Roary v. State

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Michael Roary v. State of Maryland No. 25, September Term, 2004 CRIMINAL LAW HOMICIDE SECOND-DEGREE MURDER FELONY-MURDER The felonymurder rule in Maryland is the common law rule. The harshness of the rule has been ameliorated by limiting its application to those felonies that are dangerous to human life either because of their inherent nature or by the manner in which the felony is perpetrated, however, the basic rule still applies. We decline to modify the rule by adoption of the merger doctrine which would preclude a felony-murder conviction that had as its underlying felony first-degree assault. CRIMINAL LAW HOMICIDE SECOND-DEGREE MURDER FELONY-MURDER A felony will support a common law second-deg ree felony-murder conv iction if the nature of the crim e itself or the manner in which it was perpetrated is dangerous to human life. CRIMINAL LAW HOMICIDE SECOND-DEGREE MURDER FELONY-MURDER FIRSTDEGREE ASSAULT The first-degree assault committed in the present case, an assault which creates a substantial risk of death, is a dangerous to human life felony that will support a second-degree felonymurder conviction. JURY INSTRUCTIONS When reviewing the adequacy of jury instructions, an appellate court looks at the instructions as a whole. Attention should not be focused on a particular portion of the instructions lifted out of context. DUE PROCESS SENTENCING Although a trial court has broad discretion to fashion an appropriate sentence in a criminal case, the court may not punish a person because he has done what the law allows him to do, including exercising his Fifth Amendment right to remain silent. IN THE COURT OF APPEALS OF MARYLAND No. 25 September Term, 2004 ______________________________________ MICHAEL ROARY v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. Bell, C.J., Raker and Wilner, JJ., Dissent _______________________________________ Filed: February 11, 2005 On August 1, 2 003, Mic hael Roa ry ( R oary ) wa s con victe d of seco nd-d egre e fel onymurder with first-deg ree a ssau lt as th e underlying f elon y, involuntary manslaughter, first and second-degree assault, conspiracy, and transporting a handgun in a vehicle. His conviction is based up on the eve nts of December 27, 2001, in which Roary and three friends chased the victim, Charles Banks, III, and then tripped, kicked, and dropped a boulder on his head twice.1 Mr. Banks died ten months later as a result of injuries sustained during the beating. Roary presents the following questions for our review: 1. Did the trial court err in ruling that f irst-degree as sault is a viable underlying felony for common-law seconddegree felony-murder, and in submitting that count to the jury? 2. Did the tr ial co urt err in its ins tructions to th e jury? 3. Did the trial court co nsider imp ermissible crite ria in imposing sentence? We hold that first-degree assault is a proper underlying felony to support a seconddegree felony-murder conviction. The assa ult for wh ich Roary w as found to have committed qualifies as a dangerous to human life felony pursuant to our holding in Fisher v. Sta te, 367 Md. 218, 786 A.2d 706 (2001), and, therefore, we decline to modify the common law of this State to adopt the so-called merger doctrine. Further, we hold that the trial court neither erred in its instru ctions to the ju ry nor conside red imperm issible criteria in imposing sentence. I. 1 The v ictim s n ame ap pears in the reco rd as bo th Ba nk an d Ba nks. On December 27, 2001, Roary, his cousin Charles Peters, a.k.a. Man, and a friend, Charles Lucas, a.k.a Bootsey, were standing on a corner in B altimore C ity when Bootsey mistakenly identified Mr. Banks as someone who recently robbed him. Bootsey said he was going to get a gun and Man said he would handle it. When the victim left his mother s house across the street, Man chased him around a car, firing several shots at him. Mr. Banks fled w ith the th ree me n chasi ng him . The fourth co-conspirator, Randolph Sheppard, a.k.a. Ink, was standing nearby on Smithson Street in an area k nown a s the bricks . In respon se to a cry to stop Mr. Banks, Ink tripped and began kicking and punching Mr. Banks. 2 Once they arrived at the bricks, Man, Bootsey, and Roary joined in the beating. At one point during the altercation, two of Roary s co-conspirators dropped a two and one-half foot wide and 20-30 pound boulder on Mr. Banks s head.3 According to Roary s first statement to police, Man produced the boulder out of no where and said to watch out [sic] clea r it out and the n [he] ma shed his head with the brick. In a subsequent statement to police, Roary added that after Man dropped the bou lder on Mr. B anks s head, Bootsey picked it up and dropped it on him a second time. Although Roary identified Man and Bootsey as the two who dropped the 2 In a taped statement with the police, Roary stated that it was Man who yelled for Ink to grab him. A nother w itness, how ever, testified a t trial that it was R oary who c alled to Ink. 3 Throughout the record the boulder is referred to as a brick. Based on pictures of the object in evidence, how ever, it is clear the term brick do es not fully describe the object dropped on Mr. Banks s head. We, therefore, adopt the more accurate description of boulder for the obje ct. -2- boulder on Mr. Bank s s head , an eye w itness tes tified tha t it was In k, not B ootsey, who actually dropped the boulde r. Based on the briefs an d trial transcript, the State app ears to have adopted the witness s account of who dropped the boulder. It is undisputed, how ever, that Roary s participation in the actual beating was limited to kicking Mr. Banks in the leg. Following the attack, Roary and Bootsey recovered the gun used by Man while he was chasing the victim around the car. After recovering the weapon, Roary and Bo otsey were picked up in a car by the other two co-defen dants and attempted to leave the area. A police chase ensued, and all of the participants were subsequently apprehended. Ink and Man entered guilty pleas to second -degree m urder and conspiracy to commit first-degree assault. They received 25 years with all but 15 years suspende d. Bootsey s trial was scheduled to begin after Roary s.4 Prior to Roary s trial there were discussions between the State and Roary regard ing his te stifying ag ainst his co-con spirator s. When Roary learned that he w ould ha ve to tes tify in ope n court , he refu sed to d o so. A Baltimore City jury found Roary guilty of second-degree felony-murder in the course of a first-deg ree assault, inv oluntary man slaughter, first a nd secon d-degree a ssault, conspira cy, and transporting a han dgun in a vehicle. Th e jury acquitted Roary of intent to kill second-degree murder and transporting a handgun on his person.5 Roary was sentenced to 30 years on the second-degree fe lony-murder charge, five years consecutive on the 4 The reco rd does no t reflect the ou tcome of Bootsey s trial. 5 Before consideration of the c harg es by the ju ry, the trial court granted a motion for judgmen t of acquittal re garding the first degree m urder cou nt. -3- consp iracy char ge, and three year s concu rrent on the han dgun o ffense . Roary filed a timely appeal in the Court of Special Appeals, however, we granted certiorari on our own motion before consideration of the ma tter in tha t court. Roary v. S tate, 381M d. 674, 8 51 A.2 d 593 ( 2004) . II. Roary s primary argument on appeal relates to his conviction for second-degree felony-m urder. H e argue s that, [f]irst-degree assault, on a theory of intent to inflict serious physical injury und er § 3-202 of the Crim . Law A rt., which is part and parcel of any intentional homicide, is not an underlying felony which sustains a conviction for common law second-degree felony murder. Accordingly, this theory of crim inal h omicide shou ld no t hav e bee n sub mitte d to the ju ry, and the resulting conviction must be reversed. He relies on cases from other jurisdictions which hav e adopted the so-called merger doctrine and urges this Court to do the same. For the reasons expressed herein, we decline to do so. A. Preservation Before consideration of this matter on the merits, we first address the issue of preservation. The State argues that Roary failed to preserve the issue of whether first degree assault is a proper underlying felony for a second-degree felony-murder conviction by failing to object to the issue below. The State notes that Roary s counsel approved both the felony-murder jury instruction and verdict sheet. The State further argues that -4- when they informed the defense and the court that it had prepared a verdict sheet that included a second-degree felony-murder instruction based on Fisher v. Sta te, 367 Md. 218, 786 A.2d 706 (2001), the defense did not object. Roary concedes that at trial, the point was not made quite so clearly, but contends that at the motion for a new trial hearing, defense counsel squarely argued that first degree assault is not a proper underlying felony. Based o n our review of the trial trans cript, we co nclude tha t Roary failed to properly raise the issue of wheth er first-degree assault is a proper und erlying felony for a second-degree felony-murder conviction. Furthermore, we are unable to determine if the issue was squarely raised at the hearing on the motion for a new trial because the transcript of th e hearing w as not includ ed in the rec ord. Nev ertheless, w e choose to exercise ou r discretion to c onsider the issue on ap peal. Md. Rule 8-131(a) provides that an appellate court will ordinarily not decide any issue unless it was raised in or decided by the trial court. We