McMillan v. State

Decision Date09 September 2008
Docket NumberNo. 2453 Sept. Term, 2006.,2453 Sept. Term, 2006.
Citation956 A.2d 716,181 Md. App. 298
PartiesNathaniel Paul McMILLAN v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Michael T. Morley of Washington, D.C. (Nancy Forster, Public Defender on the brief), of Baltimore, for appellant.

Sarah Page Pritzlaff (Douglas F. Gansler, Attorney General on the brief), Baltimore, for appellee.

Argued before HOLLANDER, WOODWARD, JAMES A. KENNEY, III, (retired, specially assigned), JJ.


Following a trial in October 2006, a jury in the Circuit Court for Prince George's County convicted Nathaniel Paul McMillan, appellant, of the first-degree felony-murder of Hermann Haiss.1 The victim was killed during a home invasion in November of 2005. Appellant, who was twenty years old at the time of trial, was sentenced to life imprisonment.

Appellant presents three questions on appeal, which we quote:

1. Did the trial court err in denying Mr. McMillan's request for an instruction concerning the affirmative defense of duress to the felony underlying the felony murder charge, despite Mr. McMillan's videotaped statement to police that he participated in the alleged robbery by knocking on the victim's front door because he was afraid he otherwise would be killed?

2. Did the trial court lack jurisdiction to try Mr. McMillan for felony murder when he was indicted only for first-degree premeditated murder?

3. Did the trial court err by issuing a reasonable doubt instruction that the Maryland Court of Appeals and the Standing Committee on Pattern Criminal Jury Instructions had specifically rejected because judges and jurors throughout the state found it too confusing?

For the reasons that follow, we shall affirm.


On or about November 16, 2005, Hermann Haiss was bludgeoned to death with a baseball bat at his home on Cree Drive, in the Forest Heights neighborhood of Oxon Hill. The evidence at trial included testimony from police detectives, evidence technicians, an assistant medical examiner, and Haiss's son and daughter-in-law.

The victim's body was found on the floor of his garage by his daughter-in-law, Julie Haiss, on November 16, 2005. The front door of the house was ajar, and the safe that had held Haiss's collection of firearms was open and empty. According to the victim's son, Frank Haiss ("Frank"), who was familiar with the contents of his father's gun collection, the missing weapons included a .357 caliber pistol, three rifles, three shotguns, and two muzzle loading firearms. Frank stated that his father had purchased the gun safe and installed a security system for the home two years before the murder, because of an earlier burglary in which several firearms had been stolen.

Approximately twelve years before the murder, appellant's aunt and uncle had moved to the house next door to Haiss. Appellant had lived with his aunt and uncle for part of his childhood, and was a playmate of Haiss's grandchildren. According to Frank, appellant "absolutely" would have known that Haiss owned guns.

Appellant was arrested in connection with the murder on December 16, 2005. During a police interrogation, appellant gave a number of conflicting statements concerning the robbery and murder. Although appellant initially denied his involvement, he ultimately admitted that he knocked on Haiss's door, allowing two friends to gain entry to the victim's house. But, he denied that he entered Haiss's house or took part in the robbery and murder. The police interview was recorded on DVD, portions of which were played for the jury during the testimony of the detectives who conducted the interview.2

The first portion of the interview was conducted by Detective Thomas Hollowell. Detective Hollowell testified that he advised appellant of his Miranda rights, which appellant waived. Initially, appellant told Detective Hollowell that he had not recently been in his former neighborhood of Forest Heights. It then emerged that appellant had been "hanging out" with people from that neighborhood and that he had heard about the murder. Appellant told Detective Hollowell that he heard that an acquaintance named "S.O." was involved,3 and then said that S.O. tried to sell him a .357 pistol for $300, which S.O. indicated had come from Haiss's house. According to Detective Hollowell, appellant did not indicate that he was afraid of S.O. or threatened by him. Moreover, appellant denied participating, or being forced to participate, in the crime.

Detective Bernard Nelson conducted the next portion of the interview. He testified that appellant informed him that he had lived with his aunt and uncle, next door to Haiss. He admitted that he had been inside Haiss's home on occasion, and had seen weapons. Appellant described S.O. as a friend, to whom he often spoke on the telephone. Appellant told Detective Nelson that he had called S.O. recently because he had not heard from him for awhile. Detective Nelson asked appellant several times if he had been forced or compelled to participate in the crime, and appellant continued to deny any involvement.

