Homicide-Murder-Manslaughter - Top Lawyers Discuss Defending Homicide Cases

A PRIMER FOR DEFENDING HOMICIDE CASES:

MANSLAUGHTER - MURDER

INVOLUNTARY MANSLAUGHTER - DEPRAVED HEART MURDER

BY TOP MARYLAND CRIMINAL LAWYERS

By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

robertbonsib.com

301-509-5100

Like Josh Allen[1] to Tom Brady[2]...Gross Negligence Manslaughter is the "Junior Varsity"[3] to Depraved Heart Murder...Unlawful Act Manslaughter is the "Junior Varsity"[4] to Felony Murder.

In this articel we will be exploring various types of manslaughter and murder in Maryland. We will review involuntary manslaughter, second-degree depraved heart murder, and felony murder.

INVOLUNTARY MANSLAUGHTER

In Maryland, involuntary manslaughter is a common law felony, but the punishments are assigned in accordance with Maryland Code § 2-207(a) of the Criminal Law Article. Thomas v. State, 464 Md. 133, 152 (2019).

Involuntary manslaughter is the unintentional killing of a human being, irrespective of malice. Id. (citing State v. Albrecht, 336 Md. 475, 499 (1994)).

There are three varieties of involuntary manslaughter: (1) Unlawful Act Manslaughter; (2) Gross Negligence Manslaughter; and (3) Negligent Omission to Perform a Legal Duty. Thomas, 464 Md. at 152 (citing Albrecht, 336 Md. at 499).

Unlawful Act Manslaughter

(1) Committing a misdemeanor that unintentionally causes death.

Unlawful act manslaughter, or misdemeanor manslaughter, occurs where one commits a criminal act not amounting to a felony that unintentionally causes the death of another. Schlossman v. State, 105 Md. App. 277, 284 (1995), cert. dismissed as improvidently granted, 342 Md. 403 (1996), overruled on other grounds by Bailey v. State, 355 Md. 287 (1999).

(2) The misdemeanor must be malum in se and not merely malum prohibitum, if the act itself is not dangerous to human life.

"An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community." Garnett v. State, 332 Md. 571, 603 n. 12 (1993). It is an act that is wrongful in itself "without any regard to the fact of its being noticed or punished by the laws of the state." Black's Law Dictionary 959 (6th ed. 1990). Unlawful acts that are wrong only because they are prohibited by statute are considered to be malum prohibitum acts. Garnett, 332 Md. at 603 n. 12.

Professor David E. Aaronson in his book, Maryland Criminal Jury Instructions and Commentary, § 5.54(C), at 5-204 to -05 (3d ed. 2009), wrote that Schlossman held that an unlawful act can form the basis of involuntary manslaughter when the act was malum in se regardless of whether the act was dangerous to human life, or when the act was dangerous to human life, regardless of whether the act was malum in se or malum prohibitum. Where the act is a malum prohibitum act, the act must be dangerous to human life to suffice for misdemeanor manslaughter.

In Schlossman, the acts to be considered were poking a passed out homeless victim with a stick, urinating on him, and kicking dirt and trash on him. 105 Md. App. at 285. The Court found that these acts clearly establish that appellant committed a common law misdemeanor battery against the victim. Id. The medical examiner testified that the stress induced by the victim's altercation with appellant directly caused the victim to suffer a fatal heart attack; thus, there was evidence to the effect that appellant's criminal battery caused the victim's death.

The Court said that an intentional battery is an unlawful act that is malum in se. Id. (citing LaFave & Scott, Criminal Law § 7.13, at 681 (2d ed. 1986). Appellant's acts were not generally what would be considered acts "dangerous to life" so the Court had to determine whether an unlawful act that is malum in se, but is not itself dangerous to life, can support a conviction for involuntary manslaughter.

The issue was previously addressed by the Court of Appeals in Worthington v. State, 92 Md. 222 (1901) where Worthington was indicted for manslaughter for causing the death of the victim while performing an abortion on her. At that time, performing an abortion was a malum in se common law misdemeanor. Id. at 237. The Court explained that

[C]ausing the mother's death in attempting an abortion, is only manslaughter at common law, if the attempt is not made in a way that endangers the mother's life...[i]f the intent was to kill or grievously injure her the offense is murder. It is manslaughter if the intent was only to produce the miscarriage, the agency not being one from which death or grievous injury would be likely to result...[noting that] death is not now the usual...consequence of an abortion."

Id. at 237-39.

Therefore, under Maryland common law, a person could be guilty of involuntary manslaughter based on the commission of a criminal act that was malum in se but not considered to be dangerous to human life. Schlossman, 105 Md. App. at 286.

Other unlawful act manslaughter cases include Johnson v. State, 223 Md. App. 128 (2015), in which a woman struck the victim in his face with her fist, causing him to fall down on road, and died. The unlawful act was the battery form of second-degree assault which is malum in se and therefore the jury did not have to find that the defendant's assault endangered human life as a requirement to convict her of involuntary manslaughter. Id. at 151.

Rolfes v. State, 10 Md. App. 204 (1970) is an unlawful act manslaughter case where appellant assaulted her husband with a knife resulting in death. It was of no matter that the fatal injury was not foreseen and was inflicted unintentionally when they both fell or stumbled while the husband was attempting to take the knife and was stabbed in the chest.

In Tolen v. State, 242 Md. App. 288 (2019), the defendant pled guilty to involuntary manslaughter for distributing heroin that resulted in death, and distribution of heroin. In that case the Court of Special Appeals was called upon to determine whether she pled guilty to unlawful-act involuntary manslaughter, rather than gross negligence manslaughter, for purposes of determining whether her convictions for involuntary manslaughter and distribution of heroin would merge for sentencing purposes. The Court determined that Tolen was convicted of unlawful act involuntary manslaughter. The State's Bill of Particulars first set forth facts for voluntary manslaughter and then particularized "[i]n the alternative, the State intends to prove Involuntary Manslaughter: Unlawful Act. The State will prove that the Defendant committed an unlawful act prohibited by statute (distribution of heroin)...that was dangerous to life." Id. at 300. At the time of the plea, there was no further clarification of the legal basis of involuntary manslaughter. At sentencing, the sentencing court did not merge the two convictions, rather, the court sentenced Tolen to concurrent sentences. On appeal, the State argued that the manslaughter conviction could have been based upon a finding of gross negligence, and that it was not bound by only the legal theory it articulated in the bill of particulars. Id. at 302. The appellate court found that the State did not raise this alternate theory of gross negligence involuntary manslaughter until after the plea and there was nothing in the indictment or the State's answer to the demand for particulars that would have put Tolen on notice that the State intended to attempt to prove she was guilty of gross negligence involuntary manslaughter. The Court found that under the circumstances, the State should have known that Tolen's guilty plea was based upon the theory that she had committed the unlawful act of distributing heroin that caused the death of the victim. Therefore, the Court held that a conviction for the underlying unlawful act merges, for sentencing purposes, into a conviction of unlawful-act involuntary manslaughter. Id. at 305. The Court limited its merger analysis to that, and did not make a ruling based upon a conviction for gross negligence involuntary manslaughter.

(3) Unlawful Act Manslaughter is the "Junior Varsity Manifestation" of Felony Murder.

