Finnegan v. State

• Decision Date: 07 October 1976
• Docket Number: No. 58,58
• Citation: 364 A.2d 124,33 Md.App. 251
• Parties: Patrick J. FINNEGAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 251

33 Md.App. 251

364 A.2d 124

Patrick J. FINNEGAN v. STATE of Maryland.

No. 58.

Court of Special Appeals of Maryland.

Oct. 7, 1976.

Certiorari Denied Dec. 30, 1976.

Alan W. Bernstein, Assigned Public Defender, with whom were Goldstein & Bernstein, Annapolis, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County, and Ronald M. Naditich, Asst. State's Atty. for Anne Arundel County, on the brief, for appellee.

Argued before THOMPSON, MENCHINE and MELVIN, JJ.

THOMPSON, Judge.

Patrick J. Finnegan, the appellant, was convicted by Judge Matthew S. Evans, presiding in the Circuit Court for Anne Arundel County without a jury, of armed robbery and assault with intent to murder. He was sentenced to consecutive terms of 5 and 15 years. On this appeal Finnegan contends that the trial court erroneously shifted to the appellant the burden of proof of reducing the crime of assault with intent to murder to a justifiable act or to simple assault. No contention is raised as to the robbery conviction.

The evidence produced by the State established that on the night of July 9, 1974, the appellant and two companions went to the Club Maywood in Edgewater. At the club they met Martin McCarthy and after closing time went to McCarthy's home. The appellant and McCarthy began playing cards and the two other men fell asleep. They were awakened by a loud noise from the kitchen where they observed the appellant strike McCarthy in the head with a hammer. McCarthy fell to the floor, whereupon the appellant proceeded to strike the victim several more times on the skull. The appellant then ordered one of his companions to take the money out of the victim's pockets. This order was complied with and the three men left the house.

The appellant testified that the victim had made sexual advances towards him causing a struggle to ensue. During the course of the struggle the victim grabbed the hammer, which the appellant took from him. He then struck the victim with it in self-defense. The appellant denied any knowledge of the robbery.

When rendering the verdict, the trial judge stated in relation to the issues presented in the appeal:

'As to the seventh count, (assault with intent to murder) the testimony of the State, of course, is to the effect that these two boys awakened and saw the victim on the floor and this defendant standing over him hitting him with the hammer, and the man on the floor, the victim, asking for mercy, in other words, please stop, and so forth, and then several more blows were struck. We have the testimony of the defendant that this was really in self-defense, that this man had made this pass or attack upon him and attempting to force him into this sexual act, which he refused to do, and as a result, the man became enraged and attacked him.

Now, assuming this to be true, in self-defense, you're in imminent danger of attack and there's no way to escape, you have the right to use reasonable force to overcome this attack. And assuming from the defendant's standpoint that this was an attack by the victim and he was acting in self-defense, the law states that you have to use reasonable force, you can't use force greater than necessary to protect yourself. First, if you have the opportunity to escape, you must escape and not shed blood. If the attack is imminent you have the right to use force, only the force that is necessary. Now, I think the real question here is how much force was necessary to repel the victim? It's true, he was a much older man, he was twenty or twenty-five pounds lighter, he'd been drinking, even if his passion was aroused it's a question of how much force was necessary to repel this man. Even by the defendant's own testimony he had hit this man a maximum of maybe five times. We have the testimony of the other two witnesses that when they awakened the man was on the floor, and certainly, if he was on the floor he had an opportunity to escape, but more blows were struck even though he denies that the other two saw these two blows. And the-really, the force that was used was extremely excessive, under any circumstances. This hammer went through this man's skull, he had trouble pulling the hammer out from the one blow, and it's just fortunate that the man's alive today. Now, as to murder, it's true that by the pointing of a weapon or a deadly weapon at a vital part of the body it infers malice, I mean, you don't have to say 'I'm mad at you', like that, that is not the legal sense of malice, but as many cases have held that where you use a weapon and point it at a vital part of the body that that infers malice and in this case, we have a hammer which in the manner it was used was a very deadly weapon, and it struck the man's head, and I don't think it's too important whether he hit him on the side of the head or what part of the head was hit, whether it was inches this way or inches that way. His head, according to the hospital reports was-well, in terrible shape, to say the least, from these blows, and they were very obvious, there were dents in his skull, there were holes in his skull, and there is little question that-in the eyes of the Court that malice was inferred. Of course, malice is a necessary element of murder, murder in the second degree. Murder in the first degree, you'd have to have premeditation, and so forth, but I don't think under the facts of this case that would be true, but I think it is-at least, if the man had died as a result, he has not died, but if he had died as a result of the blows it would be murder in the second degree.'

Initially we reiterate the mandates of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976), that it is unconstitutional to relieve the State from the burden of proving beyond a reasonable doubt any element of the crime charged including the absence of justification, excuse or mitigation. It is also unconstitutional to impose upon the accused the burden of proving any defense, provided the evidence raises such an issue. This applies to a conviction of assault with intent to murder just as surely as it applies to a conviction for some form of unlawful homicide itself. Blake v. State, 29 Md.App. 124, 126, 349 A.2d 429 (1975). A verdict rendered in a court trial will bear the same scrutiny as a trial by jury if the judge, in the course of rendering his decision, indicates that he relied upon this now unconstitutional burden of proof. Law v. State, 29 Md.App. 457, 349 A.2d 295 (1975).

In his rendition of the verdict the trial judge repeated several times that the pointing of a deadly weapon at a vital part of the body supports an inference of malice. As pointed out in Evans, supra 28 Md.App. at 704, 349 A.2d 300, this is an overly broad employment of that inference. The directing of a deadly weapon at a vital part of the body infers an intent to kill. Malice, however, includes not only an intent to kill but the absence of both excuse or justification and mitigating circumstances. This inartistic choice of words does not necessarily indicate that the trial judge relied on an unconstitutional presumption of malice. These words must be viewed in context with the total rendition of the verdict. State v. Grady, 276 Md. 178, 345 A.2d 436 (1975).

As in the case of Mullaney v. Wilbur, supra, the appellant testified that he was homosexually attacked by the victim. His testimony raised the defense of self-defense, thus generating the issues of both...