State v. Allen

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In the Circu it Court for C harles Co unty Case No. 08-K-02-000161 IN THE COURT OF APPEALS OF MARYLAND No. 104 September Term, 2004 STATE OF MARYLAND v. JEFFREY EDWARD ALLEN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: June 10, 2005 Jeffrey Edward Allen was convicted of first degree felony-murder in the Circuit Court for Charles County. The Court of Special Appeals reversed his conviction on the grounds that a defendant cannot be found to have committed felony-murder on the basis of a determination that h e for med the in tent t o rob the v ictim only after he inflicted the fatal injuries. Allen v. State, 158 Md. A pp. 194, 857 A .2d 101 (2004). W e granted the State s petition for writ of certiorari to decide the following question: Can a defend ant be fou nd guilty of felony-murder, even if he did not form the intent to steal until after the application of force that resulted in the victim s death, so long as the taking of personal property was part and parcel of the same episode, and if so, did the C ourt of Sp ecial App eals err in reversing Allen s conviction of felony-m urder beca use the court so instructed the jury? State v. Allen, 384 Md. 448, 863 A.2d 997 (2004). We agree with the Court of Special Appea ls and shall af firm the jud gment of that court. I. In the late evening of October 23, 2001, a car pulled up next to respondent Jeffery Edward Allen near the corner of 5th and H Streets, N.W., Wash ington, D.C. Allen w as aware that this neighborhood ( The Stroll ) was a frequent meeting place for men, and he had a pretty good idea of why a car would stop next to him. One or more of the vehicle s three occupan ts asked Allen if he wished to go with them to La Plata, Charles County, Maryland. Allen a greed a nd got i nto the c ar. After stopping to pick up another individual, the vehicle pro ceeded to a residence in La Plata, where it discharged three of the passengers. The driver, John Butler, agreed to meet one of the departing passengers at 9:00 the following morning to attend a funeral. Butler and Allen then continued on to Butler s residence in Port Tobacco, Charle s Cou nty. Butler and Allen engaged in consensual sex and fell asleep on Butler s bed. Allen described the next morning s events three times: in an oral statement to police, in a written statement to police, and in his testimon y at trial. These acc ounts we re relatively consistent with one another. According to Allen, he awoke around 9:00 a.m. and asked Butler if he still planned to attend the fune ral. Butler replied that he did not, which upset Allen because he wanted to leave the house. Butler told Allen to chill out in the kitchen and have a beer. Allen went to the kitchen and opened the refrigerator, in which he discovered a live rat. This discovery increased Allen s desire to leave, and he asked Butler to get up and drive him back to Washington, D.C. Butler remained in bed. In his written statement Allen told police: So I tried again to get him up, and he just wouldn t get up. So I thought I sa w his keys on the stove, so I thought if he heard the keys jingling, and I to ld him I d drive myself o ut of he re, I thought that would make him get up. So I picked the keys up and said that I ll drive this mother fucker out of here myself. So I picked the k eys up and they jingled, and I heard him say wait a minute damm it. And I heard something like some fidgeting or something, so I headed back toward the room where he was. And as I was headed in, he was headed out to where he was. He [had] the blanket draped over his arm . . . and he had it not balled up, but draped over and it was lifted up and he was carrying it like, it wasn t like it was balled up, but it was picked -2- up. And w hen I saw that, I threw the k eys down, w ell I dropped the keys, and looked on top of the refrigerator and saw some knives. I just reached up there and grabbed the knife, then he came at me with his left arm up , under the b lanket. And I went and pushed him, I pushed him back into the room. And his arm was still up like he was trying to grab me or something, he fell down to the bed, and looking up I could still see his arm coming, then I just kep t stabbin g him. . . . So I ran toward the telephone, and remembered him telling me that the telephone was not on. So I ran into the k itche n and pic ked up th e car keys off the floor, ran out the door, and got into the car and drove off. I was scared, I didn t know where I was, and really at the time, what to do. Consistent with this statement, Allen testified at trial that he had not intended to take B utler s car when he jingled the keys or during the ensuing struggle. While looking fo r a place to ca ll the police, Allen lost control of Butler s car and ran it into a ditch. He flagged down a passing motorist, who drove