Thomas v. State , 237 Md. App. 527 ( 2018 )

Patrick Joseph Thomas A/K/A Patrick Joseph Patrick v. State of Maryland, No. 1115,
September Term 2016.
Filed: April 4, 2018
HEADNOTES
Criminal Law – Homicide – Manslaughter – Evidence
To support a conviction for manslaughter, the evidence must show a causal connection
between the defendant’s actions and the victim’s death.
Circuit Court for Worcester County
Case No. 23-K-16-000038
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1115
September Term, 2016
_________________________
PATRICK JOSEPH THOMAS A/K/A/
PATRICK JOSEPH PATRICK
v.
STATE OF MARYLAND
_________________________
Leahy,
Friedman,
Rodowsky, Lawrence F.
(Senior Judge, Specially Assigned),
JJ.
_________________________
Opinion by Friedman, J.
_________________________
Filed: April 4, 2018
Among the various and sometimes contradictory legal responses to the current
opioid epidemic has been the decision by some state’s attorneys to charge the sellers of
heroin with homicide crimes when a buyer dies from overdose.1 This case follows one of
those prosecutions. We do not prejudge future cases nor make any broad pronouncement
about the trend. Rather, we hold here only that in prosecutions for involuntary
manslaughter, the State must prove beyond a reasonable doubt the existence of a causal
nexus between the defendant’s act and the victim’s death. Because it did not do so here,
we will reverse the appellant’s manslaughter conviction.2
FACTS
Appellant, Patrick Joseph Thomas, was charged in a three count criminal indictment
with heroin distribution, manslaughter, and reckless endangerment. He pleaded not guilty
and was tried upon an agreed statement of facts in the Circuit Court for Worcester County.
In this Court, as below, Thomas challenges the legal sufficiency of the facts to support a
manslaughter conviction.3
1
Alison Knezevich, Maryland Prosecutors Pursue Manslaughter, Murder in
Overdose Cases, BALTIMORE SUN (December 7, 2017), https://perma.cc/UJY8-QZZN;
Arelis R. Hernandez, Selling Opioids in this Rural Maryland County Could Get You a
Murder Charge, WASHINGTON POST (August 9, 2017), https://perma.cc/4N8D-ZF4Y; Al
Baker, New Tactic in War on Opioids: Charging Dealers in Overdose Deaths, NEW YORK
TIMES (July 23, 2017), https://nyti.ms/2tRsvTv.
2
Thomas has challenged neither his convictions for heroin distribution and reckless
endangerment, nor the sentences that he received for those convictions. Therefore, we leave
them undisturbed.
3
Thomas brings two other claims: (1) that his sentences for heroin distribution and
manslaughter must merge; and (2) that the docket entries must be corrected to reflect that
Mr. Thomas is a user and seller of heroin. When arrested at his home, Thomas was
in possession of 60 white wax paper bags containing heroin. Each bag was stamped
“Banshee” in blue with a blue emblem. Thomas volunteered to police that he used about
12 of these bags of heroin per day or about three shots a day of four bags each. Thomas
admitted that out of the 60 bags he had recently obtained from his supplier, he would sell
about 30, for $10-15 each, and keep the rest for personal use.
On the night and early morning hours of June 25-26, 2015, Thomas received 28
phone calls—only one call was answered—and several text messages from Colton Lee
Maltrey, a user of heroin to whom he had previously sold. Maltrey sought to purchase $30
worth of heroin and Thomas sold him four bags.
Later that morning, Maltry was found dead of an apparent heroin overdose in the
bathroom of his mother’s house. With his body, police discovered four empty, white wax
paper bags stamped “Banshee” in blue with a blue emblem. Police also found a prescription
pill bottle with the label torn off that contained six 50-milligram tramadol pills,4 which
police theorized that Maltrey had stolen from his mother. The Office of the Chief Medical
Examiner opined that:
Colton Lee Maltrey died of alcohol and narcotic (free
morphine) intoxication. The manner of death could not be
determined. Autopsy detected increased levels of alcohol and
a drug (free morphine) in the heart blood of the deceased. …
he was convicted of involuntary manslaughter. Because of our resolution of Thomas’s first
claim, however, we need not reach these.
