Dishman v. State

• Decision Date: 21 December 1998
• Docket Number: No. 12,12
• Citation: 352 Md. 279,721 A.2d 699
• Parties: Diallo Mugabe DISHMAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

721 A.2d 699

352 Md. 279

Diallo Mugabe DISHMAN v. STATE of Maryland.

No. 12, Sept. Term, 1998.

Court of Appeals of Maryland.

December 21, 1998.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

CHASANOW, Judge.

This appeal arises out of the 1997 first degree murder and robbery conviction of Petitioner Diallo Mugabe Dishman in the Circuit Court for Prince George's County. The Court of Special Appeals affirmed the convictions in Dishman v. State, 118 Md.App. 360, 702 A.2d 949 (1997). We granted certiorari to determine whether the Court of Special Appeals properly concluded that Petitioner's indictment under Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 616,¹ did not charge manslaughter and whether the trial court correctly refused Petitioner's request for jury instructions on manslaughter, reckless endangerment and assault and battery. We conclude that the indictment did charge Petitioner with manslaughter, and we reverse the trial court's refusal to submit the manslaughter charge to the jury but affirm as to reckless endangerment and assault and battery.

I.

In the early morning of March 11, 1996, a passerby noticed a small fire off the side of Lottsford Vista Road in Prince George's County. The fire turned out to be the burning body of Peverly Hart. According to the medical examiner's testimony, Hart died from asphyxia or lack of air, and her body was burned after she had died. The medical examiner determined that Hart's ankles and arms had been bound with tape while she was still alive and that a two-inch piece of silver tape had "partially cover[ed] the [victim's] nose and mouth."

On March 12, 1996, Petitioner was arrested on bench warrants for charges involving a bad check and driving with a suspended license. He was then taken to an interview room where, over the course of about ten hours, he gave two written statements to police concerning Hart's death. The second statement in particular is relevant to this appeal and will be discussed in more detail below.² After he had given these statements, Petitioner took police officers to a pawn shop where the victim's jewelry was located, and to the victim's car, which he had removed to a location in Washington, D.C.

Petitioner and Felicia Jackson were indicted jointly. Jackson was charged as an accessory after the fact, while Petitioner was charged with murder, robbery, robbery with a deadly weapon, and carjacking. Testimonial and other evidence, as well as his own statements, provided strong evidence linking Petitioner to the burning of Hart's body. At the close of its case, the prosecution entered a nolle prosequi as to the robbery with a deadly weapon and carjacking counts. After contentious discussions between defense counsel and the prosecution, the trial court refused to instruct the jury on depraved heart murder, manslaughter, reckless endangerment, and assault and battery. The jury convicted Dishman of murder in the first degree and robbery. He was subsequently sentenced to life for the murder count and ten years for the robbery count.

II.

Before addressing Petitioner's arguments concerning the trial court's jury instruction rulings, we find it necessary to address the Court of Special Appeals' analysis of "whether the [Petitioner] was charged with manslaughter in accordance with the language in his indictment." Dishman, 118 Md.App. at 371, 702 A.2d at 954. We first summarize the premise for the intermediate appellate court's holding, and then we provide our reasons for disagreeing with that premise.

A.

A charge of murder may be made in either the common law form or the statutory short form. Hardy v. State, 301 Md. 124, 137, 482 A.2d 474, 481 (1984). The Court of Special Appeals concluded, and we agree, that Petitioner was indicted in accordance with the statutory form indictment found in § 616. Dishman, 118 Md.App. at 371, 702 A.2d at 954. That section, entitled, "Indictment for murder or manslaughter," provides:

"In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: `That A.B., on the.....day of.....nineteen hundred and....., at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State.'"

