No Life Sentence in Bank Robbery Turned Fatal

     RICHMOND, Va. (CN) – There was no basis for a jury to convict a man of causing the death of an elderly woman whose home he broke into while fleeing police, the 4th Circuit ruled.
     The tragedy arose out of an attempted bank robbery on Sept. 28, 2008.
     Larry Whitfield and an accomplice, Quanterrious McCoy, were prepared to hold up the Fort Financial Credit Union in Gastonia, N.C., but a metal detector triggered an automatic locking mechanism that blocked the men from passing through the vestibule.
     With their robbery plans foiled, Whitfield and McCoy fled by car and then on foot. McCoy was apprehended a short time later, but Whitfield tried to hide out in a private home.
     Whitfield brandished a kitchen knife at the homeowner who confronted him, then ran away. After forcibly entering a second home, he found its owner, Mary Parnell, alone.
     When Parnell began to cry, Whitfield explained that he was in trouble and simply needed to call a friend for a ride home.
     During the call, that friend heard Whitfield ask Parnell to calm down, explaining, “I’m probably more scared than you are and I’m actually just trying to leave.” After giving Whitfield’s friend directions to her home, however, Parnell became unconscious and stopped breathing.
     Whitfield fled the scene again, but he was quickly arrested. Parnell was later found by her husband, dead of a heart attack.
     In the indictment against Whitfield and McCoy, both men faced charges of attempted bank robbery, conspiracy to carry a firearm during an attempted bank robbery and carrying a firearm during an attempted robbery. Whitfield alone faced a charge of killing a person while attempting to avoid apprehension.
     King noted the latter charge encompasses three alternative offenses pertinent to the case: “Penalizing a defendant who, in evading apprehension for an attempted bank robbery: (1) ‘kills any person’ (the ‘killing offense’);or (2) ‘forces any person to accompany him without the consent of such person’ (the ‘forced accompaniment offense’); or (3) “forces any person to accompany him without the consent of such person’ and ‘death results’ (the ‘death results offense’).”
     Prosecutors omitted one of these factors in the charge against Whitfield, however. They said “in avoiding or attempting to avoid apprehension for said offense, [he] forced M.P. to accompany him without her consent and killed M.P.”
     “Thus, the allegations of Count Four were limited to the first and second alternative … offenses, the killing offense and the forced accompaniment offense … and failed to include the third, the death results offense,” according to the federal appeals court.
     Just before the conclusion of Whitfield’s four-day trial in Charlotte, Chief U.S. District Judge Robert Conrad conducted a charge conference.
     Though the government’s proposed instruction on Count Four tracked the language of the indictment, referencing only the killing offense and the force accompaniment offense, Conrad directed the jury to consider the unalleged third alternative, the death results offense. Whitfield objected, but was overruled.
     The jury ultimately convicted Whitfield of the first three counts, but was split as to Count Four, finding Whitfield not guilty of killing Parnell in his attempt to avoid apprehension, but guilty of forcing her to accompany him on avoiding capture. On the questionnaire, the jury also answered yes to the uncharged question of whether this forced accompaniment resulted in Parnell’s death.
     Conrad then sentenced Whitfield to life in prison on Count Four.
     A three-judge appellate panel upheld the three robbery convictions, but vacated the conviction and sentence on Count Four last week.
     “By instructing on the uncharged death results offense, the district court constructively amended Count Four to ‘broaden[ ] the possible bases for conviction beyond those presented to the grand jury,'” Judge Robert Bruce King wrote for the court.
     “Here, there was substantially more than a simple neglect ‘to allege an element of a charged offense,'” King added. “Indeed, the killing offense and the forced accompaniment offense were properly charged with all of their essential elements and, thus, there was no defect in the Count Four allegations. The error arose not from the indictment’s omission of an element of a charged offense but from the district court’s instructions on an element of an uncharged offense – the death results offense – on which Whitfield “was ultimately convicted and sentenced.” (Emphasis in original.)
     On remand, the trial court must apply a Count Four sentence that looks solely at the forced accompaniment offense.

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