Hook v. State

• Decision Date: 01 September 1988
• Docket Number: No. 68,68
• Citation: 315 Md. 25,553 A.2d 233
• Parties: Jentry Lee HOOK II v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 25

315 Md. 25

553 A.2d 233

Jentry Lee HOOK II v. STATE of Maryland.

No. 68, Sept. Term, 1988.

Court of Appeals of Maryland.

Feb. 13, 1989.

Motion for Reconsideration Denied April 11, 1989.

Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

I

(A)

Homicide is the killing of a human being by a human being. It is culpable when it is felonious. It is felonious when it is not legally justifiable or excusable. ¹ Felonious homicide is either murder or manslaughter. ² Murder is in the first degree or in the second degree. In Maryland, all murder perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing ³ or committed in the perpetration of, or attempt to perpetrate certain felonies (of which robbery is one) is murder in the first degree. ⁴ All other kinds of murder are murder in the second degree. ⁵

(B)

The general rule is that voluntary drunkenness is not a defense to crime. Breeding v. State, 220 Md. 193, 199, 151 A.2d 743 (1959); Saldiveri v. State, 217 Md. 412 424-425, 143 A.2d 70 (1958). See Shell v. State, 307 Md. 46, 60, 512 A.2d 358 (1986). The general rule applies to murder. But, although voluntary intoxication does not excuse murder, it may downgrade murder in the first degree to murder in the second degree. ⁶ Over a hundred years ago "this Court noted as a general principle that evidence of intoxication was admissible to negate the mens rea required for a first degree murder conviction." Shell v. State, 307 Md. at 59, 512 A.2d 358 citing to Spencer v. State, 69 Md. 28, 41-42 (majority), 46-50 (dissent), 13 A. 809 (1888).

In Chisley v. State, 202 Md. 87, 107, 95 A.2d 577 (1953), we quoted with approval Warren on Homicide, Vol. 1, § 61 at 204 (1914):

"Where murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder."

We noted that Warren added:

"It is held that the mere fact the accused was intoxicated is not sufficient to reduce the killing from murder to manslaughter."

Id. at 209. We reviewed Chisley in Shell, 307 Md. at 59, 512 A.2d 358. We observed: "On appeal [Chisley] challenged the sufficiency of the evidence underlying the first degree murder conviction relying in part upon his alleged intoxicated state at the time of the killing." The Court in Chisley, in finding that there was sufficient evidence to submit the charge to the jury, held that the jury was properly instructed "as to the necessity for considering the effect of intoxication on the formation and existence of wilfulness, deliberation and premeditation." Shell, at 59, 512 A.2d 358, quoting Chisley, 202 Md. at 108, 95 A.2d 577. Breeding v. State, 220 Md. 193, 151 A.2d 743, affirmed a conviction of murder in the first degree. It observed that "[v]oluntary drunkenness is generally not a defense." Id at 199, 151 A.2d 743. But it indicated that voluntary intoxication was relevant with respect to the degree of murder, by adding: "Moreover, the triers of fact could properly find, as they did, that the accused was not drunk at the time of the murder." Id.

Maryland law is clear. Although voluntary intoxication is not a defense to murder, evidence with respect to it is relevant and material to a determination by the trier of fact of the degree of a murder alleged to be premeditated. In other words, did the accused by reason of his intoxication, lack the wilfulness, deliberation and premeditation necessary to sustain a conviction? If, because of his intoxication, the accused did not have the capacity to be motivated by any one of these factors, the murder is murder in the second degree. ⁷

A comprehensive review of cases dealing with the asserted defense of voluntary intoxication was made in Shell v. State, 307 Md. at 58-65, 512 A.2d 358 (Eldridge, J.). It disclosed that "[v]oluntary intoxication as a defense to some criminal charges is clearly recognized in Maryland." Id. at 58, 512 A.2d 358. "Maryland's view deem[s] voluntary intoxication relevant to 'specific intent' crimes but not 'general intent' crimes...." ⁸ Id. at 63, 512 A.2d 358.

Robbery is a specific intent crime.

It is clear that there can be no robbery without a larcenous intent.... Therefore, as larceny is an ingredient of robbery, we look to the components of the former to ascertain the requisite mental element of the latter. Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent.... Because an intent to steal, the animus furandi, must be present, it follows that larceny, and therefore robbery, is classed as a specific intent crime.