him to a fire station. Finding no one there, the motorist took A llen to a store in Ironsides, Charles C oun ty, where Allen proceede d to call 911 . In his 911 call, A llen reported a slightly different v ersion of e vents vis-à-vis his movements with the car keys: [T]hen he said, well I m not taking you home. So I grabbed the keys, it, which was in the, in the kitchen and I was going outside to the car and he came a t me. Butler died of his injuries, and Allen was indicted by the Grand Jury for Charles Cou nty. He was tried by a jury in the Circuit Court for Charles County for first degree premeditated murder, first degree felony-mu rder, second degree murder, robbery with a dangerous or deadly weapon, robbery, theft, and two counts of carrying a weap on open ly -3- with intent to injure. At trial, the court instructed the jury as follows on the crimes of first degree f elon y-murder and robb ery: There is a statute meaning an enactment of the legislature which says that if you cause or if a murder is caused by your involvement in the commission of any of a list of felonies then that is first degree murder regardless of what your intention was, regardless of whether you were the individual whose act caused the death, period. Regardless of what you intended other than in connection with the commission of that felony. Suffice it to say for our purposes in this case robb ery is one of the felonies on that list. To convict the defenda nt of first deg ree felony-m urder in this case, the State m ust prove th at the defen dant comm itted robb ery, that his project involv[ing] the robbery resulted in the killing of John Butler, it is abbreviated here but the principle applies regardless of how many people are involved, and lastly that the act resulted in death. That is what I was talking about a second ago occu rred during th e com miss ion o f tha t robbery. As I said also felony-murder doe s not require the State to prove that the defendant intend ed the victim s deat h. On[ly] that it resulted from the robbery pr oject. Oka y. Let s talk about robbery, which is on the next page. Ro bbery is the takin g of perso nal property from another person or from his presenc e and his control by force or the threat of force , with inten t to steal th e pro perty. The elements a re pretty simple and straightforward. To convict someone of robbery the Government must prove that the defendant in this case took the car and keys from Mr. Butler or from his presence and control and they have to p rove that he did so by force or the threat of force and that in doing so he intended to steal the prop erty, that is to deprive John Butler of the prop erty. . . . That they intended to deprive him of th e pro perty. . . . Acts inconsistent with the other person s right to own or possess. -4- Because there was a death here we throw in the additional language at the bottom of that page, or the bottom of that other lan guage , even if the intent to steal here was not formed until after the victim had died taking his pr operty thereafter would still be robbery, if it was part and parcel of the same occurrence which involved the death. (Emp hasis ad ded.) Defense counsel objected to the instruction, particularly the italicized portion. The jury convicted Allen of first degree felony-murder, second de gree murder, robbery with a dangerous or de adly w eapo n, robbery, theft, and the two w eapons counts. It found him not guilty of first degree premeditated m urder. The court sentenced Allen to life in prison without the possibility of parole on the first degree felony-murder count, and to a term of imprisonment of thirty years for second degree murder, tw enty years for rob bery with a deadly weapon, and three years for each weapons count, all to be served concurre ntly. 1 Allen noted a timely app eal to the Court o f Spec ial App eals. He argued , inter alia, that the court erroneously instructed the jury that the requisite connection between the use of force and intent to deprive the victim of property was satisfied a s long as the two w ere part and parce l of the sam e occurren ce which involved th e death. A ccording to Allen, the trial court s instruction was an inaccurate statement of the law regarding robbery, which affected his robbery and first degree felony-murder convictions. The State argued that the instructio n was a correc t stateme nt of the law. 1 The court merged the robb ery and theft convictions into the con viction for robbery with a deadly weapon. -5- The Court of Special Appeals reversed Allen s first degree felony-murder conviction. The court held as follows: [A]n afterth ought robber y . . . cannot support a conviction for felony murder. Put another way, appellant could not be found to have committed felony-murder on the basis of a determin ation that he form ed the inten t to rob the vic tim only after he inflicted