Fisher v. State Of Maryland

786 A.2d 706 (2001)

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Nature of the Case

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Facts

Nine-year-old Rita Fisher died on June 25, 1997. Rita Fisher's fifteen-year-old sister, Georgia Fisher, was also a victim of child abuse which she survived. Ds 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 was twenty-one-year-old Frank E. Scarpola, Jr. (Scarpola), the live-in boyfriend of Rose Mary Fisher. The post-mortem report revealed that Rita had died of dehydration and malnutrition, conditions resulting from inadequate water and food intake. Rita weighed 47 pounds, approximately one-half of the average weight of a nine-year-old girl. 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 exhibiting 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.' On the next day, June 26, 1997, Georgia Fisher, was admitted to the Hospital. She was 'frightened, emaciated, malnourished, bruised, and scarred.' At trial, the details of the abuse were horrid, heart-breaking, severe, and extreme both mentally and physically. One mode of punishment was for the girls to be locked in 'the hole' for 'days at a time' with no light and only an occasional drink. 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 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. Ds testified in their own defense. Each blamed the others for the crimes committed against the two girls. Ds were convicted of second-degree murder. In the cases of Utley and Fisher, that verdict was predicated on felony murder. Scarpola's conviction of second-degree murder was predicated on both intentional killing and felony murder. The jury returned its verdicts, finding that Ds were not guilty of first-degree, premeditated murder and not guilty of second-degree murder of the intentional or depraved heart varieties. Ds were also found guilty of child abuse. 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. Ds appealed. The main issue on appeal is the use of felony murder. When questioned on its use, the trial judge gave a short lecture on felony murder to counsel. He took the position that the doctrine could apply to murders in the perpetration of felonies other than those specified in §§ 408 through 410. He recognized that there was a question of whether residual felonies that could underlie the doctrine must be inherently dangerous, but he stated that it was unnecessary 'to get into all felonies [that] make up second-degree felony murder' because 'in my view child abuse--I have no question that child abuse would be an inherently dangerous felony which would serve as the basis for second-degree felony murder.'