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Tolen v. State

Court of Special Appeals of Maryland

August 28, 2019


          Circuit Court for Washington County Case No.: 21-K-16-52766

          Meredith, Arthur, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.


          MEREDITH, J.

         Quinn Rena Tolen, appellant, was indicted by a grand jury in the Circuit Court for Washington County on three charges related to the death by overdose of Kelly Lantigua: manslaughter, distribution of heroin, and possession of heroin. After Tolen pled guilty to involuntary manslaughter and distribution of heroin, she was sentenced to a 10-year prison term for involuntary manslaughter, and a concurrent 15-year term for distribution of heroin, with all but seven years of each sentence suspended, to be followed by three years of probation. The possession charge was entered nolle prosequi.

         Tolen filed an application for leave to appeal, contending that, for sentencing purposes, the court should have merged the conviction of distribution into the conviction of involuntary manslaughter. This Court granted the application for leave to appeal, and, in this appeal, Tolen presents a single question: "Are separate sentences for involuntary manslaughter and distribution of heroin improper?"[1]

         For the reasons we explain below, we answer "yes" to Tolen's question, and we shall vacate the sentence that was imposed relative to the conviction of distribution of heroin.


         On July 19, 2016, Kelly Lantigua died of heroin and fentanyl intoxication. Hagerstown police learned that, on the afternoon that she died, Lantigua had obtained the heroin from Tolen. A grand jury returned a three-count indictment against Tolen. Count One charged that she "did feloniously, without malice aforethought, kill and slay Kelly Laraine Lantigua, . . .{CR 2-207(a)}"[2]

         Tolen's counsel filed a demand for bill of particulars, asking the State to specify with particularity the facts that support the charge of manslaughter, including the acts of the defendant "that are alleged to constitute manslaughter."

         In response to the demand for particulars, the State filed a lengthy statement of facts, including the statements contained in text messages between Lantigua and Tolen on the afternoon preceding Lantigua's death. The text messages referred to Lantigua's desire to purchase some heroin from Tolen. The State's response also included a photo of "lines" of heroin that Lantigua and her boyfriend were about to snort, and communications between the boyfriend and Tolen after Lantigua appeared to have experienced a serious reaction caused by snorting the drug Tolen had provided. It was noted that the autopsy report "indicates that the cause of [Lantigua's] death was heroin and fentanyl intoxication."

         With respect to the acts that constitute manslaughter, the State's bill of particulars first indicated that there was evidence that, when Tolen provided the heroin to Lantigua, Tolen may have actually, but unreasonably, intended to prevent Lantigua from experiencing the pain of withdrawal; the State made a reference to the legal principle that "[i]mperfect self defense . . . operates to negate malice, . . . [and] mitigates murder to voluntary manslaughter." The State's particulars included this summary of facts that would support a claim of voluntary manslaughter:

The acts of the [D]efendant that are alleged to constitute the crime of manslaughter are that the Defendant acted in partial defense of another person which is a form of voluntary manslaughter. In this case the Defendant actually, though unreasonably, believed that the victim was threatened with serious bodily harm because without her dose of heroin the victim would become seriously ill or "dope sick". Based on the interview of the Defendant recited above the Defendant was aware of the potency of the heroin[, ] stating "she hasn't bought heroin from [her usual source] since then, saying she knew something wasn't right about it."

But the State then said in its bill of particulars:

In the alternative, the State intends to prove Involuntary Manslaughter: Unlawful Act. The State will prove that the Defendant committed an unlawful act prohibited by statute (distribution of heroin)[, ] Oates v. State, 97 Md.App. 180, 184, 627 A.2d 555, 557-58 (1993)[, ] that was dangerous to life[, ] State v. Gibson, 4 Md.App. 236, 242 A.2d 575 (1968).
The case of State v. Gibson, 4 Md.App. 236, 242 A.2d 575 (1968)[, ] is informative with respect to the nuances of manslaughter. . . .

         The State's bill of particulars then set forth (without attribution and with only minor variations) six paragraphs that appear in the Gibson opinion at 4 Md.App. at 241-45, stating:

