Newborn v. State

• Citation: 29 Md.App. 85,349 A.2d 407
• Decision Date: 28 November 1975
• Docket Number: No. 249,249
• Parties: Robert NEWBORN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 85

29 Md.App. 85

349 A.2d 407

Robert NEWBORN v. STATE of Maryland.

No. 249.

Court of Special Appeals of Maryland.

Nov. 28, 1975.

William H. Murphy, Jr., Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City, Dana M. Levitz and Robert Lynott, Asst. State's Attys. for Baltimore City, on the brief, for appellee.

Argued before MOYLAN, POWERS and LOWE, JJ.

MOYLAN, Judge.

In yet another variation of the arguable impact of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), this case raises the question of the method by which a fair jury question is generated. The appellant, Robert Newborn, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge David Ross, of murder in the second degree. He does not question the legal sufficiency of the evidence to establish his guilt. He contends rather:

1) that an erroneous jury instruction, in the light of Mullaney v. Wilbur, was given, unconstitutionally imposing upon him the burden of showing such mitigation as would reduce the crime from murder to manslaughter;

2) that oral statements given by him, visual observations made of him and a physical examination of his hands were all unconstitutionally obtained fruits of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and

3) that the trial judge erroneously refused to permit him to reopen his case for purposes of attempting to obtain the presence and testimony of an additional defense witness.

The Mullaney v. Wilbur Problem

There is no question but that the jury instruction dealing with the presumption of malice and placing the burden upon the appellant to negate malice was academically incorrect in the light of Mullaney v. Wilbur, as analyzed and explained in terms of its effect upon Maryland law in Evans v. State, 28 Md.App. 640, 349 A.2d 300 (filed on November 25, 1975). The initial instruction to the jury was, in pertinent part:

'Malice is the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful acts done wilfully and purposely. In the absence of justification, excuse, or some circumstance of mitigation the law presumes all homicides, that is all killings of other human beings, to be committed with malice and to constitute murder in the second degree. ¹ The burden is on the State to prove the element of deliberation and premeditation, which would elevate the offense to murder in the second degree. And the burden is on the Defendant to show some circumstance of mitigation, excuse, or justification which would reduce the offense to manslaughter or not guilty.' (Emphasis supplied)

Following a brief bench conference and just before the jury retired to deliberate, the following reinstruction was given:

'Members of the jury, counsel have suggested that I inadvertently misread or misstated a portion of the instructions. So that there will be no doubt or question about it, I will reread to you that portion. It is as follows: In the absence of justification, excuse or some circumstance of mitigation, the law presumes all homicides to be committed with malice and to constitute murder in the second degree. The burden is on the State to prove the elements of deliberation and premeditation which would raise the homicide to murder in the first degree. The burden is on the Defendant to show circumstances of mitigation, excuse or justification which will reduce the offense to manslaughter or not guilty.' (Emphasis supplied)

As we analyzed fully in Part IIG of Evans, such an instruction, purporting to place a burden upon the defendant to prove such justification or excuse as would relieve him of guilt or such mitigation as would lower his degree of guilt is unconstitutional under Mullaney v. Wilbur. Such an instruction, given in circumstances where it might have operational effect, would relieve the State of its responsibility of proving every element of a crime beyond a reasonable doubt, thereby offending the Due Process Clause as interpreted by In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375 (1970), the predicate case on which Mullaney v. Wilbur rested.

As we further pointed out in Evans (Part IF and Part IIH), however, even an erroneous instruction is immaterial unless it deals with an issue fairly generated in the case. Brown v. State, 29 Md.App. 1, 349 A.2d 359 (filed on November 26, 1975), and Burko v. State, 28 Md.App. --, 349 A.2d 355 (filed on November 26, 1975).