Judge Moylan noted that unlawful act manslaughter is the "junior varsity manifestation" of felony murder, and thus, "its rationale parallels that of the felony murder doctrine in every regard." Charles E. Moylan, Jr., Criminal Homicide Law § 11.1, at 207 (2018).

For causation purposes, death must occur "in the course of committing a crime or even a civil wrong." Schlossman, 105 Md. App. at 284. The Maryland Pattern Criminal Jury Instructions require that the State must prove that "that act resulting in the death of [the victim] occurred during the [commission] of the [unlawful act.]" Thomas, 464 Md. at 174 (citing § 4:17.9, at 705 (2018)). This is an "added 'continuous transaction' element to the causation requirement, as the perpetrator need not have any particular mens rea as to the death, but only that necessary to engage in the" unlawful act. Thomas, 464 Md. at 174.

Gross Negligence Manslaughter & Negligent Omission to Perform a Legal Duty

These two categories of involuntary manslaughter are often joined together as both require grossly negligent conduct which means that "the negligence [must] be criminally culpable." Thomas, 464 Md. at 152 (citing Mills v. State, 13 Md. App. 196, 200 (1971)).

"Gross negligence" equates to a "wanton or reckless disregard for human life." Thomas, 464 Md. at 153 (citing Charles E. Moylan, Jr., Criminal Homicide Law § 12.4, at 226 (2018); see also Albrecht, 336 Md. at 499).

"Gross negligence" mens rea is established by asking "whether the accused's conduct, 'under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others...'" Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500).

The defendant must commit an act "so heedless and incautious as necessarily to be deemed unlawful and wanton..." Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500). The act must "manifest[] such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences." Thomas, 464 Md. at 153 (citing Albrecht, 336 Md. at 500). "[T]he defendant, or an ordinarily prudent person under similar circumstances, should be conscious of this risk." Thomas, 464 Md. at 154 (citing Albrecht, 336 Md. at 500; Dishman v. State, 352 Md. 279, 299 (1998)).

There must be an assessment of whether an activity is more or less "likely at any moment to bring harm to another," as determined by weighing the inherent dangerousness of the act and environmental risk factors. Thomas, 464 Md. at 160-61 (citing Johnson, 213 Md. at 532-33).

Overall, "there is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence. Rather, the inherent dangerousness of the act engaged in, as judged by a reasonable person - or reasonable officer - is combined with environmental risk factors which, together, make the particular activity more or less 'likely at any moment to bring harm to another.'" Thomas, 464 Md. at 159 (citing Johnson, 213 Md. at 533).

Maryland Courts have discussed gross negligence involuntary manslaughter in four main contexts: (1) automobiles; (2) police officers; (3) failure to perform a duty; and (4) weapons. Thomas, 464 Md. at 154.

(1) Automobiles

Common law gross negligence automobile manslaughter was preempted by statute in 1941 when the General Assembly enacted a law specifically defining "manslaughter by vehicle" as causing the death of another by "driving, operating, or controlling a vehicle...in a grossly negligent manner." Criminal Law Article § 2-209(b). State v. DiGennaro, 415 Md. 551, 565 (2010). Although the statute preempts common law, the Court of Appeals has stated that it involves precisely the same "common law concept and meaning of gross negligence." Thomas, 464 Md. at 154 (citing Duren v. State, 203 Md. 584, 588 (1954)). Therefore, the statutory cases are still relevant for determining gross criminal negligence at common law. Thomas, 464 Md. at 154.

In Duren v. State, 203 Md. 584, 588-89 (1954), the evidence was sufficient for gross negligence automobile manslaughter where the defendant, while driving in a heavily congested residential and business area of Baltimore City, drove his car at 7:00 p.m. on a Sunday in December at a speed of at least 60 mph (30 mph over the speed limit), ultimately striking a pedestrian who had entered the street, hurling him on to the trunk of a nearby car and killing him. It was significant to the Court that the defendant's car hit the victim with such force that even after the defendant had attempted to brake, he left skid marks for 72-89 feet. Id. It was "plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Id. at 591. This case is said to be "a useful low-water mark for successful manslaughter by vehicle prosecutions." Thomas, 464 Md. at 154.

By contrast, in Johnson v. State, 213 Md. 527, 530 (1957), the evidence was insufficient for gross negligence automobile manslaughter where a passenger was ejected from the defendant's car and killed while the defendant was driving in a non-residential portion of Baltimore City at 1:50 a.m., the defendant hit a curb, side-swiped a pole, and ended up in a plot of grass. It was hotly contested whether defendant was driving 60 mph versus 35 mph. The defendant had consumed two beers and officers smelled alcohol on his breath, but the officers did not believe that he was intoxicated. Contrasting with Duren, the Court looked to environmental factors like the type of road traveled, the time of day, the traffic, the density and character of the neighborhood, and any safety precautions or warnings disregarded. Based on these factors, the Court determined there was insufficient evidence to conclude that the defendant was grossly negligent.

In State v. Kramer, 318 Md. 576 (1990), the evidence was sufficient to support a conviction for manslaughter by automobile when a driver in a rural area, passing in a no-pass zone going at least 75 mph, hit an oncoming vehicle - all the while talking and joking with his passengers. The Court cited lack of speed and lack of attention as demonstration of lack of control in a place and at a time when there was constant potentiality of injury. (The conviction in this case was reversed but only because there was a prejudicial joinder of the charge with an insurance violation charge.).

The aforementioned cases turn on whether, as judged by a holistic view of the risk factors at play, the defendant's conduct was 'likely at any moment to bring harm to another." Thomas, 464 Md. at 156.

Speed and drag racing have been significant factors in making inferences of wanton and reckless disregard for human life while driving.

In Goldring v. State, 103 Md. App. 728, 730-31 (1995), the Court found that a mutual agreement to engage in grossly negligent conduct can be sufficient to find causation, even when the victim was, himself, engaged in the grossly negligent act. Goldring and Hall participated in a drag race on a two-lane country highway with a posted speed limit of 45 mph. During the race, Hall accidentally struck the side of Goldring's vehicle and lost control of his car. Hall and two pedestrians were killed. Id. at 731. Goldring's conduct in competing in the drag race bore a sufficiently direct causal connection to Hall's death to support Goldring's conviction for involuntary manslaughter, and Goldring was convicted in the death of Hall and the two pedestrians. The Court found that "there was ample evidence to support a rational finding that appellant's decision to compete in a drag race on Sunny Side Road constituted grossly negligent conduct." Id. at 734.

For other drag racing cases, see Hensen v. State, 133 Md. App. 156, 171-72 (2000) (participation in an informal street race is sufficient to establish causation, even if defendant's car never contacted the victim's car); Pineta v. State, 98 Md. App. 614, 626 (1993) ("[W]here a third person has been killed as a direct consequence of the illegal racing of motor vehicles, any driver participating in the race may be convicted of manslaughter by automobile...").

In the following cases, convictions were reversed where there was no evidence of speed: Thomas v. State, 206 Md. 49, 56-58 (1954) (where the driver consumed alcohol and drove a truck with brakes in need of repair, there was no gross negligence without evidence of speeding); Plummer v. State, 118 Md. App. 244, 267 (1997) (noting the absence of alcohol or speed in overturning a manslaughter by vehicle conviction).