may, however, decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. Md. Rule 8-131(a). In Fisher, we exerc ised our disc retion to consider th e unprese rved issue o f whethe r child abus e is a proper underlying fe lony to suppo rt a conv iction fo r secon d-degr ee felo ny-murd er. Fisher, 367 Md. at 225, 786 A.2d at 710. Although the issue was not raised at trial, we acknowledged that a sentence imposed under an entirely inapplicable statute is an illegal sentence which may be -5- challenged at any time. Fisher, 367 Md. at 239-40, 786 A.2d at 719 (quoting Moosavi v. State, 355 M d. 651, 662 , 736 A.2d 285, 291 (1999)). W e conclud ed that, if the felony murder doctrine has no application to a homicide resulting from child abuse, then the thirty year sentence for murder in the second degree im posed on the petitioners would be similarly illegal, because, by the special verdict, the findings of guilty of murder were based solely on felony murder. Fisher, 367 Md. at 240 , 786 A.2d at 719 . The same rationale ap plies to the case at bar. If first-degree assault is not a proper underlying felony for a second-degree felony-murder conviction, then Roary s sentence of thirty years would likewise be illegal because the sole basis for the second -degree murder co nviction was felony-mu rder, as the jury acquitte d Roa ry of seco nd-deg ree inten t-to-kill m urder. Moreover, if the sentence for second-degree felony-murder constitutes an illegal sentence, Roary could raise that issue on a motion for reconsideration or on a petition for post conviction relief. In either scenario, if Roary did not prevail the case would be subject to an application for appellate review. In the interest of avoiding the expense and delay of another appeal we invoke our jurisdiction to resolve the issue. B. Felony-Murder At common law one whose conduct brought about an unintended death in the commission or attempted commission of a felony was guilty of murder. Wayne R. LaFa ve, Substantive Criminal Law § 14.5 (2nd ed. 2003). The modern felony-murder rule is intended to deter dangerous conduct by punishing as murder a homicide resulting -6- from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill. Fisher, 367 M d. at 262, 78 6 A.2d a t 732. The doctrine rec ognizes tha t in society s judgment, an intentionally committed [felony] that causes the death of a human being is qualitatively more serious than an identical [felony] that does not. Crump & Crum p, In Defense of the Felony Murder Doctrine, 8 Harv.J.L. & Pub. Pol y 359, 363 (1985 ). In Jackson v. State, 286 Md. 430, 408 A.2d 711 (1979), we stated: At commo n law, to which the in habitants of Maryland a re entitled, Md . Const. D eclaration of Rights, A rt. 5, homicide is the killing of a human being by another human being; criminal homicide is homicide without lawful justification or excuse; crim inal homic ide with m alice aforeth ought is murde r; malice aforeth ought i s establis hed, inter alia, upon commiss ion of crim inal homic ide in the pe rpetration of , or in the attempt to perpetrate, a felony. Thus at common law, homicide arising in the p erpetration o f, or in the attem pt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice. Jackson, 286 M d. at 435 , 408 A .2d at 71 4-15 (in ternal fo otnotes and cita tions om itted). See also Camp bell v. State, 293 Md. 438, 441-42, 444 A.2d 1034, 1036-37 (1982) (quoting Jackson with appr oval). To o btain a con viction for f elony-murd er, the State is required to prove the underlying felony and that the death occurred during the perpetr ation of the felo ny. Newton v. State, 280 M d. 260, 2 69, 373 A.2d 2 62, 267 (1977 ). Without proof of the underlying felony, there can be no conviction for felony murder. Hook v . State, 315 Md. 25, 32 , 553 A.2d 233 , 236 (1989). -7- The seminal c ase in M arylan d reg arding comm on la w se cond-de gree felo nymurder is Fisher v. Sta te, 367 M d. 218, 7 86 A.2 d 706. Fisher involved the death of a nine-year-old girl by dehydration and malnutrition as a result of child abuse. Two of the three defendants in Fisher were con victed of se cond-de gree felon y-murder w ith child abuse as the underlying felony. We accepted certiorari to answer the question of whether Maryland law recognizes the common law doctrine of felony-murder in homicides committed in the perpe tration of a f elony other tha n the ones enumera ted in the firstdegree murder statutes.6 Fisher, 367 Md. at 225, 786 A.2d at 710. We answered the question in the affirmative, holding that child abuse of the character and degree described in the eviden ce of this ca se is inheren tly dangerous . Accordin gly, the circuit court did no t err in subm itting to the jury seco nd degre e felony mu rder based upon ch ild abuse. Fisher, 367 M d. at 263 , 786 A .2d at 73 3. See also, D eese v. State , 367 Md. 293, 296, 786 A.2d 751, 752 (2001) (Affirming second-degree felony-murder conviction based on the felony of child abuse and noting that the Court in Fisher held that felony murder in the second degree, predicated on child abuse, or on any other inherently dangerous felony not enumerated in the first degree murder statutes, is a cognizable offense under the com mon la w of th is State. ). The Court in Fisher began by rec ognizing th at the felonie s identified b y the first- 6 At the time relevant to Fisher, the first-degree murder statute was codified at Md. Code (1957 , 1996 R epl. Vo l.), Art. 27 §§ 408 through 410. It is now found at Md. Code (2002) § 2-201(a) of the Criminal Law Article. -8- degree m urde r statute a re no t the e xclu sive felo nies that m ay be a pred icate for f elon ymurde r. Fisher, 367 Md. at 251, 786 A.2d at 726.7 Next, the Court concluded that the felonies that would support a conviction for common law second-degree felony-murder are not li mited to those f elonies that exis ted at co mmo n law. Fisher, 367 Md. at 253-54, 786 A.2 d at 727. L astly, we conc luded that th e underlying f elony must be sufficiently dangerous to life to justify application of the doctrine and that the danger to life of a residual felony is determined by the nature of the crime or by the manner in which it was perpetrated in a given set of circumstances. Fisher, 367 M d. at 263 , 786 A .2d at 73 3. If the felon ious cond uct, under a ll of the circum stances, ma de death a foreseeab le consequence, it is reasonable for the law to infer from the commission of the felony under those circumstances the malice that qualifies the homicide as murder. Fisher, 367 Md. at 262, 786 A.2d at 732.8 We have repeatedly held that under the felony-murder doctrine a participating 7 The enumerated felonies in th e first-degree murder sta tute are: (i) arson in the first degree; (ii) burning a barn, stable, tob acco hou se, wareh ouse, or oth er outbuildin g that: (1) is not parcel to a dwelling; and (2) contains cattle, goods, wares, merchandise, horses, grains, hay, or tobacco; (iii) burglary in the first, second, or third degree; (iv) carjacking or armed carjacking; (v) escape in the first degree from a State correctional facility or a local correctional facility; (vi) kidnapping under § 3-502 or § 3-503(a)(2) of this articles; (v ii) mayhem; (viii) rape; (ix) robbery under § 3-402 or §3-403 of this article; (x) sexual offense in the first or second degree; (xi) sodomy; or (xii) a violation of § 4-503 of the Criminal Law Article concerning destructive d evices. Md. Co de (2002), § 2-201(a)(4) of the Criminal Law Article. 8 In Maryland, the three circumstances when we will imply malice are (1) an intent-todo-serious-bodily-injury murder; (2) depraved -heart murder; and (3) fe lony-murder. Evans v. State, 28 Md.Ap p. 640, 696, 349 A .2d 300, 335 (197 5). -9- felon is guilty of murder when a homicide has been committed by a co-felon. Camp bell, 293 Md. at 442, 444 A.2d at 1037 (citing Stevens v. S tate, 232 Md. 33, 41, 192 A.2d 73, 78, cert. denied, 375 U.S . 886, 84 S .Ct. 160, 11 L.Ed.2d 1 15 (1963 ); Boblit v. State , 220 Md. 45 4, 457, 154 A.2d 43 4, 435 (19 50); Brady v. S tate, 222 Md. 442, 160 A.2d 912 (1960); Shockley v. State, 218 M d. 491, 4 97, 148 A.2d 3 71, 374 (1959 )). Camp bell involved th e question o f whethe r a co-felon could be h eld criminally liable for the dea th of a fleeing co-felon c aused by a p olice office r or the felon y victim. We h eld that, ordinarily, under the felony-murder doctrine, criminal culpability shall continue to be imposed for all lethal acts committed by a felon or an accomplice acting in furtherance of a common design. However, criminal culpability ordinarily shall not be imposed for lethal acts of nonfelons that are not committed in furtherance of a common design. Camp ell, 293 Md. at 451-52, 444 A.2d at 1042. In the present case, the underlying felony is first-degree assault. Section 3-202(1) of the Maryland Code defines the crime of first-degree assault. It provides, in relevant part, that [a] person may not intentionally cause or attempt to cause serious physical injury to another. Md. Code (2002) § 3-202(1) of the Criminal Law Article.9 Serious physical injury is physical injury that: (1) creates a substantial risk of death; or (2) causes permanent or protracted serious: (i) disfigurement; (ii) loss of the function of any 9 Assault in the first degree also prohibits a person from committing an assault with a firearm. Md. Code (2002) § 3-202(2) of the Criminal Law Article. -10- bodily member or organ; or (iii) impairment of the function of any bodily member or organ. Md. C ode (2002) § 3-2 01(c). 