Avey v. State

• Citation: 240 A.2d 107,249 Md. 385
• Decision Date: 02 April 1968
• Docket Number: No. 152,152
• Parties: Bradley Arlington AVEY v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 385

249 Md. 385

240 A.2d 107

Bradley Arlington AVEY v. STATE of Maryland.

No. 152.

Court of Appeals of Maryland.

April 2, 1968.

Karl G. Feissner, Hyattsville (William L. Kaplan, and Alpern & Feissner, Hyattsville, on the brief), for appellant.

David T. Masson, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, BARNES, McWILLIAMS and SINGLEY, JJ.

McWILLIAMS, Judge.

On 29 June 1967 we ordered the writ of certiorari to be issued to the Court of Special Appeals 'for the sole purpose of reviewing the correctness of * * * (its) holding * * * that there was no prejudice to the accused (Avey) in the trial court's instruction or lack of instruction to the jury on the point of the effect on and relation of the intoxication of * * * (Avey) to his specific intent in the commission of certain of the crimes of which he was accused.'

We shall state only those facts which are necessary for our consideration of the single, narrow issue here presented. A more complete statement will be found in Avey v. State, 1 Md.App. 178, 228 A.2d 614 (1967).

It was about 2:00 a. m. on 26 January 1965 when Lt. Thornberry of the Prince George's County Police Department noticed a broken pane in the door of a shopping center delicatessen. He and another officer went in to investigate. When they turned on the lights Avey stepped out of the men's room and said, 'Okay, copper, let's see how good you are. Kill me.' In the ensuing gun fight both officers were wounded. Avey, apparently unscathed, escaped. He was arrested about 6 hours later and when asked why he shot the officers he siad 'because I was drunk.'

Indicted for assault with intent to murder in the case of each policeman and storehouse breaking, he plead not guilty generally and not guilty by reason of insanity. His trial began before Parker, J., and a Jury, on 13 October 1965.

Avey testified that he and a woman named Bonnie Caldwell had been 'riding around' and drinking during the 5 or 6 hours before the shooting. He said they consumed a 'pint of moonshine' and 18 to 20 cans of beer. Avey guessed he had 9 or or 10 cans, 'maybe more.' At one point in his testimony he described his condition as 'quite intoxicated.' Later he testified he 'wouldn't say quite intoxicated' but he would say he 'was still under the influence.' At another point he guessed he was 'pretty well plastered.'

In the course of his charge to the jury the trial judge gave the following instruction:

'Now, as to the assault with intent to murder and with the intent to main, I instruct you in an advisory capacity that you may properly consider the state of mind of the defendant at the time of the shooting. I say that because of the type of evidence that has been introduced in this case.'

Counsel for Avey, at the conclusion of the charge, made the statement which follows and which we shall treat as an exception:

'If Your Honor please, as to the question of specific intent, we would ask the Court to advise the jury this too is the State's burden and it is not the defendant's. While Your Honor did state that the jury can consider the evidence that came from the stand, you didn't make any specific mention of mental condition relating to the sanity or whether he had been drinking.'

Judge Parker noted his exception but he thought his instruction was adequate under the circumstances.

Avey was convicted of assault with intent to murder in both cases, and of the crime of storehouse breaking as well. He was sentenced to serve two consecutive 12 year terms in the Maryland Penitentiary, and one 18 month term to run concurrently with the first 12 year term.

The Court of Special Appeals, affirming the conviction, said:

'Avey objects to the charge to the jury * * * (b)ecause the court('s) refus(al) to instruct the jury of the fact that the appellant had been drinking may have some effect as to whether he could form the specific intent to commit the crimes * * *.

'The majority rule is that where intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent, he cannot be convicted of a crime requiring that intent, e. g. assault with intent to kill or maim, 22 C.J.S. Criminal Law § 68. Compare Clark v. State, 236 Md. 648, 207 A.2d 94, Lipscomb v. State, 223 Md. 599, 165 A.2d 918. We consider the court's instruction, however, adequate under the majority rule.' Id. 1 Md.App. at 188-189, 228 A.2d at 619.

We think the Court of Special Appeals has stated correctly the general rule. To the same effect see Beall v. State, 203 Md. 380, 101 A.2d 233 (1953); Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953); Michael v. State, 1 Md.App. 243, 229 A.2d 145 (167). We do not agree, however, that the instruction given by the trial judge was adequate. It should be observed that much emphasis was placed upon the question of Avey's sanity. He filed a plea of insanity. He spent 7 months under observation at...