Danna v. State

• Decision Date: 01 September 1991
• Docket Number: No. 749,749
• Citation: 91 Md.App. 443,605 A.2d 150
• Parties: Joyce DANNA v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 443

91 Md.App. 443

605 A.2d 150

Joyce DANNA v. STATE of Maryland.

No. 749, Sept. Term, 1991.

Court of Special Appeals of Maryland.

April 28, 1992.

Rachel Wohl and George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Argued before ROSALYN B. BELL, FISCHER, and HARRELL, JJ.

HARRELL, Judge.

On 21 September 1978, appellant, Joyce Danna, was convicted by a jury in the Circuit Court for Baltimore County of first-degree murder and use of a handgun in the commission of a felony. For these crimes she received concurrent sentences of life in prison and five years, respectively. On 13 May 1991, appellant was resentenced to life in prison.

In this appeal, appellant presses before us a claim of instructional error, as well as a claim that the resentencing judge abused his discretion. Appellant failed to object to the instructions as given and thereby preserve the error for appellate review. Notwithstanding that fact, we shall exercise our discretion under Maryland Rule 4-325(e) to recognize and correct plain error material to the rights of a defendant.

Facts

On 11 December 1977, appellant's husband was shot and killed in the bedroom of their house in Dundalk, Maryland. Two days later, appellant was charged with his murder.

At trial, appellant maintained that her husband's death was an accident. She testified that she had an argument with him in the living room of their house that afternoon, in the course of which he threatened her with his loaded and cocked service revolver. ¹ She eventually persuaded him to put the gun down and they settled their argument. He then went upstairs, leaving the gun on the floor. Later, he called to her from upstairs and asked her to bring him the gun so that he could uncock it. In appellant's own words, "I agreed with him readily because I cannot uncock a weapon and I was afraid if I empted [sic] it, I would shoot either myself or my son or my daughter." ² She therefore brought the gun upstairs to him. As she was handing the gun to him, he grabbed for it. It discharged accidentally, killing him.

Appellant's story was corroborated by her daughter, who testified that she was upstairs before the shooting and heard appellant's husband call downstairs to appellant to "bring the gun up to uncock it." Detective Charles Henry of the Baltimore County Police Department testified that approximately two hours after the shooting appellant related the same story to him. He also testified that appellant had stated to him that she was "very unfamiliar" with guns and "afraid" of them. Officer Steven McDonald of the Baltimore County Police testified that appellant told him a slightly different story of how the shooting had occurred when he interviewed her almost immediately after the shooting. He also testified that she was "quite hysterical" at the time and that "none of her statements really followed each other."

The credibility of appellant's story was undermined by evidence that she was practiced in the use and handling of firearms. The evidence adduced at trial indicated that appellant held a job as an armed security guard at Fort Holabird, Maryland, between 20 January 1975 and 31 January 1976. On duty, she was required to carry a loaded gun of the same type as her husband's service revolver. She also received four hours of instruction in the use and handling of firearms. In May 1976, as part of her instruction, she took a firing range test and her scores qualified her as a marksman. Appellant admitted all of these facts at trial. She offered no explanation of the apparent inconsistency between the evidence that she was practiced in the handling and use of firearms and her claims that she was inexperienced with and afraid of guns. Moreover, she failed to explain why, if she was practiced in the handling and use of firearms, it was necessary for her to carry a gun to her husband to uncock.

Appellant was ultimately convicted and sentenced to life in prison. The circuit court denied her motions for a new trial and for modification or reduction of her sentence. Appellant requested her trial counsel to file an appeal on her behalf. Her trial counsel failed to do so, however.

On 16 March 1982, the circuit court denied a petition for post-conviction relief filed on appellant's behalf. The sole issue raised in the petition was whether appellant was present at a bench conference held during voir dire.

