Bollinger verdict contested

July 24, 1995|By Sheridan Lyons | Sheridan Lyons,Sun Staff Writer

A teen-ager who fired a gun inside White Marsh Mall in October -- attempting to win back a girlfriend -- has been found guilty of a crime that apparently doesn't exist.

The defense attorney and prosecutor say they will move to strike the verdict of attempted involuntary manslaughter issued by Baltimore County Circuit Judge Thomas J. Bollinger, who heard the nonjury trial of 19-year-old John Matthew Miller on July 10 and 11.

"There isn't such an animal," said defense attorney Richard M. Karceski, who filed a motion to that effect last week in anticipation of sentencing Sept. 14. "He was found guilty, but the case law says there is no such crime."

Mr. Karceski and Assistant State's Attorney J. T. Smith said "attempted involuntary manslaughter" is impossible legally as well as semantically, because a conviction for an attempt requires that an act be intended.

Last month, Judge Bollinger, in an unusual action, reversed his own verdict in another case that also involved a defendant's intent. The judge had found a 66-year-old orthodontist innocent of attempting to kidnap a teen-age girl, but guilty of battery -- while saying that the battery had been "unintended."

Mr. Karceski argued successfully in that case that battery by law must be intentional, and the man was acquitted of all charges.

Although the strangely worded crime of attempted involuntary manslaughter appears not to exist, the defendant would have faced a maximum 10-year sentence on the legal basis that attempts carry the same maximum punishment as crimes that succeed, the lawyers agreed.

If that verdict is withdrawn, Mr. Miller still faces sentencing on one count of reckless endangerment stemming from the incident -- a misdemeanor.

University of Baltimore law Professor Byron Warnken agreed that the supposed crime of attempted involuntary manslaughter does not exist, and said he teaches in his criminal law class an applicable 1988 Maryland Court of Appeals decision. That case says that an attempt "requires a specific intent" and defines involuntary manslaughter as "unintentional."

"There can't be such an offense," the professor said. "It's impossible. That's why in 1989 the legislature passed the reckless endangerment statute" -- to cover situations where someone could have been killed by a defendant's conduct but managed to jump out of the way of a drunken driver or flying bullet.

Judge Bollinger said judicial ethics prohibit his commenting on a pending case.

Mr. Miller, of Abingdon, went to trial on charges ranging from attempted murder and use of a handgun to multiple counts of reckless endangerment of shoppers and employees at the mall, where the bullet he fired pierced a wall and entered the Regal hair salon.

Although the single conviction for reckless endangerment carries a possible five-year sentence, Mr. Karceski said Mr. Miller had no record, and sentencing guidelines call for probation to 18 months. He said he was glad his client was not convicted of a crime of violence because that would have meant a mandatory minimum five-year sentence for use of a handgun.

Although it appeared from a transcript to have played no part in Judge Bollinger's verdict, Mr. Miller also is paralyzed -- a result of shooting himself after fleeing the mall -- and requires a wheelchair, is depressed and has some amnesia about the shooting.

The prosecutor, Mr. Smith, said the involuntary manslaughter verdict "has to be stricken" and that he will make that request to Judge Bollinger because "I have an obligation as an officer of the court."

Mr. Smith said he feared seeing the case being overturned by the Court of Special Appeals, and having to try it again -- the second time on no more than the remaining charge of reckless endangerment for which he had already a conviction.

Having been acquitted on the other counts in the case, Mr. Miller could not be retried on the original charges on grounds of double jeopardy.

The verdict may not matter much to the person most affected by it: the defendant.

"This was a very, very tragic tale," Mr. Karceski said. "He loved this girl. I think the trial in this young man's case was really secondary to the trauma he suffered. Unlike any other case I've ever tried, it seems in this case the pain came before the trial."

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