated:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s tasks of statutory construction is at an end, and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

459 U.S. at 368-69, 103 S.Ct. at 679-80, 74 L.Ed.2d at 544.

The same principle applies under Maryland common law double jeopardy and merger doctrines. In Randall Book Corp. v. State, 316 Md. 315, 323-24, 558 A.2d 715 (1989), Judge *289McAuliffe, writing for this Court, cited Missouri v. Hunter, supra, together with Albernaz v. United States, 450 U.S. 333, 343-44, 101 S.Ct. 1137, 1144-45, 67 L.Ed.2d 275 (1981), and Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), for the proposition that

[t]he Blockburger rule does not provide the final answer in cases involving multiple punishment because, when specifically authorized by the Legislature, cumulative sentences for the same offense may under some circumstances be imposed after a single trial____Accordingly, when dealing with the question of multiple punishments imposed after a single trial, and based on the same conduct, a critical question is one of legislative intent. The Blockburger test is helpful in such cases as an aid in determining legislative intent, but it is not dispositive.

“Consequently, specific or express authorization by the Legislature is a pre-condition for multiple punishments when two offenses are deemed to be the same under the required evidence test.” Lancaster, 332 Md. at 412, 631 A.2d 453. In a footnote in that opinion, Judge Eldridge pointed out “the need for absolutely clear legislative intent to authorize multiple punishments when the multiple offenses are deemed to be the same under the required evidence test.” Id. at 412-13, 631 A.2d 453.

The majority opinion, addressing in a footnote (op. 263, note 14) the issue of merger of child abuse into the conviction for second degree felony murder, acknowledges that merger would “implicate” legislative intent, citing Holbrook v. State, 364 Md. 354, 374, 772 A.2d 1240 (2001); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980), cert. denied, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Faraga v. State, 514 So.2d 295, 302-03 (Miss.1987); and State v. Williams, 24 S.W.3d 101, 117 (Mo.App.2000). Holbrook was a case in which the defendant was convicted of reckless endangerment and first degree arson. Neither merger nor double jeopardy were involved in that case because *290those two crimes were clearly not the same offense. In Whack, this Court held that convictions, in the same trial, for armed robbery and use of a handgun in the commission of a felony could be punished separately and cumulatively even though they were the same offense under Blockburger because the legislature had clearly indicated an intent to authorize multiple punishments for the handgun offense and the underlying felony. Missouri v. Hunter and Albernaz v. United States, as noted above, were cited by Judge McAuliffe in the Randall Booh Store case for the proposition that “when dealing with the question of multiple punishments imposed after a single trial, and based on the same conduct, a critical question is one of legislative intent.” In Faraga, the Supreme Court of Mississippi held that the offense of child abuse does not merge into the statutory offense of second degree felony murder when death resulted from the underlying felony of child abuse because “the statutes are designed to protect different societal interests.” The court did not discuss the language of the two statutes; it merely cited, as authority for its ruling on this merger question, its prior decision in Smith v. State, 499 So.2d 750, 754 (Miss.1986), in which it rejected an argument for merger of burglary and first degree felony murder because the statutes governing those offenses were designed to protect different societal interests. The Missouri appellate court in Williams, affirming separate punishments for second degree murder and a related felony or attempted felony other than murder or manslaughter, based that decision on specific statutory language authorizing multiple punishments for such offenses. Missouri Revised Statutes, § 565.021.1 defines second degree felony murder, and specifically provides that “the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.”

Faraga was based on interpretation of legislative intent underlying the Missouri child abuse statute and that State’s felony murder statute. The other cases cited in footnote 14 in the majority opinion are in total accord with prior decisions of *291this Court: convictions in a single trial of two offenses that are the same offense under Blockburger may be punished separately and cumulatively if, as in Whack, or as in the Missouri cases of Williams and Hunter, there is a clear legislative intent to permit multiple punishments for the “same offense.” In Maryland, however, there is no clearly indicated legislative intent to permit separate punishments for second degree felony murder and any underlying felony, particularly child abuse. There is, of course, no Maryland statute that even refers to second degree felony murder, much less one that defines that offense.

The General Assembly has clearly, expressly, and specifically authorized multiple punishments for offenses that are the same under the Blockburger test in prosecutions for child abuse. Md.Code (1957, 1996 Repl.Vol.), Article 27, § 35C defines, proscribes, and provides penalties for the felony of child abuse. As pointed out in the majority opinion, subsection (b)(2) of § 35C, increasing the maximum penalty for child abuse from fifteen years’ imprisonment to thirty years’ imprisonment if the child victim dies (twenty years at the time of these offenses) does not create an offense separate from child abuse but is merely an enhanced penalty provision. Subsection (b)(3) of § 35C, however, provides:

The sentence imposed under this section [i.e., child abuse whether fatal or non-fatal] may be imposed separate from and consecutive to or concurrent with a sentence for any offense based upon the act or acts establishing the abuse.

(Emphasis added.)

A battery or, as in this case, brutal treatment including multiple batteries as well as the deprivation of sufficient food and water to sustain Rita Fisher’s life, were the acts “establishing the abuse.” To the extent that those acts constituted separate offenses (certainly the batteries did), the legislative intent to permit separate punishments for those offenses that established the child abuse (the lesser included offenses) in addition to the punishments for the greater, inclusive felony of child abuse, is clearly stated. But second degree felony *292murder is an offense that resulted from the child abuse when the child died as a consequence of the abuse; the murder was not an offense “establishing the abuse The General Assembly did not express an intent to authorize separate punishments for child abuse and second degree felony murder that results from — rather than “establishes” — the abuse. Undoubtedly, the members of the General Assembly did not contemplate that this Court would hold that there is such an offense as second degree felony murder and that child abuse may be a predicate felony for second degree felony murder. Courts may, and frequently do, interpret statutory language in accordance with what they perceive to be legislative intent. They may not, however, supply missing language when there is a casus omissus in the legislative scheme by judicially creating a statutory provision that the legislature would probably have added if it had given any thought to the problem it had not addressed.

The felony of child abuse is a lesser included offense within the greater offense of second degree felony murder if the child dies. That felony makes the death of the victim of the abuse felony murder; therefore that felony merges into the murder conviction. Because there is an ambiguity as to which of two counts of child abuse of Rita Fisher is the underlying felony for each petitioner’s murder conviction, both of those child abuse convictions merge into each petitioner’s murder conviction. And because there is no clear expression of legislative intent that multiple punishments may be imposed for second degree felony murder and for the child abuse that is the predicate felony for the murder conviction, I would reverse the judgment of the Court of Special Appeals insofar as it affirms the sentences imposed on petitioners, Rose Mary Fisher and Mary Utley, for child abuse, and instruct the intermediate appellate court to vacate those sentences. I would do so even though, as the majority opinion points out in footnote 14, neither petitioner raised any issue regarding double jeopardy. A sentence imposed in violation of the Double Jeopardy Clause of the Fifth Amendment is an illegal sentence, and an illegal sentence can, and should be addressed *293even if not preserved or properly raised. Walczak v. State, 302 Md. 422, 427, 488 A.2d 949 (1985). See Md. Rule 4-345(a), which provides that an illegal sentence may be corrected at any time. We should correct it at this time, if for no other reason than the avoidance of additional litigation in the form of petitions for post conviction relief.

. The test set forth in Blockburger had actually been applied by the Supreme Court more than forty years earlier in In re Nielsen, 131 U.S. 176, 186-88, 9 S.Ct. 672, 675-76, 33 L.Ed. 118 (1889).