"Nodding Off" has been the basis for a gross negligence automobile manslaughter conviction. In Skidmore v. State, 166 Md. App. 82, 89 (2005), "[b]ecause Skidmore continued to drive after he was aware that he had nodded off 'a few times,' a rational trier of fact could conclude that he continued to drive in reckless disregard of the risk to human life, and that his conduct constituted gross negligence."

(2) Police Officers

For cases involving police officer conduct resulting in death, these cases are evaluated under a heightened "reasonable police officer under the circumstances" standard, rather than a reasonably prudent person standard. Albrecht, 336 Md. at 487. However, they still provide guidance concerning the line between ordinary and gross negligence. Thomas, 464 Md. at 156.

In State v. Albrecht, 336 Md. 475, 479 (1994), two officers responded to a report of the stabbing of a man. One of the men involved in the stabbing was "Budd" who fled the scene in a car driven by Garnett. The officers pursued the car and discovered it parked at a townhouse complex, with Budd and Garnett standing outside the vehicle. Id. at 480. Officer Albrecht yelled to the suspects, removed a shotgun fitted with a bandolier from his police cruiser, "racked" the gun, and "leveled" it at Garnett. Id. at 481. Officer Albrecht put his finger on the trigger and testified that he "intended to swing the shotgun to the left" to aim it at another party, but the gun discharged, striking Garnett, who fell to the ground dead. Id. at 481-82. Officer Albrecht testified that he did not believe that Garnett posed a danger to him or others, and another officer at the scene stated that Garnett had done nothing to warrant the shotgun being leveled at her. An expert testified that officers are trained to keep their finger on the trigger guard, never the trigger. Id. at 482. Officer Albrecht's conviction for grossly negligent involuntary manslaughter was upheld.

In State v. Pagotto, 361 Md. 528 (2000), Sergeant Pagotto likewise was involved in a shooting resulting in the death of an individual, but the Court affirmed the intermediate appellate court's reversal of the officer's conviction by identifying five factors distinguishing Pagotto from Albrecht: (1) Albrecht drew a shotgun, racked it, and fitted it with a bandolier making it unbalanced, whereas, Pagotto drew a standard issue police handgun with no alterations; (2) Albrecht purposefully brought his gun to bear on the victim, whereas, there was no evidence that Pagotto was aiming his gun at the victim when it discharged; (3) Albrecht placed his finger on the trigger of the gun, which is nearly universally prohibited, whereas, Pagotto, had his finger on the almost universally accepted position of the slide of the gun; (4) Albrecht had ascertained that the victim was not armed and did not present a threat, whereas, the victim in Pagotto's case still presented a substantial threat to Pagotto because the victim was inside a car with his hands hidden from view, and was in the midst of an escape attempt when Pagotto's gun discharged; and (5) several adults and children were behind Garnett when Albrecht shot her, whereas, the confrontation in Pagotto took place at night on an empty city street. Id. at 554-55.

The Court of Appeals in Thomas, recently stated that Albrecht's conduct, like in Duren and Johnson, supra, created a situation "likely at any moment to bring harm to another," whereas Pagotto's conduct, as judged by a reasonable officer standard, was not as unwarranted, unsafe, or likely to cause injury or death. 464 Md. at 158. These environmental risk factors "elevated Albrecht's behavior from ordinary civil negligence to gross criminal negligence." Pagotto, 361 Md. at 554.

(3) Weapons

In Mills v. State, 13 Md. App. 196 (1971), a 16-year-old boy took his father's gun with him to a school dance. The boy, who was unfamiliar with the operation of the gun, went to the bathroom with his friends to look at the gun and drink liquor. Id. at 197. Knowing there was one bullet in the chamber, the boy pointed the gun at his friend, who slapped the gun from the boy's hand. Id. at 199. The gun hit the floor, discharged, and struck and killed another boy. The grossly negligent involuntary manslaughter conviction was upheld. The Court of Special Appeals reasoned that the circumstances "plainly" demonstrated "a grossly negligent act dangerous to life..." and that the friend's "reaction when the gun was pointed in his direction was wholly predictable," and therefore not an independent supervening cause. Id. at 202. The Court of Appeals in Thomas recently commented on this case noting that the bringing of a gun to a dance might by itself be negligent, but the additional facts that the defendant had little experience with weapons, was drinking, and pointed the gun jokingly at another surmount the gross negligence bar. 464 Md. at 159.

(4) Distribution of Heroin

In Thomas v. State, 464 Md. 133 (2019), the Court of Appeals created a new category of grossly negligent involuntary manslaughter. The issue in Thomas was whether distribution of heroin could be the basis of a gross negligence involuntary manslaughter conviction. Id. at 161. The Court found that although distribution of heroin is a malum in se offense (a crime or act that is inherently immoral), it may still serve as an act under grossly negligent manslaughter, as opposed to only being pursued by the State under the theory of unlawful act manslaughter. Id. at 161-62.

The Court of Appeals reviewed cases from other jurisdictions to investigate the line between ordinary negligence and criminal gross negligence in the context of the distribution of intoxicating substances. Id. at 164. The Court found that these cases display an approach to gross negligence manslaughter similar to the one used in Maryland, evaluating the dangers inherent in the defendant's underlying conduct in the context of attendant circumstances. Thomas, 464 Md. at 165.

The Court noted that Maryland appellate courts have upheld convictions for drag racing, speeding in a highly congested area, speeding and passing in a no-passing zone, driving after repeatedly "nodding off," and mishandling guns without intent to kill. Id. at 166. In none of those cases was the defendant's conduct "probably fatal," rather, the conduct posed a "high risk to human life," or was "likely at any moment to bring harm to another." Id. at 166-67 (citing Johnson, 213 Md. at 533).

The Thomas opinion does not create a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter. Instead courts must consider the inherent dangerousness of distributing heroin with the attendant environmental risk factors presented by each case. 464 Md. at 167. However, the Court did say that an ordinarily prudent person under similar circumstances should be conscious of this risk. Id.

The facts in Thomas evidence that Thomas was knowingly engaged in the unregulated selling of a CDS with no known medical benefit to customers in a region suffering from an epidemic of heroin and opioid abuse and deaths. There was expert testimony that "heroin kills, and everyone knows it." The Court found that Thomas subjectively knew an overdose was possible based on his statement that the victim "couldn't have overdosed off [the amount] I sold him." When some quantity of heroin will kill, but variable circumstances render that quantity unpredictable, a person takes a large risk in distributing any amount above an exceedingly de minimis threshold. Id. at 168-69.

Thomas's case was not a "mere act of distributing heroin." Rather, a reasonable person in Thomas's place would have understood that the victim was desperate for heroin and would have realized that that increased the risk of the transaction. The victim had been abusing heroin for four-and-a-half years, Thomas knew he was a "young boy" who had been in prison in the past, the night of the fatal overdose the victim called Thomas 27 or 28 times within a 24 minute span and also sent multiple text messages to Thomas imploring him to "call me, please" for heroin. Thomas recognized it was "unusual" for him to meet the victim at midnight. The Court found that all of these facts support the inference that the victim was desperately in need of heroin and might well ingest the entire four bags of heroin immediately. Id. at 169-70.

