Pagotto v. State

• Decision Date: 07 July 1999
• Docket Number: No. 1571, No. 424
• Citation: 127 Md. App. 271,732 A.2d 920
• Parties: Stephen PAGOTTO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

732 A.2d 920

127 Md. App. 271

Stephen PAGOTTO v. STATE of Maryland.

Nos. 424, 1571, Sept. Term, 1997.

Court of Special Appeals of Maryland.

July 7, 1999.

Henry L. Belsky, (Kimberly Kelly and Schlachman, Belsky and Weiner, P.A., on the brief), Baltimore, for Appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Argued before MOYLAN, KENNEY, and RALPH M. BURNETT (specially assigned), JJ. MOYLAN, Judge.

The Question Before Us In Its Larger Context

------------------------------------------------------------------------------- Intentional Unintentional Murder Murders ------------------------------------------------------------------------------- 1. 1. Premeditated ? Designated ? Specific (By poison or Statutory (By poison or Intent lying in Felony-Murders lying in to Kill wait) wait) ------------------------------------------------------------------------------- 2. 2. 2. 2. Specific Specific Common Law Depraved Intent Intent Felony-Murder Heart to Kill to Harm Doctrine ------------------------------------------------------------------------------- Voluntary Involuntary Manslaughter Manslaughters ------------------------------------------------------------------------------- 3. 3. 3. 3. Rule of Rule of Common Law Gross Provocation Provocation Misdemeanor-Manslaughter Criminal Doctrine Negligence Imperfect Imperfect Defenses Defenses ------------------------------------------------------------------------------- Excusable Homicide ------------------------------------------------------------------------------- Unavoidable Some Forms Some Forms NO Accident of of EXCUSABLE or Self-Defense Self-Defense VERSION Ordinary Civil Negligence -------------------------------------------------------------------------------

On the matrix of blameworthy states of mind that will support a verdict of either civil liability or criminal guilt on the part of an unquestioned homicidal agent, one of those mental states is that in which the homicidal agent causes an unintended death by carelessly or "negligently doing some act lawful in itself." Dishman v. State, 352 Md. 279, 291, 721 A.2d 699 (1998); Cox v. State, 311 Md. 326, 331-32, 534 A.2d 1333 (1988). The fault involved in such negligent conduct may come in any of three degrees. At the bottom end of the culpability scale is mere civil liability for a wrongful death, where there may be uncontestable fault and perhaps heavy civil liability but still something less than criminality. From the point of view of the criminal law, it is the level of homicide known for the last 600 years as excusable homicide. It is non-criminal.

Higher up the ascending scale of blameworthy negligence are those more "gross deviations" from the standard of care used by an ordinary person where the negligent conduct can reasonably be said to manifest "a wanton or reckless disregard of human life." Dishman v. State, 352 Md. at 291, 721 A.2d 699; State v. Albrecht, 336 Md. 475, 499, 649 A.2d 336 (1994). That level of fault constitutes involuntary manslaughter of the gross negligence variety. Yet higher still on the culpability ladder are those acts of a life-endangering nature so reckless that they manifest a wanton indifference to human life. That level of blameworthiness constitutes second-degree murder of the depraved-heart variety. Definitionally, the Maryland case law has yet provided no meaningful distinction between those last two levels of culpability. "[O]ur cases have not drawn a precise line between depraved heart murder and involuntary manslaughter." Dishman v. State, 352 Md. at 299, 721 A.2d 699. As an abstract matter, however, we know that there is—somewhere—such a line. There must be or else there is no legally cognizable distinction between murder and manslaughter.

In considering this appeal, our analysis will be confined exclusively to this single vertical column of ascending and descending culpability, rising from mere civil negligence at the bottom to gross-negligence manslaughter in the middle to depraved-heart murder at the top. Our concern, moreover, will be with the procedural devices that may be available to trigger or to limit movement upward and downward within that vertical column.

