Appeal from the Circuit Court for Harford County. Albert P. Close, JUDGE.
Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ. Eldridge & Davidson, JJ., dissenting. Judge Cole concurs with the views expressed herein, while Judge Davidson concurs with the views expressed in Part I of the dissenting opinion.
Appellant, Annette Louise Stebbing (Annette), was found guilty at a jury trial of murder in the first degree, rape in the first degree, robbery and first degree sexual offense. She elected to be sentenced by the court. A death sentence was imposed. The crimes occurred on April 9, 1980 in the back of a van parked in an isolated area of Harford County. Only Annette, her husband, Bernard Lee Stebbing (Bernard or Lee), and the victim, Dena Marie Polis (Dena), were present. Bernard did not testify at trial. The State's case was based upon statements by Annette and on physical facts. On this appeal and mandatory review, Annette raises points which go to the guilty verdicts and to the death sentence.
Annette at age 18 had married Bernard in August of 1979. Bernard is 19 years her senior. He is a self-confessed alcoholic who was then on probation for a sex crime involving a female minor. Dena, who was 19 years old at her death, was the stepdaughter of Bernard's brother and the daughter of Edna Stebbing (Edna). Edna was separated from her husband. Edna and Dena lived on South Marlyn Avenue in the Essex section of Baltimore County. Bernard and Annette visited from time to time at Edna's home. Annette was friendly with Dena, and Bernard lusted for Dena. About one week before the murder, Bernard told Annette that he wanted to "screw" Dena. On Saturday, April 5, 1980, while Bernard and Annette were visiting at
Edna's home, Bernard "grabbed [Dena] from the front." Dena started hitting Bernard, kicking him on the shins and gouging him in the shoulders with her nails. She told him "'don't you ever touch me like that again.'"
On Wednesday, April 9, at about 4:40 p.m., Edna came home from work and found Bernard, Annette and Dena there. Dena was planning to visit her boyfriend in Glen Burnie. Bernard and Annette were to drive Dena into downtown Baltimore City where Dena was to get public transportation to Glen Burnie. At Edna's home Bernard told Annette, when no one else was present, that "he was going to screw [Dena] that night." The trio left in Bernard's employer's van. There were only two seats in the van. Bernard was driving, and Dena, who was five feet two inches tall and weighed 104 pounds, was in the passenger seat. Annette, who was five feet five inches tall and weighed 155 pounds, was behind them.
What thereafter transpired is described in Annette's statement to the Baltimore City police given on April 19, 1980:
[W]e started out for Harford County. We went to Phil. Rd. and went North. Lee pulled over about eight miles. Lee said that the oil was low. He checked the engine and keep [sic] saying to me, "Do it" "Do it." So I put my arm around [Dena's] neck and pulled her to the back of the Van. Lee got into the Van, and Dena was yelling, "Lee stop her." Lee pulled her clothes off and Lee had sex with her. Then I started strangling her, she was fighting with me and [scratched] me on the left hand. I strangled her until there was no life in her. . . .
Q. What kind of sex did Lee have with Dena?
A. Everything, intercourse and rectum.
Q. What were you doing when Lee was have [sic] sex with Dena?
A. I was sitting on her chest, between my legs. I had my legs over her arms, pinned down and I had my hands around her neck. Dena started screaming and I pressed
down on her throat and she stopped breathing, and blood came out of her nose and she choked on her blood.
Q. How was Lee able to screw Dena up the rectum while you were on her chest?
A. Lee told me to turn her over that he wanted to fuck her up the ass. I lefted [sic] up and turned her over, with Lee's help and I was still strangling her around her neck. After she was turned over Lee fucked her up the ass. During the time Lee was screwing her Lee got his rocks off two times.
Annette later told the police that Lee "'thought it was funny when he was having sex with [Dena].'"
Bernard did not want to take the time to dress Dena's partially unclothed body. With the corpse covered by a blanket in the back of the van, they returned to Bernard's mother's one-bedroom apartment in Essex where they had been occupying the living room as their residence.
Annette's account of the balance of the night of April 9-10 is set forth in the report of her psychological expert which was placed in evidence at the sentencing stage.
