HOMICIDE – IS IT MANSLAUGHTER WHERE THE DISTRIBUTION OF DRUGS RESULTS IN A DEATH? – A DISCUSSION BY A TOP 10 MARYLAND CRIMINAL LAWYER.
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By Robert C. Bonsib, Esq. (301-509-5100)
Death resulting from distribution of a dangerous drug can subject the dealer to prosecution for involuntary manslaughter – but not in every case. The facts matter.
In State v. Thomas,464 Md. 133 (2019) the Maryland Court of Appeals (“COA”) reversed the decision of the Maryland Court of Special Appeals (“COSA”), which had reversed Thomas’ conviction for involuntary manslaughter for a death that resulted from the distribution of heroin, State v. Thomas, 237 Md. App. 527 (2018)
In Thomas the COA addressed the issue of whether the evidence was sufficient to sustain Thomas’ manslaughter conviction where the evidence established that he distributed a quantity of heroin that was determined to have been ingested by a customer who ultimately died as a result of a heroin overdose and it is the seminal Maryland case on the standard for gross negligence involuntary manslaughter resulting from a fatal heroin overdose. Since Thomas, the COSA has issued two opinions further addressing the issue as to when the evidence is sufficient to support a conviction for involuntary manslaughter where drug distribution results in death. Johnson v. State, No. 109, Sept. Term ,2018, 2020 WL 502544, (Md. Ct. Spec. App. Jan. 31, 2020), reconsideration denied (Apr. 14, 2020) and McCauley v. State, No. 340, Sept.Term, 2018, 2020 WL 2069928,(Md. Ct. Spec. App. Apr. 29, 2020).
McCauley provides a good summary of the facts supporting the decisions of the courts in each of the three cases
McCauley noted that Thomas held that 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, and (2) the sale of heroin must be the actual and legal cause of the victim’s death. Further, the COA’s analysis in Thomas began from the premise that selling heroin is inherently dangerous but the COA also held that selling heroin is not enough in itself to support a finding of gross negligence involuntary manslaughter, and the COA declined to recognize “a per se rule providing that all heroin distribution resulting in death constitutes gross negligence ….” (“[D]istribution, alone, does not always amount to gross negligence.”). Instead, Thomas weighed “the inherent dangerousness of the act and environmental risk factors” to decide whether the sale amounts to a “high degree of risk to human life.” The environmental risk factors discussed in Thomas fell into two groups: the vulnerability of the buyer and the dealer’s experience and knowledge.
Even under the facts of Thomas, the COA noted that a death resulting from the ingestion of heroin provided by another person is not, per se, sufficient to support a manslaughter conviction, but it found that under the totality of the circumstances presented in the Thomas case, that the evidence was sufficient.
In Thomas it was more than reasonably foreseeable that an individual ingesting a dangerous street drug might suffer devastating consequences. The COA observed that the knowledge in the community at large regarding the prevalence of drug related deaths has been extensive. To one, like Thomas, that knowledge is inevitably even greater.
Even with the more egregious facts in Thomas, all three judges of the COSA concluded that that evidence was insufficient to support the manslaughter conviction. In the COA, three of the seven judges would have reversed Thomas’ conviction. In total, six judges believed that the evidence in Thomas was insufficient (the three judges on the COSA and three of the four judges on the COA). Only four judges on the COA (recognizing that those four judges ultimately had the final word) thought the evidence was sufficient.
The COA in Thomas also further explained that:
“The State must also demonstrate a “causal 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.” Albrecht, 336 Md. 475, 499 (194) (citation omitted). This includes actual, but-for causation and legal causation. The legal cause analysis “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.” Palmer v. State, 223 Md. 341, 352-53 (1960).”
In sum, the Thomas opinion instructed that when determining whether an individual has acted with the requisite grossly negligent mens rea to be found guilty of involuntary manslaughter, the State must demonstrate wanton and reckless disregard for human life. This requires a gross departure from the conduct of an “ordinarily careful and prudent person” and a disregard or indifference to the rights of others. It also involves 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. This weighing must amount to a “high degree of risk to human life”-falling somewhere between the unreasonable risk of ordinary negligence and the very high degree of risk necessary for depraved-heart murder.
