Minor v. State

• Decision Date: 01 September 1991
• Docket Number: No. 8,8
• Citation: 326 Md. 436,605 A.2d 138
• Parties: Nelson MINOR v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 436

326 Md. 436

605 A.2d 138

Nelson MINOR v. STATE of Maryland.

No. 8, Sept. Term, 1991.

Court of Appeals of Maryland.

April 29, 1992.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Sarah E. Page, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

This case involves Maryland's "reckless endangerment" statute which was enacted as ch. 469 of the Acts of 1989 and is now codified as Maryland Code (1992 Repl.Vol.), Article 27, § 120. It provides in subsection (a) that any person who

"recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years or both."

Subsection (b) provides that § 120 is not applicable "to any conduct involving the use of a motor vehicle as defined in § 11-135 of the Transportation Article." Subsection (c) provides that the statute is not applicable "to any conduct involving the manufacture, production, or sale of any product or commodity."

I.

At a nonjury trial in the Circuit Court for Baltimore City (Pines, J.) held on February 14, 1990, the appellant, Nelson Minor, was convicted of reckless endangerment in violation of § 120(a) and given a suspended four-year sentence. The case was tried on an Agreed Statement of Facts which disclosed that, at 12:51 a.m. on December 13, 1989, the police responded to the appellant's residence where they discovered that his brother, Kenneth Minor, had been shot through the mouth and killed. Found on the floor of the living room area was a pump shotgun which contained a spent shotgun shell in the chamber and two other shotgun shells in the magazine. The appellant, who was present when the police arrived, gave a formal written statement to the police. He said that while sitting in the dining room, and in the course of drinking several fifths of fortified wine with his brother, they discussed playing "Russian Roulette." The appellant acknowledged that he had a loaded shotgun with him at the table and that he told his brother that "[y]ou can't play Russian Roulette with a shotgun because it don't have a barrel ... [and] once you put one [bullet] in the chamber, that's it." The appellant said that the victim asked for the shotgun and that he handed it to him, daring him to play Russian roulette, "thinking that he was going to cut the safety off and give it back to me." The appellant admitted that his brother knew that the safety was off and that the gun was loaded. He said that, to his surprise, his brother, who was forty-two years old, pulled the trigger and fatally shot himself to death.

The appellant told the police that he had the shotgun with him because he had had "some words" with a person who he thought might come to his house. He said that he and his brother had been drinking throughout the day and together drank "about three or four fifths [of wine] that day" and that he (the appellant) was "high off the drinks, cocaine and heroin." The appellant told the police that he did not think that his brother "would do nothing like that [because] [w]e had played with it before [and] I used to let him shoot it." Asked by the interrogating police officer whether he urged his brother "to go first to, call his bluff," he answered that he had and that his brother told him that "you know that I will do it." Appellant said that when he handed the gun to his brother, he thought that he was "bullshitting me so I gave it to him."

Upon his conviction of reckless endangerment, which was the only charge brought against him, the appellant took an appeal to the Court of Special Appeals. That court affirmed the judgment. Minor v. State, 85 Md.App. 305, 583 A.2d 1102 (1991). It first concluded that the Agreed Statement of Facts established that the appellant "expected the victim ... to turn off the safety and return the gun," and consequently the trial court was bound to believe that it was the appellant's "subjective belief ... that the victim would not pull the trigger and would return the gun." Id. at 311, 583 A.2d 1102. The court nevertheless found no merit in the appellant's argument that "handing someone a loaded gun and, in effect, daring him to use it on himself, does not create a substantial risk that he will do so." Id. at 313, 583 A.2d 1102. In this regard, it was not persuaded by the appellant's argument that it was the victim who created the risk of death or serious physical injury when he held the gun to his head and pulled the trigger since this "was the result of [the victim's] unforeseeable, independent act of free will." Id.

After analyzing the statute, its legislative history, and similar statutory language contained in § 211.2 of the Model Penal Code, together with its accompanying commentary, the intermediate appellate court held that to commit the crime of reckless endangerment under § 120(a), "a defendant need not intentionally cause a result or know that his conduct is substantially certain to cause a result." Id. at 316, 583 A.2d 1102. Rather, the court said that " ' "[r]ecklessness" in causing a result exists when one is aware that his conduct might cause the result, though it is not substantially certain to happen.' " Id. at 316, 583 A.2d 1102, quoting from LaFave & Scott, Substantive Criminal Law, § 3.7(f) (1989) (emphasis in original). The court determined that the statutory test was primarily objective, and not subjective--that all that is required is that the defendant consciously disregard a substantial risk, even if the chances of harm are improbable. Id. at n. 4. It thus held that the offense of reckless endangerment under § 120(a) "is not dependent upon intent." Id. On the evidence before it, the court concluded that the appellant "was aware of the ultimate outcome involved in playing Russian roulette with a loaded shotgun" and consequently his conduct created a substantial risk of death or serious physical injury, i.e., "that his brother would do what he did." Id. at 319-20, 583 A.2d 1102.

We granted certiorari to consider the important issue of public significance raised in the case.

II.

The appellant maintains that to be convicted under § 120(a), he must have acted "recklessly" and created a substantial risk of death or serious bodily injury to his brother. But, he says, the victim's act of pulling the trigger was a voluntary act of suicide that was unanticipated and, therefore, the evidence did not show that his conduct was reckless within the coverage of § 120(a). The appellant contends that § 120(a) was modeled after § 211.2 of the Model Penal Code, entitled "Recklessly Endangering Another Person," which provides that the crime is committed if a person "recklessly engages in conduct which places or may place another person in danger of death or serious injury." As to the meaning of "recklessly," § 202(2)(c) of the Model Penal Code defines the term as follows:

"A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."

The appellant contends that § 120(a), having been modeled after the Model Penal Code, must be afforded the same meaning. Thus, he argues that the defendant must be actually aware of the risk, thus necessitating an inquiry into his subjective state of mind. This "awareness," according to the appellant, "involves more than merely an awareness of the circumstances which, in combination, form the risk." Instead, it is suggested that, in order to act recklessly under the statute, the actor must perceive that the risk is substantial and that he consciously disregarded it. Thus, appellant claims, even if he was aware of a risk, but underestimated its seriousness, he is at most guilty of negligence for his misjudgment.

The appellant maintains that nothing in the Agreed Statement of Facts supports a finding that he actually was aware of a substantial risk that his brother would use the shotgun to end his life, or that he knew that his brother was suicidal or prone to acts of irrationality. Indeed, appellant claims that he perceived no risk because he believed that his brother would simply return the gun to him.

As to causation, the appellant says that the question is whether his conduct can fairly be said to have created a substantial risk within the contemplation of § 120(a). Guilt of the offense, he says, depends not upon harm being caused but only upon creation of a risk of harm. As to this, he says that the victim was not just a willing participant in the occurrence but indeed created the risk itself. He says that merely handing his brother the loaded gun, and daring him to use it, did not create a risk that his brother would in fact do so, since his brother was in complete control of the gun. In other words, the appellant urges that because the victim had control of the gun, knew that it was loaded and operable, and was exercising his own free will, his death was not a reasonably foreseeable consequence.

III.

In seeking to ascertain the legislative intention in the enactment of § 120(a), the beginning point is the language of the statute itself. See Bacon v. State, 322 Md. 140, 147, 586 A.2d 18 (1991); In re Demetrius J., 321 Md. 468, 473, 583 A.2d 258 (1991); Kaczorowski v. City of Baltimore, 309 Md. 505, 513-16, 525 A.2d 628 (198...