On 1 March 1990, appellant again petitioned the circuit court for post-conviction relief, this time on the ground that she had been denied effective assistance of counsel. Appellant contended, inter alia, that her trial counsel had failed to investigate adequately and present at trial evidence known to him that would have bolstered her defense; ³ had failed to either advise her with respect to the advantages and disadvantages of her decision to testify or prepare her adequately for her trial testimony; and had committed numerous other prejudicial errors during trial. She requested that her conviction be vacated or, in the alternative, that she be granted a new sentencing and a belated appeal. After a hearing, the circuit court issued an opinion and order refusing to vacate appellant's conviction but granting her a new sentencing and a belated appeal. The court granted the new sentencing on the ground that the trial judge had sentenced appellant without the benefit of a presentence investigation or any other information that might have mitigated her sentence. Appellant's application for leave to appeal the circuit court's refusal to vacate her conviction was denied.

A resentencing hearing was held on 13 May 1991. Notwithstanding evidence of mitigating circumstances adduced at the resentencing hearing, ⁴ appellant was resentenced to life in prison.

We shall include additional facts as necessary in our discussion of the issues presented.

I.

Appellant's first contention is that her conviction should be overturned because of instructional error.

Instructing the jury on the State's burden of proof, the trial judge stated as follows:

Guilty beyond a reasonable doubt may be based on direct evidence of facts, or it may be based on what is referred to as circumstantial evidence. Circumstantial evidence means that there is proof of collateral facts and circumstances from which the existence of the main facts may be inferred according to reasonable and common experiences. Circumstantial evidence then is sufficient or adequate to support a verdict of Guilty. The Jury must be convinced beyond a reasonable doubt, but no greater degree of certainty is required where the evidence is circumstantial, as opposed to the case where the evidence is of a direct nature.

A Defendant is presumed to be innocent, so that every inference which can be reasonably drawn from the evidence should be drawn in favor of the Defendant; and where there is a circumstance where two inferences may be drawn from the same facts and one inference or conclusion is consistent with guilty, and one inference or conclusion is consistent with innocence, the Defendant is entitled to that inference which is consistent with innocence.

It isn't necessary that circumstantial evidence include every possibility of the Defendant's innocence or produce an absolute certainty. Reasonable doubt means just what it says. It does not mean doubt to a mathematical certainty, but it means a doubt that is reasonable in the mind of each and every juror. A jury is not required to be satisfied beyond a reasonable doubt as to each and every piece or link in the chain of circumstantial evidence, but when the jury considers the whole picture that adds up to this inference that they draw from all the circumstances, and from the entire set of circumstances considered together produce in the minds of a jury an abiding conviction of guilty, then a verdict of Guilty is justified. If, however, the circumstances in their totality do not convince you beyond a reasonable doubt as to guilt, then it is your duty to return a verdict of Not Guilty. (Emphasis added.)

The instructions suggest that a doubt is not reasonable unless the jurors collectively agree on its reasonableness. In other words, the instructions suggest that a defendant is guilty beyond a reasonable doubt if some jurors think that a reasonable doubt exists as to a defendant's guilt, but others do not. At no time did the trial judge instruct the jury that its verdict must be unanimous, or that each juror must be individually satisfied of a defendant's guilt beyond a reasonable doubt before the jury is authorized to find a verdict of guilty. See Coby v. State, 225 Md. 293, 297-99, 170 A.2d 199 (1961) (discussing unanimity requirement).

There is no question that an instructional error was made. "[U]nanimity is required for a jury determination on either side of an issue." Mills v. State, 310 Md. 33, 53, 527 A.2d 3 (1987), rev'd on other grounds,486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). See also Smith v. State, 299 Md. 158, 163-64, 472 A.2d 988 (1984) ("The underlying requirement of a final verdict is that it be unanimous.").

[T]he burden and standard of proof operate upon each juror individually and not upon the jury collectively on a majority basis, and ... the failure to achieve unanimity on either side of an issue ordinarily results in a hung jury.

Mills, 310 Md. at 61, 527 A.2d 3.

In Mills, a prison inmate was tried by a jury and convicted of the first-degree murder of his cellmate. In the trial's sentencing phase, the same jury found that the State had established the statutory aggravating factor that Mills committed the murder while he was confined in a correctional institution, and marked "no" beside each mitigating circumstance referenced...