4
This Court takes judicial notice that tramadol, also sold as Ultram, is an opioid
analgesic.
2
The deceased had been consuming alcoholic beverages and
heroin (a drug) prior to death. Postmortem testing for
additional drugs was negative.5
Thomas was convicted of heroin distribution, manslaughter, and reckless
endangerment. He was sentenced to a twenty-year term for distribution and a concurrent
10-year term for manslaughter. As noted above, in this timely appeal, Thomas challenges
the sufficiency of the evidence to sustain his manslaughter conviction.
STANDARD OF REVIEW
In a challenge to the sufficiency of the evidence, “the duty of the appellate court is
only to determine ‘whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Chisum v. State, 227 Md. App. 118, 130 n.1 (2016) (quoting
State v. Albright, 336 Md. 475, 479 (1994)).
5
While it is crystal clear that Maltrey ingested heroin, it is not clear to this Court
whether the Medical Examiner’s finding excludes the possibility that he had also ingested
tramadol. The toxicology report found Maltrey’s heart blood to contain 240 mcg/L of Free
Morphine and reported that it was positive for 6-Monoacetylmorphine (6-MAM). The
“presence [of 6-MAM] is unequivocal confirmation of heroin usage.” Christopher J. Keary,
et al., Toxicologic Testing for Opiates: Understanding False-Positive and False-Negative
Test Results, PRIM. CARE COMPANION FOR CNS DISORD. (2012). Both tramadol and heroin
metabolize into free morphine, however, and whether they can be distinguished depends
on the type of test used. Id. Under our standard of review, in which we take the facts in a
light most favorable to the State, we cannot, on this record, assume that Maltrey ingested
the tramadol that was found with his body. If we could, however, it would be another factor
outside of Thomas’s control that was part of the cause of Maltrey’s death.
3
ANALYSIS
There are, in Maryland, two principal variants6 of involuntary manslaughter:
unlawful act manslaughter; and grossly negligent act manslaughter. The trial court
convicted Thomas under both variants.
I. UNLAWFUL ACT MANSLAUGHTER
Unlawful act manslaughter is, as Judge Moylan has described it, the “junior varsity
manifestation of common law felony murder.” CHARLES E. MOYLAN, JR., CRIMINAL
HOMICIDE LAW 207 (2002) (“MOYLAN’S CRIMINAL HOMICIDE”). There are three
6
In Chief Judge Robert C. Murphy’s classic discussion of involuntary
manslaughter, he described three categories:
Involuntary manslaughter at common law has been generally
defined as the killing of another unintentionally and without
malice (1) in doing some unlawful act not amounting to a
felony, or (2) in negligently doing some act lawful in itself, or
(3) by the negligent omission to perform a legal duty. To this
basic definition other authorities add the qualification, as to the
first class of involuntary manslaughter, that the unlawful act be
malum in se, and not merely malum prohibitum, and as to the
second and third classes of the offense, that the negligence be
criminally culpable, i.e., that it be gross.
State v. Gibson, 4 Md. App. 236, 242 (1968) (internal citations omitted). Modern sources
frequently combine the second and third categories into a single category regarding grossly
negligent acts. See, e.g., MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, 4:17.9
Homicide – Involuntary Manslaughter (Grossly Negligent Act and Unlawful Act) (2017)
(“MPJI-Cr”). Thomas also argues that there is space between these two categories and that
he cannot be criminally liable for the grossly negligent conduct of an unlawful act. This
makes no sense as a matter of logic but also as a matter of policy. Why should a really bad
or sloppy miscreant avoid liability when a good one doesn’t? Instead, we think this is
another example of what Judge Moylan calls the “semantic fallacy of the false affirmative,”
MOYLAN’S CRIMINAL HOMICIDE 232, wherein which the phrase “lawful act,” intended
only to distinguish from “unlawful act” is attempted to be transformed into a new element
of the crime.