Annette got out of the van and went into the house to get something to eat. As soon as she left the van Lee locked all the doors. Sometime later Annette returned to the van and apparently startled Lee who she states was in the back of the van with [Dena]. She states "I saw her uncovered from the blankets." According to Annette "I don't know what he did." Asked by the examiner what Lee might have been doing with [Dena's] body uncovered, she spontaneously replied "He could have screwed her when she was dead."
After giving Lee something to eat in the van she indicated that the two of them drank more beer. She states "he fell asleep in the back of the van with the girl" who was still uncovered. She herself remained sitting up in the passenger seat in the front of the van through the night.
On Thursday, April 10, Annette and Bernard went to work with the body in the van. His job was installing floor tile and Annette was his helper. In the course of the day they threw Dena's pocketbook and shoes into the dumpster at their employer's place of business. They left work early that day and drove around the waterfront of Baltimore City until dark. Then they stuffed Dena's body head first through a manhole into a sewer. At some point they threw Dena's dungarees, white sweater and panties into a dumpster behind a 7-Eleven in eastern Baltimore County.
In the evening of Thursday, April 10, Annette and Bernard went to Edna's home to pick up some money from the sale of a sword that Edna had sold for Bernard. They arrived around 8:00 p.m. and stayed until about 12:30 a.m. Edna had already notified the Baltimore County police that Dena was missing. Edna's sons, Gus and Dennis, his girlfriend, and Edna's daughter Vickie were there at various times during the evening. Conversation centered on where Annette and Bernard had last seen Dena and on what Dena had been wearing. When Gus said to Edna "'Mom, why don't you face it, she is dead,"' Annette jumped up and said "'Gus, you shouldn't talk to your mother like that. She is upset enough.'"
Dena's body was found in the sewer on Friday, April 11, at 7:00 a.m. The corpse was taken to the Medical Examiner's Office. There an attendant in the course of removing Dena's blouse and thermal undershirt noticed a brown button fall from within the clothing. The button was preserved as possible evidence. Identification of the body was made by 12:30 p.m. that day.
When Edna learned that Dena was dead, Edna became hysterical. She was taken to her daughter Vickie's house. Many friends of the family visited there that evening. Annette and Bernard came as well. Annette walked over to Edna and hugged and kissed her. Bernard walked over to Edna and hugged and kissed her. When Annette and Bernard were getting ready to leave, Edna walked out to the
kitchen with them. They were consoling her. Annette hugged Edna and said, "'You take it easy now, because everything is going to be all right.'"
The break in the murder investigation came on April 19, 1980. Annette and Bernard had gone to the Baltimore City Police Headquarters where they gave exculpatory written statements. Bernard then consented to a search of the van which was parked nearby. During that search Detective James Ozazewski noticed that a brown button was missing from the yellow shirt which Bernard was wearing and recalled the brown button found at the Medical Examiner's. With Bernard's permission, a laboratory examination of the shirt was immediately performed. Because the buttons on Bernard's shirt matched the button found with Dena's body, Bernard and Annette were taken to separate rooms, advised of their rights, and questioned further. Detective John Hess questioned Annette. Hess told her that Bernard's shirt was the same one that Bernard had been wearing on the night when Dena was murdered. Annette replied, "'Well, he didn't kill her. I did.'" She said, "'I was sitting on her chest and my hands felt like magnetic [vices] when they closed around her throat. And I was squeezing until blood came from her nose.'" Detective Hess testified that Annette
went on to explain about her and her husband planning this thing, so that her husband could have intercourse with Dena Polis. And that on a cue [Annette] was going to pull [Dena] from the front of the van, by the neck, and throw her in the back of the van, where this choking action took place.
The Baltimore City police turned the investigation over to the Maryland State Police. On Monday, April 21, Annette was in the custody of Trooper Michael Joseph Callanan in a jury room at the Harford County Court House awaiting a bond review hearing. Annette told Trooper Callanan that she had killed Dena because she did not want Dena telling people on the streets, or the police, that Bernard had raped Dena. Annette said that Dena was screaming and "'that's
when I cut her off.'" The last thing which Dena said to Annette was "'"I have too much to live for."'"
