Wooten-Bey v. State

• Decision Date: 01 September 1986
• Docket Number: No. 84,WOOTEN-BEY,84
• Citation: 308 Md. 534,520 A.2d 1090
• Parties: Ronald N.v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 534

308 Md. 534

520 A.2d 1090

Ronald N. WOOTEN-BEY v. STATE of Maryland.

No. 84, Sept. Term, 1986.

Court of Appeals of Maryland.

Feb. 9, 1987.

George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

CHARLES E. ORTH, Judge.

When Ronald Nathaniel Wooten-Bey came before the Circuit Court for Prince George's County to answer the charges of murder and related offenses returned against him, he put himself upon his country. The jury convicted him of conspiring to commit robbery. It found him not guilty of premeditated murder, murder in the second degree, and manslaughter. It was unable to reach a verdict on felony murder, attempted robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence, and the court declared a mistrial as to those offenses. The State sought to retry him on the charges on which the jury had hung. Wooten-Bey filed a motion to dismiss the felony murder charge on the ground that a retrial on that crime would violate the constitutional prohibition against double jeopardy. The motion was denied and he took an immediate appeal from the order of denial. See Evans v. State, 301 Md. 45, 49 n. 2, 481 A.2d 1135 (1984); Bowling v. State, 298 Md. 396, 401 n. 4, 470 A.2d 797 (1984). The Court of Special Appeals affirmed. Wooten-Bey v. State, 67 Md.App. 606, 508 A.2d 1010 (1986). We granted certiorari to determine the propriety of the affirmance by the intermediate appellate court. The question is

whether an accused acquitted by a jury of premeditated murder, second degree murder, and manslaughter, may be retried for felony murder when the jury was unable to agree on a verdict as to that crime, resulting in a mistrial thereon.

I

Wooten-Bey first contends that his acquittal of premeditated murder and the mistrial as to felony murder due to the inability of the jury to reach a verdict bars a retrial on felony murder. His reasoning is straightforward. The Fifth Amendment to the United States Constitution declares that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." ¹ Premeditated murder and felony murder, he claims, are but one offense. Therefore, he urges, because of his acquittal on premeditated murder, another trial on felony murder would violate the Fifth Amendment prohibition by putting him twice in jeopardy for the same offense.

(A)

We first examine the premise on which Wooten-Bey's argument is based--that premeditated murder and felony murder are the same offense.

In Ross v. State, 308 Md. 337, 519 A.2d 735 (1987), McAuliffe, J., speaking for the Court, clearly explained the crime of murder as it exists in Maryland.

Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation. These qualifying malevolent states of mind are: 1) the intent to kill, 2) the intent to do grievous bodily harm, 3) the intent to do an act under circumstances manifesting extreme indifference to the value of human life (depraved heart), or 4) the intent to commit a dangerous felony. Id. at 340-341 (footnotes and citation omitted).

The legislature has divided murder into first degree and second degree and prescribed penalties. Md.Code (1957, 1982 Repl.Vol.) Art. 27, §§ 407-411. Included in the designations of murder in the first degree are murder "perpetrated by ... any kind of wilful, deliberate and premeditated killing ...," § 407, and all murder committed in the perpetration of certain enumerated felonies, §§ 408-410. "All other kinds of murder [not designated as murder in the first degree] shall be deemed murder in the second degree," § 411.

The statutory division of murder into degrees did not create new offenses, "but merely divide[d] the common law crime, and mitigate[d] the punishment in cases of the second degree." Wood v. State, 191 Md. 658, 666, 62 A.2d 576 (1948). Likewise, the statutes designating murders committed in the perpetration of certain felonies to be in the first degree do not create new crimes, but merely serve the purpose of classifying those felony murders as in the first degree. Id. at 666-667, 62 A.2d 576. Furthermore, the legislative establishment of a formula for a short form indictment made applicable to all murder and manslaughter cases, Art. 27, § 616, does not create any new crime, "but merely furnishes a shortened statutory form which may, but need not, be used in lieu of the common law forms." 191 Md. at 667, 62 A.2d 576. In short, the legislative enactments deal with murder "as a general denomination" and leave "[i]ts common law sense ... unimpaired." Davis v. State, 39 Md. 355, 374 (1874). Therefore, we have recognized that "historically, and for some purposes today, all murder is regarded as a single crime." Huffington v. State, 302 Md. 184, 188, 486 A.2d 200 (1985). ² This leads us to inquire whether premeditated murder and felony murder are to be deemed one offense for the purpose of invoking the double jeopardy prohibition in the circumstances of this case.