10 Applying the Fisher standard to the case at bar, first-degree a ssault would suppo rt a common law second-degree felony-murder conviction if the nature of the crime itself or the mann er in which it was perp etrated wa s dangero us to hum an life. We do not hes itate to hold that first-degree assault is dangerous to human life. The nature of the crime committed, a crime which creates a substantial risk of death, is undoubtedly dangerous to human life. Furtherm ore, the ma nner in w hich the crim e was co mmitted in th is instance, an assault by fou r men that in cluded dro pping a 20 -30 poun d boulder repeatedly on the victim s head, is also clearly dangerous to human life. Based on the standard we enunciated in Fisher and reaffirmed in Deese, first-degree assault is a proper underlying felony to support a second-degree felony-murder conviction.11 10 Assault in the first degree is included as a crim e of violence in the M andatory Sentences for Crimes of Violence statute, Md. C ode (20 02), § 1 4-101 (a)(16) . See other crimes listed therein which constitute crimes of violence by definition. 11 One commentator has suggested: Even accepting some amelioration of the common law doctrine, however, it is clear that there are some felonies in Maryland, not included in the first-degree penalty scheme, which nonetheless involve potential violence and significant threat to life and limb. Should death result from the perpetration or attempted perpetration of any of them, it seems clear that such homicide would be second-degree murder in Maryland by virtue of the common law felon y-murder do ctrine. That category of crime almost certainly would include such dangerous felonies as the forcible abduction of a c hild under 1 2 years of age . . .; first-11- Marylan d is uniq ue in tha t, our co mmo n law b asis for felony m urder . . . distinguishe s our jurispru dence fro m that of sta tes that have adopted a criminal cod e in lieu of the common law crimes. Fisher, 367 Md. at 251 n.10, 786 A.2d at 726 n.10. As recently as 200 1, we reitera ted the fact th at in Marylan d, the felon y-murder do ctrine is the common law rule--defining one of at-least three varieties of implied malice which raises a hom icide resulting from the p erpetration o r attempted p erpetration o f a felony to the murder level generally. Fisher, 367 M d. at 250-51 , 786 A.2d at 725 (qu oting with approva l Evans v. S tate, 28 M d. App . 640, 68 6 n.23, 3 49 A.2 d 300, 3 29-30 n.23 (1 975)). Judge Rodowsky, writing for the Court in Fisher, noted that the common law of felony murder has changed since colonial times, but, in Maryland, it has done so as a matter of comm on law evolutio n and n ot as a re sult of [ legislatio n]. 12 Fisher, 367 Md. at 249, 786 A.2d at 72 4. The ha rshness of the rule has b een ame liorated by limiting its application to those felonies that are dangerous to human life either because of their inherent nature or degree assault . . .; causing abuse to a child . . .; dynamiting property . . .; using a machine gun to perpetuate a crime of violence . . .; poisoning the water supply . . .; derailing a railroad car . . .; an act of sabotage . . .; or perhaps the sale or distribution of a narcotic d rug whe re the user d ies of an overdose, from a bad batch, or from an unexpectedly lethal batch. Judge Charles E. Moylan, Jr., Criminal Homicide Law § 5.1, 108-109 (MICPEL 2002) (emph asis add ed). 12 Our case law recognizes that the changes resulting from Chapter 128 of the Acts of 1809, which d elineated m urder into d egrees for the purpo se of pun ishment, did not alter the common law felony-murder doctrine. See Fisher, 367 Md. at 248-49, 786 A.2d at 724-25 and cases cited therein. -12- by the mann er in which the felony is pe rpetrated; ho wever, the basic rule still ap plies: a criminal homicide committed in the perpetration of or in the attempted perpetration of a dangerous to life felony will supply the element of malice necessary to raise the homicide to the lev el of m urder in this State . Roary, however, urges this Court to adopt the position taken by a number of other state courts which do not permit assault to be an underlying felony in a felony-murder conviction.13 The position is commonly referred to as either the merger doctrine or the collateral-felony doctrine.14 See Missouri v. Williams, 24 S.W.3d 101, 28 (Mo. Ct. App. 2000). 13 See Barn ett v. Alabama, 783 So.2d 927 (Ala.Crim.App. 2000) (holding that felonious assault merges with the ho micide); Arizona v. Essman, 403 P.2d 540 (Ariz. 1965) (holding that a ssau lt with a d eadl y weapon merged with resulting ho micide); Illinois v. Morgan, 718 N.E.2d 206 (Ill. App. Ct.1999) (holding that the conduct constituting the felony must have a felonious purpose other than k illing itself); Kansas v. Fisher, 243 P. 291 (Kan. 1926) (holding tha t the elements of the felony mu st be distinct from the hom icide); Massa chusetts v. Wade, 697 N.E .2d 541 (M ass. 1998) (h olding that the f elon y must be independent of the hom icide); New York v. Wagner, 156 N.E. 644 (N.Y. 1927) (holding that the underlying fe lony must be a n indepen dent crime); Tarter v. Oklahoma, 359 P.2d 596 (Okla.Crim.App. 1961) (holding that the felony must be an independent crime not included in the homicide); Oregon v. Branch, 415 P.2d 766 (Or. 1 966) (hold ing that assau lt is not a proper underlying felony for felon y-murder conviction). 14 The merger doctrine referred to here is not to be confused with Maryland merger law and the req uired evide nce test for d etermining when a lesser include d offens e or, in the case of felony-murder, the underlying felony would merge into the greater offense for sentencing purpo ses. See Newton, 280 Md. at 268, 373 A.2d at 266 ( Thus under both federal double jeopardy principles and Ma ryland merger law, the test for determining the identity of offenses is the required evidence test. If each required proof of a fact which the other does n ot, the of fenses are not th e same and do not me rge. Howe ver, if only one offense requires proof of a fa ct whic h the oth er does not, the offenses are deemed the same and separa te senten ces for each o ffense are pro hibited. ). -13- In California v. Hansen, 885 P.2d 1022 (Cal. 1994), the Supreme Court of California summa rized the do ctrine: Prior to our decision in [California v. Ireland, 450 P.2d 580 (Cal. 1969 )], the merg er doctrine had been develope d in other jurisdictions as a shorthand explanation for the conclusion that the felony-murder rule should not be applied in circumstances where the only underlying (or predicate ) felony committed by the defendant was assault. The name of the doctrine derived from the characterization of the assault as an offense that m erged with the resulting h omicide. In explaining the basis for the merger doctrine, courts and legal comme ntators reaso ned that, bec ause a ho micide ge nerally results from the commission of an assault, every felonious assault end ing in death automatica lly would be e levated to murder in the event a felonious assault could serve as the predica te felon y for purp oses of the felo ny-murd er doctr ine. Conseq uently, application of the felo ny-murder ru le to felonious assaults would usurp most of the law of homicide, relieve the prosecution in the great majority of homicide cases of the burden of having to prove malice in order to obtain a murder conviction, an d thereby frustrate the Legislature s intent to pun ish certain fe lonious assa ults resulting in d eath (those committed w ith malice aforethough t, and therefore punishable as murder) more harshly than other felonious assaults that happened to result in death (those committed without malice aforethought, and therefor punishable as manslaughter). One commentator explains that the merger rule applied to assaults is supported by the policy of preserving some meaningful domain in which the Legislature s careful gradation of homicide offenses can be implemented. Hansen, 885 P.2d at 1028 (internal citations omitted). Citing Hansen, the Supreme C ourt of Tennessee has noted that the merger doctrine has been interpreted by courts as a princip le for di scernin g legisla tive inten t. Tennessee v. Godsey, 60 S.W.3d 759, 774 -14- (Tenn. 2001). 15 In Missouri v. Williams, 24 S.W.3d 101, the intermediate appellate court of Missouri succinctly summarized the logic used by the various jurisdictions that have adopted the merger doctrine: As stated in [Kansas v. Lucas, 759 P.2d 90, 93 (K an. 1988)], the purpose of the [felony murder] statute is to deter those engag ed in fe lonies f rom kill ing neg ligently or a cciden tally[,] and that doctrine should not be extended beyond its rational function which it was designed to serve. Second is the recognition of the fact that, as a practical matter, the vast majority of homicides have their genesis in some type of felonious assault. Given these propositions, various reasons have been given for the doctrine: (1) the application of the felony murder rule would work to eliminate the mens rea requirement for most homicide cases and circumvent the 15 Ireland , 450 P.2d 580 (Cal. 1969), the case often cited b y courts in adopting the merger doctrine, involved the killing at close range of a w ife by her husband. Th e court in Ireland concluded: the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule beyond any rational function th at it is designed to serve. To allow such use of the felony-murder rule would effectively preclude the jury from considerin g the issue o f malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault a category which in cludes the g reat majority of a ll homicides. This kind of bootstra pping find s support n either in logic nor in the law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony wh ich is an integral part of the homicide and which the evidence produced by the pros ecution sho ws to be an offense included in fact within