McGhie v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2540

September Term, 2011

ROBERT ANTHONY MCGHIE

v.

STATE OF MARYLAND

Wright,
Graeff,
Rodowsky, Lawrence F.
(Retired, Specially Assigned),

JJ.

Opinion by Graeff, J.

Filed: November 24, 2015
In 1994, following a jury trial in the Circuit Court for Montgomery County, Robert

Anthony McGhie, appellant, was convicted of murder, attempted murder, two counts of use

of a handgun in the commission of a crime of violence or felony, attempted robbery with a

dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. The court

imposed a sentence of life imprisonment on the murder conviction and concurrent sentences

on the other convictions.1

Appellant subsequently filed a motion seeking “some type of reconsideration and

reduction” relating to the life sentence imposed on the conviction for murder, arguing that

the jury, in announcing its verdict on the murder count, failed to state whether it found him

guilty of murder in the first degree or murder in the second degree. Although he styled his

pro se motion as a Motion to Revise Sentence, we shall treat it as a motion to correct an

illegal sentence. The circuit court denied the motion.

1
Appellant has mounted multiple challenges to his convictions, none of which has
been successful. See, e.g., Robert Anthony McGhie v. State of Maryland, No. 1883, Sept.
Term, 1994 (filed Nov. 24, 1995) (direct appeal); Robert Anthony McGhie v. State of
Maryland, No. 2007, Sept. Term, 2009 (filed Feb. 10, 2011) (rejecting appellant’s argument
that the circuit court erred in denying motion to set aside judgment because the record failed
to reflect that jury was individually polled, rendering it “impossible to know if the jury was
unanimous”). McGhie v. State, 224 Md. App. 286 (2015) (affirming the circuit court’s denial
of appellant’s petition for a writ of actual innocence).
On appeal, appellant, still proceeding pro se, presents three questions for our review,2

which we have consolidated and rephrased as follows:

Where the jury finds the defendant guilty of murder without specifying the
degree of murder as required by statute, is the conviction for first-degree
murder a nullity if the evidence and instructions supported a verdict only with
respect to first-degree felony murder?

For the reasons set forth below, we answer that question in the negative, and we shall

affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Trial

We need not recite in detail the evidence adduced at trial in support of appellant’s

convictions. Those facts are set out in our recently reported opinion affirming the circuit

court’s denial of appellant’s petition for a writ of actual innocence. See McGhie v. State, 224

2
Appellant presented the following three questions:

1.) Whether the language reflected in Md. Criminal Law Code § 2-302,
Article 27 § 412(a), and Chapter 138 § 3 [is] mandatory, if so, did the
sentencing court error imposing life sentence on appellant when no sentence
should have been imposed because [the] jury never orally announced degree
of murder in their verdict in open court as required?

2.) Did the trial court err surmising jury meant first-degree murder although
jury did not orally announce such finding?

3.) Did [the circuit court] err in denying relief in light of this court[’s] holding
in [Gantt v. State, 99 Md. App. 100 (1994)]?

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Md. App. 286 (2015). For the purpose of this appeal, it is sufficient to note that the evidence

supported a finding that appellant conspired with several others to rob a store in Montgomery

County, and during the attempted robbery, one of appellant’s co-conspirators shot and killed

one store owner and shot and wounded another person. Appellant was not in the store when

the attempted robbery and shootings took place.3

The State argued that appellant was an accomplice and proceeded on the murder

charge under the theory of felony murder. Appellant’s defense, as made clear in his

counsel’s opening remarks, was that he was not involved in the robbery plan, and the shooter

acted without appellant’s knowledge or assistance.

At the conclusion of the evidence, the court discussed jury instructions with counsel.

The transcript reflects that the proposed verdict sheet initially had two options for the murder

charge, felony murder and premeditated murder, both of which constitute first-degree

murder.4 After defense counsel objected to the verdict sheet referring to premeditated murder

and stated that there was no evidence to support “any degrees of murder other than felony

murder,” the State agreed to withdraw its request to have premeditated murder appear on the

verdict sheet. Defense counsel then stated that, “if this verdict sheet goes in . . . count one

3
Prior to appellant’s trial, the shooter, Edward Borrero, pleaded guilty to first-degree
murder and other offenses. Mr. Borrero testified for the State at appellant’s trial.
4
See Md. Code (2012 Repl. Vol.) § 2-201(a) of the Criminal Law Article (“CR”),
previously codified at Md. Code (1992 Repl. Vol.) Art. 27 § 407.