Initially, we observe that we have made clear that premeditated murder and felony murder do not have identical elements. Huffington, 302 Md. at 188, 486 A.2d 200. We explicated this view in Ross, 308 Md. at 340-341:

Where murder is established, and where it is further shown that the murder was deliberate, wilful and premeditated, this murder is of the first degree. Additionally, the commission of a homicide in the perpetration or attempted perpetration of any of the felonies enumerated in §§ 408-410 constitutes murder in the first degree, but in such case it is not necessary to prove a specific intent to kill or to do grievous bodily harm (footnote and citations omitted).

Thus it is that the crime of first degree murder

may be proved either by showing deliberation, wilfulness and premeditation (premeditated murder), or by showing a homicide committed in the perpetration, or attempted perpetration, of one of the enumerated felonies (felony murder).[ ³ There is but one offense--murder in the first degree--but that offense may be committed in more than one way. Id. at 341 (emphasis in original).

As Ross points out, 308 Md. at 341-342, this was explained in Newton v. State, 280 Md. 260, 272, 373 A.2d 262 (1977), and the explanation was repeated in Huffington, 302 Md. at 188-189, 486 A.2d 200:

[P]roof of the underlying felony is itself an essential element of first degree murder under the felony murder doctrine. As previously discussed, first degree murder requires proof of wilfulness, deliberation and premeditation or proof of a killing during an enumerated felony. The underlying felony is one of two alternative elements of the crime. It is not merely evidence creating a rebuttable presumption that wilfulness, deliberation and premeditation were present. Once the State proves a killing during an enumerated felony, the offense of first degree murder is necessarily established, regardless of any evidence relative to wilfulness, deliberation and premeditation (emphasis in original).

Although premeditated murder and felony murder do not have identical elements, "generally for purposes of the double jeopardy provisions against successive trials or multiple punishments, [they] would be deemed the same offense." Huffington, 302 Md. at 188 and 189, 486 A.2d 200. We gave an example of this general rule:

[I]f a defendant had been prosecuted solely on a theory of premeditated murder, had been convicted or acquitted, and there had been no appeal, the prosecution would not be permitted to prosecute him a second time for the same homicide on a theory of felony murder. Id. at 189, 486 A.2d 200 (footnote omitted).

(B)

The determination whether, in the circumstances of a particular case, premeditated murder and felony murder are within or without the general rule, ordinarily brings into play two settled principles. One is that the double jeopardy clause of the Fifth Amendment prohibits the State from trying a person for an offense after he has been acquitted of the same offense. Huffington, 302 Md. at 187, 486 A.2d 200. See Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Block v. State, 286 Md. 266, 268, 407 A.2d 320 (1979); Pugh v. State, 271 Md. 701, 705, 319 A.2d 542 (1974). The other is that "[w]hen a criminal defendant takes an appeal and succeeds in having his conviction reversed on a ground other than the sufficiency of the evidence, the Fifth Amendment's Double Jeopardy Clause does not preclude a retrial of the defendant on the same charges." Huffington, 302 Md. at 189, 486 A.2d 200. (footnote omitted). This principle was settled almost a century ago by United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In short: "It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal." Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412 (1960). We noted in Huffington, 302 Md. 191 n. 6, 486 A.2d 200:

Where a criminal defendant has been acquitted of one form of murder but convicted of the same killing under another form of murder, and has obtained a reversal of his conviction on appeal, cases in other jurisdictions have generally permitted a retrial so long as the defendant is not retried under the same theory of murder of which he had previously been acquitted (citing cases).

It was under these principles that the Supreme Court decided Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. Green was tried on a charge...