Higginbotham v. State

Decision Date01 September 1994
Docket NumberNo. 650,650
PartiesTracey HIGGINBOTHAM, v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland

Robert A. Scott, Student Atty. (Stephen E. Harris, Public Defender and Martha Weisheit, Asst. Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City on the brief), Baltimore, for appellee.

Before WILNER, C.J., and BISHOP and BLOOM, JJ.

BLOOM, Judge.

Appellant, Tracey Higginbotham, was convicted by a jury in the Circuit Court for Baltimore City of first degree felony murder and attempted robbery with a dangerous weapon. Appellant was sentenced to life imprisonment without parole on the felony murder conviction and to a concurrent prison term of twenty years on the conviction for attempted robbery with a dangerous weapon. In this appeal from those judgments, appellant presents the following issues for our determination:

I. Did the trial judge err in refusing to submit to the jury the charge of second degree murder?

II. Did the trial judge err in [sic] when he instructed the jury that with respect to felony murder, the intent to commit the felony need not coincide with the killing?

III. Did the trial judge err in denying appellant's motion to suppress his statement?

IV. Did the trial judge err in imposing separate sentences for felony murder and the underlying felony?

FACTS

Appellant spent the afternoon and evening of 30 May 1991 smoking "crack" cocaine with his brother, Terry Higginbotham, and Tabitha Stanley, Terry's girlfriend, in the basement of appellant's mother's house at 3021 West Belvedere Avenue in Baltimore City. When the cocaine supply was exhausted around 2:30 a.m. on the morning of 31 May, appellant stated that he was going to obtain "one more blast" of cocaine. He further stated that, if he was unable to obtain more, he was going to go to the local trash collection company where he was employed. Appellant then put his work clothes into a blue bag, tucked a knife into the back of his pants, and exited the house.

Shortly thereafter, appellant hailed a taxicab on Belvedere Avenue. When the taxicab reached the intersection of Belvedere and Queensbury Avenues, appellant stabbed the taxicab driver in the neck. After the cab had crashed into the curb, appellant took a white bag belonging to the driver from the front seat and fled the scene.

Andrew Gould, who was sitting on the front steps of his house in the 3000 block of West Belvedere Avenue, testified that he saw a taxicab coasting toward the side of the road and heard someone yelling for help. After the taxicab crashed into the curb, Mr. Gould saw appellant climb out of the window of the car and run away. Another witness testified that the taxi driver then got out of the car and called for help.

Ms. Stanley testified that appellant, covered with blood and carrying a white bag, stumbled in the back door of the house, approximately twenty minutes after he left the house in search of cocaine. Appellant told his brother and Ms. Stanley that he thought he "might have killed somebody." He then proceeded into the basement, dropped the cab driver's bag onto the floor, removed his bloody clothing, and washed the blood from his hands.

When members of the Baltimore City Police arrived on the scene, the taxi driver, Lyle Roberts, was lying next to the taxicab with a fatal stab wound in the base of the right side of his neck. The interior and the exterior of the taxi were covered with blood, and there was a large knife on the hood of the car. Blood found on the knife matched the victim's blood. Inside the taxi, the police found a blue bag containing a pay stub with appellant's name on it. A palm print found in the taxi was later matched with appellant's palm print.

Later that same day, appellant's mother consented to a police search of the trash cans behind her house. During their search of the trash cans, police seized bloody clothing and a white bag that contained items that had belonged to the taxi driver. The blood on the clothing was later identified as the victim's blood.

The police arrested appellant on 6 June 1991 in Baltimore County and on 7 June transported him to Baltimore City where he was interviewed by Detectives Gary Childs and Christopher Graul. At 8:30 p.m., Detective Childs had appellant read Baltimore City Police Form 69 (waiver form), which set forth each of appellant's "Miranda rights." Appellant, who has a ninth grade education, had difficulty understanding some of the words in the form, including "attorney," "absolute," "explanation," and "appoint." After Detective Childs explained the meaning of the words and appellant stated that he understood them, appellant agreed to give a statement. He confessed to killing the victim. The detectives then explained appellant's Miranda rights to him a second time and appellant gave a tape recorded confession.

In February 1992, appellant was tried by a jury in the Circuit Court for Baltimore City on charges of premeditated first degree murder, second degree murder, first degree felony murder, robbery, and other related charges. He was convicted of first degree felony murder and robbery with a dangerous weapon and sentenced to life imprisonment without the possibility of parole. On appeal, this Court reversed the judgment entered on appellant's felony murder conviction, holding that the trial court failed to comply with Maryland Rule 4-215(e) when it prevented appellant from explaining why he was moving for a postponement of his trial. Higginbotham v. State, 95 Md.App. 732 (1993) (Higginbotham I ).

