Fisher and Utley v. State

786 A.2d 706

367 Md. 218

Rose Mary FISHER and Mary Utley, v. STATE of Maryland.

No. 113, Sept. Term, 1999.

Court of Appeals of Maryland.

Argued April 6, 2000.

Reargued January 4, 2001.

Decided December 17, 2001.

Argued and reargued by Michael R. Braudes, Asst. Public Defender and Thomas J. Saunders, Assigned Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioners.

Argued and reargued by Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and THEODORE G. BLOOM (retired, specially assigned), JJ.

Reargued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, LAWRENCE F. RODOWSKY, (Retired, specially assigned), and THEODORE G. BLOOM (retired, specially assigned), JJ. RODOWSKY, Judge.

We granted certiorari in this case in order to determine whether Maryland law recognizes the applicability, in any way, of the common law doctrine of felony murder to homicides committed in the perpetration of a felony other than one enumerated in the first degree murder statute, Maryland Code (1957, 1996 Repl.Vol.), Article 27, §§ 408 through 410.¹ As explained below we shall answer that issue in the affirmative and hold that the acts and omissions constituting the statutory felony of child abuse, proscribed by § 35C, but not included in §§ 408 through 410, are the basis, under the circumstances of this case, for applying the felony murder doctrine. Also presented are claims of lack of preservation for appeal, of discovery violations, and of error in the exclusion of evidence of psychological profile, all of which we shall reject.

The murder victim in this case was nine year old Rita Fisher who died June 25, 1997.² Rita Fisher's fifteen year old sister, Georgia Fisher, was also a victim of child abuse which she survived. The petitioners in this Court, who were two of the three defendants at trial in the Circuit Court for Baltimore County, are forty-nine year old Mary Utley, the mother of the two victims, and twenty year old Rose Mary Fisher, the daughter of Mary Utley and older sister of the two victims. A third defendant, who did not petition this Court, was twenty-one year old Frank E. Scarpola, Jr. (Scarpola), the live-in boyfriend of Rose Mary Fisher. The defendants inflicted the abuse on the victims at 4106 Old Milford Mill Road in the Pikesville area of Baltimore County, where all five persons resided as members of the same household.

The three defendants were convicted of second degree murder. In the cases of Mary Utley and Rose Mary Fisher that verdict was predicated on felony murder. Scarpola's conviction of second degree murder was predicated on both intentional killing and felony murder. All three defendants were also found guilty of child abuse of Rita Fisher from April 15, 1997, through June 23, 1997; child abuse of Rita Fisher on June 24 and 25, 1997; child abuse of Georgia Fisher from April 15, 1997, through June 23, 1997; conspiracy to commit child abuse of Rita Fisher; and conspiracy to commit child abuse of Georgia Fisher. Additionally, Rose Mary Fisher was convicted of child abuse of Georgia Fisher on June 24 and 25, 1997. The circuit court sentenced Scarpola to ninety-five years imprisonment, Mary Utley to seventy-five years imprisonment, and Rose Mary Fisher to thirty years imprisonment. These judgments were affirmed by the Court of Special Appeals, Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999). We granted certiorari on the petitions of Rose Mary Fisher and Mary Utley. 356 Md. 634, 741 A.2d 1095 (1999).

The horrid facts of this case are set forth by Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals.

"At 2:41 P.M. on June 25, 1997, nine-year-old Rita Fisher was pronounced dead at the Johns Hopkins Hospital. The subsequent post mortem report of the Office of the Chief Medical Examiner revealed that she had died of dehydration and malnutrition, conditions resulting from inadequate water and food intake. The post mortem report indicated that she had been admitted to the Johns Hopkins Hospital on June 25, the day of her death, and had `expired as a result of abuse and negligence.'

"Rita Fisher's physical development was described as `retarded.' Her weight at the time of her death was forty-seven pounds, which was, in the opinion of the assistant medical examiner, considerably less than the average weight of a nine-year-old girl. Other medical records indicated that at an earlier period in her life she had weighed as much as 54-1/4 pounds. The evidence of physical abuse included `numerous recent and old abscesses and bruises to her head, chest, extremities, and buttocks.' There were `multiple rib fractures exhibit[ing] a pattern of healing consistent with a severe chest injury several weeks prior to death.' There was evidence of internal bleeding and of subdural bleeding of the brain. In addition, there were `multiple ligature marks on her wrists and ankles' which `indicate that she had recently been bound.' There was also evidence that `a ligature [had been] placed recently around the chest.'

