The opinion of the court was delivered by: Bell, C.J.,
Nathaniel Paul McMillan v. State of Maryland,
No. 132, September Term 2008.
Criminal Law > Defenses > Duress > Felony Murder > Duress is available as a defense to felony murder, provided that a defendant meets all of the elements of duress for the underlying felony.
Criminal Law > Defenses > Duress > Felony Murder > Jury Instructions > Petitioner/Cross-Respondent was entitled to a jury instruction for the defense of duress because he showed "some evidence" for each element of the defense. A defendant is not required to show that he/she attempted to thwart the crime they were coerced to commit, or contact the police after the duress ended, to be entitled to a duress jury instruction.
Harrell Battaglia Greene *fn1 Murphy Adkins Eldridge, John C. (Retired, Specially Assigned), JJ.
The petitioner, Nathaniel Paul McMillan, was tried by a jury in the Circuit Court for Prince George's County for the murder of Herman Haiss, a former neighbor. His defense at trial was that his participation - knocking on the victim's door, which allowed his two acquaintances to gain entrance - in the crimes with which he was charged, first- degree premeditated murder, first degree felony murder and second-degree murder,*fn2 was coerced. Accordingly, he requested that the jury be instructed on the defense of "duress." The trial court refused to give to the jury the requested duress instruction. Acquitted of first-degree premeditated murder and second-degree murder, but convicted of first-degree felony murder, the petitioner noted an appeal to the Court of Special Appeals, where he argued that the trial court's refusal to instruct the jury with respect to duress was error. That court affirmed the judgment of the Circuit Court, McMillan v. State, 181 Md. App. 298, 362, 956 A.2d 716, 754 (2008), although rejecting, in the process, the State's argument that the defense of duress is not applicable to felony murder. Id. 181 Md. App. at 328, 956 A. 2d at 734. Neither the petitioner nor the State was completely happy with that result. Accordingly, when the petitioner filed, in this Court, a Petition for Writ of Certiorari, to challenge the intermediate appellate court's application of the duress defense, the State cross-petitioned for certiorari, seeking review of that court's threshold determination as to the applicability of the defense.
We granted both the petition and the cross-petition. McMillan v. State, 406 Md. 744, 962 A.2d 370 (2008). Therefore, before us for decision is the threshold issue of whether the defense of duress is an available, viable one to the charge of felony murder. If it is, we then must decide whether, in this case, the Court of Special Appeals correctly defined the elements of the defense, and whether, in a criminal case, an element of the duress defense is that the defendant have attempted at the earliest possible opportunity to stop or thwart the offense he was compelled to commit.
We agree with the Court of Special Appeals and, therefore, shall hold that, in Maryland, duress is a defense to felony murder. On the other hand, we side with the petitioner with regard to its application in this case and hold that, to establish and be entitled to the defense, a defendant need not first prove that he or she attempted to stop or thwart the offense that he or she alleged that he or she was compelled to commit. Therefore, we shall reverse the judgment of the Court of Special Appeals and remand for a new trial.
I. Duress As Defense To Felony Murder
The victim, on November 16, 2005, was found dead in his home on Cree Drive, in Forest Heights, Maryland, by his daughter-in-law. He had been bludgeoned to death with a baseball bat, which was found next to his corpse. The house had been ransacked, and most of the numerous weapons, including a .357 caliber pistol, three modern rifles, three shotguns, and three muzzleloaders, that the victim, a hunter, kept stored in a home safe, were missing. The word "Crips" was spray painted on a wall near the victim's body.
The petitioner was arrested about a month later, on December 16, 2005, in connection with the murder. Approximately 12 years earlier, he had been the victim's neighbor, living with his aunt and uncle in the house next to the victim's home. Thus, the petitioner knew the victim and his grandchildren and, during the two years he lived next door to him, had spent time in the victim's home.
After he had been interrogated for seven hours and given the police detectives several conflicting stories about what happened on the evening of the murder, the petitioner was charged with, and subsequently tried for, the victim's murder. The petitioner maintained throughout the interrogation that he did not go into the victim's home; that he never threatened or attacked the victim; and that, other than knocking on the door, he did not participate in the robbery in any way. No DNA or fingerprint evidence connecting the petitioner to the crimes was recovered from the scene.
At some point during the interrogation, which was recorded, the petitioner professed to being afraid of his two acquaintances, "S.O."and "Vel," and what they would do to him if he did not do what they wanted him to do: facilitate their entry into the victim's house by knocking on the door. The petitioner thus began to suggest, which became the basis of his contention at trial, that whatever he did was done under duress. The petitioner told one of the detectives that S.O. and Vel picked him up in a green SUV at his place of work and that he asked them to give him a ride home. When, shortly thereafter, he noticed that S.O. was not driving toward his home, but in the direction of Forest Heights, he said he protested, "I don't live this way." S.O.'s response was that they were all going to Forest Heights so that the petitioner could knock on the victim's door. The petitioner then said that he told S.O. he didn't want anything to do with a robbery, to which S.O. responded, "it's GBA [guilt by association], you get down or you lay down, you gonna be with that old man in the house or you gonna leave out the house with us, which one you wanna do?" Given that choice, the petitioner indicated that he acceded, telling them, "I'll knock on the door."
