Fisher and Utley v. State
Decision Date | 17 December 2001 |
Docket Number | No. 113,113 |
Citation | 367 Md. 218,786 A.2d 706 |
Parties | Rose Mary FISHER and Mary Utley, v. STATE of Maryland. |
Court | Maryland Court of Appeals |
Argued and reargued by Michael R. Braudes, Asst. Public Defender and Thomas J. Saunders, Assigned Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioners.
Argued and reargued by Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and THEODORE G. BLOOM (retired, specially assigned), JJ.
Reargued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, LAWRENCE F. RODOWSKY, (Retired, specially assigned), and THEODORE G. BLOOM (retired, specially assigned), JJ. RODOWSKY, Judge.
We granted certiorari in this case in order to determine whether Maryland law recognizes the applicability, in any way, of the common law doctrine of felony murder to homicides committed in the perpetration of a felony other than one enumerated in the first degree murder statute, Maryland Code (1957, 1996 Repl.Vol.), Article 27, §§ 408 through 410.1 As explained below we shall answer that issue in the affirmative and hold that the acts and omissions constituting the statutory felony of child abuse, proscribed by § 35C, but not included in §§ 408 through 410, are the basis, under the circumstances of this case, for applying the felony murder doctrine. Also presented are claims of lack of preservation for appeal, of discovery violations, and of error in the exclusion of evidence of psychological profile, all of which we shall reject.
The murder victim in this case was nine year old Rita Fisher who died June 25, 1997.2 Rita Fisher's fifteen year old sister, Georgia Fisher, was also a victim of child abuse which she survived. The petitioners in this Court, who were two of the three defendants at trial in the Circuit Court for Baltimore County, are forty-nine year old Mary Utley, the mother of the two victims, and twenty year old Rose Mary Fisher, the daughter of Mary Utley and older sister of the two victims. A third defendant, who did not petition this Court, was twenty-one year old Frank E. Scarpola, Jr. (Scarpola), the live-in boyfriend of Rose Mary Fisher. The defendants inflicted the abuse on the victims at 4106 Old Milford Mill Road in the Pikesville area of Baltimore County, where all five persons resided as members of the same household.
The three defendants were convicted of second degree murder. In the cases of Mary Utley and Rose Mary Fisher that verdict was predicated on felony murder. Scarpola's conviction of second degree murder was predicated on both intentional killing and felony murder. All three defendants were also found guilty of child abuse of Rita Fisher from April 15, 1997, through June 23, 1997; child abuse of Rita Fisher on June 24 and 25, 1997; child abuse of Georgia Fisher from April 15, 1997, through June 23, 1997; conspiracy to commit child abuse of Rita Fisher; and conspiracy to commit child abuse of Georgia Fisher. Additionally, Rose Mary Fisher was convicted of child abuse of Georgia Fisher on June 24 and 25, 1997. The circuit court sentenced Scarpola to ninety-five years imprisonment, Mary Utley to seventy-five years imprisonment, and Rose Mary Fisher to thirty years imprisonment. These judgments were affirmed by the Court of Special Appeals, Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999). We granted certiorari on the petitions of Rose Mary Fisher and Mary Utley. 356 Md. 634, 741 A.2d 1095 (1999).
The horrid facts of this case are set forth by Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals.
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