------------------------------- CULPABLE NEGLIGENCE ------------------------------- Unintentional Murder ------------------------------- 1. ------------------------------- 2. Depraved Heart ------------------------------- Involuntary Manslaughter ------------------------------- 3. Gross Criminal Negligence ------------------------------- Excusable Homicide ------------------------------- Ordinary Civil Negligence -------------------------------

Is there a single, entry-level burden of production requiring a mere prima facie case as to some negligence with the ultimate level of culpability then being consigned to the idiosyncratic and unfettered weighing process of the fact finder? Do we simply give the jurors the appropriate definitions and turn them loose? Or are there intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability? If so, what precisely are those progressively more demanding burdens?

It is clear that each legally cognizable level of culpability has its own unique burden of production that must independently be satisfied before a fact finder will be permitted even to consider civil liability or criminal guilt at that level. A plaintiff, suing a defendant for an injury caused by the defendant's alleged negligence, must establish a prima facie case of negligence for the issue of liability even to be submitted to the jury. Isen v. Phoenix Assurance Co., 259 Md. 564, 270 A.2d 476 (1970).

In a case charging involuntary manslaughter of the gross negligence variety, as we graduate upward, the State will not be permitted to take its case to the jury simply by proving a prima facie case of ordinary negligence. It must meet an additional and higher burden of production by showing such gross negligence, above and beyond mere civil negligence, as to evidence "a wanton or reckless disregard for human life." There are a number of cases where ordinary negligence has been established or assumed but where the evidence was nonetheless held, as a matter of law, to have been legally insufficient to have permitted the jury even to consider a manslaughter verdict based on gross criminal negligence. Plummer v. State, 118 Md.App. 244, 702 A.2d 453 (1997); Johnson v. State, 213 Md. 527, 132 A.2d 853 (1957); Thomas v. State, 206 Md. 49, 109 A.2d 909 (1954).

Although as yet no Maryland decision has had to come to grips with the issue, it is logically ineluctable that even a prima facie case of gross criminal negligence would not, ipso facto, survive a motion for judgment of acquittal on a murder count and justify submitting to the jury a charge of second-degree murder of the depraved-heart variety. A yet higher burden of production would intervene and require a prima facie case as to some state of mind even more blameworthy than gross criminal negligence. Were that not a legal requirement, then every case of involuntary manslaughter of the gross negligence variety properly submitted to a jury would automatically permit a verdict of second-degree murder.¹ When that issue arises as to what the precise burden of production is before the jury may even consider depraved-heart murder, the appellate courts will, to be sure, have to do some serious grappling with some treacherously ambiguous earlier language. But when that time comes, one must have faith, our courts will somehow surmount the linguistic hurdle.² We are relieved of that challenge in this case, however, because the State never charged the appellant with second-degree murder of the depraved-heart variety. As a purely doctrinal exercise, one wonders why. In any event, the unveiling of the content of the burden of production as to depraved-heart murder will have to await another day. In considering this appeal, therefore, the question of how, prima facie, to get to the highest level of this vertical column of culpability need not concern us.

By the same token, we need not concern ourselves with the entry-level question of how, prima facie, to get into the negligence column at its lowest level. Taking, as we must, that version of the evidence most favorable to the State's case, the appellant was prima facie accountable for ordinary civil negligence that contributed at least in part to the victim's death.

Our focus in this case, therefore, will be on the second and intermediate burden of production that must be satisfied to raise a case of prima facie civil negligence to the level of prima facie gross criminal negligence.³ Our focus, therefore, must not be on the negligence per se but only on the INCREMENTAL elements or characteristics that are required to ESCALATE ordinary civil negligence, be it ever so grievous in its consequences, into a genuine case of gross criminal negligence. In this case, the homicidal agency of the appellant is a given. The actus reus of some negligence is also a given. Our attention must be on WHAT FURTHER PROOF is then required, as a matter of law, even to permit the jury to consider a felonious mens rea. Once we identify those INCREMENTAL elements that may transform a tort into a crime, we can begin to assess the legal sufficiency of the State's case to satisfy those INCREMENTAL elements. We will not second-guess the fact finders. Our concern is not with what the jury found but with what the judge permitted the jury even to consider. In other words, we are only concerned with the burden of production and not with the burden of persuasion.

The Present Case

The appellant is Sergeant Stephen Pagotto, a fifteen-year veteran of the Baltimore City...