The Court also found it relevant to distinguish the systematic and sustained heroin distributor from the infrequent or inexperienced provider. Id. at 170. Thomas was a major distributor, replenishing his heroin stock every two to three days, traveling to Delaware to purchase 50-65 bags for $300. At the time of his arrest, Thomas possessed 60 bags of heroin. The victim was not Thomas's only client; thus, it can be inferred that Thomas was aware of the risk to life posed by consistent heron abuse, cognizant of its ill-effects, and yet, continued to sell the drug notwithstanding its danger. Id. at 170.

(5) Negligent Omission to Perform a Legal Duty

Like gross negligence manslaughter, for negligent omission to perform a legal duty, "the negligence [must] be criminally culpable" - i.e., grossly negligent - Thomas, 464 Md. at 152 (citing Mills v. State, 13 Md. App. 196, 200 (1971)).

In State v. DiGennaro, the Court indicated that,

To convict a defendant of involuntary manslaughter by grossly negligent failure to perform a legal duty, the State must prove beyond a reasonable doubt that (1) the victim's death was caused by the defendant's failure to perform a duty that the defendant had a legal obligation to perform, and (2) the defendant acted in a grossly negligent manner because the defendant (a) was aware of his or her obligation to perform that duty, and (b) was aware that his or her failure to perform that duty would create a high degree of risk to human life.

415 Md. 551, 566 (2010) (citing Dishman, 352 Md. at 291; Albrecht, 336 Md. at 499; Judge Charles E. Moylan, Jr., Criminal Homicide Law, § 12.9 (2002); David E. Aaronson, Maryland Criminal Jury Instructions and Commentary, § 5.54(B) (3rd ed. 2009).

In DiGenarro, the defendant was not charged with grossly negligent failure to perform a legal duty, but the Court, by its analysis, intimated that a conviction could have been sustained, had he been properly charged. In this case a truck driver accidentally released a large amount of gravel onto the road and failed to clean it up, causing another driver to spin out of control and die. Although the truck driver could not have been convicted of manslaughter by vehicle, he could have been convicted of common law involuntary manslaughter upon proof beyond a reasonable doubt that (1) even though his operation of the vehicle was neither reckless nor negligent, as a result of what occurred while he had been operating that vehicle, Transportation Article § 24-106(e) imposed upon him a duty to take appropriate remedial measures on behalf of other users of the highway; (2) he failed to perform that duty with reckless indifference to the issue of whether his action was endangering other users of Route 136; and (3) under the circumstances, that failure constituted gross negligence. 415 Md. 551, 564-65 (2010)

In Palmer v. State, 223 Md. 341, 353 (1960), a mother was held liable for gross negligence involuntary manslaughter when she failed to prevent her husband's savage beatings of her daughter. The Court found that her unwillingness to aid her child, which was her duty, resulted in the child's death and she too could be convicted. The Court also found that the grossly negligent conduct need only be the but-for cause of the death, and not an independently sufficient cause of it.

In Robey v. State, 54 Md. App. 60, 72 (1983), the Court found that a mother could be held responsible for failing to seek medical care for her battered child. The Court based its ruling on statute and case law holding that a parent of an infant child has an independent duty imposed by statute to preserve the child's health, even when the parent is not responsible for inflicting the injury. Because the mother grossly neglected to perform this duty, the lower court adjudged her guilty of involuntary manslaughter and child abuse, and that was sustained by the appellate court.

In Craig v. State, 220 Md. 590 (1959), the Court of Appeals held that the evidence was insufficient to support the parents' convictions of involuntary manslaughter for failure to supply medical care for their child during an illness that proved fatal because there was insufficient evidence to support a finding that gross negligence on the part of the parents was the proximate cause of the child's death.

In Craig, the Court stated:

[I]t is almost universally recognized that where the defendant owed to a deceased person a specific legal duty, but failed to perform the same, and death resulted to the deceased because of the non-performance of the duty, (at least under circumstances where the failure to perform constituted gross and wanton negligence) the defendant is guilty of involuntary manslaughter. 1 Warren, Homicide, Sec. 122, states the principle rather succinctly, as follows:

'Where the defendant owed the deceased a legal or contractual duty, any omission of the duty resulting in the death of the deceased renders the defendant chargeable with manslaughter. The duty must have been a plain one which he was bound by law or contract to perform personally. A criminal intent is not a necessary element of the offense. The breach of duty need not have been a criminal offense.'

'The defendant is guilty of manslaughter where he neglected to provide his wife with necessaries or with medical attention, or an infant in his charge with medical attention...'

220 Md. at 596 (internal citations omitted).

In Craig, the child developed pneumonia which caused the child's death. Pneumonia can be controlled if treated by antibiotics in the early stages of the disease. In this case, there was no testimony that the seriousness of the child's illness was apparent to the parents until the last two or three days of the child's life, when, according to the medical testimony, the antibiotics would probably have been ineffective to save the child. There is nothing to sustain a finding that during the early period of the child's illness the parents displayed 'a wanton or reckless disregard for' the child's life. If the child's illness was only apparently serious to them in the last two to three days of the child's life, the failure to call for medical aid at that time did not constitute gross negligence because the doctors stated that by then, they would have been ineffective in controlling the disease, thus the failure could not be the proximate cause of the child's death. Id. at 598-99.

(6) Actual and Legal Causation

"The State must also demonstrate a 'casual connection between such gross negligence and death...to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended." Thomas, 464 Md. at 152 (citing Albrecht, 336 Md. at 499); see also Craig v. State, 220 md. 590, 597 (1959) (negligence "must be the proximate cause of death"); Duren, 203 Md. at 593 ("Necessarily, the criminal negligence must have produced the death if the accused is to be guilty of manslaughter."); Blackwell v. State, 34 Md. App. 547, 557 (1977) (there must "be some reasonable connection between the act or omission and the death that ensued").

Causation includes actual but-for causation and legal causation. Thomas, 464 Md. at 152. For a crime of gross negligence involuntary manslaughter, the defendant's gross negligence must be the proximate cause of the victim's death - meaning the (1) actual, but-for cause and (2) legal cause. Id. at 173.

Actual cause is an ordinary, matter-of-fact inquiry - "it is almost always sufficient that the result would not have happened in the absence of the conduct" - or "but for" the defendant's actions." Id. at 174 (internal citations omitted).

Maryland gross negligence manslaughter cases have evaluated the actual cause of a given result on only a few occasions. Id. at 174-75. In Goldring v. State, 103 Md. App. 728-730-31 (1995), the Court found that Goldring's participation in a drag race was an actual cause of death, even though the victim who jointly participated in the drag race was the driver who accidentally struck Goldring and lost control of his car. Id. at 731. The Court found that Goldring's conduct in competing in the drag race bore a sufficiently direct causal connection to Hall's death to support Goldring's conviction for involuntary manslaughter, and Goldring was convicted in the death of Hall and the two pedestrians.

The Courts have said that a defendant does not "cease to be responsible for his otherwise criminal conduct because there were other conditions which contributed to the same result." See Palmer v. State, 223 Md. 341, 353 (1960) (mother held liable for gross negligence involuntary manslaughter when she failed to prevent her husband's savage beatings of her daughter - her unwillingness to aid her child, which was her duty, resulted in child's death and she too could be convicted - grossly negligent conduct need only be the but-for cause of the death, and not an independently sufficient cause of it); Burlas v. State, 185 Md. App. 559, 578 (2009) (that the victim's car did not pass inspection or might have sped up did not relieve defendant of responsibility).

