State v. Jones

• Decision Date: 24 February 2017
• Docket Number: No. 52, Sept. Term, 2015,52, Sept. Term, 2015
• Citation: 155 A.3d 492,451 Md. 680
• Parties: STATE of Maryland v. Tyshon Leteek JONES
• Court: Court of Special Appeals of Maryland

451 Md. 680

155 A.3d 492

STATE of Maryland

v.Tyshon Leteek JONES

No. 52, Sept. Term, 2015

Court of Appeals of Maryland.

February 24, 2017

Daniel J. Jawor, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Glen Burnie, MD), on brief, for petitioner.

John N. Sharifi, Assigned Public Defender (Law Offices of John N. Sharifi, Rockville, MD), on brief, for respondent.

Barbera, C.J., Greene, Adkins, McDonald, Watts, Lynne A. Battaglia, (Senior Judge, Specially Assigned), and Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Opinion by Raker, J.

In this interlocutory appeal, we must review this hydra headed case¹ involving double jeopardy, felony murder, second-degree murder, lesser included offenses and first-degree assault as a predicate for second-degree felony murder. The Court of Special Appeals held that after respondent, Tyshon Leteek Jones, was acquitted in jury trial number one of first-degree premeditated murder, second-degree specific-intent murder, robbery with a dangerous weapon, and robbery, he could not be tried in a subsequent trial for felony murder based upon first-degree assault because the re-trial was barred by the Double Jeopardy Clause of the United States Constitution. Jones v. State , 222 Md.App. 600, 619, 114 A.3d 256, 267 (2015).² We granted the State's petition for writ of certiorari, State v. Jones , 444 Md. 638, 120 A.3d 766 (2015), and following briefing and argument on January 12, 2016, on our own initiative, we asked the parties to brief and argue the following additional question:

"In deciding this case, should the Court re-consider its holding in Roary v. State , 385 Md. 217, 226–36, 867 A.2d 1095, 1100–6 (2005), as to whether first-degree assault may serve as a predicate for second-degree felony murder?"

State v. Jones , No. 52, 2016 Md. LEXIS 296 (May 20, 2016). We shall affirm the judgment of the Court of Special Appeals, overrule Roary v. State , 385 Md. 217, 867 A.2d 1095 (2005), and hold that first-degree assault may not serve as a predicate for second-degree felony murder when that assault is not collateral to the lethal act. We therefore reach the same result as the Court of Special Appeals, but not on the basis of double jeopardy.

I.

The Grand Jury for Montgomery County indicted Tyshon Leteek Jones with the offenses of first-degree premediated murder, robbery with a dangerous weapon, and use of a firearm in the commission of a crime of violence or felony. He proceeded to trial before a jury and the jury returned a verdict of not guilty to the charges of first-degree premeditated murder, second-degree specific-intent murder, robbery with a dangerous weapon, and robbery. The jury was unable to agree as to first-degree felony murder and use of a firearm in the commission of a crime of violence or felony, and the court declared a mistrial as to those counts.³ Thereafter, the State sought to prosecute Jones for second-degree felony murder predicated on first-degree assault. Respondent interposed a plea of double jeopardy, which the court denied.

Respondent noted an interlocutory appeal to the Court of Special Appeals, which reversed on double jeopardy grounds. Jones, 222 Md.App. at 619, 114 A.3d at 267. We granted the State's petition for certiorari,⁴ and as indicated above, determined to re-reconsider our holding in Roary v. State , which is the foundation and predicate for petitioner's charge for second-degree felony murder based on first-degree assault. Inasmuch as petitioner was acquitted in his jury trial of first-degree intentional murder, and second-degree intent to inflict serious harm murder, the only basis remaining for the State to proceed in a second prosecution was on second-degree felony murder based upon first-degree assault.

II.

We adopt the facts as set out by the Court of Special Appeals, as follows:

"Shortly before midnight on August 20, 2010, Julian Kelly was beaten, robbed, and shot by a group of men while on his way home from work. This criminal episode began when, according to witnesses, Kelly was surrounded by ‘maybe ... five’ men who began ‘kicking and punching’ him, upon his refusal to surrender his backpack and necklace. After he was knocked to the ground, one of Kelly's assailants stood over him and shot him five times, three times in the torso and twice in the head, wounds

from which Kelly died several weeks later.

