Blackwell v. State

• Citation: 369 A.2d 153,34 Md.App. 547
• Decision Date: 02 February 1977
• Docket Number: No. 569,569
• Parties: James Parker BLACKWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 547

34 Md.App. 547

369 A.2d 153

James Parker BLACKWELL v. STATE of Maryland.

No. 569.

Court of Special Appeals of Maryland.

Feb. 2, 1977.

Certiorari Denied April 22, 1977.

Thomas A. Rymer, Prince Frederick, for appellant

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Naji P. Maloof, State's Atty., Calvert County, on the brief, for appellee.

Argued before GILBERT, C. J., and DAVIDSON and LOWE, JJ.

LOWE, Judge.

James Parker Blackwell was convicted by a jury in the Circuit Court for Calvert County of:

1. Murder in the second degree;

2. Manslaughter by motor vehicle;

3. Driving while intoxicated; and

4. Leaving the scene after a fatal accident.

The trial judge sentenced him to 15 years for murder, 3 years for manslaughter, 2 years for driving while intoxicated (second offense) and 6 months for leaving the scene of an accident. The last three sentences were to be consecutive with each other but concurrent with the first.

The evidence indicated that the victim, a teenage girl, was killed while riding her newly purchased ten speed bicycle after 10:00 o'clock on the evening of June 30, 1975. The bicycle was equipped with a front light generated by the bicycle's propulsion, and reflectors on its back, pedals and wheels. The evidence was sufficient to support a rational inference that the victim's death was caused by Blackwell, whose automobile struck her bicycle from behind at a point not more than two feet from the shoulder, although within the travelled portion of the road. The evidence was also sufficient to show that appellant left the scene of the accident without stopping to render assistance, and drove while intoxicated in violation of Md. Code, Art. 66 1/2, §§ 10-104 and 11-902.

Testimony from the State's witnesses that appellant's speed was within the posted limit, when observed immediately before and immediately after the accident, negated any possible inference of excessive speed as a factor causing the accident. There was testimony from two bicyclists that, when appellant left an inn immediately before the accident, his car was weaving from side to side as if having started too fast and was momentarily out of control. An autoist and his passenger testified that, while not having seen the accident, they did come upon the victim as appellant's vehicle was leaving the scene. They observed

that a portion of the vehicle twice left the main portion of the road and travelled briefly on the shoulder.

MURDER

We are first concerned on this appeal with the sufficiency of the evidence of murder in the second degree, the propriety of the instructions related thereto, and the related issue of the effect of evidence of appellant's prior drinking habits, including several instances of intoxication (in the opinion of witnesses), a prior conviction for driving while impaired, and evidence that, while apparently intoxicated, appellant had been involved in an accident 2 or 3 years prior to the accident at issue. The admissibility of this evidence will be considered hereinafter.

The evidence introduced over objection included the testimony of a district court commissioner that appellant had pled guilty to driving while impaired on May 15, 1975. Another witness, the proprietor of an inn, testified that appellant's propensity to overindulge compelled the proprietor to refuse appellant hard beverages, restricting him to the purchase of beer. A third witness' testimony is encapsulated in the State's proffer, later admitted through the witness:

'Your Honor, we would proffer that this man was a member of the Rescue Squad in 1973 and he personally responded to the scene of an accident which this man was involved in and he was drunk at that time. He will testify to that. He will also testify that he has seen him on numerous occasions since then and on every occasion since then that he's seen him that he has been drunk.'

When defense counsel persisted in objecting, the court attempted to justify its tulings concerning prior intoxication:

'The charge from manslaughter by auto I would not admit nicely but the charge here is murder and one of the essential ingredients of murder is malice. In this case it's going to have to be equivalent of The trial judge adhered to his reasoning when he instructed the jury on second degree murder. However, the jury apparently was not clear about the court's instruction on malice, and asked:

implied malice. Part of that is the defendant's knowledge of the risk to human life he was taking in the actions he was doing. It seems to me his previous experience with accidents while driving drunk as well as his previous experience with excessive drinking is some evidence for the Jury to consider in deciding what his state of mind was or the condition of his heart. It is equivalent malice is action by a person with a depraved heart may be so it seems to me that the evidence is relevant and the credibility is for the Jury.'