4
elements: (1) that the defendant or another participating in the crime with the defendant
committed or attempted to commit an eligible crime; (2) that the defendant or another
participating in the crime killed the victim; and (3) that the act resulting in the death of the
victim occurred during the commission, attempted commission, or the escape from the
immediate scene of the eligible crime. Bowers v. State, 227 Md. App. 310, 314 n.4 (2016);
MPJI-Cr 4:17.9 (B).
The list of eligible crimes is not yet completely drawn but we can see some of its
parameters. The crimes must be malum in se, an act that is “naturally evil as adjudged by
the sense of a civilized community” and “wrongful in itself ‘without any regard to the fact
of its being noticed or punished by the laws of the state.’” Schlossman v. State, 105 Md.
App. 277, 285 (1995) (internal citations omitted).7 By contrast, we know that crimes that
are malum prohibitum, acts “that are only wrong because they are prohibited by statute,”
id., cannot support an unlawful act manslaughter conviction. Judge Moylan tells us that the
determination of whether an unlawful act is malum in se is “more concerned with the purely
objective question of what the unlawful act itself is and does not change from case to case.”
MOYLAN’S CRIMINAL HOMICIDE 214-15. We know from Johnson and Schlossman that
assault and battery crimes are malum in se. Johnson v. State, 223 Md. App. 128, 153 (2015);
Schlossman, 105 Md. App. at 285.
7
This Court recently reaffirmed Schlossman and held that unlawful act
manslaughter need not be dangerous to life, but merely malum in se, to support a conviction
for the unlawful act variant of involuntary manslaughter. Johnson, 223 Md. App. at 152.
5
We have not yet discovered a case that decides whether selling drugs is malum in
se or malum prohibitum. On the one hand, one would have to live under a rock—and we
do not—to miss the evils that the distribution of drugs causes for our State and Nation. On
the other hand, the test isn’t whether the unlawful act—here drug distribution—has bad or
even deadly effects. Rather the question is whether drug distribution is prohibited by all
civilized societies. We know that it is not. We know, for example, that other drugs, with
similar effects and similar risks to those caused by heroin, are routinely prescribed by
doctors and sold by pharmacists. See Md. Code, Criminal Law § 5-501 (“Dispensing of
certain substances listed in Schedule II”); Corey S. Davis & Derek H. Carr, The Law and
Policy of Opioids for Pain Management, Addiction Treatment, and Overdose Reversal, 14
IND. HEALTH L. REV. 1 (2017). We know that alcohol has different properties, but is, in all
respects, another drug with its own deleterious and addictive consequences if abused, but
which the State chooses to regulate but not prohibit. See Md. Code, Alcoholic Beverages
§§ 1-201 et seq. Moreover, we know that the lines between lawful and unlawful conduct
are changing: recent changes in drug laws have transformed marijuana sales from a serious
crime to a growth industry, licensed by states and required to pay taxes. See, e.g., COLO.
CONST. ART. 18, § 16 (“Personal use and regulation of marijuana”). There are places in our
world where drug use is treated as a public health problem rather than a criminal problem
and, as a result, the distribution of even heroin in those places is highly regulated but not
absolutely prohibited.8 We need not reach this question in Thomas’s case.
8
Programs known as safe injection sites provide facilities for users to inject their
own drugs under the supervision of trained staff. See, e.g., German Lopez, One Way Cities
6
Instead, our decision here rests on the requirement of legal causation. The State must
prove that the defendant’s unlawful act was the legal cause of the victim’s death.
Schlossman, 105 Md. App. at 292 (analyzing legal causation); MPJI-Cr 4:17.9(B)(3)
(“[T]he State must prove…that the act resulting in the death of [the victim] occurred
during” the commission of the unlawful act); DAVID E. AARONSON, MARYLAND CRIMINAL
JURY INSTRUCTIONS AND COMMENTARY 974 (2017 ed.) (“[T]o convict the defendant of
manslaughter, a causal connection between the unlawful act … and the death must exist,
although it is not essential that the ultimate harm that resulted was foreseen or intended.”)
