Court of Special Appeals upholds use of obscure common-law crime

In a matter of first impression, the Court of Special Appeals has upheld a Charles County man’s convictions for affray and manslaughter, dismissing his argument that the little-known offense of affray no longer exists.

An affray consists of two of more people fighting in a public place, terrorizing the people.

Appellant Brian A. Hickman contended that the common-law offense of affray was abrogated by a statute and subsequent Court of Appeals decision eliminating all common law forms of assault and battery.

But the Court of Special Appeals held that because affray is a separate offense from assault and battery, it is still a valid crime in Maryland.

“A common law affray differs from common law assault and battery in two significant respects, i.e. additional elements and different victims,” Judge Arrie Davis wrote for a three-judge panel. “An affray must be committed in public and requires two or more persons, while an assault may be committed out of the public eye and can be a unilateral act.”

While an assault is an offense against an individual, an affray victimizes the public, he added.

Prince Frederick solo Robert Harvey Jr., who represented Hickman, said that even though his client probably only has a month more to serve behind bars, they are contemplating filing a petition for certiorari.

Brian Kleinbord, chief of the criminal appeals division at the Office of the Attorney General, praised the decision.

“It’s obviously criminal conduct and I don’t think it’s charged very often, but now that we have a reported opinion, prosecutors across the state can use it in cases like this,” Kleinbord said.

The case stems from a bar fight on Oct. 25, 2008, in Waldorf. The fight culminated in Hickman punching Joshua Gregor twice in the head. Gregor collapsed, lost consciousness and later died.

Hickman was charged with involuntary manslaughter, second-degree assault and common law affray. Though Hickman tried to get the affray charge dismissed on the grounds that such an offense no longer existed, the trial went forward on all three charges. Charles County Circuit Court Judge Steven G. Chappelle convicted him of manslaughter and affray but acquitted him of assault, reasoning that assault necessarily requires a lack of consent on the victim’s part.

On appeal, Hickman contended that the verdict was inconsistent because he was acquitted of assault but convicted of affray, but the court held that Chappelle “adequately explained his ‘seemingly’ inconsistent verdict on the record.”