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In Beckwitt v. State (No. 794, Sept. Term 2019) (Jan. 29, 2021), the Court of Special Appeals found itself exploring “the rather murky legal landscape of depraved heart murder and involuntary manslaughter. ” Id. at 7. According to one commentator, the decades-old struggle to distinguish the mens rea requirements for these offenses results from the fact that when Maryland finally recognized the crime of depraved heart murder, “the store of ‘juicy’ and lurid adjectives had been profligately exhausted by the rhetorical excesses of earlier opinion writers in the manslaughter cases.” Charles E. Moylan, Criminal Homicide Law (2002) (hereinafter “Moylan”) § 12.4, at 227. Faced with a defendant convicted of both offenses, the Court found it necessary to enter this morass to determine whether the evidence was sufficient to support either charge. 

Daniel Beckwitt and Askia Khafra met in an internet chat room. Khafra convinced Beckwitt to invest $10,000 to develop a smartphone app, but later agreed to refund the money when the investment failed to perform. Beckwitt, who had been building tunnels under his Bethesda home as protection against a North Korean attack, allowed Khafra to work off the debt by digging in the tunnels. 

Beckwitt would drive a blindfolded Khafra to his house to ensure that Khafra would never learn its location. He would then lock Khafra in the basement for weeks at a time to work in the adjoining tunnels. While there, Khafra was wholly dependent on Beckwitt. There was no running water, so Khafra bathed with disposable wipes and relieved himself in buckets that Beckwitt would empty using a winch installed for that purpose. Power was supplied to the tunnels by a series of extension cords that frequently tripped circuit breakers that only Beckwitt could reset. As Beckwitt did not own a telephone, the pair communicated by computer voice and chat platforms. If Beckwitt was not at his computer, he would not see Khafra’s messages.

One morning at approximately 2:30 a.m., Khafra messaged Beckwitt to tell him that the power was out and that there may be smoke in the tunnels. Beckwitt did not see the messages until he awoke at 9:00 a.m. He switched the power cords to a different circuit and went back to bed. When he got up again at 4:00 p.m., Beckwitt heard beeping from a carbon monoxide detector in the basement. He waited 20 minutes and then went down to reset it, but did not see Khafra. While coming back upstairs, Beckwitt heard an explosion and saw smoke rising from the kitchen floor. He went back to the basement and heard Khafra, but again did not see him. Beckwitt unlocked a basement door and ran outside to get his neighbors to call 9-1-1. 

Beckwitt was a hoarder, so when firefighters arrived they had to pick their way through trash and other debris that made it difficult to get through the house. Once in the basement, they quickly put out the fire and found Khafra’s lifeless body.

Beckwitt was convicted of depraved heart murder and gross negliegence involuntary manslaughter. He appealed, arguing that the evidence was insufficient to support either charge. Beckwitt was half right.

The Court began its discussion by noting that both depraved heart murder and gross negligence involuntary manslaughter are included on a continuum of homicides involving “unintended death by carelessly or negligently doing some act lawful in itself.” Id. at 9, quoting Pagotto v. State, 127 Md. App. 271, 276, aff’d 361 Md. 528 (2000). The lowest level of culpability for offenses on this continuum involves simple negligence, characterized by the perpetrator’s failure to exercise reasonable care. If death is caused by simple negligence liability is in tort, rather than criminal law. Id.

The next level of culpability involves negligent conduct that manifests “a wanton or reckless disregard of human life,” which, if fatal, constitutes the crime of “gross negligence involuntary manslaughter,” one of several varieties of manslaughter recognized in Maryland. Id. And finally, there are “those acts of a life-endangering nature so reckless that they manifest a wanton indifference to human life,” which take the offense from manslaughter to second-degree depraved heart murder. Id. 

The Court noted that despite these distinctions, or perhaps because of them, the line between gross negligence involuntary manslaughter and depraved heart murder has long been unclear. “As an abstract matter, we know that there is—somewhere—such a line. There must be or else there is no legally cognizable distinction between murder and manslaughter.” Id. at 10, quoting Pagnotto, 127 Md. App. at 277. 