Annette testified at the guilt or innocence stage of her trial. Her testimony was that the trio had driven into Harford County in order to show Dena a floor tile job there. While Bernard was driving on a side road, he stopped so that Annette could go to the bathroom in the woods. When she returned to the van, she said she found Bernard and Dena having consensual intercourse. The two women argued and Annette's mind went blank. The next thing Annette remembered was that Bernard was pulling her back, while she was choking Dena who was lying in the rear of the van with Annette astride her.
Much the same version of the killing was given by Annette to Lawrence Donner, Ph.D. and to John McI. Henderson, M.D., her expert witnesses in clinical psychology and forensic psychiatry, respectively.
Appellant had, by plea, interposed the defense of insanity, on which threshold hearings were conducted out of the presence of the jury. Neither Dr. Henderson nor Mr. Donner were able to express an opinion that Annette was not responsible for criminal conduct under the test established by Md.Code (1957, 1979 Repl.Vol.), Art. 59, § 25.*fn1 There was no evidence of insanity so as to raise that defense for jury consideration. However, Dr. Henderson was of the opinion that "at the time of the alleged offense, [Annette] lacked the capacity to form the intent to premeditatively murder." The court ruled that it would "permit Doctors Henderson and Donner to testify [before the jury] as to the Defendant's diminished mental capacity and to explain how this could
have influenced her behavior on the date and time of and in the circumstances surrounding the alleged criminal acts," but that "[t]hey [would] not be permitted to render an opinion on the ultimate issue as to whether the Defendant possessed the required specific or general intent to commit the acts alleged.*fn2
The jury was instructed on both first and second degree murder. It was also instructed that it could consider diminished capacity as a defense to premeditated, first degree murder and to robbery. The verdict of guilty of murder in the first degree was based upon felony murder.
Sentence was imposed only for murder. A valid finding of guilty on any one of the underlying felonies would support the final judgment of conviction for felony murder from which the appeal has been taken. However, because the verdicts on the felony charges affected the sentence for murder, we shall consider all of the points raised by Annette.
Appellant's first point is that the trial court erroneously excluded evidence during Dr. Henderson's direct examination before the jury. An understanding of the setting giving rise to the argument requires a review of certain factors at work in the trial.
Between her arrest in April and her trial, which commenced in December of 1980, Annette gave many descriptions of the killing. They ranged from the signed, inculpatory, written statement furnished to the Baltimore City police on April 19 to a version, given orally to a State psychiatrist
while she was being examined at Spring Grove State Hospital, in which Annette claimed that Bernard had held a gun to her head and ordered her to choke Dena. Defense strategy included attempting to elicit from Dr. Henderson a version of the facts which would have constituted second degree murder and which, in Dr. Henderson's opinion, was true.
Additionally, the trial court had ruled that it would permit evidence relating to diminished capacity to form a required criminal intent. This conclusion was reached on January 5, 1981 at the end of the threshold hearings on the aborted insanity plea. The determination was rendered more than one year before this Court held in Johnson v. State, supra, 292 Md. 405, 439 A.2d 542 that diminished capacity is not a defense to criminal culpability. Thus, the trial court's ruling was more favorable to the Appellant than Maryland law requires. But, in so ruling, the trial court distinguished between (1) expert testimony describing Annette's diminished capacity and how it might have affected her conduct and (2) an opinion on the ultimate issue that Annette did not have the requisite intent. When the defense experts were testifying before the jury, the ground rules were, as laid down by the trial court, that type (1) testimony would be permitted, but type (2) would not be permitted.
Shortly prior to the evidentiary ruling of which Annette complains, Dr. Henderson had been asked by defense counsel:
Q. Now, can you tell us what you think happened [preceding and during the choking]?
There followed a bench conference in which the court stated it would permit Dr. Henderson to talk about how Annette's personality might have influenced her actions, but that it would not permit him to say that what Annette had told the
police was a lie, and that some other version was not a lie "or something like that."
Direct examination proceeded.
Q. Okay. Did there come a point when you believed any particular statement?
A. At no time did I believe any particular one in its entirety. But there was one which was more credible than others. And with a few exceptions, seemed to fit all of the material from the other sources.
