Legal Opinions - Maryland Court of Special Appeals: October 20, 2008

Daily Record, The (Baltimore), Oct 20, 2008

After Myers and Goldsberry fled the scene, Braxton ran to Chamberlain and saw blood coming from his head. Unsure of what to do, Braxton got in her car and left the scene. As she drove around, Goldsberry called her, asked if she had gone to the police, and requested that they meet. Braxton declined Goldsberry's request to meet, and went to the police two days after the incident.

Following his indictment and a jury trial in circuit court, Goldsberry was convicted of second-degree felony murder, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and conspiracy to commit second degree murder.

Goldsberry appealed his conviction to the Court of Special Appeals, which reversed.

LAW: In Maryland, the existence of second-degree felony murder predicated on felonies not delineated in the first-degree murder statute is well-established. See Fisher v. State, 367 Md. 218, 251 (2001).

The Criminal Law Article delineates four categories of first- degree murder: (1) a deliberate, premeditated, and willful killing; (2) murder committed by lying in wait; (3) murder committed by poison; and (4) murder committed in perpetration of, or an attempt to perpetrate, an enumerated felony. CL [section]2-201(a). Murder of a type not listed in [section]2-201(a) is in the second degree. Id. [section]2-204(a).

Though not set out in the statute, the Court of Appeals has defined four types of second-degree murder: (1) a murder with intent to kill, but without the premeditation and deliberation required for first degree murder; (2) a killing with intent to inflict such serious bodily harm that death would be the likely result; (3) a depraved heart murder; and (4) a murder committed in perpetration of a felony other than those enumerated in the first-degree murder statute. See Thornton v. State, 397 Md. 704, 721-22 (2007).

In Fisher, the Court of Appeals was asked to consider whether child abuse, a nonenumerated felony, could be a basis for applying the felony murder doctrine. Id. at 225. The Court reviewed the history of the statutory scheme dividing murder into degrees and found that its purpose was limited to creating different grades of punishment, and that it had no effect on the felony murder doctrine as it operated at common law. Id. at 249-51.

The Fisher Court went on to conclude that second-degree felony murder was not limited to common law felonies, but instead included felonies creating a danger to life either by their inherent nature or the circumstances of their commission. Accordingly, the Court held that child abuse, or any other inherently dangerous felony not enumerated in the first-degree murder statute, was a proper predicate for second-degree felony murder. Id. at 263.

CL [section]2-201(a)(4) functions after-the-fact to penalize murders committed in the course of the enumerated felonies as murders in the first degree. See Fisher, 367 Md. at 251. A felony not listed in [section]2-201(a)(4) will nonetheless support felony murder in the second degree if the underlying felony is sufficiently dangerous to life, as judged by the nature of the crime or by the manner in which it was perpetrated. Id. at 262-63. Thus, it necessarily follows that the same felony cannot serve as a predicate for both first and second-degree felony murder. The Court of Special Appeals so stated, albeit by way of dicta, in Harvey v. State, 111 Md. App. 401, 407-08 (1996).