'Please define again what constitutes 2nd degree murder explaining the degrees of malice'.

After again pointing out that:

'Malice is the distinguishing element which makes the difference between an unlawful killing being murder either in the first or second degree or manslaughter.',

the judge instructed, inter alia:

'Now, actual malice is something which indicates a deliberate intent to kill. That's not the only kind of malice. That actual intent which makes it actual malice, you can have what is the equivalent of an actual intent even though the person doing the killing didn't set out specifically to kill the person who died. Now, you will hear that called implied malice. I don't particularly like the term implied malice, equivalent to malice is a better way to express it. How, when you're trying to decide whether actions which result in death are equivalent to malice or are simply gross, reckless and wanton conduct which we discussed with you Because upon our review of the record we find insufficient evidence of malice, the issue of murder was erroneously presented to the jury. ¹

on the manslaughter by automobile charge, you are trying to draw a distinction between two different grades of behavior or conduct. Somewhere in the ascending or descending scale of seriousness, recklessness, wantonness and disregard for human life ceases to be manslaughter and becomes equivalent malice sufficient for you to find murder. The precise line or distinction between them you have to draw. I can't give you a precise line where one becomes the other. I can give you extreme samples on both ends.'

'Malice is the indispensable ingredient of murder; by its presence, homicide is murder; in its absence, homicide is manslaughter.' Lindsay v. State, 8 Md.App. 100, 104, 258 A.2d 760, 763; see also Chisley v. State, 202 Md. 87, 105, 95 A.2d 577. Express malice exists whenever an accountable person kills another intentionally, unless the killing is justified or excusable, or unless there are mitigating circumstances. Lindsay, supra. The State conceded in its brief that 'there was no evidence that the Appellant harbored any ill will against the decedent.' That concession, coupled with our observations upon reviewing the record, makes it clear that there was not the slightest evidence of 'actual' or 'express' malice. These terms are contemporary expressions used to connote an 'intent to kill', the sole original intent required to prove murder. See Evans v. State, 28 Md.App. 640, 696, 349 A.2d 300, aff'd State v. Evans, 278 Md. 197, 362 A.2d 629.

Even if express malice does not exist, malice may be inferred from proof of certain facts. Moore v. State, 15 Md.App. 396, 403-404, 291 A.2d 73. This 'implied' malice arose from the need felt to punish, as murder, homicides resulting from '1) intent-to-do-serious-bodily-injury murder;

life-endangering intents, even though such intents did not involve a literal intent to kill. As pointed out by Judge Moylan for this Court in Evans, supra, those additional mental states were added to the mens rea of murder and they are recognized today as:

2) felony-murder; and

3) depraved-heart murder. (Perkins gives this mental state the less emotionally charged and probably better label of 'Wanton and Wilful Disregard of Unreasonable Human Risk'.)' (footnote omitted).

Id. 28 Md.App. at 696, 349 A.2d at 335.

It is apparent that the trial judge submitted the issue of murder to the jury on the assumption that evidence of appellant's 'depraved-heart' or, as Judge Moylan noted, what Perkins, Criminal Law § 1 at 36-37 (2d Ed.), described as a 'Wanton and Wilful Disregard of Unreasonable Human Risk', might be enferred. In discussing this element of implied mens rea for murder, Perkins carefully pointed out an important, if narrow, prerequisite to permitting such an inference:

'In other words, the intent to do an act in wanton and wilful disregard of the obvious likelihood of causing death or great bodily injury is a malicious intent. The word 'wanton' is the key word here. For reasons to be emphasized later a motorist who attempts to pass another car on a 'blind curve' may be acting with such criminal negligence that if he causes the death of another in a resulting traffic accident he will be guilty of manslaughter. And such a motorist may be creating fully as great a human hazard as one who shoots into a house or train 'just for kicks,' who is guilty of murder if loss of life results. The difference is that in the act of the shooter there is an element of viciousness-an extreme indifference to the value of human life- We do not believe that an inference of 'viciousness' or 'extreme indifference to the value of human life' may be drawn from the past, although persistent, drinking habits of an accused. While there may be depraved persons who persistently drink, it does not follow that those who do drink are implicitly depraved. The practice may be reprehensible, but it is not felonious.

that is not found in the act of the...