Q. Okay. And what was that version?
THE COURT: Overruled. Go ahead.
The witness said that the version which he "found credible" was fairly close to the first version given by Annette at Spring Grove. From the Spring Grove records he read the note of an interview conducted shortly after Annette's admission for evaluation on July 8, 1980. In this version Annette said the trio had been drinking beer and smoking marijuana. Bernard disrobed himself and announced that he would have sex with his stepniece. Everyone laughed and considered it was a joke. Annette left the van to relieve herself and returned to find Bernard and Dena having sexual relations. Dena asked Bernard "for more." Annette became angry, tried to hit Dena and caught her by the neck instead. Annette started to squeeze harder and harder until she noticed that Dena was not breathing anymore. Annette disclaimed any intent to kill Dena but only to hurt her.
Dr. Henderson then read through other versions appearing in the Spring Grove notes, including the one in which Bernard had a pistol and another in which Bernard left the van when Annette began fighting with Dena.
Defense counsel then asked:
Q. Now, you mentioned that you had a version which was credible, at least in your opinion, and similar to a version that you read to us just now from Spring Grove, is that correct?
Dr. Henderson responded "yes" and again stated that the version which he believed was credible was "not exactly like any version" but not "too different from the first one" at Spring Grove. He said his opinion was based in part on what Bernard had said to an interviewer (whom the witness did not identify). He read from notes of that interview in which Bernard said the sex with Dena was consensual. Still "responding" to the same question, he went on to say that based on Annette's personality profile, as drawn from various psychological testing done, "I do not feel[,] and this is an opinion 'to a reasonable degree of medical certainty[,]' that Annette Stebbing has the emotional capacity to aid, abet, participate. . . ." At that point the witness was interrupted by the State's objection which the court instantly sustained. It is this ruling on which Appellant bases her first argument.
The State then requested a bench conference "to talk to the Doctor about this problem." At the bench, with the witness present and before anyone else spoke, the court said, "You sort of overlooked it, but I had not." The judge then referred to the ruling prohibiting the experts from giving "an opinion on the ultimate issue of whether or not [Annette] had a specific intent or general intent with regard to any of the crimes that are charged against her." Defense counsel argued that Annette "didn't have the emotional capacity to form the intent." (Emphasis added). In the course of the sidebar discussion, the following transpired:
[DEFENSE COUNSEL]: Let him finish the answer right here. What were you going to say?
[DR. HENDERSON]: I was going to say that [Annette] didn't have the emotional capacity to participate in or aid or abet her husband in having intercourse with any female. And that . . . would include Dena Polis.
THE COURT: Nothing wrong with that. [Emphasis added.]
The State then argued that rape is a general intent crime, and that even those courts which allow the diminished capacity defense apply it only to specific intent crimes. The
argument on an ultimate opinion of diminished capacity continued until proceedings recessed for the day.
In chambers the next morning defense counsel, armed with citations to decisions approving the diminished capacity defense, argued that Dr. Henderson "should be able to testify as to whether or not Annette had the capacity to deliberately, voluntarily, wilfully and premeditately kill Dena Marie Polis in the context of the situation in which she found herself at the time of the alleged murder." The State argued, inter alia, that Dr. Henderson's proposed opinion would not be based on any version of the facts in evidence, but was to be based upon what he determined those facts to be. The court adhered to its prior ruling that the expert would not be permitted to state that Annette "lacked capacity to form an intent." Defense counsel then consulted with Dr. Henderson and returned to chambers with two questions designed to distinguish between an opinion that the defendant did not have the required specific intent and an opinion that the defendant did not have the capacity to form a required specific intent. The court ruled that it had already said it would not permit either type of testimony.
Direct examination of Dr. Henderson continued before the jury through the balance of the morning. Upon resumption of the proceedings following the luncheon recess, defense counsel concluded his examination by putting three questions to Dr. Henderson for the obvious purpose of making a record. Objections were sustained as to each. The questions were whether the witness had an opinion as to Annette's intent, and as to her capacity to form an intent, and whether those opinions were held to a reasonable degree of medical certainty.