the offense charged. Ireland, 450 P.2d at 590 (internal citation o mitted). -15- legislative gradation system for classes of homicides, including manslaughter. If felonious assault could . . . be used as the predicate felon y for felony murder, every felonious assault resulting in death would be murder, and any lesser offense such as voluntary manslaughter, involun tary manslaug hter, and crim inally negligent h omicide w ould effectively be eliminated. The result would be that the prosecution would not have to prove that the defendant had a specific intent to kill in most murder cases, and (2) the rationale of the merger doctrine is consistent with the purpose of the felony murder rule. Because homicide is usually the result of an assault, and because a felonious assault involves a risk of death, a felon would not be deterred from committing a dangerous and homicidal act for the reason that the felony itself is the homicidal act sought to be deterred.16 Williams, 24 S.W .3d at 11 3-14 (in ternal cita tions an d quota tions om itted). As Williams pointed out, one reason given by courts that have adopted the merger doctrine is the concern that if felonious assault can support a felony-murder conviction then every felonious assault resulting in death would be murder, and any lesser offense such as voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide would effectively be eliminated. Williams, 24 S.W.3 d at 114. In re sponse to this concern, Georgia h as adopted a mo dified version of the felon y-murder doctrine. It precludes a felony-murder conviction only where it would prevent an otherwise warranted verdict o f volun tary mans laughte r. Edge v. G eorgia, 414 S .E.2d 4 63, 465 (Ga. 19 92). 16 The court stated that it was of the opinion that the need for the doctrine is legally well grounded. Williams, 24 S.W.3d at 114. Ultimately, however, the court held that based on the language of the Missou ri felony-murd er statute, the leg islature intend ed for the ru le to apply to all felonies, except m urder a nd ma nslaug hter, incl uding a ssault. Williams, 24 S.W.3d at 117. -16- The court reasoned that the strict liability element of felony murder, which allows the bootsrapp ing of an a ssault charg e to suppo rt a felony mu rder conv iction, is unfair in those instances where the killings otherwise could have been reduced, on the ground of mitigation, to manslaughter. Edge, 414 S.E.2d at 465. Whether Maryland should or needs to adopt a similar modification to the felony-murder rule, however, need not be decide d today a s the fac ts of the case do not rem otely raise t he issue of mitig ation. The acts which co nstitute felon ious cond uct [must] p ossess a suf ficient dang er to human life to justify the application of the felony murder doctrine. Fisher, 367 Md. at 257, 786 A.2d at 730 (quoting Massa chusetts v. M atchett, 436 N.E.2d 400, 410 (Mass. 1982). Here the facts are not in dispute, and they were sufficient for the jury to have found that the assault on the victim was committed under circumstances demonstrating that the participants contemplated that violence was necessary to carry out their common purpose. Thus a reasonable jury could have found beyond a reasonable doubt that Roary s condu ct was i nheren tly dange rous. By applying the felony murder doctrine, our focus is on the conduct of the particip ants in th e perpe tration o r attemp ted perp etration of the u nderlying felony. W e decline to ac cept the inv itation to limit the s cope of th e doctrine s a pplication to o nly those underlying felonies that are inde pendent of the resulting d eath. Moreove r, we are persuaded that the better policy is for the law to provide an additional deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a -17- forese eable ris k of de ath. Fisher, 367 Md. at 256, 786 A.2d at 728-29 (internal citation omitted). W e reaffirm the principle th at a person p articipating in a felony is respo nsible for the n atural an d prob able co nsequ ences o f his or h er crimin al activity. We hold , that an assau lt in the first deg ree, when committed in a mann er inherently dangerous to human life, as in this case, may be a predicate felony for second-degree felony-murder. Thus the trial court did not err in submitting to the jury second-degree felony-murd er based u pon an as sault in the first d egree. W e recogniz e that our rela tively strict adherence to the common law felony-murder doctrine is not favored by a number of other States as explained supra; nothing in our case law or research, however, has persuaded us that the rule in Maryland should be otherwise. III. Jury Instructions Md. Rule 4-325 states in relevant part that [t]he court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate. The decision to give supplemental instructions is within the sound discretion of the trial court and will not be disturbed on appea l, absen t a clear a buse o f discre tion. See Mitc hell v. State, 338 Md. 536, 540, 659 A.2d 1282, 1284 (1995) (internal citations and quotations omitted). When reviewing a jury instruc tion we look to the instru ction as a who le. State v. Foster, 263 Md. 388, 397, 283 A .2d 411 , 415 (1 971), cert. denied, 406 U.S. 908, 92 S.Ct. 1616, 31 L.Ed.2d 818 (1972). In Poole v. Sta te, 295 M d. 167, 453 A.2d 12 18 (1983 ), we stated [i]t is well -18- settled that when objection is raised to a court s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole. Poole, 295 Md. at 186, 453 A.2d at 1228 (quoting Foster, 263 Md. a t 397, 28 3 A.2d at 415) . Roary s first contention is that the trial court erred in instructing the jury regarding felony-murder. Specifically, Roary argues that if first-degree assault is not a proper underlying felony to support a felony-murder conviction, then it was error to give a felony-murder instruction in this case. For the reasons set forth in the previous section, we find no merit in Roary s first contention. Roary s rem aining obje ctions to the ju ry instructions inclu de a com plaint that, assuming the court was correct in giving the felony-murder instruction, the court erred regarding the substance of the felony-murder instruction g iven and in its efforts to cure the problems. Roary argues that when the instructions are viewed as a whole, two prejudicial messages emerge: one of confusion and inconsistency and the other of repetitio n. With regard to the question of confusion and inconsistency, Roary notes that the instruction regarding the felony-murder count given by the court could have been unders tood to mean that felo ny-murd er requ ires no p roof o f crimin al intent a t all. 17 17 Roary cites the following passage from the court s instruction: Now what is being said here I am sorry. A felony murder does -19- Roary raised this objection with the court and the court re-instructed the jury regarding the intent requ irement. Sp ecifically, the cou rt instructed the jury that, [t]raditional, shall we say, murder in the second-degree requires as an element an intention to kill. Felony-murder typically would not require an intent to kill because it was the commission of the felony which substituted, so to speak, for the intent to kill. T he law sa id if you com mitted a mu rder in the course o f a felony, that is m urder and we are go ing to hold you accountable. The difficulty in this case is that the felony in the fe lony-mu rder is as sault in th e first de gree. I did not want you to misunderstand as you consider that charge, assault in the first degree, that you remember it does require pro of of inten t, okay. Now , first-degree a ssault, formally, the D efendan t is charged w ith the crime o f firstdegree ass ault. In order to convict the Defend ant of firstdegree assault, the State must prove all of the elements of second-degree assault and must prove that the Defendant intended to cause the re is that word serious ph ysical injury in the com mission of the assault. What does seriou s physical injury mean? It means an injury that creates a substantial risk of death or causes serious and permane nt or serious a nd protracte d disfigure ment, impairm ent, h arm to the body. Having reviewed the transcript, we hold that the trial court did not err regarding not require the State to probe that the Defendant intended to kill the victim. Now there is a big difference, you see? When I talked about second-degree murder, I said it was the killing of another person w ith either the inte nt to kill or the intent to inflict serious bod ily harm that dea th would be the likely resu lt and it did not require premeditation or deliberation. Now w e are talking about a murder, second-degree murder, which does not require inten t. -20- the felony-murder instruction. Viewed in context, we find it clear that the court was comparing the various forms of second-degree murder alleged in the case, not implying that felony-m urder requ ired no inten t.18 Furthermore, in light of the court s re-instruction quoted above, any confusion in the jury s mind regarding the issue of intent should have been clarified. Roary furthe r objects to the court inform ing the jury that firs t-degree ass ault constitutes se cond-de gree assa ult co uple d with the use of a w eapo n. Accor ding to Roary, this explanation of first-degree assault was erroneous because the assault here in question was of th e intent to inf lict serious ph ysical injury type and n ot the firearm type. Both 18 Immedia tely preceding the quoted instruction above, the trial court gave the jury an instruction on second-degree murder that required the State to prove that the defendant killed another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result. The court then repeated the instruction and explained: Now