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Top court overturns 2006 conviction for felony murder

Even though he did not try to stop the crime when he was out of immediate danger, a murder suspect was entitled to have a jury consider whether he was acting under duress, the Court of Appeals has held.

The state’s highest court unanimously ordered a new trial for Nathanial P. McMillan, who was convicted of first-degree felony murder despite his argument that he was forced to open a neighbor’s door for two men who robbed, beat and killed the occupant.

McMillan was sentenced in May 2006 to life with the possibility of parole for the felony murder of Herman Haiss, of Prince George’s County. McMillan has been in jail since his arrest in December 2005.

The Court of Appeals heard argument in the case in May 2009 and issued its opinion on Friday.

The decision, one of only six written by Chief Judge Robert M. Bell this year, sent the case back to Prince George’s County Circuit Court for a new trial. A spokesman for the Prince George’s County State’s Attorney’s office could not say Tuesday if a decision had been made yet to retry McMillan.

McMillan’s appellate attorney, Michael T. Morley, a solo practitioner from Washington who took the case pro bono for the Maryland Office of the Public Defender, said Tuesday he was pleased with the outcome.

He said the Court of Appeals removed an additional element the Court of Special Appeals had added to the duress defense when it affirmed McMillan’s conviction in 2008.

The Court of Special Appeals held that, since McMillan “didn’t call police, [the defense] did not apply,” Morley said. “Since the founding of the country that hasn’t been a part of the duress defense and the Court of Appeals corrected that error.”

According to court records, the murder happened on Nov. 16, 2005, in Forest Heights.

Investigators said Haiss, a hunter, had been beaten to death with a baseball bat that was found next to his body. The house had been ransacked and the thieves had taken several weapons from the home, including shotguns, muzzleloaders and a .357-caliber pistol. The word “Crips” was also spray painted on a wall near Haiss.

McMillan told police that the two killers, whom he knew, picked him up from work in an SUV and drove him to Forest Heights. McMillan’s aunt and uncle lived next door to Haiss and McMillan had lived there for 12 years.

McMillan told police all he did was knock on the door, and he did so only because his acquaintances had threatened to kill him if he did not do as they said. He also implied later that if he opened his mouth they would kill him.

He said he never went inside and did not harm Haiss.

There was no DNA or fingerprint evidence placing McMillan inside the home.

However, according to court records, McMillan did not call the police and did not report the murder later.

McMillan was arrested in December 2005 and, during questioning, gave up the names of the two men he said killed Haiss. At trial, witnesses implicated McMillan as a principal in the murder and provided some testimony that would contradict his claim of acting under duress.

McMillan’s trial attorney asked the judge to instruct the jury on duress, but the judge refused, saying there was no evidence that the defendant was in imminent danger of serious bodily harm if he did not participate in the crime. The defense would apply only if “someone is, in effect, holding a gun to his head at the time he commits the crime, and that didn’t happen,” Judge Sherrie L. Krauser ruled.

In a Sept. 8, 2008, decision, the Court of Special Appeals affirmed. It held that duress may be a defense to felony murder but “must be continuous throughout the crime.”

Since McMillan waited outside while the crime was committed, and took no actions to thwart it, the intermediate court said the duress defense would not apply,

The Court of Appeals agreed that duress is a defense to felony murder, in which any party who participates in the underlying felony can be charged with murder if someone is killed. Bell wrote that the question of whether McMillan was truly under duress or could have prevented the murder was one for the jury as long as McMillan provided “some evidence” that he was.

“We do not require that the petitioner [McMillan] make a ‘mad dash’ to escape in the space and time between when the SUV was parked and when he knocked on the victim’s door in order to prove that an escape route was not reasonable,” Bell wrote. “The question of the reasonableness of the fear in a particular situation is one for the jury to weigh.”



Nathaniel Paul McMillan v. State of Maryland, CA, No. 132, September Term 2008. Reported. Opinion by Bell, C.J. Argued May 5, 2009. Filed Aug. 24, 2012.


Is duress an available defense for felony murder?


Duress is an available defense to a felony murder charge and does not require a showing that the defendant attempted to thwart the crime, or contact the police after the duress ended, to be entitled to a jury instruction on the defense.


Michael T. Morley, pro bono for petitioner, on behalf of the Maryland Public Defender of Baltimore. Sarah P. Pritzlaff, assistant attorney general, for respondent.

RecordFax # 12-0824-23 (33 pages)