As the intermediate appellate court observed, this section was originally enacted as Chapter 248 of the Acts of 1906, and for over ninety years, it has remained in the same form with only a few minor alterations, none of which are relevant to our analysis in this case. Dishman, 118 Md.App. at 371, 702 A.2d at 954.³

The intermediate appellate court recognized that "generally speaking, under the statutory short form of the indictment, an accused may be found guilty of first degree murder, second degree murder, or manslaughter." Dishman, 118 Md.App. at 372, 702 A.2d at 955. The court, however, applied "an exception to the general rule" which that court first recognized in Brown v. State, 44 Md.App. 71, 410 A.2d 17 (1979). As articulated in Brown, this exception applies when the indictment includes the words "with premeditation" and "deliberately." The indictment in Brown alleged that the defendant "did unlawfully, willfully, deliberately and with premeditation kill and slay [the victim]." Although the Brown court recognized that the adoption of the statutory form "eroded most of the technical niceties which were required at common law," 44 Md.App. at 76, 410 A.2d at 21, it held that the inclusion in the indictment of the words "with premeditation" and "deliberately" "precludes a construction that the indictment charges manslaughter." 44 Md.App. at 74, 410 A.2d at 20. Moreover, the court held that since the indictment was missing "that indispensable ingredient of murder[,] malice," the indictment also failed to charge murder. Brown, 44 Md.App. at 78, 410 A.2d at 22. Therefore, the Brown court reasoned the indictment failed to allege any crime, and thus, Brown's conviction of second degree murder was reversed.

In the case sub judice, the indictment alleged that Petitioner "feloniously, wilfully and of his deliberately premeditated malice aforethought, did kill and murder Peverly Hart...." Applying the Brown exception to this indictment, the Court of Special Appeals concluded that the inclusion of the terms "deliberately" and "premeditated" meant that the indictment charged murder only, but not manslaughter. We conclude otherwise.

B.

In one of our first decisions interpreting the statutory form indictment, we addressed an indictment that "would unquestionably be defective" at common law. Neusbaum v. State, 156 Md. 149, 155, 143 A. 872, 875 (1928). In finding the indictment constitutional, we noted that statutory form indictments had been enacted in many states "in an effort to escape the excessive formalism of the common law, which formerly made the conviction or acquittal of one charged with crime so often turn upon some technical quibble rather than upon the guilt or innocence of the accused." Neusbaum, 156 Md. at 157, 143 A. at 876. We therefore concluded that the short form indictment was sufficient without including an allegation of the manner or means by which the death was caused.

Since Neusbaum, we have consistently upheld indictments under § 616 against a variety of challenges. Prior to the intermediate appellate court's decision in Brown, we allowed convictions for criminal homicide other than first degree murder in a number of cases even though the charging document contained the terminology of first degree murder, as in this case. For example, in Wood v. State, 191 Md. 658, 663, 62 A.2d 576, 578 (1948), the defendant challenged the admission of evidence of a robbery, which had not been charged, under a statutory form indictment that charged that Wood "feloniously, wilfully and of deliberately premeditated malice aforethought, did kill and murder" the victim. Wood argued that he had been indicted on a charge of premeditated murder, and therefore, was not put on notice that the State would attempt to prove felony murder by showing that the death occurred during the commission of a robbery. Wood, 191 Md. at 667, 62 A.2d at 580. We rejected Wood's argument, holding that an indictment in the language of the statutory short form was sufficient and did not "require the fact of robbery to be incorporated in an indictment as part of the crime charged." Id. See also Carroll v. Warden, 205 Md. 631, 632-33, 106 A.2d 71, 72 (1954)("A verdict of guilty of manslaughter can be rendered on [a statutory form] indictment for murder."); Blackwell v. State, 278 Md. 466, 476, 365 A.2d 545, 551 (1976),cert. denied, 431 U.S. 918, 97 S.Ct. 2183, 53 L.Ed.2d 229 (1977)("In first degree murder indictments filed pursuant to [statutory short-form indictment] provision, it is well settled that murder in the second degree and manslaughter are lesser included offenses." (Emphasis added)); State v. Evans, 278 Md. 197, 199, n. 1, 362 A.2d 629, 630 n. 1 (1976)("Under such an indictment [charging that defendant `feloniously, willfully, and of deliberately premeditated malice aforethought' murdered victim] the accused could be found guilty of the lesser offenses of murder in the second degree and manslaughter."); State v. Williamson, 282 Md. 100, 382 A.2d 588 (1978)(observing that § 616 relaxed the common law charging requirements and holding that defendant charged in the statutory form could be found guilty of first degree murder if he was an accessory before the fact). Even though these cases do not specifically...