if you were to find the Defendant not guilty of that second-degree murder as I have just defined it, you would th en turn to second-degree felony-murder. The court continued: The Defendant is also charged w ith the crime of second-degree felony-murder. In order to convict him of that charge, seconddegree felony-murder, the State m ust prove again, this is always, although I w ill not always sa y it beyond a r easonab le doubt and to your unanimous satisfaction that the Defendant or another participating in the crime with the Defendant committed the felony of first-degree assault and I will come back to that and that the Defendant or another participating in the crime killed Mr. Banks; and that the act resulting in the death of M r. Banks occurred d uring the co mmission of the felo ny of firstdegree ass ault. The se ction qu oted by R oary abo ve then follow ed. -21- Roary and the State immediately informed the court of the error, and the court told the jury that first-degree assault could be proven either by use of a weapon or by offensive touching d one with th e intent to cau se serious p hysical injury. The c ourt expres sly told the jury that it shouldn t have given an example of first-degree assault by use of a weapon because there was no weapon alleged by the State to have been used by the Defend ant. Roar y expressed h is objection re garding the instruction fo r a second time in a benc h conf erence follow ing the ju ry instructio ns but b efore th e jury retire d to delib erate. The court obligingly re-instructed the jury that when it previously made reference to a firearm in d escribing firs t-degree ass ault: I recited language from that formal statement of the law that read som ething that m ade som e referenc e to a firearm . Well, I did not mean to suggest to you, and I suspect that unanimously you were not confused, because there is no allegation in this case that a firearm was used to commit the crime of m urder. But a s I was read ing the form al law, I did include that element, which is part of it but not in this case. Assum ing, arguendo, that the jury was confused regarding the elements of first-degree assault, we hold that by re-instructing the jury as it did, the court cleared up any confusion. Thu s, we perceive no e rror. Roary s third basis of error with regard to the jury instructions is that by reinstructing the jury regarding felony-murder and second-degree murder in general, the jury could have been left with the impression that a guilty verdict of second-degree murder was appropriate. Roary points out that the jury was told about second-degree -22- felony-murder three times in the instructions and intent- to-kill second-degree murder twice. The repeated instructions given in the case were given to remove any potential confusio n regarding the intent nec essary for a fe lony-murde r conviction , an instruction to which counsel for Roary had objected as being unclear. Furthermore, Roary cites no cases in sup port of the p roposition th at re-instructing a jury when the initial instructio n is objected to as being unclear or incorrect, is error. On the contrary, Roary begins by acknowledging that it is within the sound discretion of the trial court whether to propound supplemental jury instructions. Again, perceiving no error or abuse of discretion in the court s dec ision to re-instru ct the jury, we fin d no mer it in Roary s third a rgumen t. Roary s final argument regarding the jury instructions is an objection to the trial court s use of examples in explaining the relevant law. Specifically, Roary objects to the court using the example of an unintentional death resulting to a teller during a bank robbery to illustrate felony-murd er, the exam ple of pus hing som eone dow n the stairs to illustrate first-degree assault, and the example of a drug organization to illustrate the concept of conspiracy. Roary cites the case of Fagan v. State, 110 Md. App. 228, 676 A.2d 10 09 (1996 ), in support o f his position that use of ad-libbed e xamples, if prejudicial, m erits reversal. H e argues tha t the exam ples given w ere so far a field as to be confusing and misleading. Fagen, however, is inapposite to the present case. The issue in Fagen arose when -23- the jury sent a note asking for a clarification regarding the term corroboration. Over objections by both the State and the defense, the court had the jury brought back to the court room and gave them examples of corroboration using specific examples from testimo ny and ev idence in the tria l. Fagen, 110 Md. App. at 238, 676 A.2d at 1013. The Court of Special Appeals held that, in providing the jury with specific examples of corroboration from the evidence before it, the trial judge appeared to be favoring testimony of certain witnesses over that of others, and commented on the general weight of the evidence. Fagen, 110 M d. App. at 2 45, 676 A .2d at 1017 . The cou rt conclude d it was unable to declare the error harmless. Id. In the present case, however, the trial court g ave ex ample s of alte rnative w ays in wh ich the c rimes c harged could b e prove n. Although we are of the opinion that the jury instructions regarding the law without the examples was sufficient to inform the jury, we find no reversible error in the examples given by the court. All of the examples given were correct statements of the law and caused no harm to the defendant. We hold that the trial court did not err in its instructions to the jury. IV. Sentencing Roary contends that the trial court impermissibly considered the fact that he refused to testify against his c o-conspira tors in senten cing him in violation of his Fifth Amen dment righ t not to incrim inate himse lf. The State counters th at the argum ent is waived b ecause R oary failed to rais e the objectio n before th e sentencin g court and , if -24- preserved , the argum ent is withou t merit. Although w e find that Roary failed to raise an o bjection below to the trial court s discussion of Roary s failure to testify against his co-conspirators, we nevertheless exercise our right to decide the issue. Md. Rule 8-131(a). Based on our review of the record we hold that the trial court did not consider impermissible sentencing criteria in the instant case. In Jackson v. State, 364 Md. 192, 772 A.2d 273 (2001), Judge Cathell, writing for this Court, summarized our standard for reviewing a criminal sentence: It is well settled that [a] judge is vested with very broad discretion in sentencing criminal defendants. However, [a] judge should fashion a sentence based upon the facts and circumstances of the crime committed and the background of the defendant, including his or her reputation, prior offenses, health, habits, mental and moral propensities, and social backgro und. T he judge is a ccorded th is broad latitud e to best accom plish the obje ctives of sen tencing p unishme nt, deterrence and rehabilitation. It is also well settled that [o]nly three grounds for ap pellate review of a senten ce are recognized in this [S]tate: (1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) wheth er the se ntence is within statutory lim its. Jackson, 364 M d. at 199 -200, 7 72 A.2 d at 277 (interna l citations omitted ). Notwithstanding the Court s broad sentencing discretion, it is equally clear that a trial court may not punish a person because he has done what the law allows him to do, which in this ins tance is e xercise his Fifth Ame ndme nt right n ot to incr iminate himself . See -25- Jennings v. State, 339 Md. 675, 684, 664 A.2d 903, 908 (1995) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, 610 (1978) ( To punish a person because he has done what the law plainly allows him to do is a due process violation of the most ba sic sort . . . . ); Johnson v. State, 274 Md. 536, 542-543, 336 A.2d 113, 117 (1975) ( Thus, in view of what is at stake for one who is charged with a crime, it is impro per to co nclude that a de cision, c onstitutio nally prote cted, no t to plead guilty . . . is a factor which ought to, in any way, influence the sentencing judge to the detriment of the accuse d. ); Ridenou r v. State, 142 Md.App. 1, 16, 787 A.2d 815, 824 (2001) ( The sentencing court plainly erred in taking into consideratio n the appe llant s decision to exercise his Fifth Amendment right to remain silent in sentencing him. ). Roary was an active participant in the crime in question, and there is no indication the State was offering him immunity for his testimony. Roary not only had a right to go to trial and require the S tate to prove his guilt beyond a reasonab le doubt, bu t he also had the right to not incr iminate himself by testifying to even ts that im plicated him in a very serio us crim e. It would, therefore, be error on the part of the sentencing jud ge to consider Roa ry s refusal to testify against his co-defendants in fashioning an appropriate sentence. Roary cites the following co lloquy that occurred during his allocu tion to support his argument that the court held his failure to testify in his co-conspirators trials against him: THE C OUR T: Is your client tes tifying in this other trial? -26- THE S TATE : He is not. MR. CARD IN: I don t know, I mean, there has never been any discussion. I am not sure the o ther one well, I don t know what is going to happen with the other case tomorrow. THE COU RT: So you refused to testify in three cases so far where you know th e truth of w hat took pla ce, accordin g to you anyway. As a consequence of your refusal to testify, two defendants got light sentences and the third defendant is on trial tomorrow. Is that a fair statement or do you think I am wrong? THE D EFEN DAN T: I m saying, I d on t THE CO UR T: R ight, anyth ing e lse th at