Bryant v. State
| Decision Date | 01 June 1990 |
| Docket Number | No. 1466,1466 |
| Citation | 574 A.2d 29,83 Md.App. 237 |
| Parties | Curtis Ray BRYANT v. STATE of Maryland. Sept. Term 1989. |
| Court | Court of Special Appeals of Maryland |
Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.
Sarah E. Page, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.
Argued before GILBERT, C.J., and MOYLAN and ROBERT M. BELL, JJ.
The appellant, Curtis Ray Bryant, was convicted by a Prince George's County jury of
1) attempted murder in the first degree, 2) statutory maiming, 3) assault with intent to disable, and 4) assault and battery. He received a sentence of thirty years for the attempted murder and a consecutive sentence of ten years for the statutory maiming. The assault with intent to disable and the assault and battery convictions were merged into that for statutory maiming. Upon this appeal, the appellant raises the following four contentions:
1. That the trial judge erroneously refused to instruct the jury that considerations of perfect self-defense, of imperfect self-defense, and of intoxication bear upon the statutory maiming and the assault with intent to disable charges as surely as they bear upon the attempted murder charge;
2. That the court erroneously permitted the State to enter a nolle pros on the charge of assault with intent to murder;
3. That the court erroneously admitted inflammatory photographs; and
4. That the court erroneously failed to give the appellant credit for pretrial time served.
The evidence revealed an unusually vicious and savage attack. The victim, Wallace Upshaw, and the appellant were homosexual lovers who had known each other for five years. At the time of this assault on January 29, 1989, the appellant was renting a room in Upshaw's house. The two men had been sexually intimate three days before this assault occurred.
Between 2 A.M. and 5 A.M. on the morning of January 29, the appellant and Upshaw together drank a quart or more of gin. Several other persons, including Upshaw's other roommate, were present smoking crack cocaine. Someone in the group was in possession of "love boat," a mixture of marijuana and PCP. Upshaw testified that he did not use any drugs that morning, although he had previously been a user of crack, of PCP, and of "love boat." The appellant testified that he smoked both "love boat" and crack that morning.
At approximately 5 A.M., Upshaw and the appellant left Upshaw's home to go to the District of Columbia. According to Upshaw, the trip was to have breakfast and meet some friends. According to the appellant, the two of them left on an expedition to buy more crack cocaine. At one point, the two of them sat down by a cemetery and waited for a bus.
Upshaw claimed that the appellant suddenly pulled a knife and threatened that he would murder him. Upshaw told the appellant that he was "all drunked up" and "acting all high." The appellant lunged at Upshaw with the knife, cutting Upshaw's hands and head. The appellant chased Upshaw and continued to strike at him with the knife. As Upshaw ran toward a creek and a wooded area of the cemetery, the appellant caught him and stabbed him in the back. Upshaw fell to the ground. The appellant announced that he was a murderer who intended to murder Upshaw.
He continued to stab Upshaw about the head until Upshaw rolled into the creek. The appellant then cut off part of one of Upshaw's ears, "plucked" one eye out, stabbed Upshaw's other eye, and slashed his neck. He held Upshaw's head underwater while he stabbed him in the head and back. After stabbing him over forty times, the appellant rolled him over into a face-up position. Upshaw "played possum," pretending to be unconscious, if not dead. The appellant kicked him in the side and walked away.
The appellant's version of the incident was that, as the two of them were on their way to buy crack cocaine, Upshaw suddenly grabbed him and kissed him, which shocked the appellant. Upshaw then pulled out a knife. The appellant pushed him away and ran into the graveyard. According to this version, it was Upshaw who was chasing the appellant with the knife. The appellant claimed that he was afraid that Upshaw would kill him. He testified that when he fell to the ground, Upshaw jumped on him and began choking him. The appellant defended himself with his own knife.
The caretaker of the cemetery testified that during the early morning hours of January 29, he heard someone calling for help. It was the appellant, who was walking slowly and carrying a bloody knife. The appellant mumbled something to the effect that, "they would not fuck with him or fuck him." The caretaker ran into his house and the appellant left. The caretaker called the police. He then went outside, where he found Upshaw lying on the ground.
Denise Prather, who lived near the cemetery, described the appellant's coming to her house and asking to use the telephone to call his mother. His clothes were covered with blood. After leaving her house, he was arrested outside.
The appellant, by his own testimony, generated genuine jury issues with respect to 1) self-defense; 2) a fortiori, imperfect self-defense; and 3) intoxication in a degree destroying his capacity to form a specific intent. Although his requests were less than models of precision in terms of the charges they were intended to cover, the appellant adequately communicated that he wanted jury instructions covering these three separate theories of exculpation and/or mitigation.
In instructing the jury on the crime of attempted murder in its various degrees, the trial judge gave a full and complete instruction on both self-defense and imperfect self-defense. Those instructions, however, clearly were given within the sole context of the attempt charge. It was only after the discussion of attempt law had been completed that the court went on to define, briefly and separately, the crimes of statutory maiming, assault with intent to disable, and assault and battery.
At the very end of the instructions, the trial judge took up for the first time the question of intoxication. It is clear from the instruction itself that it was directed exclusively to the distinction between attempted murder in the first degree and attempted murder in the second degree. There is no reference to its possible applicability to any of the other charges in the case specifically or to the existence of a specific intent generally:
When counsel approached the bench following the conclusion of the jury instructions, defense counsel made it clear that he wanted the jury to be informed that the defense of self-defense and the defense of intoxication went to the crimes of statutory maiming and assault with intent to disable as well as to attempted murder. The court declined to give a supplemental instruction.
As we consider the appellant's contention that certain instructions given with respect to the attempted murder charge should have been given with respect to the companion charges as well, our focus is not limited to the conviction for statutory maiming for which the appellant received a separate and consecutive sentence of ten years. He was also convicted of assault with intent to disable and of assault and battery. Although those convictions were merged into the conviction for statutory maiming, they are not forever obliterated. The reason for their merger is to protect the appellant from multiple punishment for "the same offense."
As long as the total package is vulnerable to appellate or other post-conviction review and to the possibility of remand and retrial, those merged convictions are, however, simply in a state of suspended animation. If, as shall happen in this case, the statutory mayhem were remanded for retrial, they would reemerge as viable lesser included charges. If for some reason, such as the failure of proof of an essential element, a reconviction did not follow on the major charge, those reemerged charges themselves could serve as the basis for conviction and sentence. Because of their residual potential for continuing vitality, therefore, we focus our attention upon them as well.
Criminal homicide is extremely unusual in its proliferation of levels or degrees of...
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