Bruce v. State , 317 Md. 642 ( 1989 )

MURPHY, Chief Judge.

The question presented is whether “attempted felony murder” is a crime in this State.

I.

On December 2, 1986, three men entered Barry Tensor’s shoe store. One man, later identified as Leon Bruce, was masked and armed with a handgun. He ordered Tensor to open the cash register. One of Bruce’s confederates jumped over the counter, and emptied the drawer of its money. Tensor was then ordered to open a second register. Upon finding it empty, Bruce demanded to know where the money could be found. Tensor testified:

“I said it’s empty, that is all there is and then he took the gun and aimed it right at my face, at my head. And he said I’m going to kill you in a very serious voice, and the gun was continuously held right at my face.

“At that point, I was incredibly afraid and I just tucked my head down and kind of tried to get out of the way and ducked down and moved forward. And at that point, I guess I banged into him or something and he shot me.”

Tensor was hospitalized for five weeks from a gunshot wound to his stomach.

On March 10, 1987, Bruce was charged by criminal information with attempted first degree murder, robbery with a deadly weapon, and two counts of unlawful use of a handgun. A jury in the Circuit Court for Baltimore City found him not guilty of attempted first degree premeditated murder, guilty of attempted first degree felony murder, guilty of robbery with a deadly weapon, and guilty of the two handgun charges. The presiding judge (Noel, J.) subsequently granted Bruce’s motion for a new trial on all charges. He concluded that his jury instructions pertaining to attempted felony murder were erroneous because no such offense existed under Maryland law.

Bruce was tried a second time before a jury in the Circuit Court for Baltimore City (Ross, J., presiding). Again, he was found guilty of attempted felony murder, robbery with a deadly weapon, and upon the two handgun violations. For the attempted felony murder conviction, Bruce was sentenced to a life term to run consecutively to all outstanding sentences, and to twenty years- for using a handgun in the commission of a crime of violence. Bruce’s other handgun conviction, as well as that for armed robbery, was merged into the attempted felony murder conviction.

On appeal to the Court of Special Appeals, Bruce argued that attempted felony murder was not a crime in Maryland. We granted certiorari prior to decision by the intermediate appellate court to consider the significant issue raised in the case.

II.

Maryland Code (1982 Repl.Vol.), Article 27, § 407 provides that murder “perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Section 410—the so-called felony murder statute—provides that all murder committed in the perpetration of, or attempt to perpetrate, certain designated felonies, of which robbery is one, is also murder in the first degree. These statutes do not create new statutory crimes but rather divide the common law crime of murder into degrees for purposes of punishment. See Hook v. State, 315 Md. 25, 28, 553 A.2d 233 (1989); Campbell v. State, 293 Md. 438, 441, 444 A.2d 1034 (1982); Wood v. State, 191 Md. 658, 666, 62 A.2d 576 (1948).

We observed in Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969), that at common law “a killing in the perpetration of a robbery was murder, regardless of intent.” See also Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958); Clark and Marshall, Crimes § 245 (4th ed. 1940). To secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove a specific intent to commit the underlying felony and that death occurred in the perpetration or attempt to perpetrate the felony; it is not necessary to prove a specific intent to kill or to demonstrate the existence of wilfulness, deliberation, or premeditation. Hook v. State, supra, 315 Md. at 31, 553 A.2d 233; State v. Frye, 283 Md. 709, 712-13, 393 A.2d 1372 (1978); Newton v. State, 280 Md. 260, 269, 373 A.2d 262 (1977); Thompson v. State, 230 Md. 113, 117, 186 A.2d 461 (1962); Thomas v. State, 206 Md. 575, 581-82, 112 A.2d 913 (1954). As we said in Jackson v. State, 286 Md. 430, 435, 408 A.2d 711 (1979), “homicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice.”

III.

In determining whether attempted felony murder is a crime in Maryland, we note that criminal attempts are common law misdemeanors in Maryland, applicable to any existing crime, whether statutory or common law. Cox v. State, 311 Md. 326, 329-30, 534 A.2d 1333 (1988); Young v. State, 303 Md. 298, 301, 493 A.2d 352 (1985); Hardy v. State, 301 Md. 124, 139, 482 A.2d 474 (1984). Under Maryland law, a criminal attempt consists of a specific intent to commit the offense coupled with some overt act in furtherance of the intent which goes beyond mere preparation. Cox, supra, 311 Md. at 330, 534 A.2d 1333 and cases there cited.