Identified as one of Kelly's assailants, Jones was tried before a jury, in the Montgomery County circuit court, for his purported participation in Kelly's robbery and murder. At trial, the State advanced two different theories of the role Jones played in the perpetration of those crimes. The first theory alleged that Jones, although not a participant in the robbery and the beating, shot Kelly after mistaking him for someone else. The second suggested that Jones had, in fact, participated in both the robbery and the beating and had shot Kelly when Kelly had refused to relinquish his belongings. In response, Jones, who did not testify at trial, attempted to establish through the testimony of several witnesses that he had merely been a bystander to the incident and that it had been one of Kelly's assailants, not he, who had fired the fatal shots.

At the close of evidence, the court instructed the jury on first-degree murder, first-degree felony murder, second-degree murder with the intent to inflict serious bodily harm , armed robbery, robbery, and the use of a firearm in the commission of a felony or a crime of violence. With respect to first-degree felony murder, the court instructed the jury that, in order to convict Jones of that offense, it must find that Jones murdered Kelly ‘during the commission’ of an underlying felony and that, here, the underlying felony could have been either armed robbery, robbery, or assault in the first degree.

Section 2–201(a)(4) of the Criminal Law Article states that a murder ‘is in the first degree’ if it is ‘committed in the perpetration of or an attempt to perpetrate’ a number of enumerated felonies. Although robbery and armed robbery, two of the three offenses the court below included in its instructions, could underlie a finding of first-degree felony murder, first-degree assault cannot. Thus, both Jones and the State agree that that portion of the circuit court's instructions was an incorrect statement of the law.

The jury found Jones not guilty of first-degree murder, second-degree murder with the intent to inflict serious bodily harm , robbery, and armed robbery. But, as previously noted, it was unable to reach a verdict on the charges of first-degree felony murder and the use of a handgun in the commission of a felony or a crime of violence. When Jones moved for a mistrial with respect to those charges, the court granted that motion.

The State then informed Jones of its intention to retry him on the two verdictless counts, that is, first-degree felony murder and the use of a handgun in the commission of a felony or a crime of violence. Jones responded by moving for a judgment of acquittal as to the first-degree felony murder charge, asserting that, since first-degree assault was not a ‘predicate felony’ for a charge of first-degree felony murder, his acquittal on the charges of robbery and armed robbery meant that there was no felony that could serve as the underlying offense for the charge of first-degree felony murder. While conceding in its opposition to Jones's motion that it could not retry Jones on first-degree felony murder, the State insisted that it could retry him on the charge of second-degree felony murder based on first-degree assault because, though first-degree assault is not an underlying felony for a charge of first-degree felony murder, it can serve as an underlying felony for a charge of second-degree felony murder.

After the court, at the hearing that ensued on Jones's motion, granted a judgment of acquittal as to first-degree felony murder, it turned to the State's request to retry Jones on the charge of second-degree felony murder based on first-degree assault . Jones asserted that the constitutional prohibition against double jeopardy barred the State from proceeding on such a charge. The circuit court, however, flatly rejected that claim. It stated that second-degree felony murder based on first-degree assault was a ‘viable’ charge as it arose ‘out of the facts of this case’ and because Jones had ‘not been acquitted’ of it or of the underlying offense of first-degree assault. Consequently, the court declared that ‘double jeopardy would not bar the prosecution’ of Jones on the charge of second-degree felony murder based on first-degree assault ."

Jones, 222 Md.App. at 605–08, 114 A.3d at 259–60 (internal footnotes omitted).⁵

III.

We address first the State's jurisdictional argument presented in its supplemental brief, asserting that this Court does not have jurisdiction to reconsider Roary v. State in this case because this appeal comes before the Court pursuant to the collateral order doctrine as an interlocutory appeal. As such, the State argues, we are restricted narrowly in considering that Order, which does not include re-considering Roary v . State , and that a question outside of our interlocutory jurisdiction cannot be appended to one that is within the Order.

Respondent argues that this Court has jurisdiction to reconsider Roary v. State because the question of whether second-degree felony murder predicated on first-degree assault is a cognizable crime in Maryland underlies—and its abrogation would solve—the double jeopardy question sub judice . In other words, the double jeopardy issues in this case exist because Roary v. State created them; whether assault with a firearm can serve as a predicate for second-degree felony murder is an issue of first impression; the question of whether to overrule Roary v. State is integral to the double jeopardy question; and its abrogation would resolve the double jeopardy issues that conferred jurisdiction in the first place.

We hold that...