"On the next day, June 26, 1997, Rita Fisher's fifteen-year-old sister, Georgia Fisher, was admitted to the Northwest Hospital Center. Nurse Martha Chinery described Georgia, at the time of her admission, as `frightened, emaciated, malnourished, bruised, and scarred.'

....

"In the course of a ten-day trial, the State called fourteen witnesses, including one of the victims, Georgia Fisher. The defense called twenty-two witnesses, including the three appellants. The only undisputed facts were that prior to November of 1995, the residents [at 4106 Old Milford Mill Road] were Mary Utley, Rose Mary Fisher, Georgia Fisher, and Rita Fisher. In November of 1995, Frank Scarpola moved into the residence as well.

"The key witness for the prosecution was Georgia Fisher. Georgia related the abuse that she and her sister Rita had suffered at the hands of her mother, Mary Utley, for years before Scarpola moved in and the abuse that continued once Scarpola became a part of the household. With respect to the time period after Scarpola moved in, Georgia explained how she and Rita had to perform chores such as cleaning the house and looking after the pets and if those chores were not performed, `we would get a beating.' When asked who, specifically, inflicted those beatings, Georgia answered, `Frank, Rosie and my mom.' Georgia explained that the beatings would sometimes be with a yardstick and that sometimes the girls would be hit, kicked, or punched by the appellants. Scarpola would sometimes take Georgia and Rita into the basement and would use boxing gloves to hit them. When either of the girls fell down from being hit, Scarpola would order them to get back up so she could be hit again.

"Georgia also described the many hours and days that she and Rita spent in `the hole.' According to Georgia, `the hole' was `a small place [in the basement] that had a toilet and it had a stall and they locked us in there for punishment.' Georgia explained that the `they' to whom she referred were `Frank, Rosie and my mom.' The girls would be locked in `the hole' for `days at a time' with no light and only an occasional drink brought by the appellant Utley. When asked how often the girls were fed while in `the hole,' Georgia replied, `once in a blue moon.' Neither Rita nor Georgia was permitted to go into the refrigerator for food. In fact, at one point a lock was placed on the refrigerator door to prevent just that.

"Georgia testified that, pursuant to Scarpola's orders, she was not permitted to help Rita with her homework. On one occasion when she did so and was caught, Scarpola beat her over the head with a metal flashlight. The beating resulted in a `big gash.' Scarpola then proceeded to shave Georgia's head, pour wine over the open wound, and sew the wound with a needle and thread. Georgia did not go to school for several days after the incident. Georgia also described for the jury an occasion, a few months before Rita died, when she had been tied to her bed, gagged, and blindfolded by Scarpola so that he could rape her.

"Georgia stated that she and Rita had been locked in their room for five consecutive days before Rita died. During those five days they were fed `sometimes' and permitted to use the bathroom once every other hour. At such times, one of the appellants would unlock the girls' bedroom door and accompany the girls into the bathroom. If either of the girls could not `perform' and use the toilet, she would be hit in the face. While in their bedroom, Rita was forced to sleep on the wooden floor because her mattress had been removed by Scarpola. Rita was required to sleep `with her arms straight up above her head and [with] her legs straight ... face up.' Georgia was given the responsibility of seeing that Rita did not move from that particular position. If Rita did move, Georgia would be `held responsible for it' and would be beaten.

"Georgia testified that both she and Rita were kicked in the ribs by Scarpola the week prior to Rita's death. Scarpola then smashed or threw away the girls' toys, including a dollhouse to which Rita was very attached. Scarpola told Rita and Georgia that they would not need the toys any longer because the girls were going `to go someplace until they were twenty years old,' i.e., an institution.

"The night before Rita died, Scarpola tied Rita up because she had been picking at a wound that Scarpola had earlier inflicted on her chin. Scarpola ordered Georgia to remove the shoestrings from her shoes. He then proceeded to tie Rita's hands to the dresser and her feet to the bed post with those shoestrings. Scarpola ordered Georgia to watch her sister. Georgia testified that during the course of that night and early the next morning, `[Rita] kept yelling [because she had to go to the bathroom] and Frank

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