the fatal injuries. It follows that the court erred by instructing the jury that appellant could be found guilty of felony-murder even if the intent to steal here was not formed until after the victim had died, becau se taking h is property thereafter would still b e robbery, if it was part and parcel of the same o ccurren ce wh ich invo lved the death. *** Because we have no way of knowing whether the jury unanimo usly agreed that appellant formed the intent to rob prior to or while in th e comm ission of the murder, w e cannot su stain the felo ny-murd er conv iction. Allen, 158 Md. App. at 246-47, 857 A.2d at 132. II. In Maryland, in a criminal case, upon request of a party, the trial cou rt is required to instruct the jury as to the law applica ble to the case. See Md. R ule 4-325 (c). The main purpose of jury instructions is to aid the jury in understanding the ca se, to guide the jury s deliberations, and to help the jury arrive at a cor rect verdict. Chambers v. State, 337 Md. 44, 48, 650 A.2d 7 27, 729 (1994). -6- Reduced to its essence, the jury instruction at the heart of this case stated as follows: (1) If a death resulted from the defendant s commission of an enumerated felony, the defendant is guilty of first degree murder regardless of whether he intended to cause the death; (2) Robbery is an enumerated felony; (3) Robbery is the taking of personal p roperty from a person or that person s presence by force or the threat of force, with intent to steal the prop erty; (4) Stealing th e property of a dead victim is robbery even if the intent to steal is not formed until after the v ictim has die d, so long a s the stealing is part and parcel of the same occurr ence w hich inv olved th e death . Under this instruction, th e jury was permitted to find Allen guilty of first degree felony-murder if it concluded that he had intentio nally robbed B utler and tha t Butler s dea th had resulted from the robbery. The jury was permitted to find that Allen had robbed Butler even if it determined that he had formed the intent to steal the car only after Butler s death, in other words, that he had committed what is known as an afterthought robbery. We must determine whether the instruction given in this case correctly stated the law of Maryland as to felony-murder. We answer th at question in the negativ e, and hold that a defendant is guilty of first-deg ree felony-m urder only if the defendant s intent to commit the predicate enumerated felony arises prior to, or concurrent with, the conduc t resulting in death. -7- First degree felony-murder is codified at Md. Code (2002, 2004 Cum. Supp.), § 2201(a) of the Criminal Law Article.2 That section provides, in pertinent part, as follows: A murder is in the first degree if it is: *** (4) committed in the perpetration of or an attempt to perpetrate : (i) arson in the first degree; (ii) burning a barn, stable, tobacco house, wareh ouse, or other outbuilding that: 1. is not parcel to a dwelling; and 2. contains cattle, goods, wares, merchandise, horses, grain, 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 correctiona l facility; (vi) kidnapping under § 3-502 or § 3-503(a )(2) of this article ; (vii) mayhem ; (viii) rape; (ix) robbery under § 3-402 or § 3-403 o f this article; (x) sexual offense in the first or second d egree; 2 Unless otherwise ind icated, all subsequent statutory reference s will be to Md. Code (2002, 2004 Cum. Supp.), Criminal Law Article. -8- (xi) sodomy; or (xii) a violation o f § 4-503 of this article concerning destructive device s. In order to sustain a conviction in this case under § 2-201, the State must prove, beyond a reaso nable d oubt, a robbery or attempted robbery, and a murder committed in the perpetration of or an attempt to perpetrate a robbery or attempted robbery. The question of whether a felony committed as an afterthought to a killing may be the predicate for a felony-murder has been considered by ma ny courts a roun d the country. The majority view is that in order for a conviction for felony-murder to be sustained, the defendant must have intended to commit the underlying felony at the time the killing occ urs. Unde r the majority view, there can be no felony-murder conviction when the felony occurs as an afterthought following the killin g. See e.g., United States v. Bolden, 514 F.2d 1301 , 1309 (D.C. Cir. 1975); Ex parte Johnson, 620 So. 2 d 709, 71 3 (Ala. 199 3); Grigsby v . State, 542 S.W.2d 275, 280 (Ark. 197 6); People v. Ainswo rth, 755 P.2d 1017, 10 37 (Cal. 19 88); People v. Brannon, 486 N.W.2d 83, 85-86 (Mich . Ct. Ap p. 1992 ), app. denied, 495 N.W.2d 38 4 (Mich. 1992 ); State v. Montgomery, 215 N.W.2d 881, 884 (Neb. 19 74); People v. Joyner, 257 N.E.2d 26, 27 (N.Y. 19 70); Commonwealth v. Legg, 417 A.2d 1152, 115 4 (Pa. 198 0); State v. Buggs, 995 S.W.2d 1 02, 106 (T enn. 1999 ); Robertso n