Furthermore, a defendant need not be the person who actually caused the death where each participant "aided, abetted, and encouraged the other to engage" in the conduct that resulted in the victim's demise. Alston v. State, 339 Md. 306, 321 (1995); Hensen v. State, 133 Md. App. 156, 171-72 (2000) (participation in an informal street race is sufficient to establish causation, even if defendant's car never contacted the victim's car); Pineta v. State, 98 Md. App. 614, 626 (1993) ("[W]here a third person has been killed as a direct consequence of the illegal racing of motor vehicles, any driver participating in the race may be convicted of manslaughter by automobile...").

Causation was considered in Thomas. There, the victim died on the toilet, passed out, with his jaw propped against the vanity sink top. 464 Md. at 176. He he was holding one white Banshee heroin bag and three more bags had fallen to the floor beneath him, all empty. Thomas admitted to selling four bags of Banshee heroin to the victim on the night he fatally overdosed. The Medical Examiner stated that the victim died of "alcohol and narcotic (free morphine) intoxication" and no other drugs were found in his system. The victim's BAC was .08% and the court presumed that a lethal dose of alcohol would be much higher. Therefore, but for the heroin, the victim would not have died. 464 Md. at 176-78.

The Thomas Court then considered legal causation which "turns largely upon the foreseeability of the consequence" of the defendant's acts or omissions and whether "the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Thomas, 464 Md. at 152 (citing Palmer v. State, 223 Md. 341, 352-53 (1960)).

The Thomas Court analyzed the legal cause of the victim's death. This is a principle "applicable in both criminal and tort law, and the analysis is parallel in many instances." 464 Md. at 178 (citing Paroline, 572 U.S. at 444). "[I]t is not essential that the ultimate harm which resulted was [actually] foreseen or intended," Albrecht, 336 Md. at 499, rather, "[i]t is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant." Jackson, 286 Md. at 441.

"[I]ntervening conduct that is reasonably foreseeable will not relieve the defendant of criminal responsibility." Thomas, 464 Md. at 179 (internal citation omitted). This is supported by the ruling in Minor v. State, 326 Md. 436, 443-44 (1992), wherein the Court of Appeals upheld a reckless endangerment conviction for an individual who handed a loaded gun to the victim, who then shot himself in a game of "Russian roulette." The fact that the victim pulled the trigger was not sufficient to cut off the defendant's liability. See also Mills, 13 Md. App. at 202 (knocking gun from defendant's hand was not a supervening cause sufficient to relieve the defendant of criminal liability.).

In Thomas it was determined that death is a foreseeable consequence of ingestion of heroin, therefore, it was "eminently foreseeable that [the victim] would use the heroin that Thomas sold him and potentially die as a result." Thomas, 464 Md. at 179. There must be sufficient evidence that the victim would not have died but for the heroin and that his death was a foreseeable consequence of Thomas selling him the four bags of heroin. The state established that. Thomas's conduct was both the actual and legal cause of the victim's death. Id. at 180.

.

INVOLUNTARY MANSLAUGHTER CONTINUED

Johnson v. State

No. 109, Sept. Term ,2018, 2020 WL 502544, (Md. Ct. Spec. App. Jan. 31, 2020),

reconsideration denied (Apr. 14, 2020)

In this case, the Court of Special Appeals held that the evidence was not sufficient to support a finding of gross negligence, and thus the conviction for involuntary manslaughter was reversed.

The victim, Roe, was a 23-year-old recovering drug addict who was trying to get on the right path, but who continued to use drugs unbeknownst to his family. The defendant, Johnson, was his 24-year-old friend who used drugs with Roe.

On November 3, 2016, Johnson began texting Roe asking whether Roe was going to obtain any drugs that day, and if so, whether Roe wanted "to go half on a half," meaning to split a half a gram of cocaine or heroin, as was testified by the State's expert witness on drug-related coded words. Roe responded that he might be able to, but, he had to make money first because he owed somebody else $40.00. Johnson texted that he was about to pick up a half a gram for $50.00. Roe asked Johnson, "Can u sell me some," and Johnson replied, "Yeah later."

In the meantime, Roe began texting another individual in his phone named "Josh D" about meeting to acquire drugs.

Roe worked that day and received $50.00. Roe texted Johnson saying "Make a 40 if I get it" and Johnson told Roe that the drugs were "some [fire emoji]."[5] The State's expert testified that the use of the fire emoji when describing drugs means that the drugs are "really good."

Johnson came to Roe's house around 9:30 p.m., Roe exited the house and returned fifteen minutes later. Roe told his mother that he was with Johnson. Roe's mother discovered Roe's lifeless body around 12:30 a.m. Roe only had two five-dollar bills in his wallet. The medical examiner determined that Roe's cause of death was "Acrylfentanyl and Heroin Intoxication."

Johnson was charged, inter alia, with and convicted of involuntary manslaughter at a court trial. On appeal, Johnson raised the question of did the trial court err when it found Johnson guilty of involuntary manslaughter?

The Johnson Court cited the recent Court of Appeals case, State v. Thomas, 464 Md. 133 (2019), where the Court held that to support a conviction for a gross negligence involuntary manslaughter from the sale of heroin, (1) the defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling heroin carried a severe risk of harm, and (2) the sale of heroin must be the actual and legal cause of the victim's death. Id. at 171, 173. The Johnson Court said that the first half of the analysis has its own two components: (1)(a) the activity must be inherently dangerous and (1)(b) environmental risk factors must elevate that risk to rise to gross negligence. The Johnson Court further found, based on Thomas, that the environmental risk factors fall into two main groups including (1)(b)(i) the vulnerability of the buyer or "desperation" and (1)(b)(ii) the dealer's experience and knowledge.

The Johnson Court noted that on the one hand, the Thomas Court emphasized that "a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent." Id. The Johnson Court said that on the other hand, the Thomas Court, quoting a Massachusetts decision, found that "the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous..." Id. (quoting Commonwealth v. Catalina, 407 Mass. 779, 791 (1990)). The Johnson Court was left with the task of determining how the law distinguishes a run-of-the-mill heroin transaction from one that carries a severe risk of harm. The Johnson Court relied on environmental risk factors identified in Thomas that move a defendant's conduct along a continuum of culpability" between non-criminal negligent conduct and criminal gross negligence, id. at 139, and then takes a "holistic view of the risk factors at play" to determine whether the accused's conduct rose to the level of a "high risk to human life." Id. at 157, 166-67.

The Johnson Court applied these factors to the facts of this case. With respect to the inherently dangerous activity of distribution of heroin, the Johnson Court noted that the State did not offer any evidence on the inherent dangerousness of heroin at trial. However, the Thomas Court held that the sale of heroin is an inherently dangerous activity, even if it is not gross negligence per se.

