Schlossman v. State, 1604

• Decision Date: 01 September 1994
• Docket Number: No. 1604,1604
• Citation: 659 A.2d 371,105 Md.App. 277
• Parties: Adam SCHLOSSMAN, v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 277

105 Md.App. 277

659 A.2d 371

Adam SCHLOSSMAN, v. STATE of Maryland.

No. 1604, Sept. Term, 1994.

Court of Special Appeals of Maryland.

June 7, 1995.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

David Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for appellee.

Argued before BLOOM, MOYLAN and ALPERT, JJ.

BLOOM, Judge.

At a bench trial before the Honorable Robert Heller in the Circuit Court for Anne Arundel County, appellant, Adam Schlossman, was convicted of involuntary manslaughter. The court sentenced appellant to seven years imprisonment, with all but eighteen months suspended, appellant being placed on supervised probation for a period of five years. One of the conditions of probation was that two and one-half years thereof be served under "house arrest." In this appeal from that judgment, appellant presents the following issues for our determination:

I. Whether the evidence was sufficient to support appellant's conviction of involuntary manslaughter.

II. Whether the trial court erred in admitting expert testimony without a proper foundation.

III. Whether the trial court admitted improper rebuttal evidence.

IV. Whether the trial court imposed an illegal condition of probation.

FACTS

On an undetermined evening in July 1992, as appellant entered his home in Annapolis, where he lived with Christian Walton, Gene Kirshner, Isaac Kumer, Allan Tucker, and Willis Usilton, he complained about "bums" sleeping in the woods nearby. Approximately fifteen minutes later, appellant and Usilton left the house with a baseball bat and a flashlight, entered the woods, and proceeded to get into an argument with one of two men there. Appellant pushed one of the men off of the property, but the other man, Arch Baldwin, who was unconscious and appeared to be severely intoxicated, remained in the woods.

Appellant returned to his house and stated that there was someone "passed out in the woods." Usilton, Walton, Theodore Reshetiloff, and appellant then went into the woods to find Baldwin. When they found him, they taunted him, poked him with sticks, urinated on him, and poured paint on him. ¹ At one point, Baldwin appeared to open his eyes briefly, but then lost consciousness again. Appellant and his companions rolled Baldwin into a ditch four feet deep, threw stones and a mattress at him, and kicked dirt and trash on him. Baldwin subsequently attempted to crawl out of the ditch but was unsuccessful. Reshetiloff then threw a piece of a cinder block at him. When appellant and the other assailants left Baldwin, he was still alive.

The following day, appellant and Usilton returned to the woods and observed that Baldwin was dead. Later, appellant, Usilton, Reshetiloff, and Walton dug a hole at a location farther in the woods, transported Baldwin's body there, and tried to put it into the hole. To get the body to fit, appellant had to break one of Baldwin's legs with a shovel. After appellant covered the body with dirt, he stated that, if anyone ever told the police what had occurred, he would "take care of them."

Near the end of July, Officer Pete Medley of the Annapolis Police Department received a missing persons report for Arch Baldwin, described as a sixty-two year old man who often slept in the woods. On 5 April 1993, the police searched the area near appellant's home and located Baldwin's body. The body appeared to be well preserved and was identified as that of Baldwin through a comparison of fingerprints.

On 7 April 1993, Baldwin's body was examined at the Office of the Chief Medical Examiner in Baltimore. Mario Golle, Jr., M.D., an assistant medical examiner, supervised the autopsy. The autopsy revealed that portions of Baldwin's coronary arteries were almost entirely obstructed by atherosclerosis and that the body had several fractures and lacerations, any or all of which may have occurred post mortem. Initially, Dr. Golle was unable to specify the cause of death because he had not yet received copies of the police report and witness statements. After Officer Medley gave Dr. Golle a copy of the police report and witness statements, Dr. Golle concluded that Baldwin had died of severe coronary artery disease and that the manner of death was homicide. According to Dr. Golle's testimony at appellant's trial, Baldwin essentially died of a "heart attack while involved in an altercation." Dr. Golle also testified that Baldwin was a chronic alcoholic, and had a history of cirrhosis of the liver, alcohol liver disease, delirium tremens, seizures, and chronic obstructive pulmonary disease.

