Selby v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1707,1707
• Citation: 544 A.2d 14,76 Md.App. 201
• Parties: Erik O'Brien SELBY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 201

76 Md.App. 201

544 A.2d 14

Erik O'Brien SELBY v. STATE of Maryland.

No. 1707, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 15, 1988.

Certiorari Granted Oct. 26, 1988.

Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Robert L. Dean, Asst. State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before GARRITY, ROBERT M. BELL and POLLITT, JJ.

ROBERT M. BELL, Judge.

Erik O'Brien Selby, appellant, was found guilty at bench trial in the Circuit Court for Montgomery County of attempted first degree murder, robbery with a dangerous and deadly weapon, and wearing and carrying a deadly weapon openly with intent to injure. Having been sentenced to consecutive terms of imprisonment totaling life plus twenty-one years, he has appealed, presenting two questions for our resolution:

1. Did the trial court err when it convicted Appellant of attempted first degree murder?

2. Is Appellant's conviction and sentence for carrying a deadly weapon improper?

The facts underlying this appeal are clear. They are gleaned from the statement appellant gave the police and from his testimony at trial. Having left his house at about 5:00 o'clock in the morning of the day of the incident and having taken loose change and marijuana from a gym bag that he found in a convertible automobile, appellant went to a 7 Eleven store where he purchased a newspaper, a pack of cigarettes and some rolling papers. He then proceeded to an office building on Fenton Street and, for a time, stood in front of the building reading the paper and smoking cigarettes. When the door to the building was left unlocked by an occupant who had left to mail a letter, he entered. It was then about 6:30 a.m. Once inside the building, he went to an upper floor stairwell and read the paper, smoked marijuana, and waited, thinking all the time of "[t]rying to get some money from the first person I seen, really". At some point while waiting, he unscrewed light bulbs in the corridor and then returned to the steps where he continued to wait. After having heard someone in the corridor, appellant went into the bathroom; he stayed there for about 15 minutes. As he was about to leave, he first heard, and then saw, a female downstairs. She was carrying a "few bags". When she reached the floor on which appellant was waiting, because it was "nearly dark" in the hallway, she turned on a light in the restroom and then started to unlock the door to the office where she worked. Appellant described what happened next: "Then at the instance--I don't know how you say it, but at the spur of the moment, it just seemed like I charged up to her from behind, and I stuck her with the knife." He took her purse and, after removing about $40.00 from it, threw it into a trash can. Appellant then returned home. He stated that "I didn't really intend to really hurt nobody. I just most likely was thinking of a snatch rob", which he clarified as "pocketbook snatching".

The victim was severely injured in the attack. The wound, at least six inches deep, sliced through several major back muscles, lacerated blood vessels within the abdominal cavity, and amputated the lower portion of her left kidney. It was made by a large butcher knife. According to the testimony at trial, the victim almost died on several occasions during surgery.

1.

The focus of appellant's trial was on his conduct prior to the commission of the crimes and his intent at the time of their commission, rather than upon his criminal agency. Appellant contended that, since attempted murder requires a specific intent to kill, in the absence of a motive to kill, where the circumstances reveal that the apparent purpose is to rob, the trier of fact could not find beyond a reasonable doubt that appellant had a specific intent to kill. He argued that, in the absence of an intent to kill, "appellant could not be convicted of attempted murder, much less attempted premeditated murder".

The State, on the other hand proffered alternative theories upon which a finding of attempted first degree murder could be made. First, it proffered that the evidence was sufficient to support a finding beyond a reasonable doubt that appellant possessed a premeditated intent to kill when he stabbed the victim. Alternatively, the State argued that, whether or not appellant had a premeditated intent to kill, he could be found guilty of attempted first degree murder so long as the trier of fact found beyond a reasonable doubt that appellant was lying in wait for some purpose and had at least the intent to inflict grievous bodily harm upon the victim when he stabbed her. This latter argument was premised upon Maryland Code Ann., art. 27 § 407, which provides:

All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of willful, deliberate, and premeditated killing shall be murder in the first degree.

The court rejected the State's first theory. It reasoned:

With regard to premeditation. It is clear that this aforethought, as they say, doesn't have to be of any specific duration, where somebody is found to have deliberated to commit a murder.

But it is also clear, under the law of our State and most states, where the analysis has been as refined as it is in Maryland, that a fairly specific intent to kill is required for premeditated murder; murder in the first degree.

Among the kinds of things that Courts look at to see whether there is premeditation, is to consider what the Defendant did prior to the actual killing to show that the Defendant was engaged in an activity directed toward an explainable--as intended to result in a killing. What might be called planning activity.

Secondly, among other things that the Court looks at, are a Defendant's prior relationship or conduct with a victim from which the Court could infer motive, or inference of motive, which is not strictly speaking, required, but does help to get one to appreciate premeditation.

Then one takes facts about the nature of the killing from which one can infer that the manner was so particular and exacting, that the Defendant must have intentionally killed, according to some preconceived design, which one could determine again, by way of the planning or the prior relationship with the parties.

This is obviously a case where the Defendant had no prior relationship with the Defendant [sic], and it is hard to know whether there was a motive. This appears to be a relatively senseless crime. Certainly not, if one were to ascribe any reasonableness to snatch robbers, not the kind of act that would be in any way necessary to accomplish a purse snatching.

So that it goes beyond that. There is no question in this case that the Defendant took pains to plan this crime; to get to a particular office building, on a high floor, early in the morning to unscrew light bulbs, and await a victim of some sort.

That, of course, those facts by themselves are consistent with merely going to rob or mug, as opposed to kill. The fact that he took a knife of substantial dimension, a butcher knife with him, is the--is a perplexing part of this case. Having a knife of that size is in no way really consistent with an intent to commit a snatch rob.

I am no more willing to give the Defendant the benefit of believing his testimony that he was really bent on snatch robbing, than that he was bent on killing somebody, or doing them grievous bodily harm.

The fact is, he had a knife for some purpose. The question is: What purpose can reasonably be inferred? But for the knife, it is hard to get to the specific intent to kill. It is true that the knife, a dangerous weapon, a terrible weapon, was plunged into a part of the victim's body which might well have caused death; came close to causing death, according to the testimony of the physician this morning.

The question is whether those facts alone would lead the Court to find the necessary premeditation. The problem with the facts in the end is that the knife was there, but the Court still has some doubt as to whether the knife was there as a potentially threatening instrument that could cause grievous bodily harm, as opposed to an instrument that was being carried directly for the purpose of killing somebody.

Accordingly, the Court does conclude with regard to the first theory, that is the specific premeditated murder, that the State has not carried its' burden of proof beyond a reasonable doubt, and would not be inclined to find on that theory that there was murder in the first degree [sic].

The court accepted the State's alternative theory, that attempted first degree murder may be found if, even though there is no proof of a specific intent to kill, the court finds that the attempt was made by a person lying in wait with some specific intent to do grievous bodily harm. The court ruled:

* * *

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Lying in wait specifically requires three components: Concealment and watching and waiting.

Let us assume, and the Court so finds, in fact, that there was concealment of the defendant in this case, that he was watching, and that he was waiting, and the Court so finds beyond a reasonable doubt.

The question is whether the watching, waiting and concealment would suffice, together with an intent to do grievous bodily harm, to lift this to the level of first degree.

In reading various cases around, although there is some fuzziness in some of the cases, from some of the jurisdictions, the Court concludes that the evil that is sought to protect against here, the lying in wait, is sufficient that the mere lying in wait, without a specific intent to kill, would raise the offense to murder in the first degree.

I think the cases do ultimately hold that. The closest suggestion that I could get to this case, comes...