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should say murder, period, without the word ‘felony.’”5 The prosecution did not oppose this

request.

At the conclusion of the discussion, the court instructed the jury as follows:

[I]t is the State’s allegation that the defendant was what they call a principal
in the second degree, not the one who actually committed the offense, but an
aider and abettor, and with that in mind, let me first then go through - - count
one is the charge of murder, and that, in effect, alleges a first degree
felony murder.

In order for the defendant to be convicted of first degree murder
or felony murder, the State must prove, one, that the defendant or another
participating in a crime with the defendant committed the offense of robbery
or armed robbery, that the defendant - - or, actually, the defendant or another
participating in this crime killed Randy Covington, the victim, and that the act
resulting in the death of Randy Covington occurred during the
commission of that crime of robbery or armed robbery.

Felony murder does not require the State to prove that the defendant
or [the shooter] intended to actually kill him.

It does not require premeditation of first degree murder; it is that a
death or homicide occurs during the course of a felony, and the felony
alleged is the armed robbery of the [store].

(Emphasis added).

In closing argument, the prosecutor noted that accomplice liability was the heart of

the State’s case. He stated that there was no doubt that there was a “felony murder” that

occurred in the midst of a robbery, and the only real issue was appellant’s involvement in

planning the robbery. The prosecutor told the jury that intent to kill was not required for

5
A verdict sheet was not included in the record on appeal.

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felony murder, but rather, “the law says if you take someone’s life during the execution of

a felony, you are liable for felony murder.” Defense counsel argued in closing that the State

had failed to prove beyond a reasonable doubt that appellant conspired with the shooter (and

others) to rob the store.

When the jury completed their deliberations, they returned to the courtroom and

announced their verdict as follows:

THE CLERK: Ladies and gentlemen of the jury, have you agreed upon your
verdict?

THE JURY: We have.

THE CLERK: Who shall say for you?

THE JURY: Our foreman.

THE CLERK: Mr. [F]oreman, please stand. How do you find the defendant
as to Count One, Murder?

THE FOREMAN: Guilty.

THE CLERK: Count Two, Use of a Handgun in a Crime of Violence or a
Felony?

THE FOREMAN: Guilty.

THE CLERK: Count Three, Attempted Murder?

THE FOREMAN: Guilty

THE CLERK: Count Four, Attempted Robbery with a Dangerous Weapon?

THE FOREMAN: Guilty.

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THE CLERK: Count Five, Use of a Handgun in a Crime of Violence or
Felony?

THE FOREMAN: Guilty.

THE CLERK: Count Six, Conspiracy to Commit Robbery with a Dangerous
Weapon?

THE FOREMAN: Guilty.

(Emphasis added).

The jury was then polled, but the polling was not transcribed for the record.6 The

court then directed that the verdict be recorded, stating that there was “no need to hearken”

the verdict. See State v. Santiago, 412 Md. 28, 37 (2009) (“‘A poll of the jury serves the

same purpose as that of hearkening.’”) (quoting Smith v. State, 299 Md. 158, 166 (1984)).

II.

Motion To Revise Sentence

In November 2011, after appellant was sentenced to life imprisonment on the murder

conviction, he filed a Motion to Revise Sentence, pursuant to Maryland Rule 4-345(b),

arguing that there was an “irregularity” in the verdict because “the jury failed to pronounce

the degree of murder in their verdict” as required by law.7 Appellant argued that “the jury’s

failure to ascertain in their verdict the degree of murder is a deviation from proper ‘process

6
It is the appellant’s responsibility to order “a transcription of any proceeding relevant
to the appeal.” Md. Rule 8-411(a)(2).
7
Appellant did not raise this issue in his direct appeal. Nor does it appear that he
raised it in any of his various requests for relief postconviction.

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or procedure’ set by the General Assembly of Maryland,” and therefore, it “constitutes an

irregularity within the meaning of Maryland Rule 4-345(b).” Appellant requested that the

circuit court “look beyond the label” of his pro se motion and “make a determination based

on . . . substance.” On December 14, 2011, the circuit court denied the motion. It stated that

the “remedy for the error [appellant] alleges was by way of direct appeal.”

DISCUSSION

Appellant contends that his life sentence for murder should be vacated because it is

an “illegal” sentence. In support, he argues that the guilty verdict was a nullity because the

jury failed to announce whether it found him guilty of murder in the first degree or in the

second degree. He notes that, in 1994, when appellant was convicted, Md. Code (1992 Repl.