The clear “take-away” from Thomas opinion is that while it concluded that the evidence was sufficient, considering the totality of the circumstances present in Thomas, it was a close call
After Thomas, in Johnson and McCauley, the COSA considered differing fact patterns with differing results as to whether the evidence was sufficient to support a conviction of involuntary manslaughter where the distribution of drugs resulted in a death.
Reviewing the facts upon which the Thomas, Johnson and McCauley courts relied upon is instructive. The COSA in McCauley summarized the significant facts in each case.
The primary risk factors to be considered after Thomas fell in two main groups: (1) the vulnerability of the buyer, or in the Court’s language, his “desperation,” and (2) the dealer’s experience and knowledge:
Facts in State v. Thomas
Desperation/Vulnerability of Victim
• Mr. Thomas knew the decedent was a “young boy” who had been in prison in the past, and he believed him to be nineteen-years-old.
• Mr. Thomas was fifty-eight years old.
• The decedent called Mr. Thomas twenty-seven or twenty-eight times in less than a half hour period to purchase drugs.
• Mr. Thomas only answered one of those calls.
• Mr. Thomas and the decedent met at an unusual time, past midnight, when the pair usually met earlier.
• Mr. Thomas was a “systematic and sustained heroin distributor” who “consistently distributed heroin to a substantial network of associates.”
• Mr. Thomas was not an “infrequent or inexperienced provider.”
• Mr. Thomas was a heroin abuser himself.
• Mr. Thomas purchased a high volume of heroin, fifty to sixty bags, in Delaware every two to three days.
• Mr. Thomas was in possession of 13.10 grams of heroin when he was arrested.
Relying upon these facts, the Court held that Thomas’ conduct rose to the level of gross negligence
Facts in Johnson v. State
Desperation/Vulnerability of Victim
• Mr. Roe and Mr. Johnson were very close in age-Mr. Roe was twenty-three when he died and Mr. Johnson was twenty-four.
• Mr. Roe and Mr. Johnson were friends.
• Mr. Roe texted Mr. Johnson twenty-six times between 11:58 a.m. and 9:22 p.m., nearly a nine-and-a-half-hour period.
• Mr. Johnson was engaging Mr. Roe in conversation during that period and the attempt at communication was not one-sided.
• Mr. Johnson was not a “systematic and sustained heroin distributor.”
• Nothing in the record suggests Mr. Johnson sold drugs at any other time.
• Mr. Johnson used heroin less than Mr. Roe.
The COSA continued to further describe Johnson’s role.
“Mr. Johnson was not in a position of power over Mr. Roe. The record reveals no reason for him to believe that Mr. Roe was at a heightened risk of harm, beyond the risk inherent in the act of buying and using heroin. Nothing in the record suggests their meeting was unusual or contains any signs that Mr. Roe was desperate. Instead, two friends split drugs after talking throughout the day about how they were going to acquire them.
Similarly, the record reveals no knowledge or experience as a drug dealer on the part of Mr. Johnson. The defendant in Thomas traveled to Delaware to purchase drugs in bulk two to three times a week and had many buyers. Here, the record reveals only one drug sale: the sale to Mr. Roe. Although, as an addict, Mr. Johnson obviously had experience buying and using heroin beyond that sale, there was no evidence suggesting, let alone proving, that he was an active, higher volume drug dealer, or that he had any greater awareness of or opportunity to know the drugs’ content than Mr. Roe did.”
Facts in McCauley v. State
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.
• 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.”
These cases make clear that an “experienced” drug dealer, particularly where the drug being distributed is well known to be potent and potentially dangerous, faces the very real possibility to being convicted of involuntary manslaughter where the buyer dies. Not only does the saying “let the buyer beware” apply – but also “let the dealer beware.”