A portion of the interrogation, including a short colloquy between Detective Nelson and the petitioner, that was played for the jury, further addressed and supported the petitioner's fear and the petitioner's contention that his actions in connection with the murder and other related crimes committed on the victim were coerced:
"DET. NELSON: You felt pressure to do that [knock on Haiss's door] for them [S.O. and Vel]. If you didn't do it, you'd probably be dead right now, don't you think?
"MCMILLAN: I probably be dead because they killing everybody.
"DET. NELSON: And that's why you did it."
Later in the interview, the petitioner said that he was "forced to go get the door open," that he was "compelled" to open the door, and that if he refused, he would be killed. Still later, when recounting his interaction with S.O. and Vel the day after the murder, the petitioner recalled an event that confirmed his fear and the basis for his feeling coerced. He said that once S.O. and Vel had told him the details of how the victim ultimately was murdered, S.O. went into a back room of the petitioner's home and loaded a .357 pistol with bullets. When S.O. re-emerged, the petitioner said that S.O. asked the petitioner whether the petitioner had told anyone what happened the night before. When the petitioner responded, "No," S.O., he related, said, "Good, because I don't want any harm to come to you." This was, the petitioner argued at trial, "some evidence" of duress, sufficient to support a jury instruction.
There was, to be sure, evidence that contradicted the notion that the petitioner was coerced or acted under duress. Much of that evidence came from the same source as that upon which the petitioner relied: his own statement. When first arrested, the petitioner did not claim that he was forced to knock on the victim's door or was, in any way, coerced. Indeed, the petitioner maintained that he was not involved in the crimes at all. He did say, however, that he had heard that his acquaintance, "S.O.," was responsible.*fn3 To support that statement, he told Detective Hollowell that S.O. tried to sell him a .357 pistol that allegedly came from the victim's home. Later in the interview, the petitioner admitted that he drove S.O. and another acquaintance, Vel, to the victim's home because he was familiar with the victim, and it was likely the victim would open his door for the petitioner. He also acknowledged that, as soon as the victim opened the door, S.O. and Vel entered the home and robbed him.
The petitioner admitted, as well, that prior to the incident, S.O. and Vel asked him for specific information about the victim, such as his age, his daily routine and schedule, whether he had an alarm system and weapons in the house, and whether he had family in the home. According to the petitioner, S.O. and Vel told him that they were going to knock on the victim's door and "[f]uck him up once he opened the door."
As indicated, the petitioner knocked on the door, and it was in response to that knock that S.O. and Vel gained entry to the victim's home. The petitioner gave inconsistent statements as to what happened after that. He said variously that he left the house immediately after knocking on the door; that he left the house and sat in the SUV; or that, after waiting in the SUV, he went back to the house to tell S.O. and Vel to hurry. After the crimes had been committed, the petitioner reported that the three men drove back to a house to "play" with the stolen weapons, and that S.O. later drove the petitioner home.
In his statement, the petitioner said that, on the day after the murder, S.O. and Vel came to his house and, while there, described in detail what happened to the victim once they gained entry to his home: first, Vel beat the victim, and then Vel and S.O. located one of the victim's weapons; the victim denied having other weapons, but Vel and S.O. found the gun safe and, by threatening to cut off his fingers and beating his head with a baseball bat, forced the victim to open it.
At trial, Thomas Gray, who lived across the street from the victim, testified for the State. He testified that, on November 15, 2005, he saw three or more young men in white t-shirts, whose faces he did not see, walking up and down Cree Street near a green SUV.
Approximately 30 to 40 minutes later, he saw the men running down the street carrying bags. Gray did not, and could not, identify the young men.
Devonshire Majors, who was acquainted with the petitioner, also testified as a State witness. Her testimony tended to implicate the petitioner as a principal, and a voluntary one, in the crimes. She said that, around Thanksgiving of 2005, she heard the petitioner tell her boyfriend that he "got a move to go on with something." She explained that a "move" refers to any type of crime, including robbery. Majors also testified that she overheard the petitioner say that the "move" was going to be against someone on his "old street," Cree Drive. Majors said that, some time after she heard about the murder on television, McMillan told her boyfriend that he had to "roll out" and "can't come around no more."
Other State witnesses, Antonio Gooding and Victoria Wynn, contradicted the petitioner's duress defense. Gooding testified that, around Thanksgiving of 2005, after the murder, the petitioner offered to sell him a weapon for $300 or $400. Wynn, S.O.'s girlfriend at the time of the murder, testified that she let S.O. drive her green SUV, that, around Thanksgiving of 2005, she saw the petitioner and S.O., in her house with guns, and that, at that time, the petitioner did not look scared or threatened.
The petitioner did not put on a case. His defense of duress was based on his statement and cross examination of the State's witnesses. Believing the issue to be a jury question, that the record contained some evidence that would permit the jury to find that the actions he took in furtherance of the crimes committed by S.O. and Vel were coerced and, therefore, that he acted under duress, the petitioner requested that the trial judge instruct the jury on duress. He requested that the Pattern Instruction, Maryland Criminal Pattern Jury Instructions ("MPJI-CR") 5.03*fn4 be given. This prompted the following discussion between counsel and the trial judge:
"DEFENSE COUNSEL: I am also . . . requesting . . . the duress instruction, because at the point when he realizes . . . they brought him to the scene, then he ...