With respect to the primary risk factors, as to desperation/vulnerability, Roe and Johnson were very close in age, were friends, texted one another 26 times over a 9 ½ hour period prior to Roe's death, Johnson was engaging Roe in conversation during that period, and the attempt at communication was not one-sided. As to dealer's knowledge/experience, Johnson was not a "systematic and sustained heroin distributor," nothing in the record suggested Johnson sold drugs at any other time, and Johnson used heroin less than Roe. Johnson was not in a position of power over Roe, the record reveals no reason for Johnson to believe that Roe was at a heightened risk of harm, beyond the risk inherent in the act of buying and using heroin. There were no signs Roe was desperate. This was a case of two friends splitting drugs after talking throughout the day about how they were going to acquire them. The record does not reveal knowledge or experience as a drug dealer on the part of Johnson. Johnson was an addict but he had no greater awareness of or the opportunity to know the drugs' content than Roe did. Johnson's use of the fire emoji did not demonstrate an awareness of a heightened level of risk in this case because the State's expert merely testified that the fire emoji meant the drugs are "really good," not that they are "really strong," and the trial court found that the "term fire" was "ambiguous."

The Johnson Court rebuffed the State, saying, "if this drug sale qualifies as grossly negligent, we struggle to imagine a transaction that wouldn't." The Johnson Court reversed Johnson's conviction for gross negligence involuntary manslaughter because, as a matter of law, no rational fact-finder could have found from the evidence presented to the trial court that he acted with gross negligence.

McCauley v. State,

No. 340, Sept.Term, 2018, 2020 WL 2069928,(Md. Ct. Spec. App. Apr. 29, 2020)

The COSA, in its McCauley opinion, pointed out that McCauley's knowledge and experience as a dealer increased the risk of the sale substantially. And her knowledge of the high level of danger was sufficient for a jury to elevate to a finding of gross negligence.

Dealer's Knowledge/Experience

• Ms. McCauley sold Mr. Wrightson what she said was a mixture of heroin and fentanyl;

• On June 23, 2017, she knew that Mr. Wrightson and Ms. Miller were traveling together to pick up what Mr. Wrightson called "[s]ome of the heroin/Fentanyl" from Ms. McCauley's home;

• In 2017, Ms. McCauley and Mr. Wrightson had overdosed from fentanyl together;

• She was a routine dealer, selling to at least five individuals: Ms. Miller, Mr. Wrightson, Ms. Boswell, Sgt. Heath, and Mr. Tangradi;

• She knew that Mr. Wrightson had overdosed four times from fentanyl she sold him and, when told, she said, "that's horrible," "be careful," "don't do too much," and "it's strong";

• On June 18, she sold Ms. Boswell carfentanil, but told her it was fentanyl, and warned her to "be careful" and "don't do too much";

*5 • On June 21, 2017, when she sold Sgt. Heath fentanyl, she "immediately" cautioned him "to be careful" and to start with "just a fucking flake" of the fentanyl because it was "that strong." She also told him, "please don't die."

• On June 30, 2017, Ms. McCauley sold Sgt. Heath what she acknowledged to be fentanyl.

The COSA further described McCauley as an experienced dealer and noted:

"The record in this case demonstrated that Ms. McCauley knew that the drugs she sold had caused multiple people, including herself, to overdose. She knew the actual and highly dangerous contents of the drugs she sold. In the past, she knowingly sold heroin containing fentanyl, a dangerous analog of heroin, and knew or should have known that she sold drugs containing carfentanil, a tranquilizer significantly more potent than Fentanyl used to sedate rhinos and other large animals. She knew the drugs she sold were so dangerous that she warned many of her buyers of their potency. Ms. McCauley's knowledge of the extreme dangerousness of the drugs she sold raised the risk level from her transaction with Ms. Miller to one in which a jury could find a reckless, wanton disregard for human life."

Cheat Sheet

To support a conviction for gross negligence involuntary manslaughter

from the sale of heroin:

(1) The defendant must have known, or should have known under the reasonably prudent person standard, that the underlying act of selling heroin carried a severe risk of harm

Severe risk of harm means:

· (1)(a) the activity must be inherently dangerous (viewed on a continuum of culpability between non-criminal negligent conduct to criminal gross negligence) and

· (1)(b) environmental risk factors must elevate that risk to rise to gross negligence (by taking a holistic view of the risk factors at play)

Environmental risk factors include, but are not limited to:

o (1)(b)(i) the vulnerability of the buyer or "desperation" and

o (1)(b)(ii) the dealer's experience and knowledge

AND

(2) the sale of heroin must be the actual and legal cause of the victim's death

Cheat Sheet

Comparison of Facts between Thomas and Johnson

Thomas

Sufficient Evidence

Johnson

Insufficient Evidence

Desperation/Vulnerability

· Thomas knew the decedent was a young boy who had been in prison in the past, and he believed him to be 19 years old

· Thomas was 58 years old

· The decedent called Thomas 27 times in less than a half hour period to purchase drugs

· Thomas only answered one of those calls

· Thomas and the decedent met at an unusual time, past midnight, when the pair usually met earlier

Desperation/Vulnerability

· Johnson and Roe were close in age - Roe was 23 and Johnson was 24 years old

· Johnson and Roe were friends

· Roe texted Johnson 26 times over 9 ½ hours

· Johnson engaged Roe in conversation, communication was not one-sided

Dealer's Knowledge/Experience

· Thomas was a systematic and sustained heroin distributor who consistently distributed heroin to a substantial network of associates

· Thomas was not an infrequent or inexperienced provider

· Thomas was a heroin abuser himself

· Thomas purchased a high volume of heroin, 50-60 bags, in Delaware every two to three days

· Thomas was in possession of 13.10 grams of heroin when he was arrested

Dealer's Knowledge/Experience

· Johnson was not a systematic and sustained heroin distributor

· Johnson did not sell drugs at any other time

· Johnson used heroin less than Roe

· Johnson had not greater awareness of or opportunity to know the drugs' content than Roe

· Johnson sat at the lowest level of the dealer-user food chain, splitting a small purchase with a friend for their own use

DEPRAVED HEART MURDER

Next, we analyze the depraved heart murder variety of second degree murder as it is on the continuum after gross negligence involuntary manslaughter: "gross negligence manslaughter is the junior varsity manifestation of depraved-heart murder." Moylan, Criminal Homicide Law § 12.1, at 223.

Depraved heart murder was the last form of murder to be recognized in Maryland, and was first identified by name in Evans v. State, 28 Md. App. 640, 696-697 (1975), aff'd, 278 Md. 197 (1976). Moylan, Criminal Homicide Law § 6.1, at 129 (2002).

Principles

Malice, Recklessness, "Extreme Disregard," and a "Very High Degree of Risk" to Human Life

Murder requires malice, while manslaughter is characterized by the absence of malice. Dishman v. State, 352 Md. 279, 290-91, 721 A.2d 699, 704 (1998) (internal citations omitted). Rather than define the difference between depraved-heart murder and gross-negligence manslaughter, jurors and judges are supposed to "sense" or to "feel" the difference, as opposed to define it. Thomas, 464 Md. at 153.

The actus reus - the killing - is identical. The mens rea - the negligence - differs only as a matter of degree. Thomas, 464 Md. at 159-60. There is no "precise line" between the two offenses. Thomas, 464 Md. at 160 (citing Dishman v. State, 352 Md. 279, 299 (1998). Gross negligence manslaughter "involve[s] quantitatively less culpability in the first instance" than does depraved-heart murder. Thomas, 464 Md. at 160 (citing Moylan, Criminal Homicide Law § 12.1, at 224). It's "simply a little less wanton and a little less depraved..." Id.