you wan t to sa y? MR . CAR DIN: I do no t think h e recog nizes it th at way. I think it is THE COU RT: I am sure it is not his perspective. MR . CAR DIN: a ma tter of p ersona l safety or w hateve r. I do not think THE COU RT: You really do not have a right, as far as I am concerned, not to testify if you are not yourself facing charges, you understand. You have an obligation to tell the truth. But I am going to g et THE D EFEND ANT: Y es, sir, I told you the truth, sir. THE C OUR T: I am no t going to dw ell on that po int. THE DEFEN DANT: (inaudible) THE CO UR T: I ju st think it shou ld be said that i f peo ple c ry, so to speak, about the fact if you cry, so to speak, about the fact that your sentence might be heavier than the others, the fact that their se ntences are lighter than you rs is partly -27- because you would not testify against them. Am I being clear? I do not ask you to agree with me, but you understand THE DEFEN DANT: The reason why I don t testify because THE COU RT: Pardon? THE DEFEN DANT: (inaudible) me to testify then, I want I want to be fair for my fa mily and my saf ety. I don t wan t to testify on somebody and then got to worry about me and my fam ily saf ety. THE COU RT: I understand you put your family first, and I recognize that. I do not ask a nybody to be a martyr. THE DEFEN DANT: Yeah, I want to (inaudible) THE C OUR T: But I just th ink it is fair to po int it out, that is all I am saying to you. Anything further that you wish to say to me? THE D EFEND ANT: N o, no, sir. The State argues that the c ourt merely comme nted on the reality that, had Roary agreed to testify in another conspirator s trial, as was discussed prior to trial, he may have been able to nego tiate a lesser sentence. The cou rt did not, however, senten ce Roary more harshly because he was unwilling to testify in his co-conspirators trials. Accord ing to the Sta te s brief, the d iscussion aro se becaus e the trial court h ad repea tedly expressed its concern about the State s sentencing recommendation in light of the fifteenyear sentences being served by Shepherd and Peters, and also inquired about [the judge who sentenced Shepherd and Peters] motivation for the 15-year sentences. After noting -28- the apparent facial injustices of the State s requesting 58 years for R oary when Shep herd and Peters were serving 15 years, the court stated: I concede these va rious motives that this gentleman , Mr. Roary, m ay have h ad in the course of his v arious s tateme nts. But one thing is clear: no o ne would den y that he made it very clear what happened from the get-go, as they say. Having spoken, h e now f inds that the tw o killers are set f ree, so to speak, and he is hoisted on his own, as they say in another language, his own petard. It is an expression. It is an expression meaning that the two killers say nothing and get 25 years 15 years, excuse me and the non-killer speaks the truth an d the St ate seek s 58 years . (State s brief at 29 (citing T. 9/23/03 at 3 1-32)). 19 The State further notes that the sentence Roary received was within the sentencing guidelines and less than the sentence requested by the State.20 The State conclude s by noting that th e court took great care in fashioning Roary s sentence. We agree. Followin g the abov e colloquy, the c ourt took a r ecess to con sider the app ropriate sentence. When the court returned it stated: All right, I have reached a decision in this case. It is an attempt on my part to reconcile the conflicting elements of this sentencing, one of the m ore difficult sentences this court 19 We cite from the State s brief because a complete copy of the transcript from the sentencing hearing, dated September 23, 2003, although referenced by both the State and Roary, is not included in the record. 20 The sentencing g uidelines for Roary s case w ere 20 to 30 years for second-degree felony-murder, 8 to 15 years for c onspiracy to co mmit first-degree assault, and 1 to 5 years for the handgun charge. In consideration of the victim s family s wishes, the State had sought 30 years for the murder conviction, 25 consecutive years for the conspiracy conviction, and 3 years consecutive on the handgun conviction. -29- has had, trying to respect the memory of this decedent and the pain and tu rmoil of the family that has b een cause d by this incredible killing. And at the same time, respect the fact that every defendant has to b e looked at individually and eve ry case has to be look ed at individu ally. The court then discussed the impact that the crime has had on the victim s family, the information contained in the PSI report, and R oary s involvement in the crime . The court stated: What is the truth in this case is that this Def endant, R oary, is not the killer an d cannot b e, in the cons cience of th is court, this judg e, senten ced as if he wa s the kille r when he wa s not. That makes the law topsy-turvey and it makes the law disrespected by the court, and I am not going to do that. On the othe r hand, I also see this De fenda nt as ve ry culpab le. I have made clea r my views on the role that you played, M r. Roary, in this case . I know you hav e danc ed arou nd it. But I have no questio n in my ow n mind tha t you were a f ull participant in the assault on this gentleman, on the victim, for some irrational, stupid street reason known to you and to few others, I susp ect, acting like well, acting lik e you acted is the best way to put it, to chase a man down. Three or four people chasing one person down show s four cowards. **** You have, I think, been as truthful as a person in your circumstances can be, and far more truthful frankly than the defendants that Mr. Yee or Mr. Cardin most often see in these courtroom s. I think that ha s to be taken into accou nt by me in this sentence. I cannot sentence you as requested by the victim s fam ily because I thin k it would be unjust an d it would defy the la w, and it woul d defy th e reality of this case . But I do think you need to be punished severely because the other defendants were less treated, shall we say well, less treated by the court system does not warrant everybody else -30- being tr eated le ss seve rely. That d oes no t make sense e ither. So finding the balan ce here is not easily done. But the co urt will do the best it can since we are all human. The judge then sentenced Roary to a total of 35 years.21 Although we arrive at a different conclusion than the court in Johnson, 274 Md. 536, 335 A.2d 113, we find the case instructive. The issue in Johnson was whether the sentencing court had denied Johnson due process by sentencing him to a longer term based u pon Jo hnson s electio n to stan d trial inst ead of pleadin g guilty. Johnson, 274 Md. at 537 n.5, 3 36 A.2d at 114. Th e Court ac knowle dged a trial co urt s broad d iscretion in fashioning an appropriate sentence but noted that in order to protect the fundamental rights of the off ender there ar e certain restrictio ns on th e court s latitude . Johnson, 274 Md. at 54 2, 336 A .2d at 116-1 17. The trial c ourt may not, f or instance, tak e into consideratio n a crimina l defenda nt s choice to exercise his r ight to require the State to prove at trial h is guilt beyond a reasonab le doubt, or th e rights emb odied in A mendm ents V and VI of the United States Constitution and Articles 21 and 22 of the Maryland Decla ration o f Righ ts. Johnson, 274 M d. at 543, 33 6 A.2d a t 117 and n .5. The dialo g in question in Johnson occurred during the a llocution and immed iately before the court issued its ruling. Specifically, the court stated: If you had come in here after this happened, before the other 21 As previously noted, Roary received a sentence of 30 years on the second-degree felony-murder charge, five years consecutive on the conspiracy charg e, and three years concurrent on the handgun offense. -31- trouble you got into if you had come in here with a plea of guilty and been h onest a bout (it) a nd said , Of c ourse I d id it, which you did, you would probably have gotten a modest sentence, . . . and you would have gotte n out of it. B ut with this attitude that you have you can t receive that kind of treatment. The sentence of the court is that you be confined under the jurisdiction of the Departm ent of Correctional Se rvices for a period of twelve years, to run concurrent with the sentence that you are serv ing in the D istrict of Colu mbia. Ve ry well, that s all. Johnson, 274 Md. at 539-40, 336 A.2d at 115. We concluded in Johnson: In the case now before us, when Judge Powers said if you had com e in here w ith a plea of g uilty . . . you would pro bably have gotten a modest sentence, he indicated that he, at least to some degree, punished Johnson more severely because he failed to plead guilty and, instead, stood trial. Although a reading of the judge s remarks in full does no t necessarily demonstrate that a more severe sentence was imposed, the words jus t quoted m anifest that an impermiss ible consideratio n may well h ave been employed. A ny doubt in this regard m ust be resolv ed in favo r of the def endant. Johnson, 274 M d. at 543 , 336 A .2d at 11 7. This case is unlike the sentencing court in Johnson which stated that the defendant was not going to receive the modest sentence he probably would have had he acknowledged his guilt by pleading guilty, because of his attitude, which in context clearly referred to his refusal to acknow ledge his gu ilt through a g uilty plea. The co urt in the case at bar clearly articulated the basis for its decision, leaving no doubt regarding the -32- factors considered by the court. The court cited the impact the crime has had on the victim s family, the heinous nature of the crime, Roary