Glenn v. State

• Decision Date: 01 September 1985
• Docket Number: No. 1607,1607
• Citation: 68 Md.App. 379,511 A.2d 1110
• Parties: Britt D. GLENN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 379

68 Md.App. 379

511 A.2d 1110

Britt D. GLENN v. STATE of Maryland.

No. 1607, Sept. Term, 1985.

Court of Special Appeals of Maryland.

July 15, 1986.

Gary Huddles and Peter Max Zimmerman, Towson, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and William McCollum, Asst. State's Atty. for Baltimore City on brief), Baltimore, for appellee.

Argued before MOYLAN and ADKINS, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

MOYLAN, Judge.

The crime of Assault with Intent to Murder went on the books in 1809. In 177 years, there has not been a single in-depth discussion of the special mental element that is the heart of the offense, with the lone exception of Jenkins v. State, 59 Md.App. 612, 477 A.2d 791, cert. granted, 302 Md. 46, 485 A.2d 269 (1984), in which Judge Wilner compared the intent to murder with the intent to maim, disfigure, or disable. Relatively late in the life of the crime, several inadvertently adopted observations about the mental element were made. Then, through an appellate process consisting largely of scissors and paste, those initial and uncritical observations came to be regularly repeated. There has never been, however, anything approaching a comprehensive analysis.

The appellant, Britt D. Glenn, was convicted in the Circuit Court for Baltimore City by Judge Milton B. Allen, sitting without a jury, of both assault with intent to murder and the possession of marijuana. He does not challenge his conviction on the possession charge. Neither does he question the propriety of a conviction for simple assault. It is only the aggravating mens rea of a specific intent to murder that is in issue.

Reversing the conviction for assault with intent to murder is easy. Explaining the reasons for the reversal in a way that may help forestall future reversals is more difficult.

The trial judge erred by following time-honored but misleading appellate road signs. The state's attorney erred by plying the trial judge with dilapidated dicta from a pre-1975 Baroque Age. The attorney general erred by beguiling us with the wrong part of a partial truth. The real source of error, however, is neither judge nor prosecutor nor appellate advocate but a case law still sadly riddled with imprecise generalities, elusive half-truths, and grandiose jabber.

By 1975, the case law on both consummated and inchoate criminal homicide had become, in Maryland and throughout the common law world, a Kafkaesque hall of mirrors. The first impression was dazzling, as orotund formulae were rhythmically and ritualistically intoned. The inner hollowness became apparent, however, once someone dared to ask the dreaded question, "What, precisely, does all of that mean?" The rich tapestry, like the Emperor's new clothes, turned out to be a crazy quilt of misstatements, partial statements, and even contradictory statements. One close look exposed the verbal brocade as tatterdemalian.

In 1975, the Supreme Court, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and the appellate courts of this state, in Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), and State v. Evans, 278 Md. 197, 362 A.2d 629 (1976), set out to clean the Augean Stables of the accumulated semantic debris and outworn linguistic usages of three centuries. Today's reversal persuades us that the housecleaning needs to be repeated periodically.

Squarely false statements are not the problem. They are easily and effectively eliminated from the case law. The more elusive, and therefore more tenacious, culprit is the half-truth. Three such half-truths contributed to the error in this case. They are:

1. Assault with intent to murder is an assault under circumstances such that if the victim should die, the crime would be murder.

2. Malice is that which separates murder from manslaughter.

3. One may infer malice from the directing of a deadly weapon at a vital part of the human anatomy.

None of these statements is false. Yet none of these statements is true. Each is sometimes true and sometimes false with chameleon-like and treacherous unpredictability. Each, moreover, is entrenched doggedly, if not inextricably, in our case law. Our present exhortation to bench and bar is that none of these statements should ever be uttered or written again--at least, not in such partial and imprecise a form. We will turn to each of these half-truths as we assess not the evidence of the appellant's culpability but the legal significance of that culpability.

The facts are no longer in dispute (if they ever were). The evidence supported the judge's findings of fact. The facts, so found, were that the 20-year-old appellant stabbed Frank Rizo four times, twice in the arm, once on the right side of the abdomen at the bottom of the rib cage, and once in the waist. Criminal agency was clear. The only issue is whether the appellant stabbed his victim with that aggravating mens rea that raises the common law misdemeanor of simple assault to the statutory felony of assault with intent to murder.

