State Of Md. v. Kanavy

• Decision Date: 21 September 2010
• Docket Number: No. 129, Sept. Term, 2009.,129, Sept. Term, 2009.
• Citation: 4 A.3d 991,416 Md. 1
• Parties: STATE of Maryland v. Brian Gerard KANAVY, Shadi Sabbagh, Dennis Harding, Mark Richard Sainato, and Jason Willie Robinson.
• Court: Maryland Court of Appeals

416 Md. 1

4 A.3d 991

STATE of Maryland

v.Brian Gerard KANAVY, Shadi Sabbagh, Dennis Harding, Mark Richard Sainato, and Jason Willie Robinson.

No. 129, Sept. Term, 2009.

Court of Appeals of Maryland.

Sept. 21, 2010.

Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.

Jason W. Shoemaker (Shoemaker & Conner, Bethesda, MD), on the brief, for respondents.

Joshua R. Treem (Nicholas J. Vitek of Schulman, Treem, Kaminkow & Gilden, P.A., Baltimore, MD), on the brief, for respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.

MURPHY, J.

In the Circuit Court for Carroll County, a Grand Jury returned five identical indictments that charged Brian Gerard Kanavy, Shadi Sabbagh, Dennis Harding, Mark Richard Sainato, and Jason Willie Robinson (Respondents) with the offense of reckless endangerment. Each indictment contained the following assertion:

STATE OF MARYLAND, CARROLL COUNTY, TO WIT:

The Grand Jurors of the State of Maryland, for the body of Carroll County, do on their oaths and affirmations present that [the Respondent] late of said County, on or about January 23, 2007 at 999 Crouse Mill Road, Keymar, Carroll County, Maryland, did recklessly engage in conduct, to wit: did fail to contact emergency services (9-1-1) in a timely manner that created a substantial risk of death and serious physical injury to Isaiah Simmons, III, while in Defendant's care and custody and a duty to do so existed, in violation of the Criminal Law Article, Section 3-204, A-1, contrary to the form of the act of the assembly in such case made and provided and against the peace, government and dignity of the state.

(Emphasis supplied).

Respondents filed motions to dismiss the indictments on the ground that the reckless endangerment statute does not proscribe the failure to act. The Circuit Court entered an “ORDER” dismissing the indictments “pursuant to Md. Rule 4-252 for failure to charge the Defendants with a crime,” and the Court of Special Appeals affirmed that decision in an unreported opinion. State v. Kanavy, et al., Nos. 3008-3012, September Term, 2007, filed August 10, 2009. The State then filed a Petition for Writ of Certiorari, in which it presented this Court with three questions:

1. Where the indictments contained all the elements required to charge reckless endangerment, did the lower courts err in focusing on surplus language regarding the manner and means by which defendants committed the crime to find that the indictments failed to charge an offense?

2. Alternatively, if it was appropriate to consider the manner and means alleged in the indictments in determining their sufficiency, does the “conduct” required for reckless endangerment include acts of omission where there is a duty to act?

3. Did the trial court err in going beyond the four corners of the indictments to find a basis for dismissal, contrary to the Court of Appeals decision in State v. Taylor, 371 Md. 617 (2002)?

We granted the petition. 411 Md. 599, 984 A.2d 243 (2009). For the reasons that follow, we shall reverse the judgment of the Court of Special Appeals and direct that the cases be remanded to the Circuit Court.

Background

On January 23, 2007, Isaiah Simmons, III, a juvenile who had been committed to the Department of Juvenile Services, died at the Bowling Brook Preparatory School in Carroll County. Respondents are employees of that juvenile facility who were on duty when the juvenile died. The record shows that, at the conclusion of a Grand Jury investigation, the State's Attorney for Carroll County requested that the Grand Jury return a three count indictment against each Respondent. “Count 1” would have charged each Respondent with manslaughter as a result of the deadly force he allegedly used against the deceased; while “Count 2” would have charged each Respondent with the lesser-included offense of reckless endangerment as a result of the deadly force he allegedly used. The Grand Jury, however, elected to charge each Respondent only with “Count 3,” the indictment quoted above.

The Circuit Court's Order was accompanied by a “MEMORANDUM OPINION” that included the following findings and conclusions:

The State contends that the statutory definition of conduct includes an omission, which would violate a specific duty owned by the Defendants to Isaiah Simmons.

