Evans v. State

• Decision Date: 25 November 1975
• Docket Number: No. 57,57
• Citation: 28 Md.App. 640,349 A.2d 300
• Parties: Edward EVANS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 640

28 Md.App. 640

349 A.2d 300

Edward EVANS v. STATE of Maryland.

No. 57.

Court of Special Appeals of Maryland.

Nov. 25, 1975.

Victoria A. Salner, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, and Dennis M. Henderson, Asst. Public Defender, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City, and Clifton Gordy, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

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

MOYLAN, Judge.

It was but a matter of time before the common law's crazy quilt of murder and manslaughter-eight hundred years in the making and intricately interweaving Stuart modification of Tudor substance with Victorian adaptation of Georgian procedure-would come under the cold glare of latter-day due process. That time came on June 9, 1975, with the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The conviction of Edward Evans, appellant, by a Baltimore City jury for murder in the second degree gives us occasion to assess the impact of Mullaney v. Wilbur on Maryland's version of Anglo-America's ancient handiwork on felonious homicide. The impact is significant.

Indeed, the implications are so extensive that a shorthand summary of them is in order before launching into a more detailed analysis.

Retroactivity in a Nutshell

Mullaney v. Wilbur will be fully retroactive. (Part IA)

It will apply:

1. Where there was an erroneous allocation of the burden of persuasion on the question of mitigation (that issue being fairly in the case) and the verdict was for murder in the second degree. (Part ID)

2. Where there was an erroneous allocation of the burden of persuasion on the question of justification or excuse (either issue being fairly in the case) and the verdict was for any degree of felonious homicide. (Part IE)

It will not apply:

1. Where there was an erroneous allocation of the burden of persuasion on the question of mitigation (that issue being fairly in the case) and the verdict was for:

a. Manslaughter (Part IB) or

b. Murder in the First Degree. (Part IC)

2. Where there was an erroneous allocation of the burden of persuasion on the questions of mitigation, justification or excuse but where they were not issues in the case. (Part IF)

Prospectivity in a Nutshell

Mullaney v. Wilbur will not render unconstitutional:

1. An innocuous statement as to burden of proof. ('All murder is presumed to be murder in the second degree.') For semantic rather than constitutional reasons, however, the usage should be discontinued. (Part IID)

2. Any rule of substantive law:

a. Our various forms of first-degree murder. (Part IIE1)

b. The doctrine of transferred intent. (Part IIE2)

c. The various forms of murderous mens rea which we categorize as implied malice. (Part IIE3)

3. A proper inference, such as the inference of intent to kill or the inference of the intent to do grievous bodily harm from the use of deadly force. (Part IIF)

4. A presumption (in the Thayer-Wigmore tradition) simply putting upon a defendant the onus of producing sufficient evidence to generate a jury issue (unless the evidence in the State's case itself generates the issue), at which point the presumption is totally dissipated leaving upon the State the burden of persuasion on the generated issue beyond a reasonable doubt. (Part IIH)

Mullaney v. Wilbur will render unconstitutional:

1. A presumption (in the Morgan tradition) placing upon a defendant an ultimate burden of persuasion, by any standard of proof, on any issue. (Part IIG) This ruling applies, by way of a partial list of examples, to such defenses as:

a. Any theory of justification (including self-defense in some forms).

b. Any theory of excuse (including self-defense in other forms and including accident or misadventure) c. Any theory of mitigation (including hot-blooded response to legally adequate provocation).

d. Intoxication.

e. Entrapment.

f. Duress or Coercion.

g. Necessity.