(emphasis added). This is the same causal connection requirement that is demanded for
convictions under felony murder—“but for” causation. Stouffer v. State, 118 Md. App. 590,
620 (1997) (“the felony must be a sine qua non, i.e., but for the felony, the deceased would
not have been killed”) (citing PERKINS & BOYCE, CRIMINAL LAW 67 (3d ed. 1982));
Stewart v. State, 65 Md. App. 372, 379 (1985) (“if a direct causal link between the
accused’s actions and the victim’s death can be established, no more is required”); Scott v.
State, 49 Md. App. 70, 82 (1981) (upholding felony murder conviction where “the line of
Can Reduce Overdose Deaths: Open Safe Spaces for Injecting Heroin, VOX (January 24,
2018), https://perma.cc/W6B9-ZWLL (discussing safe injection sites in Europe, Canada,
and Australia); Nicholas Kristof, How to Win a War on Drugs, NEW YORK TIMES
(September 22, 2017), https://nyti.ms/2yhZWkX (discussing legalized drugs in Portugal).
In other programs, heroin can be prescribed for users who have not had success with other
forms of treatment. See, e.g., German Lopez, The Case for Prescription Heroin, VOX (June
12, 2017) https://perma.cc/C2SX-UWWW (citing John Strang et al., New Heroin-Assisted
Treatment, EUR. MONITORING CTR. FOR DRUGS AND DRUG ADDICTION (2012))
(discussing prescribed supervised injectable heroin treatment in Canada and Europe).
7
causation, running from the robbery to the murder, was quite clear and direct, and unbroken
by any act fresh and independent of the common design”) (internal quotation omitted).
Thomas sold Maltrey four bags of heroin. Later, at another time, in another place,
Maltrey injected himself with an amount of heroin that he chose. He used it in conjunction
with alcohol, which may have intensified the effect. In such a circumstance, we hold that
the State failed to establish a causal connection between Thomas’s sale of heroin and
Maltrey’s death. It is not impossible to imagine scenarios in which there will be a sufficient
causal connection between the sale of heroin and the victim’s death to satisfy this element
of the unlawful act variant of involuntary manslaughter. There are cases in other
jurisdictions, for example, where the defendant determined the dose and personally injected
the victim. See Powell v. Commonwealth, 189 S.W.3d 535, 537 (Ky. 2006) (defendant
convicted of reckless homicide for injecting some of his own heroin into the victim);
Commonwealth v. Vaughn, 687 N.E.2d 270, 273 (Mass. App. Ct. 1997) (defendant
convicted of involuntary manslaughter after injecting heroin into the victim); cf. People v.
Erb, 894 N.Y.S.2d 266, 267 (N.Y. App. Div. 2010) (holding that the evidence was
insufficient to establish criminal liability where the defendant “did not procure or inject the
drugs that caused the death of the victim, nor did he place her in a location that made her
less likely to obtain medical assistance”). Such facts might well satisfy the causal
connection requirement. Similarly, there are situations in which the defendant adulterated
the heroin (as with fentanyl) and the State can prove that the adulteration was the “but for”
8
cause of the defendant’s death.9 Here, however, where the causal chain was broken, there
can be no liability for the unlawful act variant of involuntary manslaughter.
II. GROSSLY NEGLIGENT ACT MANSLAUGHTER
The grossly negligent act variant of involuntary manslaughter occurs when a
defendant acts in a manner that is grossly negligent and causes the death of another. State
v. Pagotto, 361 Md. 528, 548 (2000). As to this variant of involuntary manslaughter, we
hold that the State failed to carry its burden of proof in two regards. First, the State may
have established sufficient evidence from which a finder of fact could find that Thomas
was negligent in the sale of heroin to Maltrey, but there was no evidence to establish that
he was grossly negligent. Second, the grossly negligent variant of involuntary manslaughter
requires that the defendant’s act be the legal—“but for”—cause of the victim’s death, and
as discussed above, the required causal chain was broken.
