Roary v. State

• Decision Date: 11 February 2005
• Docket Number: No. 25,25
• Citation: 385 Md. 217,867 A.2d 1095
• Parties: Michael ROARY v. STATE of Maryland.
• Court: Maryland Court of Appeals

867 A.2d 1095

385 Md. 217

Michael ROARY v. STATE of Maryland.

No. 25, September Term, 2004.

Court of Appeals of Maryland.

February 11, 2005.

Michael R. Braudes, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for appellant.

Sarah Page Pritzlaff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for appellee.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

GREENE, Judge.

On August 1, 2003, Michael Roary ("Roary") was convicted of second-degree felony-murder with first-degree assault as the underlying felony, involuntary manslaughter, first and second-degree assault, conspiracy, and transporting a handgun in a vehicle. His conviction is based upon the events of December 27, 2001, in which Roary and three friends chased the victim, Charles Banks, III, and then tripped, kicked, and dropped a boulder on his head twice.¹ Mr. Banks died ten months later as a result of injuries sustained during the beating.

Roary presents the following questions for our review:

1. Did the trial court err in ruling that first-degree assault is a viable underlying felony for common-law second-degree felony-murder, and in submitting that count to the jury?

2. Did the trial court err in its instructions to the jury?

3. Did the trial court consider impermissible criteria in imposing sentence?

We hold that first-degree assault is a proper underlying felony to support a second-degree felony-murder conviction. The assault for which Roary was found to have committed qualifies as a "dangerous to human life" felony pursuant to our holding in Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001), and, therefore, we decline to modify the common law of this State to adopt the so-called "merger" doctrine. Further, we hold that the trial court neither erred in its instructions to the jury nor considered impermissible criteria in imposing sentence.

I.

On December 27, 2001, Roary, his cousin Charles Peters, a.k.a. "Man," and a friend, Charles Lucas, a.k.a. "Bootsey," were standing on a corner in Baltimore City when Bootsey mistakenly identified Mr. Banks as someone who recently robbed him. Bootsey said he was going to get a gun and Man said he would "handle" it. When the victim left his mother's house across the street, Man chased him around a car, firing several shots at him. Mr. Banks fled with the three men chasing him.

The fourth co-conspirator, Randolph Sheppard, a.k.a. "Ink," was standing nearby on Smithson Street in an area known as "the bricks." In response to a cry to stop Mr. Banks, Ink tripped and began kicking and punching Mr. Banks.² Once they arrived at "the bricks," Man, Bootsey, and Roary joined in the beating. At one point during the altercation, two of Roary's co-conspirators dropped a two and one-half foot wide and 20-30 pound boulder on Mr. Banks's head.³ According to Roary's first statement to police, Man produced the boulder "out of no where" and said to "watch out [sic] clear it out and then [he] mashed his head with the brick." In a subsequent statement to police, Roary added that after Man dropped the boulder on Mr. Banks's head, Bootsey picked it up and dropped it on him a second time. Although Roary identified Man and Bootsey as the two who dropped the boulder on Mr. Banks's head, an eye witness testified that it was Ink, not Bootsey, who actually dropped the boulder. Based on the briefs and trial transcript, the State appears to have adopted the witness's account of who dropped the boulder. It is undisputed, however, that Roary's participation in the actual beating was limited to kicking Mr. Banks in the leg.

Following the attack, Roary and Bootsey recovered the gun used by Man while he was chasing the victim around the car. After recovering the weapon, Roary and Bootsey were picked up in a car by the other two co-defendants and attempted to leave the area. A police chase ensued, and all of the participants were subsequently apprehended.

Ink and Man entered guilty pleas to second-degree murder and conspiracy to commit first-degree assault. They received 25 years with all but 15 years suspended. Bootsey's trial was scheduled to begin after Roary's.⁴ Prior to Roary's trial there were discussions between the State and Roary regarding his testifying against his co-conspirators. When Roary learned that he would have to testify in open court, he refused to do so.

A Baltimore City jury found Roary guilty of second-degree felony-murder in the course of a first-degree assault, involuntary manslaughter, first and second-degree assault, conspiracy, and transporting a handgun in a vehicle. The jury acquitted Roary of "intent to kill" second-degree murder and transporting a handgun on his person.⁵ Roary was sentenced to 30 years on the second-degree felony-murder charge, five years consecutive on the conspiracy charge, and three years concurrent on the handgun offense.

