Cirincione v. State

• Decision Date: 01 September 1987
• Docket Number: No. 1244,1244
• Citation: 540 A.2d 1151,75 Md.App. 166
• Parties: Leonard P. CIRINCIONE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 166

75 Md.App. 166

540 A.2d 1151

Leonard P. CIRINCIONE v. STATE of Maryland.

No. 1244, Sept. Term, 1987.

Court of Special Appeals of Maryland.

May 9, 1988.

Richard M. Karceski (White & Karceski, on the brief), Towson, Clarence W. Sharp, Annapolis, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Stuart O. Simms, State's Atty. for Baltimore City and Timothy Doory, Asst. State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before GILBERT, C.J., and MOYLAN and WENNER, JJ.

MOYLAN, Judge.

The appellant, Leonard P. Cirincione, was convicted by a Baltimore City jury, presided over by Judge Kathleen O'Ferrall Friedman, of 1) the premeditated first-degree murder of Baltimore City Police Officer Richard Miller, 2) the attempted murder in the first degree of Officer Paul Aires, and 3) an assault upon Officer Michael Parker.

All three crimes occurred on 33rd Street in close proximity to Memorial Stadium at approximately 6:30 P.M. on June 12, 1986. The three officers were directing traffic as it converged on the vicinity of the stadium for a Baltimore Orioles baseball game scheduled for 8 P.M. that evening. The dangerous and deadly instrumentality directed at all three officers was the 1977 Toyota sedan driven by the appellant. The evidence was sufficient to permit jury findings that the appellant had, on two occasions, aimed the Toyota at the three officers, hitting and killing one and narrowly missing the other two.

Upon this appeal, the appellant raises the following seven contentions:

1. That Judge Friedman erroneously refused to permit Dr. Michael Spodak to offer an expert opinion as to whether the appellant had the specific intent to kill;

2. That Judge Friedman erroneously refused to permit Dr. Spodak to testify as to conclusions formed as to the appellant's intoxication by doctors on the staff of the Clifton T. Perkins Hospital Center;

3. That Judge Friedman erroneously granted the State's request for a postponement of trial and erroneously denied the appellant's motion to strike the State's election to seek the death penalty;

4. That Judge Friedman erroneously permitted the State to offer photographs showing damage to the appellant's automobile, notwithstanding an earlier informal agreement to stipulate as to the cause of damage;

5. That Judge Friedman committed plain error in her instructions to the jury;

6. That Judge Friedman erroneously disallowed hearsay testimony from the appellant's father consisting of an out-of-court declaration made to the father by a turnkey at the Northern Police Station; and

7. That Judge Friedman erroneously allowed the prosecutor to badger the appellant during the course of the appellant's cross-examination.

We see no merit in any of the contentions. Only the first two merit significant discussion. Both contentions involve the effort of the appellant to prove that he was too intoxicated, by virtue of the use of drugs, to have formed a specific intent to kill.

This would not, of course, affect the conviction for assault upon Officer Michael Parker, because simple assault requires only a general intent. Neither would it affect a subsumed conviction for murder in the second degree because voluntary intoxication, even sufficient to erode existence of a specific intent, will only lower the degree of guilt in a murder case from the first degree to the second degree. Chisley v. State, 202 Md. 87, 106-107, 95 A.2d 577 (1953); but see Mock v. State, 2 Md.App. 771, 774-775, 237 A.2d 811 (1968). ¹ It would, however, affect the conviction for first- degree murder, which requires a premeditated and deliberate intent to kill. It would, moreover, affect the conviction for attempted murder (of any degree), because any attempt requires proof of a specific intent to perpetrate the crime attempted.

There is no issue before us as to the criminal agency of the appellant. There is no issue before us as to the legal sufficiency of the evidence to prove every element of the crimes, including the specific intent to kill. The key issues concern only the question of whether the appellant was erroneously inhibited in his effort to disprove, through a showing of lack of capacity, that specific intent.

