Dorsey v. State
Decision Date | 15 July 1976 |
Docket Number | No. 171,171 |
Citation | 362 A.2d 642,278 Md. 221 |
Parties | Josephine DORSEY v. STATE of Maryland. |
Court | Maryland Court of Appeals |
Harold I. Glaser, Baltimore (Richard M. Karceski, Baltimore, on the brief), for appellant.
Arrie W. Davis, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, * JJ.
Appellant Dorsey and Isaiah Wilson were found guilty by a jury of conspiracy to commit murder and murder in the first degree. On appeal to the Court of Special Appeals, they claimed that the jury instructions dealing with the presumption of malice, and which placed upon them the burden of proving such mitigation as would negate malice, was unconstitutional under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re . winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). 1 The trial court had instructed the jury that an accused person is presumed innocent throughout the trial and that the State 'must prove every fact material to the guilt of a defendant beyond a reasonable doubt.' It had properly defined murder in the first and second degrees and manslaughter. In the course of its instructions, the trial court told the jury:
The Court of Special Appeals, in an opinion by Judge Charles E. Moylan, Jr., held that the instruction placing a burden of proof on the defendants to reduce murder to manslaughter or not guilty was improper under Mullaney. It concluded, however, that even though the issue of mitigation had been fairly raised by the evidence in the case, the jury's verdict of murder in the first degree cured the improper instruction by demonstrating that the State had carried its burden of proving every element of the offense byond a reasonable doubt. Dorsey and Wilson v. State, 29 Md.App. 97, 349 A.2d 414 (1975). 2 We granted Dorsey's petition for a writ of certiorari to consider whether the Court of Special Appeals erred in holding that the erroneous instruction was cured as a result of the jury's verdict of first degree murder.
In its opinion, the Court of Special Appeals said:
'. . . granting . . . that the evidence generated a fair jury question on the issue of mitigation, the jury's verdict of guilty of murder in the first degree cured any error in the instructions. Just as the evidence was arguably sufficient for the jury to find mitigation, it was bountifully sufficient for the jury to find beyond a reasonable doubt, as they did, that the killing was deliberated and premeditated. As we said in Evans (v. State, 28 Md.App. 640, 349 A.2d 300 (1975)):
After outlining the State's evidence against Dorsey and Wilson, the court said:
'As to first-degree murder . . . the State bore the burden of proving wilfulness, premeditation and deliberation beyond a reasonable doubt. The finding of those elements by a jury, ipso facto, negated the element of 'hot blood' or 'heat of passion.' The situation, therefore, is as was described by Judge Gilbert, in Brown v. State . . . (29 Md.App. 1, 349 A.2d 359 (1975)):
'In denying a writ of habeas corpus in the case of Wilkins v. Maryland, D.C., 402 F.Supp. 76 (1975), Judge C. Stanley Blair in the United States District Court for Maryland reached a similar conclusion. It was of this very situation that we spoke in Evans v. State . . . (28 Md.App. at 660-61, 349 A.2d 300):
Dorsey contends that the only reference to a standard of proof in the trial court's instructions was to the 'reasonable doubt' standard, and that the jury must have thought that the defendant was required to prove mitigation or innocence of the crime beyond a reasonable doubt. She claims that in determining guilt or innocence under the instructions in this case, the jury 'could in no way have considered it the State's burden to disprove 'hot blood' after being told that it was the Appellant's burden to prove it.'
As Judge Moylan pointed out for the court in Dorsey and Wilson, that malice, deliberation, and premeditation, on the one hand, and mitigation due to provocation on the other, cannot coexist is the nub of the issue where an incorrect instruction under Mullaney has been given with respect to the burden to prove mitigating circumstances, and the jury returns a first degree murder conviction. The State, in these circumstances, would have negated the existence of mitigating circumstances by proof, beyond a reasonable doubt, that the homicidal act was unlawful, the result of a cool, calm state constituting first degree murder. We therefore hold that, in this case, the Court of Special Appeals was correct in concluding that the jury's verdict of guilty of murder in the first degree cured any error in the instructions. See generally, State of Maryland v. Evans, Md., 362 A.2d 629 (1976); and State of Maryland v. Garland, Md., 362 A.2d 638 (1976).
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.
While I concur in the result reached by the majority in this case, I do so upon different grounds.
As the majority points out, where a jury returns a verdict of murder in the first degree, its finding of premeditation and deliberation on the part of the defendant is legally inconsistent with the existence of mitigating circumstances which would reduce the offense to manslaughter. See Wilkins v. Maryland, 402 F.Supp. 76 (D.Md.1975); Brown v. State, 29 Md.App. 1, 349 A.2d 359 (1975); Hurt v. United States, 337 A.2d 215 (D.C.App.1975); 1 Anderson, Wharton's Criminal Law and Procedure §§ 274, 275 (1957); 40 Am.Jur.2d, Homicide § 56 (1968). This legal theory might suggest that a jury, by returning a first degree murder verdict, has necessarily found beyond a reasonable doubt the non-existence of mitigating factors. However, I am not sure that in every case involving a first degree murder verdict, the jurors' thought processes would likely conform to the legal theory, so as to render harmless an incorrect instruction under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
The majority opinion presupposes that a jury, in finding that a defendant's acts were premeditated and deliberate, and therefore finding the defendant guilty of first degree murder, necessarily evaluates and rejects evidence tending to show that the accused acted under such mitigating circumstances as duress, provocation, intoxication, etc. In my view this presupposition ascribes to the jury a better understanding of the nature and elements of the crimes of murder and manslaughter than is likely to exist. It assumes that the jury will appreciate the legal inconsistency between the elements necessary to sustain a finding of first degree murder and the factors...
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