Cox v. State

• Decision Date: 05 December 1986
• Docket Number: No. 267,267
• Citation: 518 A.2d 132,69 Md.App. 396
• Parties: Jehu COX v. STATE of Maryland. Sept. Term 1986.
• Court: Court of Special Appeals of Maryland

Page 396

69 Md.App. 396

518 A.2d 132

Jehu COX v. STATE of Maryland.

No. 267 Sept. Term 1986.

Court of Special Appeals of Maryland.

Dec. 5, 1986.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Gary Honick, Asst. State's Atty. for Baltimore City, on brief), Baltimore, for appellee.

Submitted before GARRITY, BLOOM and KARWACKI, JJ.

BLOOM, Judge.

A jury in the Circuit Court for Baltimore City, presided over by Judge Kenneth Johnson, acquitted appellant, Jehu Cox, of attempted murder in the first degree and attempted murder in the second degree, but convicted him of attempted "voluntary" manslaughter, assault, wearing and carrying a handgun, and use of a handgun in the commission of a crime of violence. The trial judge sentenced appellant to a ten year prison term for attempted "voluntary" manslaughter and to a consecutive twenty year term for use of a handgun in the commission of a crime of violence. ¹

Appellant argues that he was improperly convicted of attempted "voluntary" manslaughter because there is no such crime under the common law of Maryland. He further contends that because the attempted voluntary manslaughter conviction was the predicate crime of violence for the handgun violation, reversal of the handgun conviction is similarly compelled. For the reasons set forth below, we will affirm both convictions.

I

The question of whether attempted voluntary manslaughter is recognized as a crime under the common law is one of first impression in this state. ² In the case sub judice, appellant was convicted of attempting to commit a type of voluntary manslaughter that involves the felonious killing of an individual in the heat of passion in response to legally adequate provocation. The evidence at trial indicated that appellant aimed and fired a deadly weapon at a vital part of the victim's anatomy. The jury was thus allowed to infer that appellant had the specific intent to kill the victim. Glenn v. State, 68 Md.App. 379, 410-11, 511 A.2d 1110 (1986). Our holding in this case, acknowledging the existence of the crime of attempted voluntary manslaughter, is accordingly limited to the specific form of attempted voluntary manslaughter involved herein. ³

Under Maryland law the crime of attempt consists of a specific intent to commit a particular crime coupled with some overt act in furtherance of the intent going beyond mere preparation. Young v. State, 303 Md. 298, 306, 493 A.2d 352 (1985); Hardy v. State, 301 Md. 124, 138-39, 482 A.2d 474 (1984); Lightfoot v. State, 278 Md. 231, 237-38, 360 A.2d 426 (1976); Frye v. State, 62 Md.App. 310, 318, 489 A.2d 71 cert. denied, 303 Md. 618, 495 A.2d 837 (1985); Gray v. State, 43 Md.App. 238, 239, 403 A.2d 853 cert. denied, 286 Md. 747 (1979).

The thrust of appellant's argument is that the crime of attempted voluntary manslaughter is a legal and logical impossibility in that the formation of the specific intent necessary for a criminal attempt is precluded by the heat of passion element of voluntary manslaughter. Appellant, however, fatally misconstrues the nature of the offense of voluntary manslaughter and erroneously assumes the crime comprehends only unintentional homicides. ⁴

There are critical differences between voluntary manslaughter and involuntary manslaughter, as well as critical distinctions between voluntary manslaughter and murder which are necessary to explore to expose the fallacy of appellant's argument.

It has long been the law of this state that voluntary manslaughter involves intentional homicide whereas involuntary manslaughter encompasses only unintentional homicide. Decades ago, the Court of Appeals defined the crime of manslaughter as the "unlawful and felonious killing of another, without malice aforethought, either express or implied, and is either voluntary or involuntary homicide depending on the fact whether there was an intention to kill or not." Neusbaum v. State, 156 Md. 149, 155, 143 A. 872 (1928). See also Chase v. Jennifer, 219 Md. 564, 569, 150 A.2d 251 (1959); Rolfes v. State, 10 Md.App. 204, 206-07, 268 A.2d 795 (1970). Voluntary manslaughter has been defined as " 'an intentional homicide done in sudden passion or heat of blood caused by reasonable provocation, and not with malice aforethought....' " Gray v. State, 6 Md.App. 677, 686, 253 A.2d 395, cert. denied, 256 Md. 745 (1969) (quoting W. Clark & W. Marshall, Law of Crimes 620 (6th ed., M. Wingersky rev. 1958). See also F. Wharton, Wharton's Criminal Law 235-36 (14th ed., C. Torcia rev. 1978 & Supp.1986); W. LaFave & A. Scott, Criminal Law 653-54 (2d ed. 1986); W. Clark & W. Marshall, A Treatise on the Law of Crimes 693 (7th ed., M. Barnes rev. 1975).