The Maryland Pattern Criminal Jury Instructions distinguish the two offenses describing second-degree depraved-heart murder as involving one whose conduct amounts to "extreme disregard" and a "very high degree of risk" to human life. § 4:17.8, at 699 (2018). The pattern instructions describe gross negligence involuntary manslaughter as consisting of "reckless disregard" and a "high degree of risk" to human life. Id. § 4:17.9, at 704.

Depraved heart murder

Establishes that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence...It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.

Moylan, Criminal Homicide Law §6.1, at 130 (2002) (citing Debettencourt v. State, 48 Md.App. 522, 530 (1981).

Depraved heart murder is an "unintentional murder[]." Glenn v. State, 68 Md.App. 379, 386 (1986). It does not require any specific intent to kill or injure. It is punishable as murder because another element of blameworthiness fills the place of intent to kill. Robinson v. State, 307 Md. 738, 743 (1986).

Furthermore,

A depraved heart murder is often described as a wanton and wilful killing. The term 'depraved heart' means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must [or reasonably should] realize the risk his behavior has created to the extent that his conduct may be termed wilful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure § 1.6-3 (1983).

The critical feature of "depraved heart" murder is that the act in question be committed "under circumstances manifesting extreme indifference to the value of human life." 2 Wharton's Criminal Law § 143 at 197 (14th ed. 1979).

Depraved heart murder can exist when there is an intent to injure that results in death.

The terms "recklessness" or "indifference," often used to define the crime, do not preclude an act of intentional injury. They refer to "recklessness" or "indifference" to the ultimate consequence of the act-death-not to the act that produces that result. Robinson, 307 Md. at 745 (citing Model Penal Code § 210.2 comment at 15-22 (1980)). This is usually seen in assault cases that result in death.

In Robinson v. State, 307 Md. 738 (1986), the Court of Appeals held that a conviction of assault with intent to disable did not collaterally estop the State from prosecuting the defendant for depraved heart murder, as the intent to disable was not inconsistent with the intent element of depraved heart murder. In that case, the defendant shot the victim in the thigh, the bullet travelled upwards and lodged in the victim's abdomen and he eventually died. The Robinson Court said that although the "authorities say no more than that the crime may be committed absent intent to injure. They do not hold that the crime is not committed if there is an intent to injure." Id. at 745. The Court further said that "[i]t would be strange, indeed, if unintended death resulting from an intentionally-inflicted injury were deemed less blameworthy than an unintended death resulting from an injury not so inflicted." Id. at 746.

The Robinson Court found that in Moore v. State, 15 Md. App. 396 (1972), the Court of Special Appeals affirmed a conviction for second degree murder on the "depraved heart" basis when a child died after her father, without intent to kill, had spanked and shaken her, which was an infliction of an intentional injury. 307 Md. at 746.

Depraved heart murder can exist when there is no intent to injure but death results.

This is the case where "an act was done, or duty omitted willfully, the natural tendency of which was to cause death or great bodily harm." Lindsay v. State, 8 Md.App. 100, 104 (1969); R. Perkins, Criminal Law at 36 (2d ed. 1969) ("... even if there is no actual intent to kill or injure"). In Lindsay, the use of a deadly weapon (a knife) direct at a vital part of the victim's body (the neck) established malice. Id. at 104.

Malice Towards All versus Malice Towards One

Depraved heart murder does not require a showing of universal malice, meaning an act imminently dangerous to more than just the person who was killed. Robinson, 307 Md. at 747. Though universal malice is a proper basis for depraved heart murder, it is not the only basis for the offense. Id. The Robinson Court held that under the common law of Maryland "depraved heart" murder does not require that more than one life be placed in imminent danger by an assailant's life-threatening act, although the offense clearly is committed if, under appropriate circumstance, several lives are threatened. The requisite disregard for human life may be found in either case. Robinson, 307 Md. at 751.

Depraved Heart Murder Cases

Use of a Weapon and/or Urban Warfare

In Alston v. State, 101 Md. App. 47, 58 (1994), the Court of Special Appeals had

[No] difficulty in concluding that for approximately ten men to engage in an extended firefight on an urban street in a residential neighborhood was conduct that created a very high degree of risk of death or serious bodily injury to others...[a] conclusion in this regard that a very high risk was created is strengthened by the fact that we are talking about 11 P.M. on a hot July evening, when various persons, according to the evidence, were still sitting out on the front steps of rowhouses, quite aside from any question of whether there were persons moving in the street or on the sidewalks.

This opinion was affirmed by the Court of Appeals in Alston v. State, 339 Md. 306 (1995), holding that the evidence was sufficient to support the conviction where the victim, who was a bystander on the street, was killed by a shot that was fired by an individual against whom the defendant was engaged in the gun battle.

In Wallace v. State, 237 Md. App. 415 (2018), a conviction for depraved heart murder was affirmed after six bullets were shot into a house where the defendant believed no fewer than eight persons were occupying the house at the time, and a three year old victim died from a stray bullet.

In Henry v. State, 184 Md. App. 146 (2009), a conviction for depraved heart murder was affirmed where the defendant fired at least nine shots into a crowd from a sawed-off rifle, killing one of the people.

In Cook v. State, 118 Md. App. 404 (1997), a conviction for depraved heart murder was affirmed where after a day of drinking, the defendant tried to run the victim down with his car, followed the victim into the residence, grabbed a loaded gun, pulled the hammer back, began waving the gun around in front of the victim's face, pointed the gun behind the victim, and the gun went off killing the victim.

In Bey v. State, 140 Md. App. 607 (2001), a conviction for depraved heart murder was affirmed where the defendant shot the victim six times and stabbed him twelve times with the Court finding that "[t]he multiple shootings and stabbings were indisputably reckless life-endangering acts."

In Harris v. State, 189 Md. App. 230 (2009), the evidence was sufficient to support a conviction for depraved heart murder where the defendant, while upset, walked to his vehicle outside a bar, grabbed a bottle of liquor from his car, had an exchange of words with the bar's bouncer when he tried to re-enter with the bottle, was denied entry to the bar, and the defendant ultimately fought with the victim and was seen moving a shiny object on his side just after the victim was stabbed, and the defendant then ran to his vehicle.

In Leeks v. State, 110 Md. App. 543 (1996), the evidence was legally sufficient to sustain a conviction for depraved heart murder arising out of an incident in which the defendant was with a group of persons near an apartment complex at which the victim was shot during an argument and ensuing struggle. The evidence indicated that the defendant began waving a small automatic pistol in the air, the gun fired, and multiple bystanders were shot, one fatally.

In Lindsay v. State, 8 Md.App. 100, 104 (1969), the evidence was legally sufficient for depraved heart murder where the defendant used a knife to stab the victim in his neck and chest causing death.

Child and/or Adult Physical Abuse

In Owens v. State, 170 Md. App. 35 (2006), the evidence supported a conviction for depraved heart murder, relating to the death of the defendant's two year old stepchild, where the evidence demonstrated that a tremendous amount of blunt force was inflicted upon the child causing rib fractures, bruising of both the lungs and thymus, and tearing of the liver. There was evidence that such injuries could not have been inflicted by the child's four year old brother, and the defendant had sole custody of the child during the time that the injuries were sustained.