Manslaughter is a common law offense and a felony in Maryland; it may be voluntary or involuntary, depending upon the requisite intent, and since the crime is not defined by statute, it is afforded its common law meaning in this State. Connor v. State, 225 Md. 543, 171 A.2d 699, 86 A.L.R.2d 892; Chase v. Jenifer, 219 Md. 564, 150 A.2d 251. By Section 387 of Article 27 of the Maryland Code, manslaughter, whether voluntary or involuntary, is punishable by a term of imprisonment not exceeding ten years. . . .
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. See 1 Warren on Homicide (Perm. Ed.1938), 420, 421; 26 Am. Jur. Homicide, Secs. 18, 44; 40 C.J.S. Homicide s 55, and cases therein cited. 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. Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton's Criminal Law and Procedure (Anderson Ed.), Vol. 1, Section 289-292, 296, and cases therein cited.
It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, or by negligently failing to perform a legal duty (the second and third classes of involuntary manslaughter above delineated), the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life. State of Maryland v. Chapman, 101 F.Supp. 335 (D.C.Md.); Palmer v. State, 223 Md. 341, 164 A.2d 467; Chaig v. State, 220 Md. 590, 155 A.2d 684; Chase v. Jenifer, supra; Neusbaum v. State, 156 Md. 149, 143 A. 872. . . .
It is likewise clear that the Maryland cases have generally recognized that a charge of involuntary manslaughter at common law could in some circumstances at least be based on the doing of an unlawful act. In Neusbaum v. State, supra, the court, in defining a felonious homicide, characterized the crime so as to include those cases where one takes the life of another unintentionally and without excuse 'while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong.' 156 Md. at page 155, 143 A. at page 875. To like effect, the court in United Life & Accident Insurance Company v. Prostic, 169 Md. 535, 182 A. 421, in discussing a felonious homicide, held at page 539, 182 A. at page 423 that 'when the person acting has no intention to injure anybody, but death is the result of unlawful action endangering life, there is manslaughter, at least.'
Neusbaum and Prostic seemingly share a common thread-that where a prosecution for involuntary manslaughter is based on the commission of an unlawful act causing death, the act must itself be dangerous to life. As the Prostic court observed, if the person causing the death of another 'intends to do an unlawful and wrongful act, which is punishable because it is wrong in itself, and in doing it he inflicts an unforeseen injury, he is criminally liable for that injury' (since) '(t)here are many acts so heedless and incautious as necessarily to be deemed unlawful and wanton, though there may not be any express intent to do mischief, and the party committing them causing death by such conduct will be guilty of manslaughter.' 169 Md. at page 539, 182 A. at page 423.
* * *
. . . Neusbaum did not concern itself with that species of involuntary manslaughter upon which the four counts of the indictment now in question are expressly based, although, as heretofore indicated, the dictum in that case is that, where a prosecution for involuntary manslaughter is predicated on the commission of an unlawful act causing death, the act must itself be dangerous to life. This dictum would appear to be consistent with the holding in Worthington v. State, 92 Md. 222, 48 A. 355, 56 L.R.A. 353, a case decided in 1901, which concluded, in effect, that since an unlawful attempt to procure an abortion (a misdemeanor) is an act dangerous to life (or malum in se), a death resulting from such an attempt will not be less than manslaughter.

(Bold emphasis was added in the State's bill of particulars; ellipsis marks have been added to this quote to indicate where portions of the Gibson opinion were omitted by the State.)

         On March 21, 2017, Tolen appeared in court to enter a guilty plea. The court conducted an inquiry on the record to determine whether the plea was being entered knowingly and voluntarily. The court asked Tolen: "You understand that you are pleading guilty to two counts today - one is involuntary manslaughter and the other is distribution of heroin. Do you understand that?" Tolen replied: "Yes, sir." The court also asked: "And you've had an opportunity to review th[e] charging document?" Tolen responded "yes" to that question, as well as to the court's follow up question: "And you've had an opportunity to dis-discuss this case with [your attorney]?" But no one explained on the record at the plea hearing the elements of the crime of involuntary manslaughter; nor did anyone explain on the record which variety of involuntary manslaughter would be covered by Tolen's guilty plea. Nevertheless, the court announced on the record: "I'm going to find that her guilty plea is voluntarily made, and intelligently and understandingly made."

         The State then made a lengthy presentation of the facts it expected to prove if the case had gone to trial, and Tolen agreed "that the State could produce . . . evidence in support of the facts presented." The court then found Tolen guilty of involuntary manslaughter and distribution of heroin, and proceeded with sentencing. The State had agreed that the executed portion of the sentences would be capped at seven years.

         Tolen's counsel argued that, for sentencing purposes, the convictions for involuntary manslaughter (which carried a maximum penalty of ten years) and distribution of heroin (which then carried a maximum penalty of twenty years) should merge under either the required evidence test or principles of fundamental fairness. Counsel argued: "[W]hat she's charged with is called involuntary manslaughter. It's defined as . . . death resulting from an unlawful act. The act being distribution [of heroin] in this case." "[T]he charge of distribution should merge into the charge of manslaughter for sentencing purposes." "And in this context, the unlawful act [theory] of manslaughter, which I believe is the appropriate one as opposed to a lawful act committed negligently, the unlawful act that is the element of the manslaughter in this case is the act of distribution. And therefore the, the only additional element for the manslaughter is, is the fact that, that a death occurred."[3]

         Tolen's counsel argued in the alternative that, "even if you don't have an exact match under Blockburger [v. United States, 284 U.S. 299 (1932), ] of the [required] elements test, you would still have merger under fundamental fairness." Citing Monoker v. State, 321 Md. 214 (1990), Tolen's counsel urged the court to conclude that it would be fundamentally unfair to punish someone twice by imposing two sentences for the same conduct.

         The prosecutor responded that the State "can distinguish the cases cited by [defense] counsel," but also stated, "I would prefer to brief it in writing other than saying today that the State disagrees with the proposition" that the offenses should merge.

The court ruled that the offenses did not merge, stating:
Mr. [Defense Counsel], I have reviewed the cases. . . . I do find the, the cases distinguishable. I believe . . . it's not appropriate to merge the charges based on the required evidence test. Nor do I believe the fundamental fairness argument is appropriate under the . . . facts of this case."

         The court sentenced Tolen to ten years, with all but seven years suspended, for involuntary manslaughter, and a concurrent fifteen years, all but seven years suspended, for distribution of ...

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