McKay v. State

• Decision Date: 01 September 1991
• Docket Number: No. 285,285
• Citation: 90 Md.App. 204,600 A.2d 904
• Parties: Steven McKAY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 204

90 Md.App. 204

600 A.2d 904

Steven McKAY v. STATE of Maryland.

No. 285, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 30, 1992.

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before FISCHER, DAVIS and MOTZ, JJ.

DAVIS, Judge.

The appellant, Steven McKay (McKay), appeals from his conviction in the Circuit Court for Baltimore City by a jury for the wounding of Michael Roth (Roth). The jury found McKay guilty of assault with intent to murder, use of a handgun in the commission of a crime of violence, and carrying a handgun. The trial judge sentenced McKay to a total of thirty-five years in prison.

FACTS

On March 13, 1990, Baltimore City police arrested McKay and charged him with the shooting of Roth, a 28-year-old trim carpenter from Annapolis. The shooting occurred the previous night during an altercation between Roth and McKay outside the Sugar Shack Bar in South Baltimore. Roth sustained wounds to his right hand, right chest, and back. The gunshot wound to his back left him paralyzed.

Following a two day trial, which ended January 24, 1991, McKay, who was twenty-three at the time of trial, was convicted of assault with intent to murder, carrying a handgun, and using a handgun in the commission of a crime of violence. On February 26, 1991, the court heard arguments on McKay's motion for a new trial. Defense counsel argued that the trial judge's refusal to give a jury instruction about a hot-blooded response to legally adequate provocation deprived her client of an "adequate defense, because he had one-third of his defense cut out from under him." McKay's motion was denied, and he was sentenced to thirty-five years in prison.

The shooting occurred shortly before midnight on March 12, 1990, on East Patapsco Avenue in the Brooklyn section of South Baltimore. A witness at the scene told police the gunman's name was Steven McKay; and later at the hospital, Roth identified McKay from police photographs. Police recovered a black nine-shot .22 caliber handgun ¹ from under a chair in the apartment where McKay was arrested the day after the shooting.

Two witnesses--Thomas Witte and Dana Schaech--testified that they saw McKay shoot Roth two times ² following an affray between the two combatants. Testifying as a prosecution witness, Witte, who knew neither McKay nor Roth, said he was standing across the street from the Sugar Shack when he saw McKay leave the bar, followed closely by Roth, who shouted, "I know who you are." Witte told the court that Roth then "jumped on [the defendant] and started fighting with him." Roth admitted on the stand that he threw the first punch. Roth testified that he followed McKay from the bar because he believed McKay had stolen his carpentry tools several months earlier. Testimony revealed that, during the ensuing fight, Roth, who stood 6'1" and weighed 185 pounds, was the larger of the two men and that McKay was "taking a beating." Witte testified that Roth pounded McKay's head several times into metal steps along the sidewalk, though Roth denied this on the stand. When the brawl had lasted several minutes, McKay then reached into the waist of his pants, drew his revolver, and fired at Roth. ³ McKay ran from the scene but was arrested the following afternoon as he hunkered behind a sofa at an apartment. Roth, who was paralyzed as a result of his wounds, underwent a hospital stay and months of rehabilitation.

On appeal, McKay challenges the trial judge's refusal to instruct the jury on the law of provocation. We believe the issues raised more precisely require us to answer the questions:

(1) What quantum of evidence is necessary to generate the issue of a hot-blooded response to legally adequate provocation requiring a jury instruction? and

(2) Is a defendant charged with assault with intent to murder precluded from asserting the defense that he acted in the heat of passion because he claims self-defense and his testimony indicated he acted out of fear?

We hold that, under the facts of this case, appellant was entitled to an instruction on a hot-blooded response to legally adequate provocation. We explain.

DISCUSSION

I Jury Instruction

The felony of assault with intent to murder is created by Maryland statute. Md.Ann.Code art. 27, § 12 (1957, 1987 Repl.Vol.). While the statute outlines the punishment, ⁴ the elements of the crime are defined by case law. In order to prove assault with intent to murder, the prosecution must prove that there was an assault and that it was done with the " 'specific intent to kill under circumstances such that, if the victim had died, the offense would be murder.' " Franklin v. State, 319 Md. 116, 125-26, 571 A.2d 1208 (1990), quoting State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986) (emphasis added). See Glenn v. State, 68 Md.App. 379, 511 A.2d 1110,cert. denied, 307 Md. 599, 516 A.2d 569 (1986). "In short, assault with intent to murder possesses all the elements of murder saving the death of the victim." R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure, § 3.5, at 50 (1983 & Supp.1988).