In February 1994, appellant was retried in the Circuit Court for Baltimore City on charges of first degree felony murder, robbery with a dangerous weapon, attempted robbery with a dangerous weapon, robbery, attempted robbery, assault, and theft. He was convicted of first degree felony murder and attempted robbery with a dangerous weapon. On 4 April 1994, appellant filed a timely notice of appeal to this Court.

I.

Appellant's first contention is that the circuit court erred in refusing to submit the charge of second degree murder to the jury.

In appellant's first trial, the trial judge instructed the jury to consider initially whether appellant was guilty of first degree felony murder. The trial judge further instructed the jury to consider the charges of first degree premeditated murder and second degree murder only if it found appellant not guilty of first degree felony murder. Deliberating in accordance with those instructions, the jury found appellant guilty of first degree felony murder and made no findings with respect to the charges of first degree premeditated murder and second degree murder.

Following this Court's reversal of the judgment entered on appellant's felony murder conviction in the first trial, appellant moved to have the charge of first degree premeditated murder dismissed in his second trial. According to appellant, the fact that the jury did not render a verdict on the first degree premeditated murder charge operated as an acquittal on that charge. Thus, appellant contended, retrial on that charge was barred by double jeopardy, the common law doctrine of autrefois convict, collateral estoppel, and res judicata. After hearing arguments on the motion, the circuit court concluded that the first degree premeditated murder charge was barred by principles of double jeopardy. At the State's request, the court also ruled that the State was precluded by principles of double jeopardy from charging appellant with second degree murder.

We need not address the propriety of the circuit court's granting of appellant's motion to dismiss the charge of first degree premeditated murder. It was upon appellant's motion that the circuit court ruled that that charge was barred by principles of double jeopardy. Because appellant requested the dismissal, he cannot now complain about the legal consequences flowing from that ruling.

Appellant asserts that an "instruction on second degree murder was supported by the evidence in this case, and was required by principles of fundamental fairness." In support of this argument, appellant relies on the decision of the Court of Appeals in Hook v. State, 315 Md. 25, 553 A.2d 233 (1989). In that case, the State charged Hook with first degree premeditated murder, first degree felony murder, second degree murder, manslaughter, and related offenses. At the close of its case-in-chief, the State, over the defendant's objection, entered a nolle prosequi on the second degree murder charge. The jury then convicted Hook of first degree murder under both theories--premeditation and murder committed in the perpetration of a felony.

On appeal, Hook asserted that the trial court erred in allowing the State to withdraw the second degree murder charge from the jury's consideration. The Court of Appeals held that the prosecutor's authority to nol pros a charge must be constrained in situations where the entry of a nolle prosequi essentially compels the finder of fact to either convict the defendant, who is clearly guilty of some offense, of the most serious charge, or acquit him. Id. at 41-42, 553 A.2d 233. Concluding that the entry of the nolle prosequi on the lesser included offense of second degree murder increased the risk of an unwarranted conviction of first degree murder and thus denied Hook a fair trial, the Court reversed the judgments and articulated the following principle:

When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant's objection, to nol pros the lesser included offense.... In short, it is simply offensive to fundamental fairness, in...

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11 cases
  • Stouffer v. State, 548
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1997
    ...... As we said in Higginbotham v. State, 104 Md.App. 145, 152, 655 A.2d 1282 (1995), citing Butler v. State, 91 Md.App. 515, 523, 605 A.2d 186 (1992), . [t]he murderous mens rea under [the theory of felony murder based on armed robbery] does not entail any intent to kill at all but only the intent to perpetrate the underlying ......
  • Allen v. State
    • United States
    • Court of Special Appeals of Maryland
    • 2 Septiembre 2004
    ......In formulating its felony murder instruction, the trial court relied on Higginbotham v. State, 104 Md.App. 145, 655 A.2d 1282 (1995). There, we said: . Under Stebbing, if a person commits an act of force that causes the death of the victim and then forms the intent to deprive the victim permanently of his property, the taking of the property with that intent may constitute ......
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    • Court of Appeals of Maryland
    • 24 Julio 2000
    ...of Special Appeals addressed the issue of timing between a murder and a robbery, in a felony-murder context, in Higginbotham v. State, 104 Md.App. 145, 655 A.2d 1282 (1995). It held that if the intent to steal from the victim was formed after the murder of the victim, the defendant could be......
  • State v. Smith, 563, Sept. Term, 2013.
    • United States
    • Court of Special Appeals of Maryland
    • 27 Mayo 2015
    ...... Id. We agreed. In reaching that conclusion, we recognized that “second degree murder is a lesser included offense of first degree premeditated murder,” but it is not a lesser included offense of first-degree felony murder. Id. at 331–32, 831 A.2d 1101 (citing Higginbotham v. State, 104 Md.App. 145, 152, 655 A.2d 1282 (1995) and Hook, 315 Md. at 30, 553 A.2d 233 ). As the first requirement of Hook was satisfied, we examined whether there was a rational basis upon which the jury could have concluded that Malik was guilty of the lesser offense, but not guilty of ......
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