Blake v. State

Decision Date28 November 1975
Docket NumberNo. 270,270
Citation349 A.2d 429,29 Md.App. 124
PartiesSteven Allen BLAKE a/k/a Charles Allen v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

R. Roland Brockmeyer, Assigned Public Defender, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and William B. Yates, II, State's Atty. for Dorchester County, on the brief, for appellee.

Argued before MOYLAN, GILBERT and MELVIN, JJ.

MOYLAN, Judge.

The appellant, Steven Allen Blake, also known as Charles Allen, was convicted in the Circuit Court for Dorchester County, by a jury, presided over by Judge C. Burnam Mace, of three separate counts of assault with intent to murder and of unlawfully carrying a handgun. The main thrust of this appeal is that the trial judge allegedly committed error 1) in failing to instruct the jury that the appellant had the right to resist unlawful arrest; 2) in failing to instruct the jury that if an unlawful arrest so inflamed the appellant as to cause him to kill the arresting officer, the resulting crime would only be manslaughter; and 3) in giving an erroneous instruction on the presumption of malice in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

It is really only the Mullaney v. Wilbur problem which concerns us. The short answer to the alleged failure of the judge to instruct on the right to resist unlawful arrest and on the mitigating effect of a hot-blooded, albeit excessive, response to the provocation of an unlawful arrest is that the appellant failed to request any such instructions. The point is not, therefore, preserved for appellate review. Md. Rule 1085; Md. Rule 756 g. Since the putative error was simply one of omission rather than commission, it is not even arguably the type of 'plain error' that we may recognize in the exercise of our discretion under Md. Rule 756 g. Brown v. State, 14 Md.App. 415, 287 A.2d 62.

It is, of course, clear that Mullaney v. Wilbur will apply to a conviction of assault with intent to murder just as surely as it will apply to a conviction for some form of unlawful homicide itself. Thomas v. State, 29 Md.App. 45, 349 A.2d 384 (No. 231, September Term, 1975). Since it is necessary in determining the special mens rea in an assault with intent to murder case to hypothesize a resultant death and to determine the degree of blameworthiness of the hypothetical killer, proper instructions as to the various mental states that may apply in a homicide case are required. 1 The jury instruction, in pertinent part, ran as follows:

'An assault is any attempt unlawfully to apply the least actual force to the person of another. In these cases, assault with intent to murder goes a little further than common assault. This is what I understand the law of Maryland to be relative to the charge with intent to murder. Intent is the essence of the felony of assault with intent to murder. If the intent was carried out, the resulting crime would have had to be either first or second degree rather than manslaughter. A specific intent to murder is not a necessary element for a conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm. The essential distinction between murder and manslaughter is the presence or absence of malice.'

Thus far, the instruction was a perfectly proper one. It then turned to the troublesome subject of 'malice':

'Malice is the intentional doing of a wrongful act to another without legal excuse or justification.'

As we discussed in Part IIG2c of Evans v. State, this sentence is not technically complete, because it neglects to include that aspect of malice which is 'the absence of mitigation.' That aspect is adequately handled, however, later in the instruction. The instruction then goes on:

'The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body.'

The inference of malice-more literally, the inference of the intent to kill or the intent to do grievous bodily harm-from the use of deadly force is a perfectly proper inference, as we analyzed in Evans v. State in Part IIF. The pertinent part of the instruction, for present purposes, then concludes:

'The law presumes that in the absence of mitigation, all homicides are committed with malice and constitute murder. This presumption also applies to cases of assault with intent to commit murder.'

Although this instruction is less than artistically perfect, see Part IIG2d of Evans v. State, no harm is done in the present case. The only arguable defense theory is that of mitigation. The instruction here does not presume 'the absence of mitigation' since, by its very terms, the presumption of malice does not operate except where the absence of mitigation is already there as a given fact.

Although the instruction dealing with malice was not a model of clarity, it did not offend Mullaney v. Wilbur. The State was not relieved of its rightful burden of proving any element of the crime remotely relevant under the circumstances of this case. No instruction was given which affirmatively placed any type of a burden of persuasion upon the appellant.

Even if the instruction did not pass constitutional muster under Mullaney v. Wilbur, however, the error would be harmless in the context of this case. The evidence simply did not generate any genuine jury question as to mitigation. The appellant's entire argument is predicated upon the proposition that even excessive force in response to an illegal arrest may be a hot-blooded response to legally adequate provocation. That excessive resistance to unlawful arrest is but one variety of response to provocation was made very clear in Davis v. State, supra, at 204 Md. 54, 102 A.2d 821:

'The second major line of cases recognizes the wisdom and necessity of the social policy but refuses to permit a reduction of the grade of the homicide to come about automatically. These cases apply a subjective standard and hold that the accused must in fact have been filled with passion aroused by the illegal arrest sufficient to meet the usual...

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7 cases
  • Glenn v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1985
    ...In the wake of Mullaney v. Wilbur, supra, we began to draw our distinctions more carefully. We noted, in Blake v. State, 29 Md.App. 124, 126 n. 1, 349 A.2d 429 (1975): "It is sometimes stated that the assault must be 'committed under circumstances such that, if death ensued, the crime would......
  • State v. Mason
    • United States
    • Supreme Court of West Virginia
    • November 28, 1978
    ...conviction in Wright v. State, 29 Md.App. 57, 349 A.2d 391 (Ct.Spec.App.1975); and to affirm various verdicts in Blake v. State, 29 Md. 124, 349 A.2d 429 (Ct.Spec.App.1975); Newborn v. State, 29 Md.App. 85, 349 A.2d 407 (Ct.Spec.App.1975); Burko v. State, 28 Md.App. 732, 349 A.2d 355 (Ct.Sp......
  • Burks v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...extraneous instruction on an extraneous subject. Brown v. State, 29 Md.App. 1, 19-20, 349 A.2d 359, 370 (1975); Blake v. State, 29 Md.App. 124, 130, 349 A.2d 429, 433 (1975); Stambaugh v. State, 30 Md.App. 707, 709 n. 1, 353 A.2d 638, 640 n. 1 (1976); Boone v. State, 33 Md.App. 1, 3-4, 363 ......
  • Selby v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...68 Md.App. at 388, 511 A.2d 1110; see also Finnegan v. State, 33 Md.App. 251, 255-56 n. 1, 364 A.2d 124 (1976); Blake v. State, 29 Md.App. 124, 127 n. 1, 349 A.2d 429 (1975); murder may be committed even though the perpetrator had no intent to kill. Thus, we observed, again in Glenn In dist......
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