Hickman v. State Of Md.

CourtCourt of Special Appeals of Maryland
Citation193 Md.App. 238,996 A.2d 974
Docket NumberNo. 882,2009.,882
PartiesBrian Anthony HICKMANv.STATE of Maryland.
Decision Date03 June 2010

193 Md.App. 238
996 A.2d 974

Brian Anthony HICKMAN
STATE of Maryland.

No. 882, Sept. Term, 2009.

Court of Special Appeals of Maryland.

June 3, 2010.

996 A.2d 975
Robert H. Harvey, Jr. of Prince Frederick, MD, for appellant.

Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: DAVIS, WOODWARD, ALAN M. WILNER (Retired, Specially Assigned), JJ.


Brian Anthony Hickman, appellant, notes this appeal from his June 15, 2009 convictions by the Circuit Court for Charles County for involuntary manslaughter and a common-law affray. Appellant elected to waive his right to a trial by jury and proceed with a court trial. At the conclusion of the evidence, the court found appellant guilty of involuntary manslaughter and a common law affray, but not guilty of second-degree assault due to the victim's consent to the fight. On June 15, 2009, the court sentenced appellant to two concurrent ten-year sentences with all but eighteen months suspended. The same day, appellant filed a Notice of Appeal. Appellant presents two issues for our consideration, which we have restated as follows:

I. Did the circuit court err in ruling that the common law crime of affray remains a viable offense in Maryland?
II. Did the circuit court err in giving inconsistent verdicts where it found appellant guilty of an affray but not guilty of second-degree assault? 1

For the following reasons, we answer appellant's questions in the negative. Accordingly, we affirm the decision of the Circuit Court for Charles County.


On the evening of October 24, 2008, into the early morning hours of October 25, 2008, appellant, along with several friends, were drinking at a bar in Waldorf, Maryland. Also present at the bar was the victim, Joshua Gregor, who was drinking with several of his friends. Around 2:00 a.m., the bar closed. Gregor was standing outside smoking a cigarette when he and Justin Ferrell, one of appellant's friends, exchanged heated words. Eventually, Ferrell punched Gregor twice in the face, which caused Gregor to fall backward into the bar. Ferrell then walked toward the parking lot and joined his friends.

Gregor's friends, incensed at Ferrell's actions, followed Ferrell into the parking lot. According to witness accounts, Gregor also walked into the parking lot; however, he and another friend went in a different direction from Ferrell. In the parking lot, appellant confronted Gregor.3 After Gregor and appellant exchanged

996 A.2d 976
harsh words, appellant struck Gregor twice in the head with his fists causing Gregor immediately to collapse. As he fell, his head hit the pavement and he never regained consciousness. Appellant and his friends fled the scene immediately thereafter.4

Police and ambulances responded to the scene and transported Gregor to the hospital. On October 27, 2008, Gregor succumbed to his injuries and died.

On October 29, 2008, an autopsy was conducted, the medical examiner's results confirming that Gregor died from blunt force trauma to the head. The force of the blows fractured his skull and caused multiple hemorrhages, hematomas and contusions, which ultimately led to his death. On November 21, 2008, the State filed an indictment, charging appellant with involuntary manslaughter, second-degree assault and the common law offense of an affray.

On March 19, 2009, appellant filed a Motion to Dismiss Count 3-common law affray. In that motion, appellant argued that “[a]n affray at common law, was a form of assault and battery” and that, according to Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999), when the Maryland General Assembly enacted the consolidated assault statute in 1996, it eliminated all common law forms of assault and battery.5 Therefore, appellant concluded, because an affray is a form of assault at common law, the offense no longer existed and, accordingly, he could not be charged with the offense.

Five days later, on March 24, 2009, the State filed its Response to appellant's Motion to Dismiss. The State agreed that, at common law, an affray is “the fighting of two or more persons in some public place to the terror of the people”; however, it argued that affray is a distinct crime from the common law forms of assault and battery. Likening an affray to robbery, which requires “a felonious assault” as an element, the State contended that an affray, while including assault and battery, required there to be “publicity attached to the fighting”; thus, it was distinguishable. The State also asserted that the legislature has not preempted the common law offense of an affray because the offense was “conspicuously absent from Chapter 632 of the Acts of 1996, from Subtitle 2 of Title 3 of the 2008 Supplement to the Criminal Law Article, and from all versions of second and first degree assault in between.” Moreover, the State pointed out, the Court of Appeals did not mention the offense of “affray” in its decision in Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999).