Gross negligence is not just big negligence. For these purposes, gross negligence
“must be sufficient beyond a reasonable doubt to establish that the defendant…had a
wanton or reckless disregard for human life…. Only conduct that is of extraordinary or
outrageous character will be sufficient to imply this state of mind.” State v. Kramer, 318
Md. 576, 590 (1990). Judge Irma Raker reformulated the test in this way:
In determining whether a defendant’s actions constituted gross
negligence, we must ask whether the accused’s conduct, under
the circumstances, amounted to a disregard of the
9
Erika Butler, Fentanyl Found in Majority of Heroin, Opioid-related Overdoses in
2017, THE AEGIS (February 18, 2018), https://perma.cc/PE6H-WLWU; Josh Saul, The
New Drug: Deadly Fentanyl Being Sold Instead of Heroin by Greedy Dealers in the U.S.,
NEWSWEEK (October 26, 2017), https://perma.cc/5TXA-XAK3.
9
consequences which might ensue and indifference to the rights
of others, and so was a wanton and reckless disregard for
human life. Stated otherwise, the accused must have
committed acts so heedless and incautious as necessarily to be
deemed unlawful and wanton, manifesting 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 an indifference to consequences. It is
only conduct which rises to this degree of gross negligence
upon which a conviction of involuntary manslaughter can be
predicated.
Albright, 336 Md. at 500 (internal citations and quotation marks omitted). The case law is
clear that “simple negligence or misadventure or carelessness” is not enough to sustain a
manslaughter conviction. Id. at 499; Duren v. State, 203 Md. 584, 588 (1954); MOYLAN’S
HOMICIDE LAW 233-34, 243-57.
We start from the premise, which the State appears to concede, that the sale of
heroin, without more, is not gross negligence. There is no reason to infer the necessary
state of mind from the ordinary transaction. Rather, we can infer the opposite—that a drug
dealer wishes for his customers to remain alive so that he may sell them more heroin.
Moreover, because low-level dealers are often themselves users and addicts, as Thomas is,
they have no rational interest in making the conduct more dangerous. It is also worth noting
that, if we were to consider every sale of heroin to be gross negligence, it reduces criminal
liability down to a matter of mere fortuity. We do not apportion criminal liability for
manslaughter merely because of bad luck.
The State’s brief, however, identifies five facts, which together it says support the
conclusion that Thomas acted in a grossly negligent manner toward Maltrey: (1) that the
10
amount of heroin contained in the four bags constituted a lethal dose;10 (2) that Thomas
knew Maltrey was an addict; (3) that Maltrey was young and less experienced than
Thomas; (4) that Thomas was aware of the dangers of heroin use; and (5) that the
circumstances of the sale—in the middle of the night, after Maltrey’s multiple, frantic
attempts to contact Thomas—were “weird.” We hold as a matter of law that these facts, if
believed, are evidence of simple negligence, not the sort of gross negligence necessary to
sustain a conviction for involuntary manslaughter.
Moreover, as we described above, there must be a direct causal connection between
the grossly negligent act and the victim’s death. Here, the facts do not support the necessary
causal link.
CONCLUSION
We do not wish for this Opinion to be misunderstood. Thomas committed a serious
crime and for it received a long sentence of incarceration. That was not challenged and we
do not doubt its correctness. Nor do we say necessarily that drug dealers categorically
cannot be liable for involuntary manslaughter when their customers die. We say only that
the facts of this case do not legally support the conviction.
JUDGMENT OF THE CIRCUIT
COURT FOR WORCESTER
COUNTY REVERSED AS TO
MANSLAUGHTER ONLY. COSTS
TO BE PAID BY WORCESTER
COUNTY.
10
This point is hotly contested in the briefs but we need not resolve it.
11