Shell v. State

Decision Date01 September 1985
Docket NumberNo. 17,17
Citation512 A.2d 358,307 Md. 46
PartiesJames Robert SHELL, v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Nancy S. Forster and Julia Doyle Bernhardt, Asst. Public Defenders (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.



This appeal concerns inconsistent verdicts in a nonjury criminal trial resulting in part from confusion in the law as to the relevance of voluntary intoxication to various criminal charges. James Robert Shell contends that he should not have been convicted by the trial judge of use of a handgun in the commission of a felony or crime of violence after he had been acquitted by the judge, because of voluntary intoxication, of the underlying felony or crime of violence. He also maintains that the finding of intoxication refuted the criminal states of mind which are elements of the crimes of wilfully and maliciously destroying the property of another and knowingly transporting a handgun.


According to the evidence introduced at his trial, on the evening of February 14, 1983, Mr. Shell set in motion the events leading to this appeal, having earlier ingested P.C.P. and other drugs as well. At about 5:30 that evening Shell was in his van stuck in the snow near his home in the Aspen Hill section of Montgomery County. Gregory DaPron, a stranger to Shell, saw the van and approached on foot to offer help. Shell told him to stay away and pointed a handgun at him. Mr. DaPron started to run, but Shell fired at him through the windshield twice, injuring Mr. DaPron with both bullets. The police later found the handgun between the front seats of the van.

About half an hour after shooting Mr. DaPron, Shell went to the door of Ernest and Fleta Wombacher in Silver Spring. Mrs. Wombacher answered the door. Shell forced his way in, demanding to use a telephone. Mrs. Wombacher ran upstairs screaming for her husband, followed by Shell. When Shell repeated his demand for a telephone Mr. Wombacher handed him a cordless telephone. Shell said: "That's no telephone; that's a radio." He snapped the antenna, dropped the telephone to the floor, and crushed it underfoot. According to Mrs. Wombacher,

"my husband said to him, 'Why do you act like that, we're Christian people and we don't fight.' He said, 'I don't believe it.' And so my husband--he said, 'If you show me a Bible I would believe it.' So my husband showed him about three of them and showed him a certificate framing on the wall where my husband was ordained in 1950."

Shell "seemed to soften up a little bit" and pulled out his own Bible.

Thereafter the Wombachers were able to coax Shell downstairs, where he unsuccessfully attempted to use a wall phone in the kitchen, and then into their car for a ride to a nearby hospital. In the car the Wombachers kept up a disjointed conversation "on things that we thought would soften him up," such as their respective faiths, "the confusions of the world," and Shell's mother in South Carolina.

At the hospital emergency desk Mrs. Wombacher spoke for Shell. The woman at the desk reached for her telephone. At this point, according to Mrs. Wombacher,

"when she reached for the phone, he seemed to have a terrible feeling about phones. He grabbed the phones and just tore them out of the wall. And then the security came."

The hospital security guards restrained Shell and placed him in a strait jacket. A search for identification papers disclosed foil packets with traces of P.C.P. in Shell's pocket.

Shell was indicted in the Circuit Court for Montgomery County on charges of attempted murder of Mr. DaPron in the first and second degrees, unlawful shooting of DaPron with intent to maim, use of a handgun in the commission of a crime of violence, knowingly transporting a handgun, breaking and entering the dwelling of another, assault upon Mrs. Wombacher, two counts of malicious destruction of property, and two counts of possession of controlled dangerous substances. The assault count was later nol prossed.

After a nonjury trial, at which the principal issue was the defendant's state of mind, the trial court "declined to find the Defendant not guilty by reason of insanity." 1 The court acquitted Shell of attempted first degree murder, convicted him of the drug possession charges, and took the remaining charges under advisement.

The trial court disposed of the remaining charges in a written opinion and order filed on November 20, 1983. First, citing State v. Gover, 267 Md. 602, 298 A.2d 378 (1973), the court found that on February 14, 1983, Shell had become so intoxicated that he possessed no reason or understanding, and thus could not form the requisite mens rea for attempted murder in the second degree of Gregory DaPron. The trial judge stated:

"The testimony proffered by both the State and the defense indicates that the Defendant was suffering from a mental incapacity and psychosis and that his drug intoxication prevented him from understanding the criminality of his conduct. The State's psychiatrist further testified that Mr. Shell's psychosis was similar to that of a paranoid schizophrenic as far as the symptoms were concerned; ... but that his condition was not a fixed or permanent psychosis."