On April 1, 2009, before trial, the court heard the parties' arguments on the Motion to Dismiss. As appellant's counsel explained to the court, “[t]he basis for the Motion to Dismiss is that what was known ... in the common law as an affray or mutual affray is no longer a cognizable offense.” Appellant's counsel contended that the common law crime of an affray has not existed since 1996, when the Maryland General Assembly codified the assault statutes under Art. 27, §§ 12, 12A and 12A-1. See 1996 Laws of Maryland, Ch. 632. Appellant's counsel premised this argument

996 A.2d 977
on the conclusion that an affray necessarily involves the common law crimes of assault and battery and, therefore, it is a form of those crimes. Quoting from the Court of Appeals' decision in Robinson v. State, appellant argued that the assault statutes in the Criminal Law Article “as adopted represent the entire subject matter of the law of assault and battery” and, based on his argument that an affray was a form of assault, the statutes abrogated affrays as well.

Appellant's counsel likewise rebutted what he believed would be the State's argument against the Motion to Dismiss. He stated that the relationship between affrays and the common law forms of assault and battery differed from the relationship those crimes shared with robbery because the legislature specifically provided for robbery by statute. It was very clear, iterated appellant, that, as a result of the legislature's actions, robbery “retains its viability,” while affrays do not. Appellant also argued that the common law crime of an affray was different from the common law crime of riot “because riot does[ not] require by necessity that there by [sic] any assaultive conduct or any battery.” In conclusion, appellant's counsel stated, “I think that the Court [of Appeals] has made it very clear in Robinson that whatever existed in the form of assault and battery in the common law prior to the enactment of the statutes in 1996 is now gone. There is no cognizable offense in Maryland called an affray.”

In opposition, the State asserted that common law affray is not a form of common law assault and/or battery, nor has it ever been. While acknowledging that an affray necessarily involves a common law assault and a common law battery, the State reiterated the argument in its opposition to appellant's Motion to Dismiss, that so too does robbery, which, as the dissent in Robinson pointed out, was not abrogated with the codification of the assault statutes. The State also argued that affray was a separate and distinct offense because it requires two or more people, unlike assault that requires just one, and that an affray has the additional element that fighting must take place in public. The further distinction, the State posited, was that consent is never a defense to an affray, while it is a defense to the offenses of common law assault and battery. Finally, because the General Assembly is presumed to not disturb the common law, with certain exceptions, the State argued, it did not disturb the common law offense of an affray.

After considering the arguments of counsel, the court denied the motion, concluding that it was not persuaded by appellant's assertion that the 1996 assault statutes abrogated the common law offense of an affray. Upon review of the Court of Appeals' decision in Robinson v. State and the Committee notes 6 cited therein, the court stated that, if the General Assembly intended to include crimes other than assault and battery, “such as an affray-which has different elements” then it would have so stated. In sum, the court determined that neither the statutes, the Committee Notes nor the Robinson case supported the conclusion that an affray was not a viable crime in Maryland.

996 A.2d 978

At trial, the court heard testimony from several witnesses, including appellant, and found him guilty of involuntary manslaughter and a common law affray, but acquitted him of second-degree assault based on Gregor's consent to the fight. Discussing the involuntary manslaughter conviction, the court stated:

Therefore the guilt on Count 3-as discussed prior-previously between the Court and Counsel under the case of [ Schlossman v. State, 105 Md.App. 277, 659 A.2d 371 (1995) ], if you commit a misdemeanor malum en se wrongful in and of itself as opposed to malum prohibitum where there's-it becomes illegal from some-statute passed by the Legislature. And that malum en se crime, affray, results in the death then you're guilty of involuntary manslaughter which is the Count 1. That's how the-legally the case is ... breaking down.
Some specific findings ... it's ... uncontroverted that Mr. Hickman delivered the blow that resulted in the-in the death of Mr. Gregor. It was a blow to the face that caused Mr. Gregor to hit the asphalt so hard that his skull was fractured-causing as Doctor Alexander testified, blunt force trauma injury to his

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