As the interview progressed, appellant admitted to Nelson that the week before the murder, S.O. and another person named "Vel" asked him for information about Haiss, including his age, his schedule, whether other persons lived at his house, whether the house had an alarm system, and the type and number of weapons that Haiss owned. In appellant's account to Nelson, S.O. and Vel told him they planned to knock on the door of Haiss's house, and then one of them would "[f]uck him up once he opened the door."

According to Nelson, appellant later told him that, on the day of the crime, S.O. and Vel came to appellant's job, and appellant asked S.O. for a ride home from work. Instead, S.O. drove Vel and appellant to Cree Drive, explaining that he and Vel needed appellant to knock on Haiss's door, because Haiss knew appellant and would open the door for him.

We discern that the following colloquy from the DVD was played for the jury:

NELSON: And when you got off of work, they picked you up from work, they called you and told you they were getting you that day? Or how long did you—[crosstalk]—how long before that did you know they were going to come and get you?

APPELLANT: I didn't. They came up there, and was like, can I get them some food? And I got them some food, and I was like, man, I get off in a little bit, why don't you just run me home, you know what I'm saying, so I don't have to catch the bus.

NELSON: Mm-hmm.

APPELLANT: And he was like, alright, I gotta talk to you about some things anyway.

NELSON: Mm-hmm.

APPELLANT: So I get in the car, and we driving toward Forest Heights, and I'm like, I don't live this way. He's like, I know where you live at. I'm like, so where you going? He's like, we're just going through Forest Heights real quick. I'm like, wait, man, you know what I'm saying, I got shit I have to do. He's like, all I need you to do is answer the—knock on the door, so the dude can answer the door. I'm like, the fuck, I don't, you know what I'm saying, I don't want nothing to do with this shit. He was like, man, it's GBA,[4] you get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do? I was like, I'll knock on the door. (Emphasis added.)

Detective Nelson testified that at one point appellant said S.O. and Vel instructed him not to enter the house because Haiss knew him. The following colloquy at trial is relevant:

[PROSECUTOR]: At any time did the Defendant explain why the others would be concerned about him going into the house because Mr. Haiss knew him, but there was no concern about him knocking on the door when Mr. Haiss knew him?

[NELSON]: He didn't explain that. But I tried to tell him that he would have known you because he opened the door for you, but now you're saying you didn't go in because the victim would have known you. It didn't make much sense.

As Nelson recounted, appellant never clearly explained why Haiss's recognition of him would have been a bar to his entry to the house, but not to his knocking on the door:

[PROSECUTOR]: Initially, when the Defendant told you that S.O. and Vel ... didn't want him to go inside the house because Mr. Haiss knew him, did there ever come a time that the Defendant indicated any other reasons why he didn't go into the house?

[NELSON]: Well, he tried to stay with the story that they didn't want him to go in because the victim would recognize him. He said that he didn't want to go in because he didn't want to be involved. But at the same time S.O. was telling him, "Either you stay in the house with the old man or you leave with us." So he had a choice to make. And that was the reason why he was saying, he kept saying he did not go into the house, but at the same time they were saying, "You stay in the house with the old man or you leave with us, one or the other."

[PROSECUTOR]: Did the Defendant ever explain to you how he could be threatened with, "Either you stay in the house with the old man or leave with us," if he never went in the house?


[PROSECUTOR]: Did he ever explain how he could be left in a house that he never went into?


[PROSECUTOR]: Did you ever ask him whether or not he was aware, or whether or not he knew that this would end in Mr. Haiss' death?

[NELSON]: He didn't say it in so many words, but that quote from S.O., I would think that was part of the conversation, that was the conclusion you had to come to.

[PROSECUTOR]: Well, did he ever explain to you how being left in the house with a man that he grew up with was a threat if that man wasn't going to be hurt?


[PROSECUTOR]: Did there ever come a time—well, at any time did he say that any weapons were used to threaten him to get him to be involved in this?


Detective Nelson testified that he asked appellant...

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