There was no trial court error in the evidentiary ruling complained of. The State had objected, and the court immediately sustained that objection, because it appeared that Dr. Henderson was about to state an "ultimate issue" opinion of diminished capacity. Defense counsel argued at the time, and the next morning, for the admissibility of an
opinion stating the conclusion that Annette lacked intent because of diminished capacity. Because, under Johnson, supra, diminished capacity is not a defense, the trial court could not have erred in rejecting the position taken by Annette's trial counsel.
On this appeal, Annette shifts from the pre- Johnson ground asserted by her trial counsel and focuses on the balance of the answer which Dr. Henderson gave at the sidebar conference. She now points out that the doctor intended to say that she was emotionally incapable of assisting her husband in having intercourse with another woman. This is admissible, says Annette, because it tends to make more probable her version that the Bernard-Dena intercourse was consensual.
However, the question before us is not the theoretical admissibility of such evidence, but whether the trial court erred. We express no view on whether, conceptually, such evidence may ever be admissible, or whether it is different in kind from an opinion of diminished capacity. What is important on this appeal is that after Dr. Henderson made his proffer, the trial court said there was "[n]othing wrong with that." The trial judge had repeatedly made plain that he would permit expert testimony as to Annette's personality profile and how it might have affected her conduct at the time of the offense. Yet, in the remainder of Dr. Henderson's testimony, he was not asked a question about, nor did he attempt to include in any answer, Annette's emotional incapacity to assist Bernard in sex with another woman. The matter simply did not come up again. This means that Annette's first issue is really a non-issue. It is not in this case.
There is a further reason why there was no error. The question put to the witness asked him to confirm that he did have an opinion as to which of Annette's many versions was credible. After replying "yes," which was all the answer that the question called for, the witness went on to give reasons. The testimony that was interrupted, if
responsive at all, was in explanation of how Dr. Henderson was able to arrive at the "credible" version. There were substantial conflicts in material facts between the various versions which Annette had given and which the witness was permitted to read into the record. Dr. Henderson's answer makes plain that his determination of the "credible version" was not based on any single version. Even if there could be a case in which a psychiatric expert might be permitted to express an opinion on credibility of a specific witness, see, e.g., United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), aff'd, 185 F.2d 822 (2d Cir.), cert. denied, 340 U.S. 948, 71 S.Ct. 532, 95 L.Ed. 683 (1951), an expert is not permitted to resolve conflicts in the evidence in order to formulate the basis for his opinion. See Thompson v. Phosphate Works, 178 Md. 305, 318-19, 13 A.2d 328, 334-35 (1940).
Appellant also complains of the exclusion of opinion evidence from Mr. Donner concerning female sexual response. On redirect, Donner had read into the record a description of the offense which Annette had given to a physician at Spring Grove State Hospital on July 14. In that statement Annette said that, on returning to the van, she found Bernard and Dena engaged in coitus, that Annette became angry, and that Dena asked Bernard "for more." Later in the redirect Donner was asked, on the assumption that Dena had in fact asked Bernard "for more," to state the psychological significance of that statement from the standpoint of its effect on Annette. He said Annette became enraged. Donner was then asked, "[I]f the female is interrupted in the course of intercourse, is there some psychological process that's happening with respect to her arousement or excitement?" An objection was sustained. The witness was then asked to explain "the process that generally . . . the normal female would go on in sexual arousement." Objection was again sustained. It was then proffered that the witness could explain
the whole psychological process that goes on when a female is aroused sexually, and the effect that that would have on Dena during the [ -- ] when the sexual intercourse was interrupted by Annette, and why that statement in Spring Grove would have some validity. In other words, what we are trying to do is show why that statement can be believed.
The judge adhered to his ruling. He assumed that the witness could "tell us what the average woman does . . . when interrupted," but considered that the witness would only be speculating about Dena's reaction.