At trial, McKay's attorney contended that, under Maryland law, assault with intent to murder can be mitigated to simple assault upon a showing that the wounding was a hot-blooded response to legally adequate provocation, i.e., a battery. Defense counsel requested that the jury be given an instruction as to legally adequate provocation, which would have allowed the jury to consider returning a guilty verdict on simple assault, a lesser charge. McKay's attorney made the following request of the court:

The third ground of argument that the defense is entitled to, because it's been generated by the evidence, is that this was a fight that was provoked by the victim, and that the shooting happened in the heat of passion before there was an opportunity to cool. That also would reduce assault with intent to murder to assault. That's why I'm requesting the instructions on self-defense, imperfect self-defense, and legally adequate provocation tied into what--a mitigation which would take something down from murder to manslaughter. We're taking it down from assault with intent to murder to assault, that the shooting occurred in the course of a fight before there was an opportunity to cool off. It reduces it from assault with intent to murder to simple assault.

The following colloquy thereafter followed between counsel and the court:

THE COURT: I'm not sure you're correct here. I'm not saying you're incorrect, but it would seem to me when you're in an affray or defending yourself, or whatever you're doing, that to pull out a gun or a lethal weapon, and as an impulsive thing, particularly when you're starting out having it kind of legally [sic] in the first place gives me a little bit of trouble. I think if you're carrying a gun, you might be entitled to use it in--

[DEFENSE COUNSEL]: Well, Your Honor, the killing in a hot-blooded response is--

THE COURT: Well, I understand all about manslaughter where--

[DEFENSE COUNSEL]: Right, and there must be a provocation.

THE COURT: I'm not even sure if you shoot somebody--if you're carrying a gun unlawfully, of course, I don't see what defense you've got to that one, but if you're carrying a gun unlawfully and somebody attacks you and you react without thinking and you pull out your gun and shoot him dead, whether that makes it manslaughter, just because you didn't have time to come to your senses before you got your gun out--

[DEFENSE COUNSEL]: If it was because he called him a punk or something like that, I could agree, but when he's bashing his head into the side of the steps, I think we have legally adequate provocation and hot-blooded response.

THE COURT: This is a situation where the person who was defending himself or didn't provoke the fight or whatever was acting--

[DEFENSE COUNSEL]: In hot blood.

THE COURT:--In hot blood, and--and if your ability to kill is inspired by a hot-blooded situation which involves your ability to kill with a gun which you wouldn't ordinarily have, no matter how hot your blood became--

[DEFENSE COUNSEL]: It doesn't matter, Judge, the fact that he may be guilty of possessing a handgun has nothing at all, frankly, to do with whether he intended to kill Mr. Roth or not.

THE COURT: It does, because Mr. Roth--both of them would have walked away with something less than--

[DEFENSE COUNSEL]: That's your position. Our position is he would have been in shock trauma having drains put in his head to release the swelling on his brain, because he would have been [sic] continued to have his head beat into the steps.

THE COURT: But in any event, the presence of the gun guaranteed that somebody was going--

[DEFENSE COUNSEL]: Well, if you refuse to give me the provocation, I'll just accept [sic], Judge, preserve it for appeal.

THE COURT: I'm not talking about provocation, because who started the affray was (inaudible).

The lower court refused to give the instruction on adequate provocation because the defendant was carrying the weapon illegally when the shooting occurred. The above excerpt of the proceedings indicates that the trial judge was preoccupied with the notion that, but for possession of the firearm, the hot blood would not have so gravely manifested itself; the injury, hence, would have been less severe and "you wouldn't ordinarily have, no matter how hot your blood became ... both of them would have walked away with something less." ⁵ Our review of the record of the proceedings compels us to reach the conclusion that there was evidence from which the jury could have found appellant acted in the heat of passion.

In Whitehead v. State, 9 Md.App. 7, 10-11, 262 A.2d 316 (1970), we stated that...