In Kouadio v. State, 235 Md. App. 621 (2018), the evidence was sufficient to support the defendant's convictions for depraved heart murder and child abuse after the defendant's child was found dead from brain trauma, where State presented evidence through doctors that injuries to victim's brain and eyes were recent, severe, and traumatic, and arose from violent and repeated shaking, and evidence showed that the defendant alone had the opportunity to cause the damage during a three hour period when he was alone with the victim after the victim's mother testified that the victim appeared fine when she saw him last.

In Giddens v. State, 148 Md. App. 407 (2002), a conviction for depraved heart murder and child abuse was affirmed where the defendant was the only adult present in the household during the time in which the victim suffered fatal injuries to her head, neck, and spine.

In Ashe v. State, 125 Md.App. 537 (1999), a conviction for depraved heart murder was affirmed where the defendant was a member of a mob of men who beat the victim to death.

Acts of Omission

Homicide by omission may exist. Moylan, Criminal Homicide Law §1.9, at 12 (2002). "Whether a homicide by omission is criminal generally depends on whether the homicidal agent who omitted to take some life-sustaining or life-saving measure owed any duty to do so to the homicide victim, such as the duty owed to a patient by a doctor or nurse; to a child by a parent, guardian, teacher or baby-sitter; to a person placed in a position of danger by the person creating such danger." Id. "If homicidal agency by omission is [ ] established, both the presence of culpability and the level of culpability will then depend on the particular mens rea or other non-culpable mental state that attended the omission to act." Id.

In Simpkins v. State, 88 Md. App. 607, cert. denied, 324 Md. 69 (1991), "a mother and a father were convicted for having omitted, over a period of three-to-five days, to provide food, drink or attention to their two-year-old daughter, who died of starvation." Moylan, Criminal Homicide Law §1.9, at 13 (2002). The Court of Special Appeals affirmed the convictions for depraved heart murder by "point[ing] out how the acts of omission were sufficiently wanton to show a murderous mens rea of the depraved-heart variety:

Where a young child, incapable of self-help, is knowingly, deliberately, and unnecessarily placed in confinement and left alone for up to five days without food, drink, or attention and death ensues from that lack, malice may be inferred. A rational trier of fact could reasonably find that death is at least a likely, if not a certain, consequence of such conduct, that any normal adult would understand and appreciate the likelihood of that consequence, and that the conduct is therefore willful and wanton, manifesting 'viciousness or contemptuous disregard for the value of human life...'"

Moylan, Criminal Homicide Law §1.9, at 13 (2002) (citing Simpkins, 88 Md. App. at 620).

Judge Moylan's treatise on homicide by omission references two involuntary manslaughter cases to show that in contrast to Simpkins, there was no specific intent to kill or a specific intent to commit grievous bodily harm. Moylan, Criminal Homicide Law §1.9, at 13 (2002). In Craig v. State, 220 Md. 590 (1959), a mother and father were both convicted of manslaughter of their six-month-old child for omitting to obtain, because of their religious beliefs, timely medical attention and the child died of pneumonia 18 days after becoming sick. The Court of Appeals reversed this conviction finding that the parents did not possess the gross criminal negligence necessary to support the verdicts of manslaughter. In Palmer v. State, 223 Md. 341 (1960), a mother was found guilty of manslaughter of her 21-month-old child who had been subjected to beatings over a period of time by the mother's boyfriend. The mother's culpable act of omission was in failing to remove the infant from dangerous proximity to the boyfriend. Judge Moylan wrote that:

Although both Craig and Palmer involved verdicts of involuntary manslaughter based on gross criminal negligence, it is obvious that if the act of omission that caused death were motivated by a specific intent to kill or a specific intent to commit grievous bodily harm, the degree of culpability for the homicide by omission would escalate upward proportionately with the escalating mens rea.

Moylan, Criminal Homicide Law §1.9, at 13 (2002).

Judge Moylan's language about the degree of culpability for the homicide by omission being escalated upward with an escalating mens rea was referenced by the Court of Criminal Appeal of England in Regina v. David Hughes, 7 Cox C.C. 301,169 E.R. 996 (1857). The Hughes case was an involuntary manslaughter case in which the defendant superintendent of project on a shaft, omitted to put the stage on the mouth of the shaft, thereby causing a bucket with a truck and bricks to fall down the pit and kill the deceased worker. The jury found that the death of the deceased arose from the negligent omission on the part of the defendant in not putting the stage on the mouth of the shaft. The conviction was affirmed with the Court of Criminal Appeal stating:

[I]f the [defendant], of malice aforethought and with the premeditated design of causing the death of the deceased, had omitted to place the stage on the mouth of the shaft, and the death of the deceased had thereby been caused, the prisoner would have been guilty of murder....[because] it has never been doubted that if death is the direct consequence of the malicious omission of the performance of a duty...this is a case of murder. If the omission was not malicious, and arose from negligence only, it is a case of manslaughter. It has been held that to make the captain of a vessel guilty of manslaughter in causing a person to be drowned by running down a boat, proof of a mere omission on his part to do the whole of his duty is not sufficient;...and, on the contrary, the doctrine seems well established, that what constitutes murder, being by design and of malice prepense, constitutes manslaughter when arising from culpable negligence.

7 Cox C.C. 301.

In In re Eric F., 116 Md. App. 509 (1997), the evidence was sufficient to find the juvenile delinquent of depraved heart murder where he dragged an intoxicated, unconscious, and nearly naked teenage girl into the woods behind his home, in the bitter cold, failed to seek appropriate assistance, and left her to die of hypothermia. Additionally, the juvenile urinated on the unconscious girl, laughed about it, joked about her condition, clothed himself for the cold, rainy weather while leaving the girl nearly naked, and failed to inform his mother, even though he knew that "if we don't go back and get her she['s] probably going to freeze to death." The juvenile also indicated his indifference toward the girl's very dangerous situation by being more concerned about getting caught drinking than about the lack of probability of the girl's survival under such dangerous conditions. This resulted in the juvenile's refusal to call 911 or give the correct address so that an ambulance could find her. Shortly after the juvenile's mother went to sleep, the juvenile also went to sleep, leaving the girl to die, rather than bringing her into his basement. The Court of Special Appeals found that there was sufficient evidence to find that the juvenile knew that his actions would lead to the girl's death, and that he manifested extreme indifference to the value of her life by leaving her in the cold, after failing to seek appropriate help.

Evidence Insufficient for Depraved Heart Murder

In Blackwell v. State, 34 Md. App. 547 (1977), the evidence was determined to be insufficient for a finding of malice, in a drunk driving case which caused the death of another, where there was no inference of "viciousness" or "extreme indifference to the value of human life." The defendant's prior drinking habits were for personal gratification, however selfish and objectionable, and were not evidence of "willfulness." There was no evidence that the drinking was motivated by a purposeful or deliberate intent to bring about the tragic result.


[1] Rookie quarterback for the Buffalo Bills, drafted to the NFL in 2018.

[2] 20 year veteran quarterback for the New England Patriots, taking his team to 9 Super Bowls, winning 6 of them, and considered by everyone (except a Buffalo Bills fan) to be the greatest quarterback of all time.

[3] State v. Thomas, 464 Md. 133, 159 (2019) (citing Judge Charles E. Moylan, Criminal Homicide Law § 12.1, at 223.

[4] State v. Thomas, 464 Md. 133, 173 n. 20 (2019) (citing Judge Charles E. Moylan, Criminal Homicide Law § 11.1, at 207 (2018).

[5]