Goldsberry v. State
| Decision Date | 06 October 2008 |
| Docket Number | No. 261, Sept. Term, 2007.,261, Sept. Term, 2007. |
| Citation | 182 Md. App. 394,957 A.2d 1110 |
| Parties | James Earl GOLDSBERRY, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
James Earl Goldsberry, Jr., appellant, and co-defendant James Myers, Jr.,1 were charged in the Circuit Court for Prince George's County with first degree premeditated murder, first and second degree felony murder, second degree specific intent murder, attempted robbery with a dangerous2 weapon, use of a handgun in the commission of a crime of violence, conspiracy to commit first degree premeditated murder, and conspiracy to commit second degree specific intent murder. A jury convicted appellant of second degree felony murder, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit second degree murder. The court sentenced appellant to a 30-year term of incarceration for second degree felony murder and the merged conviction of attempted robbery with a deadly weapon, a 20-year consecutive term of incarceration for use of a handgun in a crime of violence, and a 30-year concurrent term of incarceration for conspiracy to commit second degree murder. This appeal followed.
Appellant contends that the trial court erred by (1) submitting to the jury a second degree felony murder charge based on the underlying felony of attempted robbery with a dangerous weapon; (2) submitting to the jury a charge of conspiracy to commit murder in the second degree; (3) instructing the jury that only a unanimous verdict was acceptable; (4) terminating representation by co-counsel, thereby denying appellant his right to counsel of choice; and (5) failing to specifically instruct the jury that it need not believe the testimony of an uncontradicted witness.3 For the foregoing reasons, we shall reverse appellant's convictions of second degree felony murder and conspiracy to commit second degree murder, without the possibility of retrial, and reverse the remaining convictions of attempted robbery with a dangerous weapon and use of a handgun in the commission of a crime of violence and remand for a new trial on those charges.
Wendy Braxton, an acquaintance of both appellant and the victim, Vincent Chamberlain, and the sole witness to the attempted robbery and shooting of Mr. Chamberlain, gave an uncontradicted account of the events at trial. Ms. Braxton testified that sometime in March, 2006, while visiting appellant, she received a call from Mr. Chamberlain inviting her and appellant to come to Mr. Chamberlain's house to smoke marijuana.
On arriving at the house, Mr. Chamberlain handed Ms. Braxton some marijuana to roll, and while doing so, she heard appellant and Mr. Chamberlain discuss selling Mr. Chamberlain's marijuana. The three then proceeded to a field behind the house to smoke some of the marijuana. Ms. Braxton again observed appellant and Mr. Chamberlain conversing as they returned from the field. Ms. Braxton then departed with appellant and dropped him off at his apartment.
Ms. Braxton further testified that appellant called her later that evening to ask questions about Mr. Chamberlain. Ms. Braxton subsequently received a call from Mr. Chamberlain asking if she wanted to play cards and requesting that she pick him up. On arriving at Mr. Chamberlain's home at approximately 10:00 p.m., Ms. Braxton testified that she saw appellant and another individual parked in front of the house. Appellant exited the car and spoke with Mr. Chamberlain outside the house. Ms. Braxton further testified that appellant left in his car, stating that he had to "go get something." On returning, appellant proceeded with Mr. Chamberlain to a shed attached to the rear of the house.
Ms. Braxton got out of her car several minutes later and went to the shed to ask Mr. Chamberlain if she could use the bathroom. As Ms. Braxton entered the shed, she saw appellant leave and return with Mr. Myers. Ms. Braxton testified that as appellant and Mr. Myers entered the shed and approached the door leading to the house, appellant drew a gun on Mr. Chamberlain and said "[g]ive me the stuff." Ms. Braxton ran to hide behind a tree, where she observed Mr. Myers chasing Mr. Chamberlain and heard a gunshot. Ms. Braxton then saw appellant run out of the house, Mr. Myers run to the front of the house, and Mr. Chamberlain fall to the ground. After Mr. Myers and appellant fled the scene, Ms. Braxton ran to Mr. Chamberlain and saw blood coming from his head. Unsure of what to do, Ms. Braxton got in her car and left the scene.