The grand jury charged appellant, in a five count indictment, with manslaughter, accessory after the fact to manslaughter, assault with intent to maim, reckless endangerment, and assault and battery. Prior to trial, the reckless endangerment and assault and battery charges were dismissed. At the conclusion of the trial, which lasted from 14 February to 4 March 1994, the court found appellant guilty of manslaughter but not guilty of assault with intent to maim. The charge of accessory after the fact was dismissed. On 4 May 1994, sentence was imposed and this appeal followed.

I.

Appellant contends that "the evidence was insufficient to support [his] conviction of involuntary manslaughter" for two reasons. First, he asserts that the State failed to establish that he committed involuntary manslaughter based on the commission of a criminal homicide during the perpetration of an unlawful act because the State did not prove that appellant committed "an unlawful act dangerous to life." Second, he maintains that the State did not present sufficient evidence establishing that his actions were the legal cause of the victim's death.

When reviewing a question of the sufficiency of the evidence, we must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Wiggins v. State, 324 Md. 551, 567, 597 A.2d 1359 (1991) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)); see also Wilson v. State, 319 Md. 530, 535, 573 A.2d 831 (1990). "In this regard, under Maryland Rule 8-131(c), we defer to the factual findings of the trial judge in a non-jury case, unless they are clearly erroneous, giving due regard to the opportunity of the trial judge to observe the demeanor of the witnesses and to assess their credibility." Wiggins, 324 Md. at 567, 597 A.2d 1359. With these considerations in mind, we shall address appellant's two arguments seriatim.

A. Unlawful Act Dangerous to Life

Appellant contends that, where a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act itself must be dangerous to life. Because "there was no evidence [that he committed] an [unlawful] act inherently dangerous to human life," appellant argues, the evidence was insufficient to support his conviction for involuntary manslaughter.

Under Maryland common law, the crime of involuntary manslaughter is divided into three distinct categories. In Neusbaum v. State, 156 Md. 149, 155, 143 A. 872 (1928) (quoting 2 Bishop on Criminal Law. par. 629), the Court of Appeals characterized the crime as including those cases in which one unintentionally kills another without malice " while needlessly doing anything in its nature dangerous to life, or ... causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong."

These distinct classes of involuntary manslaughter were also set forth in State v. Gibson, 4 Md.App. 236, 242, 242 A.2d 575 (1968), as follows:

Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. See 1 Warren on Homicide (Perm.Ed.1938), 420, 421; 26 Am.Jur. Homicide, Sec. 18, 44; 40 C.J.S. Homicide, Sec. 55, and cases therein cited. To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum.... Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton's Criminal Law and Procedure, (Anderson Ed.), Vol. 1, Sections 289-292, 296, and cases therein cited.

Similarly, in Wilson v. State, 28 Md.App. 168, 172, 343 A.2d 537 (1975) (quoting Clark and Marshall, Law of Crimes § 10.12 (7th ed. 1967)), we delineated the classifications in the following manner:

1. Commission of a criminal act not amounting to a felony, nor naturally tending to cause death or grievous bodily harm.

2. Omission to perform a legal duty, under circumstances evidencing criminal-culpable negligence.

3. Performing lawful act with criminal culpable negligence.

The first classification of involuntary manslaughter, known as unlawful act involuntary manslaughter or misdemeanor manslaughter, can broadly be stated as occurring where one commits a criminal act not amounting to a felony that unintentionally causes the death of another. This overly simplistic statement of the rule is misleading, however, because the rule's specific requirements hinge upon whether the unlawful act was malum in se or malum prohibitum. See United Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539, 182 A. 421 (1935); Gibson, 4 Md.App. at 242, 242 A.2d 575. "An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community," Garnett v. State, 332 Md. 571, 603 n. 12, 632 A.2d 797 (1993); it is an act that is...