Maryland appellate courts have considered numerous cases concerning reckless endangerment.

* * * The general patterns of these cases consistently show convictions for reckless endangerment stemming from direct actions taken by the Defendants. This court is unable to find a single case in which a Defendant was convicted of reckless endangerment based on the omission of a duty.

* * *

The State argues that the Craig case serves as the basis in holding that criminal liability can be assessed against a Defendant for the omission of a duty. In Craig, the Defendants were convicted of the involuntary manslaughter of their infant child for failing to obtain proper medical care for their child because of their personally held religious beliefs. Craig v. State, 220 Md. 590, 593, 155 A.2d 684, 686 (1959). The State contends that since the crime of reckless endangerment has been held to constitute a lesser form of gross involuntary manslaughter, that omitted actions which serve as a basis to charge a Defendant with the crime of involuntary manslaughter must also be applicable to charge the Defendants with reckless endangerment. This court disagrees. In Craig, the State was able to prove that under Article 72A, Section 1 of the old Maryland code, that a statutory duty existed for a parent to care for a child, and therefore “inaction” in failing to obtain medical treatment for a child who eventually dies would leave the parents liable for manslaughter. Id. at 596-97. Here, this court finds no case in which any court in Maryland has even construed the definition of “conduct” under the reckless endangerment statute to include an omission.

Assuming for purposes of this argument however, that the Court found that a person may be found guilty of reckless endangerment for failing to perform a legal duty, the court would still need to find evidence that such a duty legally exists. At common law there is no legal duty to assist a person in distress. See Pope v. State, 284 Md. 309, 324-25, 396 A.2d 1054, 1064 (1979). Statutes have affirmatively imposed criminal liability for the failure to act on a duty.... Here, the State would not need to prove at this stage of the proceedings that the Defendants failed to perform a legal duty. The State would only need to show some authority for the proposition that a duty exists, the violation of which renders the Defendants guilty of reckless endangerment. But, this court finds no such evidence that any statutory duty exists in this case.

* * *

In this case, the sole count is based upon an alleged omission of failing to call emergency services in a timely manner rather than the actual commission of any act by the Defendants. Therefore this court finds that the indictment fails to adequately allege or charge the Defendants with a crime, and accordingly dismissal of the indictment is warranted under Md. Rule 4-252.

(Emphasis supplied).

While affirming the decision of the Circuit Court, the Court of Special Appeals stated:

There is no doubt that the Grand Jury's indictments would have been sufficient to allege the commission of a crime if the Grand Jurors had simply followed the formula set forth in section 3-206(d). As can be seen, the indictments set forth each defendant's name, the date of the act, the county, and alleged that the defendant “did recklessly engage in conduct” in violation of section 3-204(a)(1) of the Criminal Law Article. The problem arises because the indictments went on to describe how the State contended that the reckless endangerment statute was violated, i.e., by describing the defendants' passive conduct (failure to call 911 in a timely manner where a duty to make the call existed).

Because the State elected to describe the conduct alleged to be wrongful, the defendants were presented with an opportunity to raise the issue of whether the indictments, as worded, charged them with a crime.

* * *

We agree with the State that there are circumstances (e.g., where the defendant engages in an act of commission) where reckless endangerment has been held to be a lesser included offense of negligent manslaughter. See State v. Albrecht, supra, 336 Md. [475] at 477-78[, 649 A.2d 336, 337 (1994) ]. (proof that shotgun was recklessly held by police officer when it accidently discharged and killed a citizen was sufficient to prove the crime of reckless endangerment and negligent manslaughter). But no case cited by the State stands for the proposition that the statutory crime of reckless endangerment is a lesser included offense to manslaughter in situations where the defendants are accused of passive conduct.

State v. Kanavy, et al., Nos. 3008-3012, September Term, 2007, slip opinion, pp. 2-3, 6-7.

Discussion

I. Respondents' Duty to the Deceased

It is clear that, while the deceased was confined at the Bowling Brook facility, the United States Constitution imposed a duty to provide him with medical care. The due process clause of the Fourteenth Amendment requires the State to provide medical care to injured persons who are in the custody of State agents. Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244-45, 103 S.Ct. 2979, 2983-2984, 77 L.Ed.2d 605 (1983); Buffington v. Baltimore County, 913 F.2d 113, 119 (4th Cir.1990). As the United States Supreme Court stated in DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989):

When the state by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to...