v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). Although the State need not prove that the defendant intended to comm it murder, it must establish that the defenda nt intended to comm it the predica te felony. Un derlying this -9- requirement is the purpose of the modern felony-murder rule. The purpose underlying the modern felony-murder rule is one of deterrence; the rule is intended to deter dangerous conduct by punishing as a first degree murder a homicide resulting from dangerous conduct in the perpetration of a felony, ev en if the defen dant did not inten d to kill. See Roary v. State, 385 Md. 21 7, 226-27, 867 A .2d 1095, 1100 (2 005). As one co mmentator has explained: The primary justification offered for the c onte mpo rary felon ymurder rule is deterrence . The doc trine is allegedly designed to save lives by threatening potential killers with the serious sanction for first or second degree murder. 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 discourag ing certain conduct during the felony, not the felony itself. The goal is to encou rage greater care in the performance of felonious acts. Such care will lower the risks to human life and result in fewer deaths. Still another view suggests that felons who might kill intentionally in order to complete their felonies successfully will be discouraged by the rule s proclamation that the law will entertain no excuses for the homicide. Calculating felons will forego killing because of their awareness that the chance of constructing a defense that would eliminate or mitigate liability is virtually nonexiste nt and that, 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 W ash. & Lee L . Rev., 1 429, 14 48-49 (1994 ). See also Kevin -10- Cole, Killings During Crime: Toward a Discriminating Theo ry of Strict Liab ility, 28 Am. Crim. L . Rev. 7 3, 96-9 7 (199 0). The minority view holds that a killing may be a felony-murder where the intent to commit the underlying felony arises after the victim is dea d, so long a s there is a con tinuity of action to constitute one co ntinuo us trans action. See State v. Williams, 660 N.E.2d 724, 732-33 (Ohio 19 96); Hightow er v. State, 901 P .2d 397 , 402 (W yo. 1995). Som e courts adhering to this broad view apply a res gestae theory, reasoning that if the act causing the death is part and parcel of the sa me o ccur renc e or trans actio n as the fe lony, t hen a fel onymurder convic tion is pr oper. See Perry v. State, 853 P.2d 198, 20 0 (Okla. Crim. A pp. 1993); Haskell v. Comm onwea lth, 243 S .E.2d 4 77, 482 (Va. 19 78). See also F rancis v. State , 463 S.E.2d 859, 860-6 1 (Ga. 1995). The minority view was adopted by the Court of Special A ppeals in Higginbotham v. State, 104 Md. App 145,158-59, 655 A.2d 1282, 1288 (1995). The Higginbotham court s holding was based on its reading of Stebbing v. State, 299 Md. 33 1, 473 A.2d 90 3 (1994), that a robbery conviction is proper if th ere be forc e followe d by a taking w ith intent to steal as part of the same general occurrence or episode, as well as a finding that the Maryland felony-murder statute contain s no explicit re quiremen t that the intent to commit the underlying felony must exist prior to the commission of the act causing the death of the victim. Id. at 158-59, 655 A.2d at 1288-89. This Court disapproved of Higginbotham in Metheny v. State, 359 Md. 576, 755 A.2d 1088 (2000), wherein we stated that [w]e believe -11- Higginbotham went too far in stretching the scope of the felony-murder doctrine beyond its traditional foundation in Maryland and that it perhaps misconstrues Stebbing. Id. at 631 n.23, 755 A.2d at 1118 n.23. We disagree with Higginbotham and he reby ove rrule it. The Supreme Court of Tennessee explained the split in authority and the logical inconsistency of the minority view in light of the deterrence and malice rationales of the felony-murder rule as follows: Where the killing precedes the commission o f the fe lony, . . . there is a split of authority between the various jurisdictions as to whether intent to commit the felony must exist concurrent with the commission of the homicide, or whether intent formed after a killing is nonetheless sufficient to bring a case within the felony-murder rule. The prevailing view is that in order for the felony-murder doctrine to be invok ed, the actor m ust intend to c ommit the underlying felony at the tim e the killing occurs; there is no felony-murder where the felony occurs as an afterthought following the killing. The rationale for the felony-murder rule underlies the requirement of intent in [th ese] jurisdiction s. As we stated in State v. Kimbrough, 924 S.W.2d 88 8 (Tenn.1996): One of the original purposes of the felony-murder rule was to deter the commission of certain felonies in a dangero us or violent w ay. Felony murder differs from other forms of murder because it holds the