Brown v. State, 1632

• Decision Date: 01 September 1984
• Docket Number: No. 1632,1632
• Citation: 494 A.2d 999,64 Md.App. 324
• Parties: Ulyesses C. BROWN AKA Cornelius Brown AKA Keith Brown v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 324

64 Md.App. 324

494 A.2d 999

Ulyesses C. BROWN AKA Cornelius Brown AKA Keith Brown v. STATE of Maryland.

No. 1632, Sept. Term, 1984.

Court of Special Appeals of Maryland.

July 12, 1985.

Isaac S. Kershner, Assigned Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Valerie J. Smith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Jack Lesser, Asst. State's Atty. for Baltimore City, Baltimore, on brief), for appellee.

Submitted before WILNER, GARRITY and ALPERT, JJ.

WILNER, Judge.

There are, as we shall see, a number of issues raised in this criminal appeal. The central one is whether the mere pointing of a handgun by a fleeing felon at a person in pursuit, without any evidence that the gun was loaded, or of a verbalized threat to shoot, or of any attempt to fire the weapon suffices to sustain a conviction for assault with intent to murder. We think it does not.

In the early evening of October 16, 1982, two men, both armed with handguns, entered a Rite-Aid drugstore in Baltimore City. One of them pushed the manager, James Alloway, and one of the cashiers, Louise Cutting, into the manager's office; at gunpoint, he forced Alloway to open the safe, from which he took some $7,000 and then fled. The second man, identified at trial as appellant, approached the other cashier, Betty Keys, and, at gunpoint, demanded and took the money in her cash register. He then fled with his colleague.

Namon Brown, an off-duty State trooper, was standing in the entranceway to the store, between the inner and outer sets of glass doors, when appellant came charging out and bumped into him. Upset at the collision, Brown made a sarcastic remark to appellant who responded with merely "a hostile look on his face." Brown then approached appellant, apparently to escalate the dispute, when the second gunman ran out of the store followed by Alloway screaming "we've been robbed ... they got guns." Brown, momentarily distracted, turned his attention again to the fleeing suspects, who backed out of the outer doors and proceeded on to the adjacent parking lot toward a parked car. Brown noticed that both men were armed with handguns, which were not then pointed at anyone.

Retrieving his own gun from a leg holster, Brown, joined by Alloway, gave chase. One of the suspects jumped into the driver's side of the car; appellant tried to enter the passenger's side but, for some reason was unable to get the door open. As Brown, followed by Alloway, reached within 20 to 25 feet of the car, appellant turned and pointed his gun at either or both of them; Brown said the gun was pointed at his stomach. Brown fired at appellant. As he did so, the driver kicked open the passenger door and appellant fell backward into the car, which then was driven off. Brown cut across the lot on foot, hoping to meet up with the car on an adjacent street and be able to shoot again. He testified: "I was in time and had the vehicle and the suspects in view when I noticed the passenger starting to crank down the window with his gun in his hand as if preparing to fire at me." He further explained, however:

"Q When he pointed the gun at you for the second time do you know what part of your body it was pointed at?

A He didn't point it the second time. He had it up in the air in this fashion as he was cranking on the window."

There was no evidence as to whether appellant's gun was loaded. There was no evidence of any articulated threat by appellant to shoot Brown. There was no evidence that appellant ever cocked the gun or attempted to pull the trigger. The evidence showed that he did not, in fact, ever actually fire the gun during the incident.

Because of other traffic on the street, Brown withheld firing his gun and instead attempted to pursue the bandits in his own car. They eventually eluded him. Appellant, to whom the escape vehicle was registered, was apprehended later.

For his role in these events, appellant was charged, convicted, and sentenced in the Circuit Court for Baltimore City as follows:

(1) As to the cashier, Betty Keys:

Robbery with a deadly weapon--25 years mandatory sentence under Md.Code Ann. art. 27, § 643B(c); Use of handgun in commission of crime of violence--20 years consecutive;

(2) As to the manager, James Alloway:

Robbery with a deadly weapon--20 years consecutive;

Use of handgun in commission of crime of violence--20 years consecutive;

(3) As to the cashier, Louise Cutting:

Assault--10 years concurrent; and

(4) As to the off-duty Trooper, Namon Brown:

Assault with intent to murder--15 years concurrent;

Use of handgun in commission of crime of violence--15 years, consecutive to all other sentences.

The sentences, in the aggregate, total 100 years.