Roary filed a timely appeal in the Court of Special Appeals, however, we granted certiorari on our own motion before consideration of the matter in that court. Roary v. State, 381 Md. 674, 851 A.2d 593 (2004).

II.

Roary's primary argument on appeal relates to his conviction for second-degree felony-murder. He argues that,

[f]irst-degree assault, on a theory of intent to inflict serious physical injury under § 3-202 of the Crim. Law Art., which is part and parcel of any intentional homicide, is not an underlying felony which sustains a conviction for common law second-degree felony murder. Accordingly, this theory of criminal homicide should not have been submitted to the jury, and the resulting conviction must be reversed.

He relies on cases from other jurisdictions which have adopted the so-called "merger" doctrine and urges this Court to do the same. For the reasons expressed herein, we decline to do so.

A. Preservation

Before consideration of this matter on the merits, we first address the issue of preservation. The State argues that Roary failed to preserve the issue of whether first degree assault is a proper underlying felony for a second-degree felony-murder conviction by failing to object to the issue below. The State notes that Roary's counsel approved both the felony-murder jury instruction and verdict sheet. The State further argues that when they informed the defense and the court that it had prepared a verdict sheet that included a second-degree felony-murder instruction based on Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001), the defense did not object. Roary concedes that "at trial, the point was not made quite so clearly," but contends that at the motion for a new trial hearing, defense counsel "squarely argued that first degree assault is not a proper underlying felony."

Based on our review of the trial transcript, we conclude that Roary failed to properly raise the issue of whether first-degree assault is a proper underlying felony for a second-degree felony-murder conviction. Furthermore, we are unable to determine if the issue was "squarely" raised at the hearing on the motion for a new trial because the transcript of the hearing was not included in the record. Nevertheless, we choose to exercise our discretion to consider the issue on appeal.

Md. Rule 8-131(a) provides that an appellate court will ordinarily not decide any issue unless it was raised in or decided by the trial court. We may, however, "decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." Md. Rule 8-131(a). In Fisher, we exercised our discretion to consider the unpreserved issue of whether child abuse is a proper underlying felony to support a conviction for second-degree felony-murder. Fisher, 367 Md. at 225, 786 A.2d at 710. Although the issue was not raised at trial, we acknowledged that "a sentence imposed under an entirely inapplicable statute `is an illegal sentence which may be challenged at any time.'" Fisher, 367 Md. at 239-40, 786 A.2d at 719 (quoting Moosavi v. State, 355 Md. 651, 662, 736 A.2d 285, 291 (1999)). We concluded that,

if the felony murder doctrine has no application to a homicide resulting from child abuse, then the thirty year sentence for murder in the second degree imposed on the petitioners would be similarly illegal, because, by the special verdict, the findings of guilty of murder were based solely on felony murder.

Fisher, 367 Md. at 240, 786 A.2d at 719. The same rationale applies to the case at bar. If first-degree assault is not a proper underlying felony for a second-degree felony-murder conviction, then Roary's sentence of thirty years would likewise be illegal because the sole basis for the second-degree murder conviction was felony-murder, as the jury acquitted Roary of second-degree intent-to-kill murder.

Moreover, if the sentence for second-degree felony-murder constitutes an illegal sentence, Roary could raise that issue on a motion for reconsideration or on a petition for post conviction relief. In either scenario, if Roary did not prevail the case would be subject to an application for appellate review. In the interest of avoiding the expense and delay of another appeal we invoke our jurisdiction to resolve the issue.

B. Felony-Murder

"At common law one whose conduct brought about an unintended death in the commission or attempted commission of a felony was guilty of murder." Wayne R. LaFave, Substantive Criminal Law § 14.5 (2nd ed. 2003). The modern felony-murder rule is "intended to deter dangerous conduct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill." Fisher, 367 Md. at 262, 786 A.2d at 732. The doctrine recognizes that in society's judgment, "an intentionally committed [felony] that causes the death of a human being is qualitatively more serious than an identical [felony] that does not." Crump & Crump, In Defense of the Felony Murder Doctrine...