Vol.) Art. 27 § 412(a) provided: “If a person is found guilty of murder, the court or jury that

determined the person’s guilt shall state in the verdict whether the person is guilty of murder

in the first degree or murder in the second degree.”8

The State responds in two ways. First, it contends that a denial of a motion to modify

a sentence is not an appealable order, and therefore, we should dismiss this appeal. Second,

8
This provision currently is codified as Md. Code (2012 Repl. Vol.) § 2-302 of the
Criminal Law Article (“CR”), which provides: “When a court or jury finds a person guilty
of murder, the court or jury shall state in the verdict whether the person is guilty of murder
in the first degree or murder in the second degree.” This law was enacted in 1809 when the
General Assembly divided murder into degrees and mandated that the penalty for first-degree
murder was “death, by hanging” and the penalty for second-degree murder was a minimum
term of imprisonment of five years and a maximum term of eighteen years. See 1809 Md.
Laws, ch. 138, §§ 3 & 4.

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the State argues that, if we consider appellant’s contention, it should be rejected. It asserts

that the concern underlying the requirement that the jury state with specificity the degree of

murder for which they are convicting the defendant is unanimity in the verdict, and here,

because the jury was instructed on the murder charge only with respect to first degree felony

murder, the jury’s only choice was to find appellant “guilty or not guilty of first degree felony

murder.”9 Under these circumstances, it argues, the announcement of “guilty” on the count

of murder undoubtedly was a unanimous verdict of first degree murder.

We address first the State’s motion to dismiss the appeal. Appellant acknowledges

that he “inartfully titled the motion to revise sentence pursuant to Maryland Rule 4-345(b)

arguing irregularity,” as opposed to arguing, as he does on appeal, that his life sentence for

murder was “illegal” under Rule 4-345(a). He nonetheless urges this Court to consider the

illegal sentence argument he raises on appeal, noting that the court may correct an illegal

sentence at any time. The State responds that appellant “cannot transform an unappealable

motion into an appealable one by renaming it,” and accordingly, it asserts that this appeal

should be dismissed.

Maryland Rule 4-345 provides, in relevant part, as follows:

(a) Illegal sentence. The court may correct an illegal sentence at any time.
(b) Fraud, Mistake, or Irregularity. The court has revisory power over
a sentence in case of fraud, mistake, or irregularity.

9
With respect to Count three, the attempted murder charge, the court did instruct the
jury regarding both first and second degree murder. The conviction and sentence for
attempted murder are not challenged here.

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To be sure, appellant sought to “revise” his sentence pursuant to Rule 4-345(b), based

on an “irregularity” in the jury’s announcement of the verdict. He also requested, however,

that the circuit court “look beyond the label” of his pro se motion and “make a determination

based on . . . substance.” Given the Court of Appeals’ decision “to construe liberally filings

by pro se inmates,” Douglas v. State, 423 Md. 156, 182 (2011), and because an illegal

sentence may be corrected “at any time,” Rule 4-345(a), we deny the State’s motion to

dismiss this appeal.

We thus turn to the merits of appellant’s contention, that his life sentence for murder

was illegal. A sentence is “illegal” and subject to correction under Rule 4-345(a) only in

limited circumstances. A sentence is illegal in this regard where there is no conviction

warranting any sentence or where the sentence imposed is not a permitted one. Chaney v.

State, 397 Md. 460, 466 (2007). Accord Garner v. State, 442 Md. 226, 251 (2015) (A

sentence is “illegal” for purposes of Maryland Rule 4-345(a) where “there either has been

no conviction warranting any sentence for the particular offense or the sentence is not a

permitted one for the conviction upon which it was imposed and, for either reason, is

intrinsically and substantively unlawful.”).

Here, appellant contends that there was no valid conviction on which a life sentence

could have been imposed. In support, he asserts that his murder conviction was null and void

because the jury did not, as statutorily required, announce the degree of murder on which it

was convicting appellant.

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The Court of Appeals first addressed the statutory requirement that a guilty verdict of

murder include the degree of murder more than 150 years ago. In Ford v. State, 12 Md. 514

(1859), the defendant was charged with “wilful murder” of another man “by shooting him

with a pistol.” Id. at 515. When the jury was asked to give its verdict, the foreman stated

that the verdict was “Guilty.” Id. at 547. Defense counsel asked that the jury be polled. Id.