s personal history, and the extent of Roary s involvement in the crime, as its reasons for sentencing Roary as it did. Based on our rev iew of the record, w e conclud e that the trial co urt properly exe rcised its discretion in s entencing Roary and d id not pena lize him for refusing to testify against his co-conspirators. JUDGM ENT O F THE C IRCUIT COURT FOR BALTIMORE CITY AFFIRM ED. COS TS TO B E PAID BY APPELLANT. -33- IN THE COURT OF APPEALS OF MARYLAND No. 25 September Term, 2004 MICHAEL ROARY v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Raker, J., w hich Bell, C.J. and Wilner, J., join . Filed: February 11, 2005 Raker, J., with whom Bell, C.J. and Wilner, J., join, dissenting: A first degree a ssault that resu lts in death cannot, and should not, serve as an underlying felony for purposes of the felony-murder rule. The Court holds that first degree assault would support a common law second degree felony-murder conviction if the nature of the crime itself or the manner in which it was perpetrated was dangerous to human life. Maj. op. at 11. I disagree. In my view, the felony must be one that is independent of the homicide, and thus necessarily independent of the assault which merges therein, such as rape, burglary, arson , robbery or child abuse. A ccordingly, I resp ectfully dissent. I. Felony-Murder Und oubtedly, the felony-murder doctrine is part of Maryland jurisprudence, both as a matter o f com mon la w and by statute. See Fisher v. State, 367 Md. 218, 247-51, 786 A.2d 706, 724-26 (2001); Md. Code (2002, 2004 Cum. Supp.), § 2-201(a)(4) of the Criminal Law Article (originally enacted by 1809 Md. Laws, Chap. 138, § 3). It has been jus tified in Maryland most recently in Fisher as a deterrent to dangerous condu ct. 367 Md. at 262, 786 A.2d at 732 (stating that The modern version of the rule is intended to deter dangerous conduct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a f elon y, even if the defend ant did not intend to kill ). 1 The felony-murder 1 The felony-murder doctrine has been criticized by some courts and commentators as an anachronistic remnant that operates fictitiously to broaden unaccep tably the scope of murder. The very concept of transferred intent has been criticized as having no proper place doctrine has been described as a highly artificial concept that deserves no extension beyond its required applicati on. People v. Phillips, 414 P .2d 353 , 360 (C al. 1966 ), overruled on other grounds by People v. Flood, 957 P.2d 869, 88 2 n.12 (1998). Today the Court extends the application of the felony-murder doctrine, contrary to the trend around the countr y. While most states have maintained the doctrine, they have limited its application.2 See, e.g, Co mmon wealth v. M atchett, 436 N.E.2d 400, 407-08 n.12 (Mass. 1982) (citing cases a nd statutes); Comm onwea lth ex rel. Smith v. Myers, 261 A.2d 550, 555 (Pa. 1970) (observing that we do want to make clear how shaky are the basic premises on which [the felony-murder rule] rests. With so weak a founda tion, it behoo ves us not to extend it further and indeed, to re strain it within the b ounds it ha s always kno wn ); see also in crimina l law. N elson E . Roth a nd Sco tt E. Sun dby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev . 446, 453-54 (198 5). 2 Some common limitations are that the underlying felony mu st be one w hich is inherently dangerous to human life, that there must a coincidence of time and place (the homicide must occur during the commission of a felony or closely connected thereto by a causal relation), or that the commission of the felony must be the proximate cause of the homicide. See, e.g., Metheny v. State, 359 Md. 576 , 629-30, 755 A .2d 1088, 1117-1 8 (2000); Stebbing v. State, 299 Md. 3 31, 353 -54, 47 3 A.2d 903, 91 3-14 (1 984). See generally 2 Wayne R. LaF ave, Substantive Criminal Law § 14.5 (2d ed. 2003 ). -2- Rollin M. Perkins and Ronald N. Boyce, Criminal Law 70 (3d ed. 1982) (statin g that the rule is somewhat in disfavor at the present time and that courts apply it where the law requires, but they do so grudging ly and tend to restrict its application where circumstanc es permit ). In light of the history of the rule, and the mo dern tre nd and approa ch to crim inal law , I cannot fathom extending this rule. A common limitation of the app lication of the felony-murd er doctrine is the so-called merger doctrine. The merger doctrine, first conceived in the nineteenth century, bars the application of the felony-murder doctrine whenever the underlying felony is an integral element of the homicide. Under the merger doctrine, the underlying felony must be independent of the h omicid e. See Barnett v. State, 783 So.2d 927, 930 (Ala. Crim. App. 2000); State v. Essman, 403 P.2d 540, 545 (Ariz. 1965) (en banc); State v. Strauch, 718 P.2d 613, 625 (Kan. 198 6); State v. Clark, 460 P.2d 586 , 590 (Kan. 1969 ); State v. Shock, 68 Mo. 552, 562 (M o. 1878); State v. Hanes, 729 S.W.2d 612, 617 (Mo. C t. App. 198 7); People v. Moran, 158 N.E. 35, 36 (N.Y. 192 7); Sullinger v. State, 675 P.2d 472, 473 (Okla. Crim. App. 1984). Chief Judge Cardozo s discussion in Moran of the necessity for an independent underlying felony often has been cited and quoted in the New York Court of Appeals and other state courts discussions of the merger doctrine. Moran was convicted of murdering a police officer. The only theory presented to the jury for the murder charge was felonymurder. Id. at 36. In reversing, the court held that the felonious assault resulting in the -3- death could not be the underlying felony for felony murder. The court stated: Homicide is murder in the first degree wh en perpetra ted with a deliberate an d premed itated design to kill, or, without such design, while engaged in the commission of a felony. To make the quality of the inte nt indiffere nt, it is not enoug h to show that the homicide was felonious, o r that there w as a felonio us assault which culminated in homicide . Such a ho lding wo uld mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential. The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, a s, e. g., rob bery or lar ceny or b urglary or rape. People v. Moran, 158 N.E. at 36 (citations om itted). The Supreme C ourt of California addressed the issue of whether assault with a deadly weapon could serve as the predicate felony for a felony-murder conviction in People v. Ireland, 450 P .2d 580 (Cal. 19 69) (en banc). Ireland was charged with shooting and killing his wife. Id. at 582-83. Applying the merger doctrine and requiring an independent felony, the court stated: We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule b eyond any ration al function that it is designed to serve. To allow suc h use of th e felony-mu rder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second de gree felony-murder instruction may not prope rly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in -4- fact within the off ense ch arged. Id. at 590 (citation omitted). Courts have been concerned that the use of felonious assault as a pred icate for f elon ymurder, either in the first or second degree, would result in an obliteration of the different grades of hom icide. Alon g with N ew Yo rk and C alifornia, K ansas also e xpressed th is concern. In Fisher v. Sta te, 243 P. 291 (Kan. 1926), the Kansas Supreme Court rejected assault with a deadly weapo n as a basis for a felony-m urder con viction and embraced the merger rule, stating: This contention cannot be sustained. The effect of it would be to make an y homicide, no t excusable or justified, which by our statute, is defined to be manslaughter in any of the degrees or murder in the second degree, to constitute murder in the first degree. In other wo rds, there cou ld, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree. 243 P. at 293; see also State v. Branch, 415 P.2d 766, 767 (Ore. 1966) (en banc) (observing that in order to preserve the distinctions between degrees of murder and man slaughter, co urts have held that assault merges w ith the killing and cannot be the predicate for felony-murde r). Under th is reasoning , in Maryland, w ithout the m erger doctrin e, all murder w ould at least be second deg ree murder. In the years since Moran, Fisher, Branch, and Ireland, most states considering this issue have adopted some version of the merger rule for first degree assaults resulting in the death of the victim. See Sullinger, 675 P.2d at 473 (noting that The mainstream of cases -5- hold that the felony murder doctrine is not applicable where felonious assault results in death, reasoning that the assault merges into the homicide ); Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App. 1978) (noting that applying the felony murder rule in such instances has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide ). See generally Robert L. Simpson, Annotation, Application of Felony-Murder Doctrine Where the Felony Relied Upon is an Includible Offense with the Homicide, 40 A.L.R. 3d 1341 (2004). The restriction of the application of the felony-murder doctrine to felonies independent of the homicide does not make irrelevant that a death may have occurred during the course of a first degree assault. In Maryland, as in many other jurisdictions, second degree murder may be established by four modalities: (1) specific intent-to-kill murder, (2) intent-to-do-serious-bodily-injury murder, (3) depraved-heart murder, and (4) felony-murder. In my view, in many if not all of the circumstances, the comm ission of a f irst degree as sault, of the dangerous to life variety, particularly one involving violence or the use of force, w ill indicate (1) an intentio n to kill, (2) an intention to cause great bodily