The First Half-Truth:

ASSAULT WITH INTENT TO MURDER IS AN ASSAULT UNDER

CIRCUMSTANCES SUCH THAT IF THE VICTIM SHOULD DIE,

THE CRIME WOULD BE MURDER.

Assault with intent to murder is an inchoate crime, but inchoate to what? Is it inchoate to all of criminal homicide? Is it inchoate to murder generally? Or is it inchoate to but one particular form of murder?

One cannot analyze the inchoate crime of assault with intent to murder without analyzing the matrix of consummated crimes that constitute criminal homicide. One must hypothesize the death of the assault victim and then determine what the crime would have been in that imagined eventuality.

What is involved is the relationship between the mens rea of murder and the mens rea of assault with intent to murder. The problem is that since the crime of Assault with Intent to Murder was first placed upon the Maryland statute books in 1809, ¹ there has never been an adequate definition of it. Our attempt will be to fill that void.

A simplistic first effort at definition could be, "Assault with intent to murder is an assault under circumstances such that if the victim should die, the resulting crime would be murder." Our pre-Mullaney case law was addicted to such simplistic definition. ² It was, to be sure, at least partially correct. In terms of levels or degrees of blameworthiness, it served the necessary purpose of separating murder (first or second-degree), on the one hand, from manslaughter, excusable homicide or justifiable homicide, on the other hand--the latter three not representing hypothesized predicates which could support a finding of assault with intent to murder. Since that was the only discrimination the courts were being called upon to make in the cases employing that definition, it worked. It did so, moreover, without causing any mischief in the process. For that very same reason, however, the definition has no inadvertent authoritative significance for other distinctions not before the courts and not contemplated by the courts on those occasions.

The definition, on reflection, turns out to be a partial definition. It performs well its sorting function along the appropriate vertical axis, separating the two higher and murderous degrees of blameworthiness above, from manslaughter and the lesser levels of blameworthiness below. It ignores totally, however, the other possible sorting function along the horizontal axis among the various kinds (as opposed to degrees) of murderous mentes reae.

A brief bit of background is perhaps necessary. Since the early seventeenth century, murder has been, in terms of its mental element, a pluralistic rather than a monolithic phenomenon. The key to a conceptual understanding of the law of murder is to think plural. When death results from the act of the homicidal agent, not one but four distinct intents or states of mind are now deemed sufficiently reprehensible to justify a finding of murder. A murder conviction may thus be supported by proof of any one of four separate mentes reae. Without going into elaborate detail, the four types or kinds of murder, each with its distinctive mens rea, are almost universally referred to as:

1 2 3 4

INTENT INTENT FELONY- DEPRAVED-

TO KILL TO COMMIT MURDER HEART

MURDER GRIEVOUS HARM MURDER

MURDER

The presence of one of these intents is an indispensable ingredient, although not the only necessary ingredient, of that slippery legal concept known as "malice." Indeed, the text writers have for 300 years referred to the original murderous mens rea--the intent to kill--as "express malice." They have also referred to the latter three murderous mentes reae--all of which came into homicide law during its rapid evolution in the early seventeenth century--as the three forms of "implied malice." ³ The original legal fiction, of course, was that any of the latter three states of mind "implied" the former; proof of any of the latter three intents was a predicate fact from which the fact finder could permissibly infer the intent to kill. Legal analysis has now reached a point of sophistication, however, where we recognize that each of these four intents is independently blameworthy enough to support a murder conviction. Each is an autonomous murderous mens rea in its own right and not a mere evidentiary avenue to one of the others.

The multiplication of criminally homicidal mentes reae has been two-dimensional. On the horizontal axis, we have the four kinds of murder--the four distinct types of murderous mentes reae. On the vertical axis, moreover, each of the four types comes (at least theoretically) in three degrees of blameworthiness: 1) large, 2) medium, and 3) small--1) aggravated, 2) normal, and 3) mitigated--1) first-degree murder, 2) second-degree murder, and 3) manslaughter. Using...