As Ms. Braxton was "driving around," appellant called her, asked if she had gone to the police, and requested that they meet. When Ms. Braxton declined appellant's request to meet, appellant told her "snitches get stitches." Ms. Braxton also testified that appellant offered her money, discussed the need "to make up a story," and told her to tell police he was not at the scene.
Ms. Braxton went to stay with a friend, and was called by appellant "four or fives times a day," asking where she was and if she was with the police. Ms. Braxton went to the police two days after the incident. Additional facts are provided below.
Appellant argues that the legislature, by expressly designating certain felonies as predicates for first degree felony murder, including attempted robbery with a dangerous weapon,4 intended to disqualify those felonies as supporting second degree felony murder. Consequently, appellant asserts that second degree felony murder predicated on attempted robbery with a deadly weapon is a "non-existent form of felony murder." We agree.
The trial court's instruction regarding felony murder was as follows:
Question number two reads—and this is what we call felony murder. It's different from first degree premeditated murder. Felony murder can be divided into two degrees. Question two deals with first degree felony murder. That means that each defendant is charged with the crime of felony murder. If your verdict is not guilty on question one, then you go on to two.
In order to prove the elements of question two, the State must prove that the defendant, or another participating in the crime with that defendant, committed or attempted to commit the underlying felony. The underlying felony in this case is question five, attempted robbery with a deadly weapon. So that's a precursor to question two.
Number two, the second element, is that the defendant, or another participating in the crime, killed the victim, in this case Mr. Chamberlain. That the defendant, or another person participating in the crime, killed the victim.
And, number three, that the act resulting in the death of the victim occurred during the commission of the underlying felony. In this particular case, the underlying crime is the attempted robbery with a deadly weapon. So if the murder occurred during the course of the attempted robbery, that satisfies that element, if proven beyond a reasonable doubt.
It is not necessary for the State to prove that that particular defendant intended to kill the victim. So, in the felony murder, the intent to kill is not necessary to prove.
Now that would be the definition of first degree felony murder, question number two.
If your verdict is not guilty of question number two, then you would go on to question number three, which is second degree felony murder. Second degree felony murder means that the defendant, or another participating in the crime with the defendant, committed or attempted to commit that underlying felony, again, question five, attempted robbery with a deadly weapon.
Element number two, that the way in which the attempted robbery with a deadly weapon was committed or attempted under all the circumstances created—and here's the distinction between first degree felony murder and second degree. In second degree felony murder, that attempted robbery with a deadly weapon created a reasonably foreseeable risk of death or serious physical injury likely to result in death. So that the act created a reasonably foreseeable risk of death or serious physical injury likely to result in death.
The third element is that, as a result of the way in which the attempted robbery was committed, Mr. Chamberlain was killed. That distinguishes second degree felony murder from first degree. But remember the intent to kill doesn't have to be present for either one.
Defense counsel objected to the instruction on second degree felony murder and, following appellant's conviction on that charge, unsuccessfully moved for a new trial on the same argument pressed before this Court—that Maryland law does not recognize second degree felony murder predicated on attempted robbery with a dangerous weapon.
The existence of second degree felony murder in Maryland predicated on felonies not delineated in the first degree murder statute is well established. See Fisher v. State, 367 Md. 218, 251, 786 A.2d 706 (2001) (); Deese v. State, 367 Md. 293, 296, 786 A.2d 751 (2001) (). The parties' briefs and this Court's research has not, however, revealed any direct authority on the question of whether a felony sufficient to support first degree murder may also serve as a basis for a second degree felony murder. Nonetheless, the statutory scheme dividing murder into first and second degree, and the cases defining second degree felony murder, compel...
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