Mullaney v. Wilbur will have a collateral influence beyond its direct impact:

The way through the labyrinth is difficult enough without ambiguous and misleading signposts to send us in false directions. Though the task be Herculean, the Augean Stables of our language must be cleansed. At the very least, Maryland's jury instructions on the subject of homicide are in immediate need of radical revision. (Passim) ^*

The Present Case

The facts necessary to our judgment here are few. At some time between 2 and 3 p.m. on June 20, 1974, the appellant struck Alonzo Counts with a knife several times. The victim bled to death shortly thereafter, the fatal blow having been a stab to the neck. The homicideal agency of the appellant is not in dispute. Testimony by State's witnesses and defense witnesses alike, including testimony from the appellant himself, established a pattern of angry and violent confrontations between the appellant and the victim during the hour immediately preceding the homicide, such confrontations broken by periods when the two were out of contact with one another. There was evidence from which the jury could have concluded that the appellant struck the victim without justification, excuse or legally adequate provocation. Just as surely, there was evidence from which the jury could have concluded that the appellant struck in necessary self-defense or that he struck in hot blood in the course of mutual combat. It is sufficient for present purposes to note that the questions of excuse (the self-defense in this case) and mitigation (by way of the hot blood of mutual combat) were substantially present as issues in the case. Correct instructions were, therefore, in order both to define those issues and to allocate the burden of persuasion as to them by the appropriate standard of proof.

With respect to the allocation of the burden of persuasion generally as to these issues, the trial court's instruction to the jury was, in pertinent part:

'You are advised that the statutory law of Maryland provides that all murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate, and premeditated killing, shall be murder in the first degree. The law further provides that all other kinds of murder shall be deemed to be murder in the second degree. Upon proof by the State of murder, without anything else, the presumption is that it is murder in the second degree. The State has the burden of proving the elements of the crime which would raise the degree to murder in the first degree. That is, in this case, that it was wilful, deliberate, and premeditated. The Defendant has the burden of showing the elements which would reduce the crime to manslaughter or which would make the homicide justifiable and excusable.' (Emphasis supplied)

At another point in the instruction, the court defined the element of malice necessary to a finding of murder and also referred to the presumption of malice:

'The difference between murder in the first degree and murder in the second degree is this; where the evidence proves beyond a reasonable doubt that the killing was done with malice, that it was the result of the intentional doing of a wrongful or illegal act to another without legal excuse or justification, then murder in the second degree has been proven under our law. The use of a deadly weapon directed at a vital part of the body gives rise to the presumption that malice existed. Subsequently, you, as jurors, may also draw an inference that the killing was done with malice from the fact that the deadly weapon was used and directed at a vital part of the body of the deceased.' (Emphasis supplied)

The immediately following instruction mingled the self-defense, which might render a homicide excusable, with the provocation, which might limit it to manslaughter. It seemed to postulate that all killing not in self-defense is ipso facto without adequate provocation and, therefore malicious:

'No provocation, however grievous, will reduce a voluntary homicide to manslaughter if the circumstances show that the slayer acted not in self-defense but from malice.'

In going on to the subject of self-defense, the trial judge seemed clearly to put the burden of establishing its necessary elements upon the defendant:

'The Defendant in this case contends, however, that he is not guilty of any degree of homicide by reason of the fact that he was acting in self-defense. The Defendant has contended that the deceased, Alonzo Counts, was stabbed in the act of assaulting the Defendant, Edward Evans.

In order to justify or excuse the killing of another in self-defense it is necessary to establish that the Defendant was not the aggressor and did not provoke the conflict, that the Defendant believed at that time that he was in such imminent danger of losing his own life or suffering bodily harm, that it was necessary for him to take the life of the deceased, to save himself, and that the circumstances were such at the time to warrant reasonable grounds for such belief in a mind of ordinary reason.' (Emphasis supplied)

In ultimately allocating the burden of persuasion on the question of self-defense, the trial judge accurately recited the self-contradictory and mutually exclusive statements which have chronically plagued the common law of Maryland on this elusive and confused subject. The burden of proving all elements of the crime seems to be upon the State, but the burden of negating one of those elements seems simultaneously to be upon the defense. The quandary is unresolved as to what to do if the defense has offered enough persuasion to throw doubt upon the State's case but not enough persuasion to establish self-defense affirmatively by a preponderance of the evidence:

'Excusable self-defense is where a person becomes engaged in a sudden affray or combat and in the...