Owens v. State

Decision Date31 January 2005
Docket NumberNo. 2145,2145
Citation867 A.2d 334,161 Md. App. 91
PartiesMaurice OWENS v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Stacy McCormack (Stephen E. Harris, Public Defender, on brief), for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel HOLLANDER, SALMON, ADKINS, JJ.

ADKINS, J.

As appellant Maurice Owens threatened two would-be heroin buyers at gunpoint, one of Owens' companions opened fire. The question of first impression raised by Owens in this appeal is whether he can be convicted of attempted second degree murder for aiding and abetting in the shooting, even though the person charged as the shooter was previously acquitted of that crime. Following the lessons of Jeter v. State, 261 Md. 221, 274 A.2d 337 (1971), aff'g, 9 Md.App. 575, 267 A.2d 319 (1970), in which the Court of Appeals held that a defendant may be convicted as a principal in the second degree despite the subsequent acquittal of an alleged principal in the first degree, we shall hold that a prior acquittal of the alleged first degree principal does not bar conviction of the second degree principal.

FACTS AND LEGAL PROCEEDINGS

On August 5, 2002, Thomas Faulkner and Keith Wheeler drove to the 2500 block of Woodbrook Avenue in Baltimore City. Planning to buy heroin, they left two other companions in Faulkner's parked car. As they walked into the area, about forty people cleared out, leaving only six or seven remaining. Faulkner viewed this as a "red flag" that something was wrong.

The two began to walk back to the car, but a group of "five to seven guys" approached. One of them, later identified as Owens, ordered Faulkner and Wheeler to pull up their shirts. Faulkner did so quickly, but Wheeler reacted more slowly. Owens asked what they were doing there. Faulkner replied that they wanted to "buy dope[.]" Owens responded, "well, buy it then," and pulled out a gun. At that point, someone stepped out from behind the line of men that had formed behind Owens and began to shoot.

Wheeler was hit in the chest and the leg. Wheeler and Faulkner turned and ran back to their car. Faulkner drove Wheeler to a hospital, where he was treated for his wounds.

Police investigation focused quickly on Maurice Owens and Anthony Coker as suspects. On August 13, 2002, both were picked up for questioning. Although they denied involvement in the crime, both were eventually arrested and charged with attempted first degree murder and attempted second degree murder.

Coker was accused of being the shooter. He went to trial first and was acquitted on all charges.

Owens was accused of being the person who initiated the incident by accosting Faulkner and Wheeler. At Owens' trial, the State relied on the testimony of Faulkner, Wheeler, and their two companions who were in the car during the incident — Clyde Adams and Maria Williams. All four testified similarly that Owens was the man who pulled out a gun and pointed it at Faulkner. Adams and Williams could not hear the assailants and were not able to identify the shooter. But Faulkner and Wheeler identified Owens as the man who commanded them to lift their shirts and Coker as the person who shot Wheeler.

For the defense, Coker testified that he had been tried and acquitted. He claimed that, although he heard the shots fired, he was just in the area that night and was not involved with the shooting in any way. Despite his alleged absence and lack of involvement, he admitted telling the police that Owens had some involvement in the crime.

At the end of the prosecution's case-in-chief, defense counsel moved for a judgment of acquittal as to all charges:

There has been no evidence whatsoever of any concert of action between the person who is alleged to be the shooter, Mr. Coker, and Mr. Owens, none.
There has been no showing of any premeditation. There has been no showing of any existence of any discussions prior to this event, that he had any knowledge of the shooting. It's two events that are connected in time somewhat and that is it. There is no other connection and there is certainly no premeditation.

The trial court concluded that there was sufficient evidence that Owens aided and abetted the shooting, but granted the motion with respect the attempted first degree murder charge:

I'm going to grant the motion with regard to first degree murder because I think it's stretching it too far — looking at the evidence most favorable to the State, he's out there with ... friends or associates of his. I don't know that he's going to anticipate that the person who is behind him or next to him is going to shoot somebody. I think the premeditation is not there with regard to first degree.
With regard to the second degree, he knows, or by inference could know, that his friend had a gun and he shoots a guy because he's slow. I think that is a stretch, but I think there is enough evidence looking at it in a light most favorable to the State.

