Robinson v. State

• Decision Date: 01 September 1986
• Docket Number: No. 65,65
• Parties: Jacqueline Camille ROBINSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 738

307 Md. 738

517 A.2d 94

Jacqueline Camille ROBINSON v. STATE of Maryland.

No. 65, Sept. Term, 1986.

Court of Appeals of Maryland.

Nov. 12, 1986.

Timothy F. Maloney (Edward P. Camus, on the brief), Riverdale, for appellant.

Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

ADKINS, Judge.

The question presented in this case is whether the doctrine of collateral estoppel bars the State from prosecuting a defendant for "depraved heart" murder after a prior conviction for assault with intent to disable and a prior acquittal of assault with intent to murder the same victim, arising from the same act. We hold that it does not.

On 3 September 1984 appellant, Jacqueline Camille Robinson, and her lover, Henry Garvey, were alone in Robinson's apartment. An altercation occurred. Robinson shot Garvey in the thigh; the bullet travelled upwards and lodged in his abdomen. A jury sitting in the Circuit Court for Prince George's County convicted her of, among other things, assault with intent to disable. It acquitted her of assault with intent to murder. She was duly sentenced. ¹

Shortly after Robinson's trial Garvey died. She was then charged with second degree murder. She moved to dismiss the indictment on various grounds, including collateral estoppel. In its response to the motion, the State conceded that Robinson "cannot now be tried on matters that were litigated in the prior trial" and that "[t]he only new fact that the State is proceeding on in the current indictment, is the death of the victim, Dr. Garvey, ... after the conclusion of the first trial." But it contended that the "current indictment" was based on "the 'depraved heart' theory of second degree murder"--an issue that, as Robinson agrees, was not raised at her trial. The Circuit Court for Prince George's County (Casula, J.) accepted the State's argument and denied the motion to dismiss. Robinson appealed to the Court of Special Appeals. ² We issued the writ of certiorari while the case was pending in the intermediate appellate court. 306 Md. 555, 510 A.2d 561.

I

The doctrine of collateral estoppel is, of course, applicable to criminal as well as civil cases. Bowling, 298 Md. at 401, 470 A.2d at 799; Scarlett v. State, 201 Md. 310, 318, 93 A.2d 753, 757, cert. denied, 345 U.S. 955, 73 S.Ct. 937, 97 L.Ed. 1377 (1953); see also Cook v. State, 281 Md. 665, 668, 381 A.2d 671, 673, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978) ("It is beyond question that the closely related doctrines of res judicata and collateral estoppel apply to criminal as well as civil causes"). In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court decided that in a criminal case the doctrine of collateral estoppel is part of federal double jeopardy law and applicable to the states by virtue of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), see R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure § 37.8 (1983). "[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. Robinson asserts that the doctrine should bar her second prosecution because her conviction of assault with intent to disable determined in her favor a fact--that she intended to disable Garvey--that necessarily would prevent her conviction of "depraved heart" murder. That fact, she argues, cannot be relitigated. The State counters by contending that in the criminal context a defendant may raise the bar of collateral estoppel only when an "issue of ultimate fact" has been determined in her favor by an acquittal. Since Robinson was convicted of assault with intent to disable, says the State, she cannot raise collateral estoppel.

We reject the State's position. Although both Ashe and Powers v. State, 285 Md. 269, 401 A.2d 1031 involved acquittals, the language we have just quoted from the former case makes it clear that the critical consideration is whether "an issue of ultimate fact" has been determined in favor of a defendant. The process by which that determination is made, whether by acquittal or conviction, is not critical. See Green v. Estelle, 601 F.2d 877 (5th Cir.1979); State v. Emery, 27 N.J. 348, 142 A.2d 874 (1958); Carson v People, 4 Colo.App. 463, 36 P. 551 (1894); see also Beatty v. State, 56 Md.App. 627, 468 A.2d 663 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (1984), cert. denied, 469 U.S. 851, 105 S.Ct. 170, 83 L.Ed.2d 105 (1985); U.S. v. Snell, 592 F.2d 1083 (9th Cir.1979), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315; and U.S. v. Hinton, 543 F.2d 1002 (2d Cir.1976), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (in the last three cases collateral estoppel resulting from prior conviction considered but found not to apply).

II

Having concluded that Robinson may raise the defense of collateral estoppel, we now consider whether it should be applied to bar her prosecution for "depraved heart" murder. As we have noted, her argument is essentially this: She was convicted of assaulting Garvey with intent to disable him. The conviction established as a fact that this was her only intent, especially in view of her acquittal of assault with intent to murder, which established the fact that she did not intend to murder her lover. "Depraved heart" murder does not require any specific intent to kill or injure. Moreover, "depraved heart" murder must be based on general recklessness; the act on which the charge is based must be dangerous to a number of persons, but not directed at any particular person. Robinson concludes that "[b]ecause a jury has established the fact that [she] is guilty of a deliberate intent to disable a specific individual, the doctrine of collateral estoppel bars the State from arguing that the same act also gives rise to a finding of a wanton and reckless disregard for human life." Robinson's brief at 9. We disagree.

Assault with intent to disable is one of the offenses proscribed by Md. Code, Art. 27, § 386. ³ The intent element of assault with intent to disable is a specific intent to do just that, and is inconsistent with an intent to murder. State v. Jenkins, 307 Md. 501, 515 A.2d 465, 472 (1986). It is true, as Judge Eldridge pointed out in Jenkins, that even where intents are inconsistent, offenses (e.g., assault with intent to disable and assault with intent to murder) may not be. This is because "one may harbor at the same time, on an alternate basis, inconsistent intents." Id., 515 A.2d at 473. But in this case we are not faced with the problem of alternate inconsistent intents. Intent to disable is in no way inconsistent with the intent element of "depraved heart" murder.

That offense does not require an intent to kill, which would be inconsistent with an intent to disable. It is one of the "unintentional murders," Glenn v. State, 68 Md.App. 379, 386, 511 A.2d 1110, 1114 (1986), that is punishable as murder because another element of blameworthiness fills the place of intent to kill. ⁴ As Judge Moylan explained in Debettencourt v. State, 48 Md.App. 522, 530, 428 A.2d 479, 484 (1981):

"It ['depraved heart' murder] is the form [of murder] that establishes that the wilful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence.... It is not merely one even of gross criminal negligence.... It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not.

The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm."

Robinson seizes upon the last sentence we have just quoted and argues that "depraved heart" murder does not exist if there is a specific intent to harm. See also Lindsay v. State, 8 Md.App. 100, 104, 258 A.2d 760, 763 (1969) ("depraved heart" murder exists where, "conceding that there was no actual intent to injure, an act was done or duty omitted wilfully, the natural tendency of which was to cause death or great bodily harm"); R. Perkins, Criminal Law at 36 (2d ed. 1969) ("... even if there is no actual intent to kill or injure"). But these authorities say no more than that the crime may be committed absent intent to injure. They do not hold that the crime is not committed if there is an intent to injure.

"A depraved heart murder is often described as a wanton and wilful killing. The term 'depraved heart' means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must [or reasonably should] realize the risk his behavior has created to the extent that his conduct may be termed wilful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton."

R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure § 1.6-3 (1983). The critical feature of "depraved heart" murder is that the act in question be committed "under circumstances manifesting extreme indifference to the value of human life." 2 Wharton's Criminal Law § 143 at 197 (14th ed. 1979). The terms "recklessness" or "indifference," often used to define the crime, do not preclude an act of intentional injury. They refer to "recklessness" or "indifference" to the ultimate consequence of the act--death--not to the act that produces that result. See Model...