To locate the line, the Beckwitt court first observed that gross negligence involuntary manslaughter is a less culpable form (“the junior varsity manifestation”) of depraved heart murder, but that merely begged the question as to where they diverged. Id. at 8, quoting Moylan at 223. The Court found a partial answer after looking at two prior cases, each defining one offense. Examining the verbiage found there, the Court concluded: “The line between depraved heart murder and gross negligence involuntary manslaughter, then, appears to be as follows: depraved heart murder requires an ‘extreme indifference to the value of human life,’ whereas gross negligence involuntary manslaughter requires only ‘a wanton and reckless disregard for human life.’” Beckwitt, Slip Op. at 11 (citations omitted; emphasis added). Beckwitt’s conduct, the Court went on to find, evinced only a reckless disregard for Khafra’s life, but not extreme indifference to its value. He was, therefore, guilty of involuntary manslaughter, but not murder.

To assess the sufficiency of the evidence for the involuntary manslaughter conviction, the Court relied heavily on the analysis of the Court of Appeals in State v. Thomas, 464 Md. 133 (2019), which found that under the circumstances presented there, a heroin dealer was guilty of manslaughter following a customer’s overdose death. The Thomas Court concluded that proof that an individual acted with the wanton and reckless disregard for human life required proof of “a gross departure from the conduct of an ordinarily careful and prudent person and a disregard or indifference to the rights of others [and] involves an assessment of whether an activity is more or less likely at any moment to bring harm to another, as determined by weighing the inherent dangerousness of the act and environmental risk factors.” Id. at 160-61. The facts of Thomas (an experienced heroin dealer who was himself a user who knew the dangers of selling to a desperate teenager but did so anyway) satisfied the elements of involuntary manslaughter. 

Similarly, the inherent danger of Beckwitt’s arrangement with Khafra and its attendant environmental risks made it likely that tragedy could strike at any moment. Beckwitt essentially locked his victim underground with an unreliable power source, limited communications, and no way to escape in the event of an emergency. Beckwitt concealed the location, so Khafra was unable to alert others as to his predicament, and on the day of the fire, he left Khafra without power for extended periods of time in an environment so cluttered and inaccessible that the emergency response was significantly delayed. The evidence was sufficient to support the manslaughter conviction.

Only when it turned to the question of depraved heart murder did the Court truly distinguish the two crimes. Its first observation served only step back into a now familiar definitional quagmire: “[M]alice is the indispensable ingredient of murder…[it] may be inferred from the intent to do an act under circumstances manifesting extreme indifference to the value of human life.” Id. at 32 (citations and internal quotations omitted). Digging more deeply into the cases, a light finally went off. “We distill an essential component of depraved heart murder: the negligent conduct must be reasonably likely, if not certain, to cause death, for the evidence to sufficiently support the ‘malice’ element required for depraved heart murder.” Id. at 33 (emphasis added).

The Court went on to apply the “likelihood or certainty of death” test to the facts of the case before it. Id. at 34. In its view, the tunnels were not structurally unsafe and were not the cause of death. The basement clutter that hampered rescue efforts was not itself inherently dangerous and did not present an imminent threat of death to Khafra. The faulty electrical system likewise was not reasonably likely to cause death, and Beckwitt’s apathetic response to the electrical failures “did not demonstrate an extreme disregard for human life reasonably likely to cause death.” Id. at 35 (emphasis in original). Contrasting this situation with those in which the courts had previously found evidence sufficient to establish the mens rea for depraved heart murder—leaving a two-year-old alone for five days without food or water, or leaving an intoxicated teenager outside in freezing weather—the Court found the evidence against Beckwitt wanting. Id. at 33-5.

Whether “the cloudy line of demarcation between the two criminally culpable levels of negligence,” id. at 12, was properly drawn in Beckwitt is still an open question. When each of these offenses is reviewed in isolation the inquiry is highly fact-intensive, which makes it difficult to generalize. As Beckwitt demonstrates, the picture is only slightly less murky when these offenses are analyzed side-by-side. This was the first time that the Court of Special Appeals engaged in this exercise, and the Court of Appeals has yet to weigh in on the effort. It will no doubt have to some day.