284 Md. 309, 396 A.2d 1054 (Md. 1979)
On or about April 11, 1976, Joyce Lillian Pope was present in her Montgomery County home when Melissa Vera Norris abused and killed her three-month-old son Demiko Lee Norris.1 Pope had taken Melissa and the child into her home the preceding Friday evening after a church service because Melissa refused to enter her grandparents' home, appeared mentally distressed with episodes of claiming to be God, and had no money or other place to stay.2
Pope fed the baby, prepared a bed for him in a dresser drawer, stayed up watching him through the night because he was spitting up, and continued caring for him the next day while Melissa alternated between normal behavior and religious frenzies.3 On Sunday morning around 4:30 a.m., Pope prepared the baby's bottle and fed him. Later that morning Melissa, in a sudden changed state, began punching and poking the child repeatedly about the stomach, chest, and privates, undressed him, reached her fingers down his throat wiping mucus and blood on diapers, lifted him by inserting her hands in his mouth and shook him, squeezed him, and held him by the neck while taking him to the bathroom.4
Pope was present throughout, noticed Melissa's long fingernails and commented on them, knew at some point that Melissa was hurting the baby, and felt fearful, amazed, and shocked but took no action to stop the abuse or seek immediate medical assistance.5 After the abuse ended, Pope did not tell her arriving sister Angela what had occurred despite Angela asking what was wrong.6 The three women took the child to church and then to Bel Pre Health Center, where the baby was determined to be dead.7
Pope told police in Melissa's presence that the baby did not fall and that she had not seen Melissa strike the child.8 She later explained in statements that it was Melissa's body but not her because something else was present.9 Pope gave a written statement and a recorded oral statement to police detailing the weekend's events.10 Pope was charged in a nine-count indictment with offenses including child abuse under Art. 27 § 35A and common-law misprision of felony.11 After a bench trial in the Circuit Court for Montgomery County, the court found Pope guilty on the child abuse and misprision counts. The Court of Special Appeals reversed the child abuse conviction and affirmed the misprision conviction. The Court of Appeals granted Pope's petition and the State's cross-petition for certiorari.12
Whether the evidence was sufficient to sustain Joyce Lillian Pope's conviction for child abuse as a principal in the first degree?13
Under Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 35A(a), the child abuse felony applies to any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child.14 Responsibility for supervision attaches only upon mutual consent, expressed or implied, between the parent legally charged with the child's care and the person assuming that responsibility; acts of hospitality and kindness alone do not transfer or create such responsibility when the parent remains present and continues to exercise supervision at times.15
No. The established facts establish that Pope took Melissa and the child into her home on Friday evening after church because Melissa refused to enter her grandparents' home, showed signs of mental distress including religious frenzies, and had no money or alternative shelter.16 Pope fed the baby, prepared a bed for him in a dresser drawer, stayed up watching him through the night because he was spitting up, and continued caring for him the next day while Melissa alternated between normal behavior and episodes of claiming to be God. On Sunday morning Melissa, in a sudden changed state, began punching and poking the child repeatedly about the stomach, chest, and privates, undressed him, reached her fingers down his throat wiping mucus and blood on diapers, lifted him by inserting her hands in his mouth and shook him, squeezed him, and held him by the neck while taking him to the bathroom. Pope was present throughout, noticed Melissa's long fingernails and commented on them, knew at some point that Melissa was hurting the baby, and felt fearful, amazed, and shocked but took no action to stop the abuse or seek immediate medical assistance.
Because Melissa remained present and at times resumed care of the child herself, Pope's acts of feeding, watching, and sheltering the child constituted hospitality rather than acceptance of responsibility for supervision.17 The evidence therefore failed to place Pope within the class of persons to whom the statute applies, rendering the conviction as a principal in the first degree clearly erroneous.18
The evidence was not sufficient to sustain Joyce Lillian Pope's conviction for child abuse as a principal in the first degree.19
Related opinions on this issue
Judge Eldridge concurred in the result on the second-degree principal issue and on misprision of felony. He dissented from the majority's restrictive reading of the child abuse statute. He maintained that the statutory language reaching any other person who has responsibility for the supervision of a minor child is plain and unambiguous. It covers anyone who voluntarily assumes such responsibility regardless of whether a parent expressly granted it. Eldridge viewed the majority's mutual-consent requirement as an unwarranted narrowing. That narrowing would place good samaritans who take in a lost child or otherwise assume full care without parental consent beyond the statute's reach even if they later abuse the child.
He argued that the cardinal rule of statutory construction requires courts to follow the ordinary meaning of clear language without adding limitations not expressed by the Legislature. Public policy supports holding accountable any person who assumes responsibility and then mistreats the child.
Whether the evidence was sufficient to sustain Joyce Lillian Pope's conviction for child abuse as a principal in the second degree?20
A principal in the second degree is one who is actually or constructively present when a felony is committed and who aids or abets its commission by counseling, commanding, encouraging, or rendering assistance that operates on the mind of the perpetrator; secret acquiescence or mere presence without manifested approval is insufficient, and criminal intent on the part of the abettor is required.21
No. The established facts show that Pope was actually present during the abuse but neither actually aided Melissa nor counseled, commanded, or encouraged her.22 Pope responded to Melissa's commands by looking when told to look and coming when called, and she voluntarily opened the door to her son's room so Melissa could reach him, but these actions did not manifest approval or encouragement of the abuse.23 Pope failed to interfere or question the mother's activity even when Melissa appeared rational. Yet the evidence contains no indication that Pope's passivity was intended to embolden Melissa or that Melissa was aware of any purpose by Pope to render aid if necessary. The trial court's findings that the events occurred in Pope's home and that she failed to intervene were not enough to satisfy the requirement of manifested encouragement or assistance.24
The evidence was therefore legally insufficient to prove that Pope was a principal in the second degree.25
The evidence was not sufficient to sustain Joyce Lillian Pope's conviction for child abuse as a principal in the second degree.26
Whether the common law crime of misprision of felony exists and remains chargeable in Maryland?27
Misprision of felony at common law consisted of the mere concealment of a felony which a person knows but never assented to; the offense is not chargeable in Maryland if it is incompatible with local circumstances and situation, the general code of laws and jurisprudence, or the welfare of society today, particularly where the offense has lain virtually dormant for over two hundred years, possesses an impractically wide and indiscriminate scope, and has been replaced in practice by more precisely defined offenses such as accessory after the fact and obstruction of justice.28
No. The established facts show that Pope witnessed the abuse and death of the child, failed to report the felony to authorities at the first reasonable opportunity, gave misleading statements to police in Melissa's presence, and later provided full statements only after further questioning.29 Although these facts might satisfy the elements of knowledge and concealment under the Blackstone definition revived in Sykes, the common law offense has never been used in Maryland appellate courts prior to this case, has been charged only rarely at the trial level, and was not proposed by Maryland's Commission on Criminal Law.30 The offense's requirement of disclosure upon mere possession of knowledge, without any affirmative act of concealment or benefit to the accused, creates an indiscriminate duty that may implicate constitutional privileges and conflicts with the modern preference for narrowly defined offenses.31 Because the crime is incompatible with contemporary standards of criminal liability and has fallen into desuetude, it is not a chargeable offense in Maryland.32
The common law crime of misprision of felony does not exist and is not chargeable in Maryland.33