The test for appellate review of the exclusion of proffered expert testimony was stated for this Court by Judge Levine in Raithel v. State, 280 Md. 291, 301, 372 A.2d 1069, 1074-75 (1977) where he said:
[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472 (1977); see I.W. Berman Prop. v. Porter Bros., 276 Md. 1, 12-13, 344 A.2d 65 (1975); Franceschina v. Hope, 267 Md. 632, 636, 298 A.2d 400 (1973). It is well settled, however, that the trial court's determination is reviewable on appeal, Radman v. Harold, 279 Md. at 173 [367 A.2d 472]; Refrigerating Co. v. Kreiner, 109 Md. 361, 370, 71 A. 1066 (1909), and may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion. Radman v. Harold, 279 Md. at 173 [367 A.2d 472]; see Telak v. Maszczenski, 248 Md. 476, 496-97, 237 A.2d 434 (1968).
The court did not abuse its discretion. A trial judge has discretion to determine whether proffered opinion evidence of questionable relevance will be sufficiently helpful to the jury to justify an excursion into the subject through direct, cross and redirect. Here, a description of the usual response of the average female would not necessarily be helpful to
the jury, many of whom were married.*fn3 Normal response of the average woman is even less helpful when the jury was considering the response of a female who is said to have been engaged in consensual intercourse in the back of a van with another woman's husband during the relatively brief interval while the wife has stepped into the woods to relieve herself.
The verdict of guilty of robbery is challenged. Appellant's position is that an intent to steal must exist at the time force is exerted or threatened, and that there was insufficient evidence to support such a finding in this case. The point was raised by a motion for judgment of acquittal at the conclusion of the entire case and was denied. The trial court instructed the jury that "[t]here must be a taking and removal with the intent to permanently deprive the owner of her property," and that "violence must accompany or precede the robbery." This correctly states the Maryland law. See Midgett v. State, 216 Md. 26, 43, 139 A.2d 209, 218 (1958). See also Clark & Marshall, A Treatise on the Law of Crimes § 12.10 at 884 (7th ed. 1967); 4 Wharton's Criminal Law and Procedure § 470 at 44 (Torcia 14th ed. 1981).
Midgett involved charges of kidnapping and robbing a police officer. The policeman had unexpectedly come upon persons who were waiting in an alley behind a business office to rob the businessman. The would-be robbers got the drop on the officer. When they were unable to remove his revolver from its holster because of a spring lock, the culprits removed the officer's gunbelt to which were attached the holster with the gun, a nightstick and a flashlight. They left the scene by car, taking the officer and the gunbelt with them. The gun was later freed from the holster and was eventually hidden by the defendant. We
held the evidence was sufficient to support a conviction for robbery and said that "subsequent appropriation is a circumstance to be considered, along with all other relevant facts, in determining the existence of an intent to steal at the time of the initial taking." 216 Md. at 42, 139 A.2d at 217. See also Halcomb v. State, 6 Md. App. 32, 39, 250 A.2d 119, 122-23 (1969).
In the instant matter, it was appropriately a jury question whether appellant had an animus furandi at the time of the taking and asportation of Dena's belongings. A blue sapphire ring which Dena was wearing when she entered the van at her home on the day of her death was found, during a search by the police on April 25, 1980, in a ceramic candleholder on a shelf in the closet at Bernard's and Annette's living quarters. Annette denied knowledge of the ring. However, the uncontradicted evidence showed that Bernard and Annette acted jointly in disposing of Dena's other belongings. If Bernard acted alone in taking and hiding the ring, it is highly unlikely that he would have placed it in the closet at their mutual, one-room abode. Further, on the evening of Friday, April 11, the day on which Dena's body was found, Annette asked Dena's brother's girlfriend "'Well, do you know if Dena had her ring on her; if they [the police] found it?'" In view of the other evidence that Annette feigned innocence in the presence of Dena's family, the jury could have concluded that Annette knew the ring was not on the body.
Likewise, jointly discarding portions of Dena's clothing supports a finding that it was taken and carried away with the intent permanently to deprive the owner of its possession. The felonious intent element of robbery is not limited to an intent to acquire benefit of a pecuniary nature for oneself. See Canton Bank v. American Bonding Co., 111 Md. 41, 45, 73 A. 684, 685 (1909).
