EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 16, 2014

The Serial Podcast, Episode 11: Premeditation & Manual Strangulation in Maryland

I've done sixteen posts

(herehereherehereherehereherehereherehereherehereherehereherehere, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the eleventh episode of the Serial Podcast: "Rumors." This episode deals with rumors about Adnan's character and includes three interviewees using the word "premeditation." 

Many people have asked me how the prosecution proved that Adnan acted with premeditation. I have two responses that I will flesh out in this post: First, the prosecution might not have needed to prove premeditation because there are two/three other ways they could have proven first-degree murder. Second, you might assume that the person who manually strangled Hae only acted with premeditation if he planned the killing days, hours, minutes, or, at a minimum, seconds before the fatal act. You would be wrong.

Section 2-201(a) of the Maryland Code of Criminal Law provides that

A murder is in the first degree if it is:

(1) a deliberate, premeditated, and willful killing;

(2) committed by lying in wait;

(3) committed by poison; or

(4) committed in the perpetration of or an attempt to perpetrate [one of various felonies, including]:...

(vi)   kidnapping under § 3-502 or § 3-503(a)(2) of this article;...

(ix)   robbery under § 3-402 or § 3-403 of this article.... 

Section 2-201(a) was added in 2002, but it was merely a recodification of existing Maryland law, with everything currently contained in Section 2-201(a) previously contained in Article 27, Sections 407 and 410 of the Maryland Code.

Let's start with Section 2-201(a)(1) and the first way the jurors could have found Adnan guilty of first-degree murder. The key case under this subsection for Adnan's purposes is Hounshell v. State, 486 A.2d 789 (Md.App. 1985). In Hounshell, Harold Hounshell was convicted of first-degree murder based upon fatally strangling Laverne Duffy. After he was convicted, Hounshell appealed, claiming that "the evidence presented at trial failed to establish the necessary elements of a wilful, deliberate and premeditated murder." Specifically, Hounshell took "issue with the State's failure to introduce any evidence, medical or otherwise, of the nature and duration of the act which caused the death of Laverne Duffy."

In response, the Court of Special Appeals of Maryland started by setting forth the legal framework:

Premeditation is a term of art used in the law of homicide. It is commonly defined as the design which must have preceded a killing by an appreciable length of time to make that killing deliberate....When there is deliberation, there has been of necessity time for deliberation, to-wit, premeditation....In Chisley v. State,...the Court of Appeals defined the time element required for a finding of premeditation as follows:

"[t]he time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is."...

In his excellent discussion of the meaning of premeditation in Smith v. State,...Judge Moylan noted that "the period of time required for premeditation and deliberation in first degree murder is only that which is necessary for one thought to follow another."..."For a killing to be premeditated, there 'need be no appreciable space of time between the intention to kill and the act of killing—they may be as instantaneous as successive thoughts of the mind.'"

Applying this legal framework to the facts at hand, the court then concluded that

Even without any other evidence of [Hounshell]'s mental state, the jury could have concluded, as it apparently did, that within the time it took [Hounshell] to strangle the victim to death, [Hounshell] achieved the necessary mental state which constituted the crime of first degree premeditated murder. Logic and common sense dictate that for one person to strangle another person to death, a significant length of time must pass for the victim to die. This time period in which the perpetrator must continuously exert sufficient force on the victim's throat to block the victim's breathing affords the perpetrator a significant opportunity for reflection and a change of heart.

And there you have it. The jurors could have believed that Adnan "snapped" and started strangling Hae without even really thinking, and they STILL could have found that her strangulation was "a deliberate, premeditated, and willful killing" because the time it takes to strangle someone "affords the perpetrator a significant opportunity for reflection and a change of heart." 

That's not to say that jurors DID reach this conclusion. And that's because there were two/three other ways they could have found Adnan guilty of first-degree murder.

A second way that the prosecution could have secured Adnan's conviction for first-degree murder was by proving that he strangled Hae and that this act was "committed by lying it wait...." As far as I can tell, neither the Court of Special Appeals of Maryland nor the Court of Appeals of Maryland has ever clearly defined "lying in wait..." That said, in Selby v. State and State v. Selby, the Court of Special Appeals and then the Court of Appeals cited to a trial court's definition of this phrase that I like well enough: "Lying in wait specifically requires three components: Concealment and watching and waiting."

Assume that the jury believed that Adnan (1) slipped into Hae's car when Hae ran to the concession stand in the gym; (2) hid in the car before Hae returned; (3) initially only planned on hurting Hae (there was evidence of bruising on her head); and (4) for whatever reason (e.g., Hae said something to him, Adnan saw something belonging to her new boyfriend, Don, in the car) spontaneously started strangling Hae. In this case, even if the jurors found that Adnan didn't have "a significant opportunity for reflection and a change of heart" while he strangled Hae, they still could have found him guilty of first-degree murder because the strangulation was "committed by lying it wait...."

Finally, a third/fourth way that the prosecution could have secured Adnan's conviction for first-degree murder was by proving felony murder, i.e., that Hae's death occurred during a qualifying kidnapping or robbery. As Section 2-201(a)(4)(vi) makes clear, two types of kidnapping qualify: (1) Section 3-503(a)(2) covers kidnapping someone under age 16 (Hae was 18); and (2) Section 3-502 states in relevant part that "[a] person may not, by force or fraud, carry or cause a person to be carried in or outside the State with the intent to have the person carried or concealed in or outside the State." Section 3-502 is Maryland's standard kidnapping law, and Adnan was convicted of kidnapping.