actor strictly accountable even where the killing is unintended. *** -12- If an accused had no intent to commit the underlying felony at the time of the killing, the basis for the felony-murder rule does not apply. A minority of jurisdictions, however, hold that a killing will constitute fe lony m urder even if the intent to commit the underlying felony arises af ter the murd erous act, if there is a continuity of action so as to constitute one continuous transaction. These latter c ases tend to apply a res gestae theo ry; if the act causing death is part and parcel of the same occurrence or episode as the felony, then a felony-murder conviction is justified. Particu larly with respec t to robbery-murder, if the act causing the death of the victim also constituted the element of force in the robbery, then the act of murder is con sidered a part of th e underlying f elon y. We agree with the majority position. Given the fact that the felony-murd er rule is a legal fiction in which the intent and the malice to commit the underlying felony is transf erred to elevate an unintentional killing to first-degree murder, w e are reluctant to extend the doctrine to inc lude cases in which there was no intent to c ommit the felony at the time of the killing. Thus, in a felony-m urder case , intent to com mit the underlying felony must exist prior to or concurrent with the commission of the act c ausing the dea th of the victim. State v. Buggs, 995 S.W.2d 10 2, 106-07 (Tenn . 1999) (citations omitted). Comm onwea lth v. Legg, 417 A .2d 115 2 (Pa. 1 980), also reflects th e ma jority, narrow view.3 In that case, the Supreme Court of Pennsylvania stated as follows: When an ac tor engages in one of t he statuto rily enumerated felonies and a killing occurs, the law, via the felony-murder rule, allows the finder of fact to infer the killing was malicious from 3 The facts of Legg are strikingly similar to those in the instant case. Howard Legg and his victim Jam es Bell rode around in Bell s car w ith several other men be fore returning to Bell s home for con sensua l sex. Legg then stabbed Bell to death and drove off with the car. Legg, 417 A.2d 1153-54. -13- the fact that the actor engaged in a felony of such a dangerous nature to human life because the actor, as held to a standard of a reasonab le man, kn ew or sho uld have k nown th at death might result from th e felony. Ad ditionally, a greater p enalty is imposed for murder of the second degree or felony murder, than that imposed for murder of the third degree even though the latter also is malicious. In so providing, the law seeks to add a greater deterrent to engaging in particularly dangerous felonies. But, where an actor kills prior to formulating the intent to commit the u nderlying felo ny, we cannot say the actor knew or should have known death might occur f rom invo lvement in a dangerous felony because no involvement in a dangerous felony exists since the intent to commit the felony is not yet formulated. Also, the greater deterrent is not necessary, and the rule has no app lication. Id. at 1154 (citations omitted). We agree with the majority view expressed by the courts of this coun try. In order to sustain a conviction for felony-murder, the intent to commit the underlying felony must exist prior to or concurrent with the performance of the act causing the death of the victim. An afterthought felony will not suff ice as a predicate for felony-mu rder. Application of the felony-murder rule where the intent to commit the felony arises after the conduct resulting in death conflicts with a primary theoretical underpinning of the rule. A murder is a malic ious killing; it is the mental state of malice that transforms a homicide into the crime of murder. Under the felony-murder rule, the malice involved in the underlying felony is permitted to stand in the place of the malice that would otherwise be required with respect to the killing. Judge Charles E. Moylan, Jr., has explained the theo ry and its history as f ollows: -14- The common law felony-murder doctrine solidified in th e late 1500's and very early 1600's as the expression of one of the forms of implied malice. To constitute murder at that time, it was necessary that a homicid e be comm itted with m alice, to wit, with an intent to kill. In its earlier manifestation, the notion was that the intentio nal perpetra tion or attem pted perpe tration of a life-endangering felony implied the intent to kill so as to make any homicide resulting from the felony or attempted felony an instance of mu rder. Our current analysis, of course, is that the intended perpetration of the felony is an independent murderous mens rea, should death result, and is just as blameworthy and just as worthy of punishment as murder as would b e the specif ic intent to kill. It is not the case that these mental states imply malice; it