In Cox, the question presented was whether an individual could be convicted of attempted voluntary manslaughter. Recognizing that criminal attempt is a specific intent crime, we held that an individual may be convicted of the crime of attempted voluntary manslaughter since the substantive offense is “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation.” Id. at 331, 534 A.2d 1333 (emphasis in original). On the other hand, we noted that involuntary manslaughter is an “unintentional killing done without malice, by doing some unlawful act endangering life, or in negligently doing some act lawful in itself”; accordingly, we held that it may not form the basis of a criminal conviction for attempt. Id. at 332, 534 A.2d 1333 (emphasis in original).

IV.

The elements of wilful, deliberate and premeditated attempted murder in the first degree are the intent to commit the offense and some overt act towards its commission. State v. Holmes, 310 Md. 260, 271-72, 528 A.2d 1279 (1987). In that case, we distinguished this species of first degree murder from murder committed in the perpetration of one of the felonies enumerated in the felony murder statute. As we said earlier, the criminal intent requisite to proving a felony murder is the specific intent to commit the underlying felony. Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in Maryland.

The majority of jurisdictions which have considered the question have concluded that “attempted felony murder” is not a crime. See, e.g., People v. Franklyn, 157 Cal.App.3d 518, 203 Cal.Rptr. 813, 824 (1984); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 910 (1975); Head v. State, 443 N.E.2d 44, 51 (Ind.1982); State v. Darby, 200 NJ.Super. 327, 491 A.2d 733, 736 (1984), cert. denied, 101 N.J. 226, 501 A.2d 905 (1985); State v. Price, 104 N.M. 703, 726 P.2d 857 (1986); People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253, 254 (1975); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171, 177-78 (1983); State v. Maestas, 652 P.2d 903, 904 (Utah 1982).

In People v. Viser, supra, 343 N.E.2d at 910, the Supreme Court of Illinois said:

“There can be no felony murder where there has been no death, and the felony murder ingredient of the offense of murder cannot be made the basis of an indictment charging attempted murder. Moreover, the offense of attempt requires an ‘intent to commit a specific offense’, while the distinctive characteristic of felony murder is that it does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.” (Citations omitted.)

Similarly, the Supreme Court of Indiana flatly concluded that “absent death the applicability of the felony murder rule is never triggered.” Head v. State, supra, 443 N.E.2d at 50. The Court of Appeals of New Mexico, noting the absence of a mens rea (an intent to kill) in a felony murder prosecution, has held that even when a specific intent to kill is established, the felony murder rule is not applicable to an attempted murder. State v. Price, supra. And the court in State v. Darby, supra, 491 A.2d at 736, bluntly stated that “the purported crime of attempted felony murder is manifestly unintelligible____ The fact is that the concepts of attempt and felony murder cannot rationally be joined.”

These holdings are fully in accord with the rationale advanced by LeFave & Scott, Criminal Law, § 6.2 at 500 (2nd ed. 1986):

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, C, and D have each taken the life of another, A acting with the intent to kill, B with an intent to do serious bodily injury, C with a reckless disregard of human life, and D in the course of a dangerous felony, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm, that he acted in reckless disregard for human life, or that he was committing a dangerous felony. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).”

Reaching a contrary result is Amlotte v. State, 456 So.2d 448 (Fla.1984) (attempted felony murder is a valid crime). See also White v. State, 266 Ark. 499, 585 S.W.2d 952, 954 (1979) (recognizing the existence of attempted felony murder under that state’s statutory definition of attempt, but noting a distinction from precode cases).

The State maintains that because the evidence in the case sufficiently supported a finding that Bruce harbored a specific intent to kill Tensor, the crime of attempted felony murder was necessarily established. But, as we have said, the criminal intent necessary to convict for attempted murder requires, as one of its essential elements, a specific intent to kill. Consequently, as Maryland does not recognize attempted felony murder as a crime, Bruce’s conviction for committing that non-existent offense must be reversed. Bruce’s convictions for armed robbery, as well as the handgun violations, are unaffected by our holding in this case. Since the court merged the armed robbery conviction into the now vacated conviction for attempted felony murder, we shall remand the case for sentencing on the armed robbery count.

AS TO THE CONVICTION OF ATTEMPTED FELONY MURDER: JUDGMENT REVERSED; AS TO THE CONVICTION FOR ARMED ROBBERY: CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR IMPOSITION OF SENTENCE ON THE ARMED ROBBERY COUNT; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.