Appellant essentially asks us to rule as a matter of law that, unless the intent to steal coincides with the use of violence, the crime is not robbery. This argument assumes
that Annette's intent when she assaulted Dena was solely to assist Bernard's rape and sodomizing of Dena and not to rob her. However, Dena's jeans and panties, and inferentially the boots which she was wearing, were pulled from her body when the attack commenced, and the force separated her from control over her purse. From the subsequent discarding of those items, the jury could have inferred that the intent permanently to deprive Dena of their possession coincided with the use of force. The intent to rape and the intent to steal are not mutually exclusive. See State v. Welchel, 207 Neb. 337, 343, 299 N.W.2d 155, 159 (1980). See also Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906 (1937) (jury could disregard defendant's version that victim was subdued in a drunken brawl after which defendant took victim's money and conclude that victim was assaulted with intent to steal, based on the taking).
Even if the evidence in the instant case compelled the conclusion that Annette's intent in subduing and choking Dena was only to assist in rape and sodomy, and that the intent to steal was not formed until after the force had resulted in Dena's death, the taking and asportation of Dena's belongings would still be robbery. This is the majority rule and we shall follow it.
W. LaFave & A. Scott, Criminal Law § 94 at 701-02 (1972) presents the following analysis:
The defendant's acts of violence or intimidation must occur either before the taking (though continuing to have an operative effect until the time of the taking) or at the time of the taking. Concerning the required concurrence of the defendant's conduct and state of mind, there is a question as to the robbery liability of one who strikes another, perhaps intentionally but with no intent to steal (or who intimidates another, though without an intent to steal), and who then, seeing his adversary helpless, takes the latter's property from his person or his presence. In other words, does robbery require that the defendant's violence-or-intimidation acts be done for the very purpose
of taking the victim's property, or is it enough that he takes advantage of a situation which he created for some other purpose? The great weight of authority favors the latter view, holding that under the circumstances it is robbery; but it can be argued that on principle it ought not to be robbery, being only larceny (plus, if the circumstances warrant it, assault or battery or whatever other crime the defendant may have committed before his theft). [Emphasis in original (footnotes omitted).]
2 East, Pleas of the Crown (1806) states that one who applies force to another, or puts another in fear, commits robbery "although the thing taken were not really within the original contemplation of the robber, nor the object of his pursuit at the time." East describes the case of Rex v. Blackham, tried in 1787 (id. at 711-12):
Blackham assaulted a woman with intent to commit a rape, and she without any demand from him offered him money, which the prisoner took and put into his pocket, but continued to treat her with violence to effect his original purpose, till he was interrupted by the approach of another person. This was holden to be robbery by a considerable majority of the Judges: for the woman, from violence and terror occasioned by the prisoner's behavior, and to redeem her chastity, offered the money, which it was clear she would not have given voluntarily; and the prisoner, by taking it, derived that advantage to himself from his felonious conduct; though his original intent were to commit a rape.
Of like effect is Rex v. Hawkins, 3 Carr. & P. 392 (1828). There a gamekeeper came upon a group of poachers. They beat the gamekeeper until he was unconscious, left him lying on the ground and fled. After the poachers had gone some little distance, one of them, Williams, returned and took the gamekeeper's money and gun. Judgment was that the poachers, other than Williams, were not guilty of robbery. It was said that only Williams, who was not apprehended, had committed robbery.
In a case in which the money of the victim was taken in the course of a sexual attack, the Supreme Court of Hawaii has approved the following instruction, granted at the request of the prosecution:
"The law does not require that the use of force or the threatened imminent use of force be done for the very purpose of taking the victim's property. If you find that the defendant, while armed . . . threatened the imminent use of force for the purpose of sexual intercourse or deviate sexual intercourse, and that he later formed the design to take the property, you may find that he threatened the imminent use of force with intent to compel acquiescence to the taking of the property." [ State v. Iaukea, 56 Haw. 343, 356, 537 P.2d 724, 733 (1975).]
