## Facts

- Rita Fisher (age nine) died in June 1997 after prolonged neglect and physical abuse in a household with her mother (Mary Utley), older sister (Rose Mary Fisher), and Fisher’s boyfriend (Frank E. Scarpola, Jr.).
- Rita’s sister Georgia (age fifteen) also suffered child abuse but survived.
- Evidence showed severe deprivation and abuse culminating in Rita’s death from dehydration and malnutrition.
- Utley, Fisher, and Scarpola were tried together and convicted of second-degree murder and multiple counts of child abuse (as to Rita and Georgia) and conspiracy to commit child abuse.
- For Utley and Fisher, the second-degree murder convictions were based on a felony-murder theory with child abuse as the predicate felony.
- Utley received an enhanced child-abuse sentence under a statute authorizing a higher maximum penalty if the abuse resulted in the victim’s death, though the relevant count did not allege that circumstance.

## Issues

1. Whether Maryland recognizes common-law second-degree felony murder for killings committed during felonies not enumerated in the first-degree murder statute.
2. Whether predicate felonies for second-degree felony murder are limited to common-law felonies or can include statutory felonies such as child abuse.
3. Whether “inherently dangerous” is assessed by the felony’s elements in the abstract or by the circumstances of its commission in the particular case.
4. Whether an enhanced child-abuse sentence based on “death resulting” is permissible when the charging count does not allege that circumstance.

## Decision

- The Court of Appeals affirmed the second-degree murder convictions under a common-law second-degree felony-murder theory predicated on child abuse.
- The court held that second-degree felony murder exists in Maryland common law and is not confined to felonies enumerated for first-degree felony murder.
- The court allowed statutory felonies, including child abuse, to serve as predicates when, under the circumstances, the felony conduct made death a foreseeable consequence.
- The court rejected additional claims involving preservation, alleged discovery violations, and exclusion of psychological-profile evidence.
- The court vacated the portion of Utley’s judgment represented by the enhanced child-abuse sentence and remanded for resentencing because the indictment count did not allege that the abuse resulted in the victim’s death.

## Legal Principles

- Maryland’s statutory division of murder into degrees grades punishment and does not eliminate the common-law felony-murder doctrine.
- Common-law second-degree felony murder applies to killings committed in the perpetration of non-enumerated felonies when the felony is inherently dangerous to life.
- A felony’s dangerousness for second-degree felony murder may be evaluated based on all the circumstances of its commission, including foreseeability of death, not solely by the felony’s elements in the abstract.
- Child abuse can be a predicate felony for second-degree felony murder when committed in a manner that creates a lethal risk under the circumstances.
- When a statute increases the maximum penalty based on an additional offense circumstance (such as “death resulting”), that circumstance must be specifically charged and proved; a general statutory citation in the count is insufficient to support the enhanced maximum.

## Conclusion

The court confirmed that Maryland common law recognizes second-degree felony murder predicated on non-enumerated, inherently dangerous felonies, including child abuse when the circumstances make death foreseeable, and it required specific pleading of “death resulting” before imposing the enhanced child-abuse maximum sentence.


Fisher v. State, 367 Md. 218, 786 A.2d 706 (Md. 2001)