Based on the facts presented at Adnan's trial, it's easy to see why the jurors could have found Adnan guilty of kidnapping. They could have believed, for instance, that Adnan (1) hit Hae on the head (force) and ordered her to drive him to Best Buy, where he strangled her; or (2) lied to Hae (fraud) to get her to drive him to Best Buy, where he strangled her. Because, in either of these cases, Adnan would have killed Hae during the kidnapping, the jurors could have found him guilty of felony murder.

As Section 2-201(a)(4)(ix) makes clear, two types of robbery qualify: (1) Section 3-403 covers a robbery committed with a dangerous weapon or a written instrument claiming the person has a dangerous weapon (there's no indication Adnan had a weapon); and (2) Section 3-402 states that robbery is a crime in Maryland, and Section 3-401(e) states that

"Robbery" retains its judicially determined meaning except that:

(1) robbery includes obtaining the service of another by force or threat of force; and

(2) robbery requires proof of intent to withhold property of another:

(i) permanently;

(ii) for a period that results in the appropriation of a part of the property’s value;

(iii) with the purpose to restore it only on payment of a reward or other compensation; or

(iv) to dispose of the property or use or deal with the property in a manner that makes it unlikely that the owner will recover it.

In turn, the "judically determined meaning" of robbery is the taking of property from the person of another, through "force or the threat of force, the latter of which also is referred to as intimidation." Spencer v. State, 30 A.3d 891, 895 (Md. 2011). 

There's been a lot of confusion about how Adnan was convicted of robbery, but I think that the above definition(s) make clear why he was convicted. Assume that the jury thought Adnan's plan was to kill Hae and sell her car. In that case, it's pretty easy to see how that would be robbery. Indeed, in this hypothetical, even if the jurors found that Adnan killed Hae and THEN decided to sell her car, they could still find him guilty of robbery. See, e.g., State v. Allen, 875 A.2d 724, 727 (Md. 2005) ("[E]ven if the intent to steal here was not formed until after the victim had died taking his property thereafter would still be robbery, if it was part and parcel of the same occurrence which involved the death.).

Now, let's look at the actual facts of Adnan's case. Whoever killed Hae dumped her car at the Park and Ride. As you can see from Section 3-401(e)(iv), dumping the car at the Park and Ride is the functional equivalent of selling the car because it is "dispos[ing] of the property...in a manner that makes it unlikely that the owner will recover it." Therefore, the jurors presumably found that Adnan was guilty of robbery because he dumped her car at the Park and Ride. 

Would this robbery conviction then support a conviction for felony murder? This is a much weaker case than the case for felony murder based on kidnapping. Why? Under this theory, Adnan didn't kill Hae so that he could dump her car at the Park and Ride; he dumped the car at the Park and Ride because he killed her. Therefore, under this theory, because the robbery took place after the murder, I don't think it would support a conviction for felony murder. A robbery conviction usually supports a conviction for felony murder when an assailant kills the victim while he's trying to steal her property.

Summing everything up, there are three/fout ways that the prosecution could have proven that Adnan was guilty of first-degree murder: (1) he executed a pre-existing plan to strangle Hae or spontaneously started strangling Hae and didn't stop despite the opportunity to reflect on what he was doing; (2) he killed Hae after laying in wait; (3) he killed Hae as part of a kidnapping (felony murder); or (4) he killed Hae as part of a robbery (felony murder).

So, what did the jury actually believe? It believed one of these theories. Moreover, it believed that the crime was committed in a very particular way. I'm 99% sure of it. In my post tomorrow previewing the final episode, I will tell you how I reached this conclusion.



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While I understand there is a legal distinction between burglary and robbery, was not what you intended to say in your summary here:

"(3) he killed Hae as part of a burglary (felony murder);"
"(3) he killed Hae as part of a kidnapping (felony murder);"?

Impeccable analysis otherwise, I just thought this might be confusing within context to other readers as well.

Posted by: Jeremy | Jan 25, 2015 11:32:16 PM

Apparently I don't understand as well as I thought (IANAL). In the following post you say that Adnan was convicted of burglary and link to the appellant brief that listed what he was convicted of. This includes robbery (theft by force) as well as first degree murder (among other things) but does not contain the word "burglary". So did the first degree murder conviction meet the legal standard due to 1) robbery 2) burglary or 3) kidnapping (by fraudulent carrying)?

Posted by: Jeremy | Jan 26, 2015 12:16:06 AM

I don't think we know how the jury convicted Adnan of first-degree murder. They could have found premeditation based on the strangulation alone. They could have found first-degree murder because the murder occurred during false imprisonment, kidnapping, or robbery. All I know is that the jury found Adnan guilty of kidnapping by fraud, which required them to find that he lied to Hae about needed a ride with the intent of harming her.

Posted by: Colin Miller | Jan 26, 2015 6:03:10 AM

I have never understood this framework saying that premeditation can be formed in an instant or that all it requires is time for successive thoughts to pass by. If we define premeditation this way, doesn't this for all intents and purposes obliterate the difference?

When we as a society decide that there is a qualitative difference in the reprehensible nature of murder that is planned out beforehand vs a murder that occurs in the throes of passion and anger, then the intent was not to later redefine the word premeditation so as to encompass nearly every crime of passion.

Ok, so if we accept this redefining--don't we now have to create some new classification to differentiate between a planned-ahead-of-time murder vs crime-of-passion-murder-in-which-at-least-1-moment-passes-before-the-victim-dies? I still see the former as being far more reprehensible and wrong. I think most of society does too. However since we've redefined premeditation so that the whole 1st degree/2nd degree murder classification thing into trivial nothingness, we need to find a new way to differentiate these two types of murder for sentencing purposes.

Posted by: Paul | Sep 22, 2016 1:07:43 AM

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