Involuntary manslaughter, on the other hand, has been defined as "the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty." To this basic definition, Maryland decisions have added certain qualifications, namely that as to the first class of involuntary manslaughter the unlawful act must be malum in se and not merely malum prohibitum, and it must also be dangerous to life; with respect to the second and third classes, the negligence must be gross, that is, criminally culpable. Rolfes, supra, 10 Md.App. at 207, 268 A.2d 795 (quoting State v. Gibson, 4 Md.App. 236, 242, 242 A.2d 575 (1968), aff'd, 254 Md. 399, 254 A.2d 691 (1969).

The above definitions of manslaughter are correct in the same sense they properly distinguish between the classes of voluntary manslaughter and involuntary manslaughter on the basis of the nature of the homicide involved-- i.e., intentional or unintentional. They are plagued, however, by the same error that has traditionally been made by appellate courts over the years in attempting to distinguish the offense of murder from the mitigated homicides known as manslaughter. The courts have long held that the distinction between murder and manslaughter is the presence of malice in the case of murder and the absence of malice in the case of manslaughter. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v. Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978), aff'd, 290 Md. 76, 427 A.2d 1008 (1981); Chase, supra, 219 Md. at 569, 150 A.2d 251; Chisley v. State, 202 Md. 87, 105, 95 A.2d 577 (1953); Whitehead v. State, 9 Md.App. 7, 10, 262 A.2d 316 (1970). Judge Moylan, writing for this Court in Glenn v. State, supra, explained that the proposition that malice is that which separates murder from manslaughter is but a sore half-truth. 68 Md.App. at 404-05, 511 A.2d 110. Malice is, in fact, a tripartite compound. Its elements are: (1) the intent to kill or one of three other qualifying mentes reae; ⁵ (2) the absence of justification or excuse; and (3) the absence of mitigation. Id. at 404, 511 A.2d 110. See also, Tripp v. State, 36 Md.App. at 477, 374 A.2d 384. The malice components of intent and the absence of justification are shared by murder and voluntary manslaughter alike. Glenn, 68 Md.App. at 404, 511 A.2d 110. As Judge Moylan explicated in Glenn, "certain forms of mitigated homicide, such as hot-blooded response to legally adequate provocation ... involve a specific intent to kill." Id. at 396, 511 A.2d 110. See also Clark & Marshall, Law of Crimes, supra, § 10.11, at 697 (voluntary manslaughter and murder may both involve an intention to kill).

It is the presence or absence of only one of these components of malice--the circumstances of mitigation--which separates murder from manslaughter. Glenn, supra, 68 Md.App. at 405, 511 A.2d 110. See also Wentworth v. State, 29 Md.App. 110, 115, 349 A.2d 421 (1975), cert. denied, 278 Md. 735 (1976). Thus, the difference between the two offenses is not the absence of malice in all its aspects from voluntary manslaughter, but in only a single aspect.

The form of mitigated homicide involved in the matter before us--hot-blooded response to legally adequate provocation--may involve the specific intent to kill. As previously mentioned, there was evidence that appellant fired a deadly weapon at a vital part of the victim's body, which permitted an inference that he intended to kill the victim.

The crime of attempted voluntary manslaughter of the hot-blooded variety is not a legal or logical absurdity, for the actor acts with a specific intent to kill. In a decision recognizing the existence of the crime of attempted voluntary manslaughter, the court of a sister state elucidated on this point:

It is true that a person cannot plot in advance to kill in the heat of passion. Such a calculated plan is logically inconsistent with a spontaneous act committed in a moment of passion. But an assailant can form an intent to kill even under a paroxysm of passion. And this is true regardless of whether he is successful or unsuccessful in carrying out his intent. There is nothing illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill which was formed in a heat of passion....

People v. Van Ronk, 171 Cal.App.3d 818, 217 Cal.Rptr. 581, 584 (Cal.App.3d Dist.1985).

In support of his position, appellant cites several decisions of the courts of other states that have held there is no such crime as attempted voluntary manslaughter. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1964); overruled on other grounds, People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Reagan, 111 Ill.App.3d 945, 67 Ill.Dec. 506, 444 N.E.2d 742, 744 (1982), aff'd, 99 Ill.2d 238, 75 Ill.Dec. 701, 457 N.E.2d 1260 (1983); People v. Weeks, 86 Ill.App.2d 480, 230 N.E.2d 12, 14 (1967).

These decisions have been severely criticized by commentators as...