Accordingly, the judge ruled that Shell lacked the intent required for a conviction of attempted murder in the second degree.

Next, addressing the charge of unlawful shooting with intent to maim, the trial court held that voluntary intoxication could negate the element of intent to maim. The court, however, pointing out that simple assault was a lesser included offense of shooting with intent to maim, and holding that voluntary intoxication was not relevant to the elements of simple assault, convicted the defendant of assaulting Mr. DaPron. In this Court, Shell does not contest the assault conviction. 2

Turning to the handgun charges, the trial judge decided that she could convict Shell of use of a handgun in the commission of a felony or a crime of violence, even though she had acquitted him of the predicate felony or crime of violence. She found that Shell was guilty of using a handgun in the commission of a felony against Mr. DaPron, despite the fact that Shell was not guilty of the felony because of his intoxication. The judge was of the view that the offense of use of a handgun in a felony or crime of violence lacked elements which could be negated by voluntary intoxication. The trial judge also found the defendant guilty of knowingly transporting a handgun, ruling that voluntary intoxication cannot negate any elements of that offense.

Finally, the trial judge determined that voluntary intoxication was immaterial to the elements of breaking and entering the dwelling house of another and willfully and maliciously destroying the property of another. The defendant accepts his breaking and entering conviction but contests the destruction of property convictions on the ground that his voluntary intoxication negated the elements signified by the words "wilfully and maliciously."

The Court of Special Appeals, in an unreported opinion, affirmed. We granted the defendant's petition for a writ of certiorari to determine whether, in this nonjury trial, acquittal of the predicate felony or crime of violence required acquittal of use of a handgun in the commission of the felony or crime of violence, and to determine whether evidence of voluntary intoxication can negate the "knowing" element of transporting a handgun and the mens rea elements of wilfully and maliciously destroying the property of another. 3


The State contends that Ford v. State, 274 Md. 546, 337 A.2d 81 (1975), and other cases, support the view that an accused may be convicted in a nonjury trial of the handgun offense under Art. 27, § 36B(d), even if the judge finds that the defendant did not commit the felony or crime of violence. 4 We disagree.

The defendant in Ford was tried before a jury. The jury was instructed to deliver verdicts on charges of robbery with a deadly weapon, robbery, assault and use of a handgun in the commission of a felony, and it acquitted Ford of all but the last charge. In affirming the handgun conviction, this Court stated as follows (274 Md. at 550-551, 337 A.2d 81):

"[S]ection 36B(d) requires the trier of fact to determine beyond a reasonable doubt, from the evidence, that the accused used a handgun during the commission of either a felony or a crime of violence as a prerequisite to being convicted of unlawfully using a handgun in the commission of either."

Consequently, commission of a felony or crime of violence is an essential ingredient of the § 36B(d) handgun offense. It is an element of the crime. If the jury determines that the accused did not commit a felony or crime of violence but is guilty of use of a handgun in the commission of such felony or crime of violence, the jury has obviously rendered inconsistent verdicts. The Ford opinion, while recognizing that the verdicts were inconsistent, upheld the conviction because of the many cases in this Court which had "repudiated the assertion that jury verdicts must be consistent...." ( Ford, supra, 274 Md. at 552, 337 A.2d 81, emphasis added).

Later, in Mack v. State, 300 Md. 583, 479 A.2d 1344 (1984), we reviewed the Ford case as follows (300 Md. at 593-594, 479 A.2d 1344):

"Thus, this Court established ... [in Ford ] that in order to convict an accused of use of a handgun in the commission of a crime of violence it is necessary that the trier of fact find beyond a reasonable doubt that the accused committed a crime of violence. In essence, this Court recognized that when an accused is charged in a multicount indictment with the commission of a crime of violence and use of a handgun in the commission...

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