The following morning, Owens elected not to testify in his own defense. Defense counsel renewed the motion and the following occurred:

[Defense Counsel]: ... As to the argument on the motion for judgment of acquittal, in those counts where Mr. Owens is being prosecuted as an accessory [for] aiding and abetting. I move to dismiss both because of a lack of participation and because as [to] the principal in the first degree, he's been acquitted. So, if no principal in the first degree has been tried, it wouldn't make a difference. But in this case, the principal in the first degree was tried and was acquitted of the charges. And if there is no principal in the first degree, how can you have somebody identify aiding and abetting.
[The Court]: There is one. That person may not have been apprehended.
[Defense Counsel]: Anthony Coker was indicted and prosecuted as a principal in the first degree. A jury does not return a verdict on the issues by saying we find him not guilty because he wasn't the person. They merely found him not guilty generally. There is no principal in the first degree in this case like there is no co-conspirator. (Emphasis added.)

The trial court observed that "[t]here is at least a case that talks about the subsequent acquittal of the alleged principal in the ... first degree — as not having any effect on a conviction of an accomplice[,]" but questioned whether there is any Maryland case that "prohibits the conviction of Mr. Owens as an accessory to the fact." The court then denied the defense motion, explaining:

There may have been many reasons why Mr. Coker was acquitted. He may have been the shooter, he may not have been the shooter. Somebody else may have been the shooter. But there was a shooter. So, the question, as I see it, is — and the State has the burden of proving guilt beyond a reasonable doubt — is Mr. Owens an accomplice to that shooter? (Emphasis added.)

The jury concluded that he was. It found Owens guilty of attempted second degree murder, first degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and carrying a handgun. Under the terms of a pre-trial stipulation, the court then found Owens guilty of possessing a regulated firearm after having been convicted of a felony.

Owens challenges his convictions for attempted second degree murder, first degree assault, and handgun crimes, raising three issues for our review:

I. Did the trial court err in submitting the charge of attempted second degree murder to the jury even though the person Owens was alleged to have aided and abetted had already been acquitted of the crime?
II. Was the evidence legally insufficient to sustain Owens' conviction for attempted second degree murder?
III. Did the trial court commit prejudicial error by limiting defense cross-examination of a prosecution witness who saw the shooting?

We answer no to all three questions and affirm the convictions.

DISCUSSION
I.

Effect Of Acquittal Of Alleged Principal In First Degree

A. Criminal Responsibility Of Accomplices

"Under Maryland law, one may commit an offense as either a principal in the first degree, or a principal in the second degree[.]" Evans v. State, 382 Md. 248, 264 n. 11, 855 A.2d 291 (2004). A first degree principal is the actual perpetrator of the crime. See Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure § 21.0 (1983 & Supp.1985); Md. Pattern Jury Instr. — Crim. 6:01 cmt (MPJI-Crim). "A second degree principal must be either actually or constructively present at the commission of a criminal offense and aid, counsel, command, or encourage the principal in the first degree in the commission of that offense." State v. Raines, 326 Md. 582, 593, 606 A.2d 265,cert. denied, 506 U.S. 945, 113 S.Ct. 390, 121 L.Ed.2d 299 (1992). "The activity of a principal in the second degree is generally referred to as aiding and abetting, and the aider or abettor is usually called an accomplice." MPJI-Crim. 6:01 cmt. (collecting authorities).

There is no practical distinction between principals in the first and second degrees "insofar as indictment, conviction, and punishment is concerned." Id.; Gilbert & Moylan, supra, § 21.1; see Cooley v. State, 157 Md.App. 101, 117, 849 A.2d 1026,

cert. granted, 383 Md. 211, 857 A.2d 1129 (2004). "An accomplice ... who knowingly, voluntarily, and with common interest with the principal offender, participates in the commission of a crime.... is a guilty participant, and in the eye of the law is equally culpable with the one who does the act." Woods v. State, 315 Md. 591, 615 n. 10, 556 A.2d 236 (1989); Grandison v. State, 305 Md. 685, 703-04, 506 A.2d 580 (1986). See also Odum v. State, 156 Md.App. 184, 192, 846 A.2d 445 (2004)("A person may be guilty of a felony, as a principal in the second degree, by aiding, counseling, commanding, or encouraging, either actually or constructively, the commission of the felony in the person's...

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