The court then directed the clerk

to ask the jury, when he polled them, “Whether they found the prisoner guilty
of murder in the first degree, or murder in the second degree?” To which
question, when it was put to the jury, the foreman answered for the jury, in the
words, “Guilty of murder in the first degree,” in an audible voice; and each of
the remaining eleven jurors, when polled, responded, “Guilty,” without
specifying the degree of murder in words.

Id. at 548.

Ford argued that there was no unanimity in the verdict regarding the degree of murder

on which he was found guilty. Id. at 534. The Court of Appeals agreed, stating that Article

19 (now 21) of the Maryland Declaration of Rights provides that, in all criminal

prosecutions, a man has the right to, inter alia, “a speedy trial by an impartial jury, without

whose unanimous consent he ought not to be found guilty.” Id. at 549. The Court stated:

“‘The verdict is the unanimous decision made by a jury and reported to the court, on the

matters lawfully submitted to them in the course of the trial.’ Unanimity is indispensable to

the sufficiency of the verdict.” Id. (quoting 10 Bacon’s Abridg. Title Verdict 306 (1832)).

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The Court of Appeals held that, under the circumstances of that case, where the

foreman initially said “guilty” for the panel, and when the entire jury was polled, eleven of

them replied “guilty,” without specifying the degree in words, Ford was not found guilty of

murder in the first degree by each member of the jury. Id. Because the jury, in their verdict,

did not unanimously find Ford guilty of murder in the first degree, there was “no valid and

sufficient verdict.” Id. at 549.

The Court addressed this issue again in Williams v. State, 60 Md. 402 (1883). In that

case, the defendant was tried on an indictment for murder, and the foreman announced the

jury’s verdict as “guilty of murder in the first degree.” Id. at 403. The defense requested a

poll of the jury, and each individual juror stated its verdict as “guilty,” without specifying the

degree of murder. Id. The Court of Appeals held that the verdict rendered on the poll was

a defective verdict because “not a single juror” finding Williams guilty “ascertained the

degree of murder as required by the Code.” Accordingly, the general verdict of “guilty” was

a nullity. Id.

These cases make clear that, to support a first-degree murder conviction, the jury

verdict must reflect that the jurors unanimously found the defendant guilty, not just of

murder, but of murder in the first degree. The Court of Appeals subsequently made clear,

however, that each juror need not utter those specific words. Strong v. State, 261 Md. 371

(1971), vacated, 408 U.S. 939 (1972) (vacating death sentence). In Strong, the forelady

announced the verdict as: “Guilty. Guilty of first degree murder, the first degree.” Id. at

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373. During the subsequent polling, the individual jurors merely responded: “Yes,” or “Yes,

it is,” when asked if their verdict was the same as the forelady’s. Id. at 373-74. On appeal,

Strong argued, relying on Williams, that the murder verdict was defective because the

individual jurors did not mention the degree of murder. Id. at 374. The Court of Appeals

held that the verdict was valid, stating that the jurors’ response to the polling question “was

the equivalent of each juror saying: ‘I find the accused guilty of murder in the first degree.”’

Id.

Here, the foreman stated that the verdict on the charge of murder was “guilty.”

Although a poll of the jury was conducted, a transcript of the polling was not included in the

record.10 Accordingly, the record as presented to us does not reflect a jury verdict that

contained a specific statement by the jury members designating whether appellant committed

murder in the first degree or second degree.

As indicated, supra, a verdict failing to state the degree of murder on which the

defendant was found guilty rendered the murder conviction a nullity in Ford and Williams.

The question we must address is whether that same result applies here, where a finding of

guilty of second degree murder was not a viable option for the jury and the verdict clearly

10
It occurs to us that polling of the jury, by itself, potentially could show compliance
with the statute, i.e., where the foreman says the verdict is guilty, but on polling, each juror
says that he or she found appellant guilty of first degree murder. See Smith v. State, 299 Md.
158, 168 (1984) (jury may correct the verdict until the case is removed from its province).
The State, however, does not make this argument or argue that the transcript of the polling
is critical to resolve this appeal. Therefore, we will not address this issue.

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represented a unanimous finding of guilt of first degree murder. We conclude that, under

these circumstances, appellant’s murder conviction was not a nullity.

