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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 322 September Term, 1997 _______________________________ McCARTHY PLUMMER v. STATE OF MARYLAND _______________________________ Davis, Thieme Kenney, JJ. ________________________________ Opinion by Thieme, J. ________________________________ Filed: November 6, 1997

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McCarthy Plummer, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of automobile manslaughter and related offenses. On appeal, he raises the following issues,

which we shall slightly rephrase: 1. Was the evidence sufficient to sustain the appellant's convictions for automobile manslaughter and reckless driving? Did the trial court err in instructing the jury that flight from the scene could show consciousness of guilt? Did the trial court err in refusing the appellant's request for a Bill of Particulars?

2.

3.

Because we agree that the evidence was insufficient to sustain the appellant's convictions for automobile manslaughter and reckless driving, we reverse the judgment of the lower court. Accordingly,

we need not reach the merits of the other issues raised on appeal. I. BACKGROUND We shall save for that portion of our opinion dealing with the sufficiency of the evidence a detailed recounting of the facts in the instant case. For present purposes, suffice it to say that the

appellant was charged by indictment with manslaughter by vehicle, failure to remain at the scene of an accident, failure to give information and render aid, and failure to control speed to avoid a collision. In July of 1996 the appellant was tried before a jury Thereafter,

for the foregoing offenses, but a hung jury resulted.

the appellant was retried for all offenses except failure to

control speed to avoid a collision.1

The second trial took place At the conclusion of the

from 13 January through 15 January 1997.

retrial, the appellant was found guilty on all counts, as well as reckless driving and negligent driving. Subsequently, the

appellant was sentenced to six years incarceration with four years suspended for the automobile manslaughter conviction, one year consecutive for failure to remain at the scene of an accident, and was placed on unsupervised probation for five years. conviction was merged. This timely appeal followed. II. SUFFICIENCY OF THE EVIDENCE A. The Facts The appellant first complains that the evidence was The remaining

insufficient to sustain his convictions of automobile manslaughter and reckless driving. Because automobile manslaughter necessarily

incorporates the lesser included offense of reckless driving, see Pineta v. State, 98 Md. App. 614, 622, 634 A.2d 982 (1993), we shall first discuss whether the evidence was, in fact, legally sufficient to support his conviction of automobile manslaughter. The evidence at trial established the following facts. On 22

December 1995 at approximately 2:30 p.m., twelve-year-old Brooke

The appellant had been granted a Motion for Judgment of Acquittal as to that offense during the July 1996 trial.

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Williams ("the victim") was proceeding home from school on a sidewalk parallel to Piney Branch Road in Takoma Park. The

configuration of the area was described at trial as a highway running north and south, with one lane in each direction and a common median lane marked by yellow lines. On the right side of

the roadway is a white shoulder line; approximately eight feet separated the shoulder line from the beginning of the curb. The

curb, referred to as a "quarter rim," was, instead of a concrete curb perpendicular to the roadway, more of a gradual slope made of asphalt approximately three inches in height. While walking with several of her friends, the victim was struck from behind by the appellant's vehicle. From the force of

the collision the victim was propelled backward, struck the hood of the appellant's vehicle, and was thrown to the street where she lay unconscious and dying. The victim's friends immediately began

calling for help, and moments later various adults arrived to administer aid. Charles Hawkins, the only eyewitness to the events immediately prior to and following the accident, was the driver of the vehicle directly accident. behind the appellant's vehicle at the time of the

Mr. Hawkins estimated the speed of his vehicle, as well

as the appellant's, as "[b]etween 25 and 35 miles per hour" in a 30-mile-per-hour zone. When questioned on direct examination, Mr.

Hawkins further illuminated the events of that afternoon:

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Q:

Now did there come a time when you noticed something specifically about this vehicle that alarmed you? I notice[d] the vehicle starting to drift to the right side of the road. * * *

A:

Q: A:

Now when you saw the vehicle start to drift to the right, did you do anything? I started blowing my horn and I figured -- it was kind of cold during this time of year so I figured his windows were up and my windows were up. I kept blowing the horn and didn't get a response or anything so I started flashing my high beams to try to get his attention. And did the driver of the vehicle have any reaction to what you did? No. There accident. was none until after the

Q: A: Q:

Now did you see anyone on the sidewalk as you were flashing your beams and blowing your horn? Yes.... School must have just let out because there were kids walking up and down Piney Branch and probably about 20 to 25 feet in front of us there was a group of kids there, about three or four, off to the right, in the direction that the car was headed. * * *

A:

Q: A:

And what did you see after -- after you blew your horn, what happened after that? I blew my horn and flashed my lights and in a matter of seconds the burgundy car struck one of the little girls that were there and also you could see -- it was almost as if the girls were holding hands 4

because you could see one girl's hand go up in the air as the other one went up and over the top of the car. Mr. Hawkins further confirmed that all of the children, including the victim, were on the sidewalk at the time of the accident, and that, accordingly, the appellant's vehicle was on the sidewalk when it struck the victim. When asked if he noticed anything unusual about the

appellant's car just before it struck the victim, Mr. Hawkins replied, "Not other than the car just drifting. That was it." Mr.