I. Assault With Intent To Murder

Appellant raises seven issues in this appeal, the first four of which challenge the convictions based on his encounter with Namon Brown. The evidence relating to that encounter has been recited above. The court, over objection, instructed the jury that "[o]ne may be guilty of assault with intent to murder by pointing a deadly weapon at a vital part of another person's body." Presumably, the verdict on the assault with intent to murder count was based upon that instruction. That verdict, in turn, formed the basis of the related handgun conviction, i.e., the assault with intent to murder Namon Brown was the predicate crime of violence.

Appellant argues that an intent to murder cannot be inferred from the mere pointing of the weapon, and that, accordingly, not only was the instruction in error but the evidence was insufficient to sustain the conviction. If, on that basis, the assault with intent to murder conviction falls, the accompanying handgun conviction must fall with it.

In considering this argument, we note, by way of preface, that there can be little doubt that appellant's action of brandishing and aiming the gun amounted to a common law assault, Tender v. State, 2 Md.App. 692, 699, 237 A.2d 65 (1968); Clark and Marshall, Law of Crimes, 7th ed., § 10.17. ¹ But, as has been made clear many times, and, indeed, as is evident from the very name of the crime, to support a charge of assault with intent to murder, there must be proof of both an assault and an intention to murder. Webb v. State, 201 Md. 158, 161, 93 A.2d 80 (1952). Moreover, although an intent to murder may, and generally must, be established by inference, the intent "cannot be inferred from the mere fact of the assault." Webb, at 161, 93 A.2d 80; Beall v. State, 203 Md. 380, 385, 101 A.2d 233 (1953).

Although it has been said that an intent to murder cannot be established as a matter of law "from the mere use of a deadly weapon," the use of such a weapon in an assault is a factor to be considered. Webb, 201 Md. 1 at 161, 93 A.2d 80. Thus, the rule has evolved that "the intent to murder necessary to a conviction may rest upon the showing of an intent to commit grievous bodily harm, and that, in turn, is inferable from the use of a deadly weapon directed toward a vital part of the body." (Emphasis added.) Jenkins v. State, 59 Md.App. 612, 616, 477 A.2d 791 (1984), cert. granted 302 Md. 46, 485 A.2d 269, citing Bird v. State, 231 Md. 432, 190 A.2d 804 (1963); Webb v. State, supra; James v. State, 31 Md.App. 666, 358 A.2d 595, cert. denied 278 Md. 725 (1976); and Reed v. State, 52 Md.App. 345, 449 A.2d 448, cert. denied 294 Md. 653, 452 A.2d 428 (1982).

The problem, in the context of this case, comes down to the phrase "use of a deadly weapon." (Emphasis added.) There can be no doubt that, if the assailant actually shoots the victim in "a vital part of the body" or even shoots at a vital part of the victim's body, the requisite intent to murder may be found by factual inference. Webb v. State, Bird v. State, Jenkins v. State, and cf. Reed v. State, all supra; also Brooks v. State, 38 Md.App. 550, 381 A.2d 718 (1978), aff'd 284 Md. 416, 397 A.2d 596 (1979). In that situation, the inferred intent arises not from the mere assault, which may consist of the brandishing of the weapon, but from the shooting.

Where there is no actual shooting, it is necessary to find some other basis for the inference. One such basis may be a contemporaneously expressed threat to shoot the victim. See Shenberger v. State, 234 Md. 363, 364, 199 A.2d 233 (1964), where the defendant put a loaded gun to the victim's ear, told her that "after he had used it on her he was going to turn it on himself," and, following a struggle, again attempted to point the gun at the victim. The Court concluded that "the pointing of the deadly weapon at the head and the expressed intention to kill, followed by the struggle to again point the gun at the [victim] established the necessary elements of the crime of assault with intent to murder." Id., 365, 199 A.2d 233. (Emphasis added.) See also Beall v. State, supra, 203 Md. 380, 101 A.2d 233.

In James v. State, 31 Md.App. 666, 358 A.2d 595, cert. denied, 278 Md. 725 (1976), the police received a report that a man had been randomly shooting a pistol on a public street and that he had entered a certain house. Three officers proceeded to the house and were admitted by the defendant's sister. As one proceeded down the hall, he was shot and killed by the defendant; the other officers left the house; one, Officer Nowakowski, "took a position outside, to the left of the front steps, and testified that he presently found himself looking down the barrel of a revolver in [the defendant's] hand. He [the officer] fired three shots but [the defendant] withdrew into the house, unscathed." Id., 670, 358 A.2d 595. On this evidence, we concluded that James not only pointed a deadly weapon at a vital part of Officer Nowakowski's body but "would have shot Officer Nowakowski had the policeman not fired first at the [defendant], forcing him to retreat into the house." Id., 675 358...