State v. Gover, 267 Md. 602, 606, 298 A.2d 378 (1973) (citations omitted). One of the elements of robbery is the additional mens rea of a specific intent above and beyond the doing of the actus rea. Therefore, voluntary intoxication serves as a defense to that crime. ⁹

In felony murder the underlying felony is an essential ingredient of murder in the first degree. Newton v. State, 280 Md. 260, 269, 373 A.2d 262 (1977). The State is required to prove the underlying felony and that death occurred in the perpetration or attempted perpetration of the felony. Id. This is sufficient; there is no need to prove wilfulness, deliberation, and premeditation. Id. See State v. Frye, 283 Md. 709, 713, 393 A.2d 1372 (1978). Thus, when the underlying felony is the specific intent crime of robbery, ¹⁰ voluntary intoxication is relevant to show that the perpetrator did not have the capacity to entertain the deliberate purpose of depriving the owner permanently of the stolen goods. Lacking proof of the necessary specific intent, proof of the underlying felony fails. Without proof of the underlying felony, there can be no conviction for felony murder. Therefore, on a felony murder charge with a specific intent crime as the underlying felony, evidence of voluntary intoxication is admissible as a defense.

II

Jentry Lee Hook, II, was indicted on the presentment by a grand jury that he shot and killed two people. He was charged with the murder of them in the form authorized by Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 616, ¹¹ and with related offenses. A jury in the Circuit Court for Baltimore County convicted him of all of the charges submitted to it. The jury found Hook guilty of the first degree murder of each of the victims on the basis that the homicide was wilful, deliberate, and premeditated. It found him guilty of the first degree murder of each of the victims on the basis that the homicide was perpetrated in the commission of a felony. It found him guilty of the armed robbery of each of the victims. It found him guilty of the use of a handgun in the commission of a felony or a crime of violence.

At the penalty stage of the trial, after a capital sentencing hearing, the jury rejected the death penalty sought by the State. It designated Hook's intoxication as one of the mitigating facts. The trial judge imposed consecutive life sentences on the murder convictions, a 20-year sentence on the armed robbery convictions to run concurrently with each other but consecutive to the life sentences, and a 15-year sentence on the handgun conviction to run consecutive to all of the other sentences.

Hook turned to the Court of Special Appeals. The opinion and mandate of that court affirmed the judgment entered in the trial court with respect to murder. It affirmed the convictions of armed robbery. It directed that the sentences thereon be vacated and that the convictions be merged into the convictions of felony murder. It implicitly affirmed the judgment on the handgun charge although the opinion and the mandate did not expressly so state. Hook v. State, No. 1395, September Term, 1987, per curiam, unreported, filed 13 May 1988, slip opinion at 5, 6, and 16.

We granted Hook's petition for the issuance of a writ of certiorari but we ordered that the review "shall be limited solely to the following questions...."

1) Did the trial court err by allowing the prosecutor to withdraw second degree murder from the jury's consideration?

2) Did the Court of Special Appeals err by holding that the trial court's refusal to instruct the jury about second degree murder and its refusal to let defense counsel explain second degree murder to the jury were harmless errors?

III

We recount the circumstances under which the questions arose. The victims were Bobby Watson Cooper and Mildred S. Whelan. Witnesses testifying to the killings were Rosemary Gauthier and her sister, Karen Stewart. It all began in the late afternoon of 11 October 1986 when Hook, Stewart, and Gauthier met Cooper outside a bar. Hook was drinking at the bar. When after a short time they left the bar, he continued to drink at Cooper's residence, the caretaker's house at Oak Lawn cemetery. During the course of the evening, Whelan, Hook's current girlfriend, arrived on the scene. Although Stewart was Hook's former girlfriend, at Hook's request, she told Whelan that she and Gauthier were Cooper's daughters. Hook and Stewart went into the kitchen. Hook tried to persuade her to resume their former relationship but she refused to do so. Thereafter, Hook left the house. He returned a short time later with a handgun. Stewart reentered the kitchen and Hook joined her. He showed Stewart the fully loaded gun and said he was going to kill Cooper and Whelan--"blow them away." When Stewart attempted to dissuade him, he threatened her. He went into...