To the same general effect are: People v. McGrath, 62 Cal.App.3d 82, 133 Cal.Rptr. 27 (1976) (victim murdered in retribution for homosexual attack on third party; defendant then removed money from victim's pockets);*fn4 People v. Jordan, 303 Ill. 316, 135 N.E. 729 (1922) (victim knocked out in street fight; then victim's money taken); People v. Pavic, 104 Ill.App.3d 436, 60 Ill.Dec. 175, 432 N.E.2d 1074 (1982) (force used in rape of victim remained in effect when money taken from victim's purse nearby); State v. Myers, 230 Kan. 697, 640 P.2d 1245 (1982) (manslaughter slaying of victim during argument; three hours later defendant returned to scene and took wallet and money from the victim's body); Howard v. Commonwealth, 313 Ky. 667, 233 S.W.2d 282 (1950) (attempted rape of victim in her home; defendant takes victim's purse when leaving); State v. Covington, 169 La. 939, 126 So. 431 (1930) (intent to rob need not be present during beating of victim whose money was taken after he appeared to be dead); Crenshaw v. State, 13 Md. App. 361, 373,
283 A.2d 423, 430 (1971), cert. denied, 264 Md. 746 (1972) (threatened harm to victim's children compelled her submission to defendant's sexual attack in victim's home; "[t]he same force and coercion was present in the robbery," involving money taken by defendant when leaving premises); Hope v. People, 83 N.Y. 418 (1881) (victim forced to reveal combination to safe located on bank premises; key to bank taken from table in victim's bedroom when defendants leaving); State v. Nathan, 39 S.C.L. 219 (5 Rich) (1851) (assault with intent to rape; victim pays money to dissuade attacker); Turner v. State, 150 Tex.Cr.R. 90, 198 S.W.2d 890 (1947) (victim knocked unconscious in altercation arising out of minor traffic accident; then money taken); Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965 (1944) (victim beaten to avenge insult, then money taken). Contra People v. Green, 27 Cal.3d 1, 609 P.2d 468, 164 Cal.Rptr. 1 (1980) (minority rule adopted but not applied); People v. King, 67 Ill.App.3d 754, 24 Ill.Dec. 146, 384 N.E.2d 1013 (1979); People v. Pack, 34 Ill.App.3d 894, 341 N.E.2d 4 (1976); United States v. Birueda, 4 Phil. 229 (1905); Branch v. Commonwealth, 225 Va. 91, 300 S.E.2d 758 (1983).
The instant case makes explicit what was implicit in Midgett, supra, namely that there must be an intent to steal at the time of the taking. If the force precedes the taking, the intent to steal need not coincide with the force. It is sufficient if there be force followed by a taking with intent to steal as part of the same general occurrence or episode. Even if the force results in death, a taking and asportation after death is nevertheless robbery. See Foster v. State, 297 Md. 191, 464 A.2d 986 (1983), cert. denied, U.S. , 104 S.Ct. 985, 79 L.Ed.2d 221 (1984).
An attack is also directed at the finding of guilty of first degree sexual offense. Defense counsel had sought a judgment of acquittal by asserting a lack of evidence that the victim was alive at the time of the anal intercourse. There was sufficient evidence. In her written statement
Annette said that Bernard had told her to turn the victim over because he wanted to have anal intercourse. She said, "I [lifted] up and turned her over, with Lee's help and I was still strangling her around the neck." After the victim was turned over, Bernard engaged in anal intercourse. In that same statement Annette said that she strangled the victim "until there was no life in her." In an oral statement to Detective Hess, which preceded Annette's signed statement, Annette also described turning the victim over at Bernard's request, sitting on the victim's back, and "still choking her" when Annette saw blood coming out of the victim's mouth and nose. Under this evidence, the jury could conclude that Appellant aided and abetted a first degree sexual offense while the victim was still alive.
Appellant alternatively argues that Dena was unconscious at the time of anal penetration so that, as a matter of statutory construction, the crime is a second degree sexual offense. That grade of the offense will lie, inter alia, when the victim is "physically helpless." Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 464A(a)(2). The definition of "physically helpless" includes "a victim who is unconscious . . . ." § 461(d)(1). In this case, strangulation was a major part of the force which overcame the resistance and the will of the victim, which made possible the rape and the anal intercourse, and which caused the unconsciousness and ultimate death. Where strangulation is inflicted and ...