harm, or (3) wanton or willful disregard of the likelihood that the natural ten dency of de fendant's be havior is to cause death or great bodily harm (depraved-heart murder). In those circumstances, felony-murder is not necessary to establish the requisite mens rea for murder. As the c ourt noted in People v. Aaron, 299 N.W.2d 304, 320 (Mich. 19 80), It is, therefore, not necessary -6- for the law to imply or for the ju ry to infer the intention to kill once the finder of fact determines the existence of any of the other three mental states because each one, by itself, constitutes the element of malice aforethought. Cf. Harriso n v. State, 382 Md. 477, 508, 855 A.2d 1220, 1238 (2004) (noting that there is little utility in extending the doctrine of transferred intent to inchoate crimes, and rejecting the doctrine of transferred intent under those circumstan ces becau se it is not necessary to make a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim, the purpose for which it was con ceived ) (citation omitted). Fina lly, the purpo rted underlying purpose o f the felon y-murder do ctrine, that of deterrence, is not further ed by permittin g first degree assault to serve a s a pr edic ate f elon y. Fisher makes clear that the primary purpose of the modern felony-murder rule is to deter dangerous condu ct. Fisher, 367 Md. at 262, 786 A.2d at 732. The deterrence purpose underlying the rule has been d escribed as follows b y one commentator: The primary justification offered for the co ntem pora ry felo nymurder rule is deterrence . The doc trine is allegedly designed to save lives by threatening potential killers with the serious sanction for first o r secon d degre e murd er. One deterrent argument holds that the threat of a murder conviction for any killing in furtherance of a felony, even an accidental killing, might well induce a felon to forego committing the felony itself Because it could lead to quite severe punishment, the risk averse might shy away from the entire felonious enterprise. Another argumen t, the more prevalent of the two main deterrent explanations of felony-murder, maintains that the rule is aimed at discouraging certain conduct during the felony, not the felony itself. The goa l is to encourage greater care in the performance of felonious acts. Such care will lower the risks to human life -7- and result in fewer deaths. Still another view suggests that felons who might k ill intentionally in order to complete their felonies successfully will be d iscourag ed by the rule's proclamation that the law will entertain no excuses for the homicide. Calculating felons w ill forego killing because o f their awareness that the chance of constructing a defense that would eliminate or mitigate liab ility is virtually nonex istent and tha t, therefo re, their lik ely fate is a murde r convi ction. James J. Tom kovicz , The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash & Lee L. Rev. 1429 (1994). If indeed the purpose of the felony-murder rule is to deter accidental or negligent killings, how then is the purpose furthered by finding murder when the defendant intentionally commits a dangerous and life threatening assault? Moreover, how is the purpose furthered when the rule is applied, as it must be under Ma ryland law , to an acco mplice w ho m ay not have inflicted the harm pers onally, had no knowledge that the ultimate perpetrator had a deadly weapon, and had no intent to commit murd er? The application of the felony-murder rule and the extension of the doctrine to the case sub judice is particularly disturbing. Roary was charged with murder; the trial court granted Roary s motion for judgment of acquittal on first deg ree murde r and sent se cond deg ree to the jury. The court instructed the jury that second-degree murder is the killing of another person with either the inten t to kill or the inten t to inflict such s erious bod ily harm that w ould be the likely result. The court separately instructed the jury as to second-degree felony murder and subm itted a ver dict s heet to the jury, requesting verdicts on the charge of second degree murder, second degree felony-murder, involuntary manslaughter by gross negligent -8- conduct, and involuntary manslaughter by unlawful act. The jury returned a verdict of not guilt as to second degree murder, but guilty as to felony-murder and both counts of involuntary murder. Roary was sentenced to 30 years for fe lony-murder and five years consecutive for conspiracy. This jury found that Roary did not intend to kill the victim, nor did he intend to inflict grievous b odily harm upon him. It is only by the application, and the extension thereof, of the f elony-murder doctrine that Ro ary was convicted of m urder. 3 II. Preservation I would reject the State s argument that the issue of whether first degree assault may be a predicate for felony-murder was not preserved for appellate review b ecause the issue is one of jurisdiction, and as such, may be raised at any time. Where no cognizable crime is charged, the court lacks fundam ental subject matter jurisdiction to render a judgment of conviction. Williams v . State, 302 Md 787, 792, 490 A.2d 1277, 1279 (1985) (citing Pulley v. State, 287 Md. 406, 415-16, 412 A.2d 12 44, 1249 (1980); Urciolo v . State, 272 Md. 607, 616, 325 A.2 d 878, 88 4 (1974)). Thus, any ac tion taken by a court while it lacks fundamental jurisdiction is a n ullity, for to act without such jurisdiction is not to a ct at all. Pulley, 287 Md. at 416, 412 A.2d at 1249 (citing Fisher, Admrx. v. Demarr, 226 Md. 509, 3 The matter is further com plicated by the f act that Roa ry s liability and acco untability for these crimes is in large part based upon accomplice liability inasmuch as Roary was not the pers on wh o threw the rock or struck the fata l blow. -9- 515, 174 A.2 d 345, 34 8 (1961); Fooks' Executor v. Ghingher, 172 Md. 612, 619, 192 A. 782, 785 (1937); Wickes v. Caulk, 5 H. & J. 36, 42 (1820)). The court has no power in such circumstances to inquire into the facts, to ap ply the law, and to declare the punishment for an offense. Robinson v. State, 353 Md. 683, 702, 728 A.2d 698, 707 (1999) (quoting Williams, 302 Md. at 7 92, 490 A .2d at 1279 as stating M anifestly, whe re no cog nizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction , i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offen se ); see Urcio lo, 272 Md. at 616, 325 A.2d at 884. In the instant case, because first degree assa ult m ay not serv e as a pred icate for f elon ymurder under the merger doctrine, Roary was not convicted of an offense within the jurisdiction of the Circuit Court. His sentence was illegal and the issue may be raised and attacked at any time. The issue of preservation in similar circumstances arose recently in Lane v. Sta te, 348 Md 272, 70 3 A.2d 180 (1 997). We found the matter to be appealable, reasoning as follows: Ordinarily, we would not address an issue not raised in or expressly decided by the trial court. It has long been the law, however, which is now articulated in Maryland Rule 8-131(a), that a challenge to the trial court's subject matter jurisdiction may be raised on appeal even if not raised in or decided by the trial court. This exce ption to the g eneral rule o f preserva tion is based on the premise that a judgment entered on a matter over which the court had no subject matter jurisdictio n is a nullity and, when the jurisdictional deficiency comes to light in either an appeal or a collateral attack on the judgment, ought to be -10- declared so. In this regard, it has now become recognized that a court may not validly enter a conviction on a charge that does not constitute a crime and that the deficien cy in any such judgment is jurisdictional in nature. In William s v. State, 302 Md. 787, 791-92, 490 A.2d 1277, 1279 (19 85), we d eclared it fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute and that where no cogn izable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of convic tion, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment fo r an offense. The argument that attempted rape by a husband of his wife is not a crime g oes to the jurisdictional sufficiency of that part of the indictment and therefore of the conviction, and, accordingly, it is an argument that is pro perly bef ore us. Id. at 278-79, 703 A .2d at 183-84 (citations om itted). In Barnett v. State, 783 So. 2d 927 (Ala. Crim. App. 200 0), the defendant raised the merger doctrine, arguing that he could not be convicted of felony-murder where the underlying felony was first degree assault. The State argued lack of preservation. The c ourt held that the issue was jurisdictional and could be considered by the court, even if the issue was n ot raised by the de fenda nt. Id. at 928- 29. If felony-murder may not be predicated upon the felony of first degree assault, then the senten ce is illeg al. See Fisher v. State, 367 Md. 218, 240, 786 A.2d 706, 719 (2001) (holding that if the felony murder doctrine has no application to a homicide resulting from child abuse, then the thirty year sentences for murder in the second degree imposed on the -11- petitioners would be similarly illegal, because, by the special jury verdict, the findings of guilty of murder were based solely on felony murder ). An illegal sentence may be challenged at any time . Id. at 239-40, 786 A.2d at 719 (quoting Moosavi v. State, 355 Md. 651, 66 2 , 736 A .2d 285 , 291 (1 999)). In my view, the issue raised is jurisdictional, which can be raised at a ny time, and is properly befo re this Cou rt. Chief Judge B ell and Judg e Wilner auth orize me to state that they join in this dissenting opinion. -12-

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