The Facts in This Case

On nights, such as June 12, 1986, when the Orioles are playing at Memorial Stadium, the traffic pattern on 33rd Street from Loch Raven Boulevard on the east to Charles Street on the west is radically rearranged. From Charles Street to the stadium, four lanes are eastbound to accommodate the heavy traffic flow toward the stadium and its parking lots. From Loch Raven Boulevard westward, only one lane is westbound and that is not for through traffic but is reserved solely for the use of parking permit holders. All other traffic is rerouted north or south at Loch Raven Boulevard. The lanes are marked with orange plastic or rubber cone markers and each intersection is staffed by two or three police officers.

On June 12, the appellant left his home on East 33rd Street and drove westward toward the stadium. As he approached Loch Raven Boulevard, he failed to obey the police officers' direction to turn north on Loch Raven but continued westbound. He accelerated past a number of officers who were signalling him to stop. Officer Michael Parker was stationed at 33rd Street and Ednor Road to keep track of permit holders. He was standing at the edge of the second lane of traffic when he saw the appellant's Toyota coming toward him in the curb lane. As Officer Parker signalled the Toyota to stop, it moved into the second lane, accelerated, and swerved toward Officer Parker. He jumped back out of the way between the cones.

As the appellant passed in front of the stadium, he was in the second lane of traffic from the north curb. As he passed the stadium and approached the west parking lot, he turned to his left (south) and crossed three oncoming lanes of traffic. Both Officer Miller and Officer Aires were standing in the second lane in order to direct traffic onto the west parking lot. After both officers unsuccessfully waved for the appellant to stop, they began to run toward the south curb. The Toyota narrowly missed Officer Aires but struck Officer Miller, throwing him into the air. He landed on the hood of another automobile and was thrown across the street.

The appellant's Toyota continued across the remaining lanes of oncoming traffic and struck two cars waiting to go onto the Venable parking lot (on the south side of 33rd Street next to Eastern High School).

Officer Miller was severely injured. He was removed by ambulance to the hospital, where he died on July 21 as a result of his injuries.

As the police pulled the appellant out of his car and placed him under arrest, a number of television cameramen were in the area. A tape was made of the appellant immediately after the accident, and it was played in court for the jury. A number of witnesses described the appearance of the appellant as normal and as showing almost no emotion. Others described him as angry and upset. Several quoted the appellant as saying, as he was taken out of his car, "You can't touch me, I didn't do anything wrong." He screamed that he had rights and that "This is the good old U.S. of A." He protested that something was wrong with his car and that was what made him hit the officer.

The Particular Mens Rea Here In Issue

The appellant did not enter a plea of not criminally responsible, and nothing with respect to his sanity or his competence was before the trial court. The appellant did not attempt to assert a defense of diminished capacity, which defense, of course, is not recognized in Maryland law. After the State had rested its case in chief, the defense called Dr. Michael Spodak as an expert witness. A chambers conference ironed out the ground rules for Dr. Spodak's testimony. For the record, Judge Friedman made clear what Dr. Spodak would not be testifying about:

"Because counsel has had a discussion with the Court in chambers, out of the presence of the defendant, I am not sure that the issue has been fashioned on the record the way it should be but I am going to try to fashion it and if I have not done so accurately then I want both counsel to say so after I finish.

It is clear to me that the defense cannot attempt in any way to prove that the defendant is not criminally responsible. No plea of not criminally responsible has been filed. If one had been filed, the proof to be shown would be that the defendant at the time of the incident and as a result of a mental disorder lacked substantial capacity either to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. That's not the issue in this case. And I trust that is understood by both counsel.

Nor is diminished capacity an issue in this case because it's not recognized under Maryland law and that is clearly set forth in Johnson v. State, 292 Md. 405 [439 A.2d 542 (1982) ]. Just to make it very clear, the concept of diminished capacity is, as I understand it from the reading of Johnson v. State and specifically a footnote [at] page 425 [439 A.2d 542], allows evidence of a mental impairment of a legally sane defendant on the factual question of whether a particular accused had entertained the requisite mental state which attempted to establish that the defendant was generally, and I underscore generally, less capable than a normal person of forming requisite mens rea. That's not what I trust the defense is attempting to show nor is it what the doctor will testify to. And I specifically rule that he may not, because that's diminished capacity and Maryland does not recognize diminished capacity."

The Opinion of Dr. Spodak

This brings us to the question of what Dr. Spodak would be testifying about. The defense in this case was based upon voluntary intoxication. At common law, as a general rule, "voluntary intoxication affords no...