We find support for this conclusion in opinions of courts in other jurisdictions

containing a statutory requirement that the jury state in the verdict the degree of murder for

which the defendant is found guilty. For example, in Fiegehen v. State, 113 P.3d 305, 306

(Nev. 2005), where Fiegehen was charged with murder, burglary and other charges, the

Supreme Court of Nevada addressed the same issue we are presented with here. In Nevada,

as in Maryland, a jury finding a defendant guilty of murder is required by statute to designate

whether the murder was first or second degree. Id. at 306. In that case, however, when the

jury returned its verdict, it merely found Fiegehen guilty of “murder with the use of a deadly

weapon.” Id. at 306-08.

In addressing the argument that the conviction was a nullity, the Nevada Supreme

Court recognized the “consistent line of cases” holding that, pursuant to statutory directive,

a failure to designate the degree of murder renders the verdict a nullity. Id. at 308. Under

the circumstances of that case, however, the court rejected Fiegehen’s argument that his

murder conviction was invalid. Id. at 312. The court held that, where “the verdict as a whole

unequivocally establishes a finding of felony murder, the verdict satisfies the command of

[the statute requiring the jury to announce the degree of murder] because felony murder is

first-degree murder as a matter of law.” Id. at 306. Because second-degree murder was not

an option where the defendant was charged solely with first-degree felony murder, and the

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jury clearly found the defendant guilty of the predicate felony, a finding of first-degree felony

murder could clearly be “discerned solely from the jury’s verdict as a matter of law.” Id. at

310. In that situation, the court stated, “reversing the conviction based on the jury’s failure

to expressly include the words ‘first-degree murder’ in its verdict would merely elevate form

over substance.” Id. Accordingly, the court held that, because the verdict established a

finding of first-degree murder as a matter of law, it satisfied the statutory requirement that

the jury designate that the guilty verdict of murder was of the first or second degree. Id.

Accord Gaines v. Leverette, 266 S.E.2d 451, 452-53 (W.Va. 1980) (where there is “no doubt

about the degree of murder found by the jury despite its failure to so specify,” the verdict was

not void because it failed, as required by statue, to specify the degree).

We agree with that analysis. We hold that, where the verdict makes clear that the jury

found the defendant guilty of first-degree felony murder as a matter of law, the verdict

satisfies the statutory requirement that the jury state the degree of murder on which the

defendant is found guilty. In that situation, a murder conviction is not void or a nullity based

on the failure of the jury to state the specific words “first degree” murder.

Here, the verdict unequivocally established that the jury unanimously found appellant

guilty of first-degree felony murder. The evidence presented, and the State’s argument,

related only to first-degree felony murder, and the parties agreed that the court should instruct

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the jury on the murder charge only with respect to felony murder.11 And because neither

second-degree murder nor manslaughter are lesser included offenses of first-degree felony

murder, the verdict of the jury had to be “first-degree murder or nothing.”

Charles Moylan, Jr., Criminal Homicide Law, § 5.1 (MICPEL 2002). Accord West v. Sate,

124 Md. App. 147, 161 (1998) (“[T]he jury was not required to be instructed on second-

degree murder because it is not a lesser included offense of first-degree felony murder.”),

cert. denied, 353 Md. 270 (1999).

Under these circumstances, where the jury’s verdict clearly was a unanimous verdict

of guilty of first-degree murder, the failure of the jury to specifically use the words “first

11
At the time of appellant’s trial, the “felony murder statute” provided:

All murder which shall be committed in the perpetration of, or attempt
to perpetrate, any rape in any degree, sexual offense in the first or second
degree, sodomy, mayhem, robbery, burglary, kidnapping . . . storehouse
breaking . . . or daytime housebreaking . . . or in the escape or attempt to
escape from the Maryland Penitentiary, the house of correction, the Baltimore
City jail, or from any jail or penal institution in any of the counties of this Sate,
shall be murder in the first degree.

Md. Code (1992 Repl. Vol.) Art. 27 § 410 (emphasis added). This statute currently is
codified as CR § 2-201(a)(4). Second-degree murder is murder that “is not in the first degree
under [CR] § 2-201.” CR § 2-204(a).

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degree” in its verdict did not render the verdict invalid. Therefore, appellant’s claim that the

resulting life sentence on the murder conviction was illegal is without merit.12

APPELLEE’S MOTION TO DISMISS
DENIED. JUDGMENT OF THE
CIRCUIT COURT FOR
MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

12
When appellant was convicted in 1994, the penalty for first-degree murder was
death, imprisonment for life, or imprisonment for life without the possibility of parole. See
former Art. 27 § 412(b). In 2013, however, the legislation repealed the death penalty. 2013
Md. Laws, ch. 156.

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