Hawkins also observed that the appellant's vehicle had actually decreased in speed when it began to approach the school area. Immediately after the accident, the appellant made a U-turn on Piney Branch Road so that the appellant's car and Mr. Hawkins's car were alongside one another. At that point, Mr. Hawkins testified:

I put my window down and told him -- I said ["]you just hit the little girl back there["].... He said ["]I'm going back["] and pointed in the direction back towards [where] the accident had happened. Despite the appellant's assertions that he was going to return to the scene, Mr. Hawkins observed that the appellant "[j]ust sped up and kept going." Mr. Hawkins had in the meantime called 911, and

because he had followed the appellant for a short distance he was able to provide police with the appellant's license plate number before stopping alongside the road and waiting for the police to arrive.

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On facts.

cross-examination,

Mr.

Hawkins

confirmed

the

previous

He further noted that by the time his and the appellant's

vehicles had made the U-Turns and passed the accident scene several cars had stopped to render assistance and various adults had arrived at the scene: Q: So it wasn't a situation where the child was simply left out on the roadway. There were actually people there to start to do whatever could be done under the circumstances. Yes. * * * Q: And you have already indicated that the whole process of the vehicle starting to drift, from the time that it started to drift until it struck the child was just a matter of seconds? Yes. A very quick thing? Yes.

A:

A: Q: A:

Also called as witnesses for the State were various students who were walking home along the same sidewalk that the victim had been using. were unable The students gave their accounts of the impact. They to observe the appellant's vehicle prior to the

accident, however, because they were walking away from the vehicle, and hence, their backs were turned toward the vehicle. The student

witnesses confirmed, however, that at no time did the vehicle that struck the victim stop or render any assistance.

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Officer Brian Rich of the Prince George's County Police Department arrived at the scene approximately two hours after the accident. On investigating the license plate number provided by

Mr. Hawkins, Officer Rich was able to locate the appellant's vehicle that same evening in a residential area of the District of Columbia. The vehicle had damage to the hood and the front end,

and arrangements were made for it to be impounded for further investigation. Three days later, at 3:30 a.m. on Christmas morning, the appellant turned himself in at the Oxon Hill Police Department. On

arrival at the station the appellant informed the police, "I think I am involved in an accident where a 12-year-old girl was killed on Piney Branch Road." During the booking process, the appellant

commented at least two times that he wished he were dead, said that he felt like dying, and made other remarks of the same nature. Various other police officers, who were assigned the task of reconstructing the accident at trial, also testified. From their

testimony it was established that at the time of the collision the appellant's vehicle was traveling at between 33 to 37 miles per hour. Accounting for a margin of error, one officer admitted that

the appellant's speed could have been as low as 31 miles per hour at the time of the accident. In fact, the State conceded to the

jury in its opening argument that "this case... is not about high speed."

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At the close of the State's case-in-chief, the appellant made a Motion for Judgment of Acquittal, arguing insufficiency of the evidence. Specifically, defense counsel commented: [W]ith the evidence at this juncture we have a case I think that is unlike any case in which vehicular homicide has ever been sustained on appeal in Maryland. * * * This is a civil negligence case. This is perhaps a negligence case for negligent driving, failure to exercise care and prudence in the operation of a motor vehicle. However, how could it possibly be evidence of gross negligence? Although noting the difficulty presented by the facts in the instant case, the trial court ultimately denied the appellant's motion. After electing to call no witnesses on its behalf, the

defense rested and the case was submitted to the jury. B. Standard of Review When presented with a claim of insufficiency of the evidence on appeal, the reviewing court is not to "ask itself whether it believes the evidence at the trial established guilt beyond a reasonable doubt"; rather, the duty of an appellate court is only to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336 (1994)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 8

2d 560 (1979))(emphasis in original); Oken v. State, 327 Md. 628, 661, 612 A.2d 258 (1992); Goldring v. State, 103 Md. App. 728, 732, 654 A.2d 939 (1995). The evidence must be viewed in a light most

favorable to the State, "giving due regard to the trial court's finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the

credibility of witnesses."

Albrecht, supra, at 478; State v.

Raines, 326 Md. 582, 589, 606 A.2d 265, cert. denied, 506 U.S. 945, 113 S. Ct. 390, 121 L. Ed. 2d 299 (1992). With regard to the specific offense at hand, manslaughter by automobile is set forth in section 388 of article 27. It provides, in pertinent part: Every person causing the death of another as the result of the driving, operation or control of an automobile... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as "manslaughter by automobile...," and the person so convicted shall be sentenced to jail for not more than 10 years, or be fined not more than $5,000 or be both fined and imprisoned. Md. Ann. Code., art. 27

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