In the present case, the evidence revealed that Harriett Watkins, an elderly woman who had been the girlfriend of the appellant, was found dead at 7 a. m. on February 1, 1974 by a city trash collector in the rear of 1818 W. Mulberry Street in Baltimore. Through a number of witnesses, whose testimony need not be here detailed, a legally sufficient web of guilt was woven about the appellant. Nothing in the State's case served to generate any legitimate question of justification, excuse or mitigation. The appellant took the stand and flatly denied his homicidal agency. None of the evidence, from either the State or the defense, served to generate a fair jury question on any of the issues of justification, excuse or mitigation.

In argument before us appellant's counsel candidly acknowledges as much. He seeks, however, innovatively to establish that the issue at least of such mitigation as would lower the level of guilt to manslaughter was generated by the opening statement and closing argument of the Assistant State's Attorney. In opening statement, the Assistant State's Attorney told the jury about the presumption that unlawful killing is murder in the second degree in essentially the same terms as the judge did later in his jury instructions. The Assistant State's Attorney also said to the jury, 'The second issue for you to decide and probaby one that is going to cause you a little bit more problems, and I will tell you now, is what crime was committed?' In closing argument, the Assistant State's Attorney returned to the same theme, 'The second issue is the one I said you are going to have a little bit more problems with. And that is, what was the crime that was committed?'

We simply cannot buy the appellant's argument that a gratuitous reference to manslaughter, unsupported by any evidence, made by the prosecutor has any more significance than a gratuitous reference in that regard made by the judge. Based upon our reading of both Mullaney v. Wilbur and the general state of the underlying law, both in Maryland and throughout the common law world, we indicated in Evans (Part IIH) that a fair jury question can only be generated by evidence and not by pleadings, courtroom allegations or arguments unsupported by evidence. We there said 'We are persuaded that nothing in Mullaney v. Wilbur adversely affects in any way the status of presumptions in this limited function of requiring that there be produced sufficient evidence to generate a jury issue. The holding of Mullaney v. Wilbur was very careful to add a qualifying clause, 421 U.S. at 704, at 95 S.Ct. 1892, at 44 L.Ed.2d 522:

'We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.' (Emphasis supplied)

Mullaney v. Wilbur went on very explicitly, at 421 U.S. 701-702, at 95 S.Ct. 1891, at 44 L.Ed.2d 521, n. 28:

'Many States do require the defendant to show that there is 'some evidence' indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt . . . Nothing in this oinion is intended to affect that requirement.' (Emphasis supplied).

Mullaney v. Wilbur went on, 421 U.S. at 703, 95 S.Ct. at 1891, 44 L.Ed.2d at 522, n. 31, to explain that constitutionally proper presumptions simply shift to a defendant the burden of producing evidence or of relying at his risk, upon the evidence produced by the State) and not the burden of ultimate persuasion . . .' (Emphasis supplied)

In Evans, we quoted with approval from LaFave and Scott, Criminal Law (1972), at 47:

'As to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense-e. g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative defenses-unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a defense, in which case the matter of defense is properly an issue though the defendant himself produces nothing further to support it.' (Emphasis supplied)

To generate a fair jury question on a number of issues, the law of Maryland has always required the production of evidence. Bateman v. State, 10 Md.App. 630, 272 A.2d 64; Mock v. State, 2 Md.App. 771, 237 A.2d 811 (requiring that evidence of intoxication be produced to generate a jury question in that regard); Bremer v. State, 18 Md.App. 291, 315-316, 307 A.2d 503; Dennis v. State, 13 Md.App. 564, 569, 284 A.2d 256; Strawderman v. State, 4 Md.App. 689, 698, 244 A.2d 888 (requiring that evidence of insanity be produced to generate a jury question in that regard); Street v. State, 26 Md.App. 336, 338-341, 338 A.2d 72 (requiring that evidence of self-defense be produced to generate a jury question in that regard); and Fisher v. State, 28 Md.App. 243, 345 A.2d 110 (requiring that evidence of entrapment be produced to generate a jury question in that regard).

Throughout Part IF and Part IIH of Evans, the parts of that opinion here pertinent, we spoke consistently of the requirement that a legitimate jury issue...