is rather the case that they are malice by defin ition. The transformation from an evidentiary phenomenon to a substan tive phe nome non did not alter the end result. Charles E. Mo ylan, Jr., Criminal Homicide Law § 5.1 at 105 (2002) (quoting Evans v. S tate, 28 Md. App. 640, 700, 349 A.2d 300 (1 975), aff d, 278 Md. 197, 362 A.2d 629 (1976). The felony-murder rule has been justified because the defendant is acting maliciously at the time he kills, even if the object of his malic e is unrelated to the victim s death. But where the fatal blow is struck without any contemporaneous intent to commit the underlying felony, the mens rea is absent, and thus, the theoretical foundation for the felo ny-murder ru le is absent. In addition, as we have discussed supra, the deterrence justification underlying the rule is to cause felons to ex ercise more care while committing dangero us felonies so as to avoid killing someone. If the victim is dead when the intent to commit the felony is formed, the deterrent purpose underlying the rule cannot be served. Our holding today also resolves a question we raised but did not answer in Metheny v. State, 359 Md. 576 , 755 A.2d 108 8 (2000). In Metheny, a capital case, we construed the -15- Maryland death penalty statute, then found at Md. Code (1957, 1996 Repl. Vol., 1999 Cum. Supp.), Art. 27 § 413(d)(10), currently codified as § 2-303(g)(1)(x) of the Criminal Law Article, and considered w hether the evidence su pported the finding o f the statutory aggravato r of robbe ry. Section 2-30 3(g)(1) pro vides, in pertin ent part: In determining a sentence under subsection (b) of this section [Imposition of death penalty Sentencing proceeding], the court or jury first shall consider whether any of the following aggravatin g circums tances exists b eyond a reaso nable dou bt: *** (x) the defendant committed the mur der while committing , or attempting to comm it: *** 4. robbery under § 3-402 or § 3-403 of this a rticle. The evidence in Metheny indicated that the consummated crime of murder occurred before the intent arose to deprive perm anently the victim of her clothing and purse, i.e. that the predicate felony aggravator, robbery, was an afterthought to the murder of the v ictim. Metheny, 359 Md. at 618, 755 A.2d at 1111. We held that Metheny had not murdered the victim while committing, or attempting to comm it a robb ery within the me aning o f § 2-3 03. Id. at 615, 755 A.2d at 1109. We reasoned as follows: [A]s a matter of statutory interpretation, . . . the General Assembly s use of the phrase while committing or attempting to commit . . . conveys a legislative intent that a murder, in order to qualify for punishment by death, must have been -16- connected to the aggravating crime by more than mere coincidence, therefore eliminating from death pen alty consid eration a robber y comm itted as a n afterth ought. Id. at 618, 755 A.2d at 1111. We noted in Metheny that we were not presented with, and thus shall not decide, the question whether an afterthought to commit a felony, specifically the intent to rob indisputably formed after a murder, is encompassed by the felony-murder rule and thus may underlie a felony-murder conviction. Id. at 623, 755 A.2d at 1114. Nonetheless, as guidance to assist us in as certaining the meaning of the statuto ry language committin g or attempting to commit, we looked to cases around the country interpreting the felony-murder rule and the interpretation of the language perpetrating. We concluded that committing and perpe trating have si milar, if n ot synonym ous me anings . Id. We quoted from and cited with approva l those ca ses a roun d the country th at em brac ed th e ma jority v iew of felon ymurder that there can be no felony-murder where the felony occurs as an afterthought following the killin g. Id. at 620-26, 755 A.2d at 1112-16. For purposes of capital murder, we then held that [b]ecause the intent to steal was formed after the murder, a rational trier of fact could not have found that Appellant murdered Ms. Magaziner while committing the robber y. Id. at 631, 7 55 A.2 d at 111 9. The question of whether the defendant had the intent to kill at the time of the taking is usually a jury question and the jury may infer from the facts and circumstances that a robbery began when the accused attacked the victim. In the instant case, there was evidence -17- from which, if b elieved, a jury co uld have c oncluded that the rob bery i n this case was committed as an afterthought to the killing. Under the instructions given at respondent Jeffrey Allen s trial, the jury could have convicted Allen of first degree felony-murder even if it determined that his intent to steal John Butler s car arose only after Allen had stabbed Butler. Re sponden t is entitled to a ne w trial. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY CHARLES COUNTY. -18-