Does the common law felony murder doctrine apply in Maryland to render a homicide committed in the perpetration of a felony not enumerated in the first degree murder statutes, here child abuse, second degree murder?

Nine-year-old Rita Fisher died on June 25, 1997, of dehydration and malnutrition after prolonged abuse in the Baltimore County home she shared with her mother, Mary Utley, her older sister, Rose Mary Fisher, Rose Mary's boyfriend, Frank Scarpola, and her fifteen-year-old sister, Georgia. The autopsy revealed multiple rib fractures, internal bleeding, ligature marks, and numerous bruises and abrasions. Rita weighed 47 pounds. Georgia testified that the defendants beat the girls, locked them for days in a basement area called "the hole," withheld food and water, and kept them locked in their bedroom for five days before Rita died. The night before Rita died, Scarpola tied her to furniture and taped her mouth. After Rita died, the defendants told authorities she had fallen down the steps. Georgia, hospitalized the next day, was emaciated, malnourished, and bruised. Each defendant blamed the others at trial. Utley and Rose Mary Fisher were convicted of second degree murder on a felony murder theory, with child abuse as the underlying felony, along with multiple counts of child abuse and conspiracy.

Utley, Rose Mary Fisher, and Scarpola were tried jointly in the Circuit Court for Baltimore County. The jury acquitted Utley and Rose Mary Fisher of first degree premeditated murder and of intentional and depraved heart second degree murder, and it convicted Scarpola of second degree murder on both intentional killing and felony murder theories. It convicted Utley and Rose Mary Fisher of second degree felony murder and convicted all three defendants of child abuse and conspiracy counts. The trial court sentenced Scarpola to ninety-five years, Utley to seventy-five years, and Rose Mary Fisher to thirty years. The Court of Special Appeals affirmed, holding that the challenge to the cognizability of second degree felony murder was not preserved. The Court of Appeals of Maryland granted certiorari on the petitions of Utley and Rose Mary Fisher, ordered supplemental briefing and reargument on the effect of the child abuse death-enhancement provision, and heard argument in April 2000 and again in January 2001.

(Rodowsky, J.)

Yes. Maryland recognizes second degree felony murder, and child abuse of the character and degree shown here may serve as the underlying felony.

Preservation. The Court exercised its discretion under Rule 8-131(a) to reach the unpreserved cognizability issue. If second degree felony murder were not cognizable, the convictions would rest on a legally invalid theory, counsel would have been ineffective for not preserving the point, and the sentences would be illegal and open to challenge at any time. The trial judge had also raised the issue himself.

Statutory preemption. Section 35C(b)(2), which enhances the penalty when child abuse results in death, does not create a separate crime and does not supersede murder. Section 35C(b)(3) expressly allows separate sentences for the abuse and for offenses based on the abusive acts. The legislative history shows that subsection (b)(2) was meant to punish fatal abuse that is easier to prove than murder, not to abrogate murder.

Common law basis. Sections 408 through 410 only divide common law murder into degrees for punishment and do not define or limit the felony murder doctrine. Davis v. State, 39 Md. 355 (1874); Hardy v. State, 301 Md. 124 (1984). Jackson v. State, 286 Md. 430 (1979), looked to the dangerousness of the felony without treating the statutory list as exclusive. The predicate felony therefore need not be one enumerated in those sections.

No limit to common law felonies. Limiting the doctrine to felonies recognized at common law is a minority position that Maryland does not adopt.

Dangerousness test. The danger to life is assessed by the nature of the felony or the manner in which it was committed in the particular circumstances, not by the elements in the abstract as California does. The abstract approach defeats the doctrine's deterrent purpose, which is to punish dangerous felonious conduct when death is a foreseeable consequence. Child abuse inflicted as shown by this evidence is inherently dangerous.

Discovery. The trial court did not violate Rule 4-263 by withholding the surviving victim's address. Her counsel confirmed her refusal to be interviewed, good cause supported the implicit protective order, Rule 4.2 barred contact without her counsel's consent, and no prejudice resulted.

Psychological profile evidence. Child abuse is a general intent crime. The malice element is judged objectively under the totality of the circumstances, as in Bowers v. State, 283 Md. 115 (1978), not by the accused's subjective belief. Evidence offered to support Fisher's testimony about her subjective intent was irrelevant, and its exclusion was proper.

Sentence on Count II. Section 35C(b)(2) is a penalty enhancement based on a circumstance of the offense. Under Wadlow v. State, 335 Md. 122 (1994), the State must allege it in the charging document, and Count II did not. Utley's twenty-year sentence on that count is vacated and the case remanded for resentencing, with a fifteen-year maximum. The remaining convictions are affirmed.

Concurring and Dissenting (Bloom, J.) Bloom agrees that Maryland recognizes second degree felony murder, that dangerousness is judged by the manner of commission, that child abuse may be the predicate felony, and that the discovery and psychological profile rulings were correct. He dissents from affirming the separate child abuse sentences. Under Blockburger, the Fifth Amendment, and Maryland common law, the underlying felony is a lesser included offense that merges into the felony murder conviction. Because the jury may have relied on either of the two child abuse counts for each defendant, the ambiguity must be resolved in the defendants' favor, and both counts merge. Section 35C(b)(3) authorizes separate punishment only for offenses that establish the abuse, not for a murder that results from it, and no clear legislative intent permits multiple punishments for second degree felony murder and its predicate felony. An illegal sentence may be corrected at any time, so he would vacate the child abuse sentences even though double jeopardy was not raised.