Shuck v. State

• Citation: 349 A.2d 378,29 Md.App. 33
• Decision Date: 26 November 1975
• Docket Number: No. 226,226
• Parties: Mark A. SHUCK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 33

29 Md.App. 33

349 A.2d 378

Mark A. SHUCK v. STATE of Maryland.

No. 226.

Court of Special Appeals of Maryland.

Nov. 26, 1975.

Selig Solomon, Assigned Public Defender, Annapolis, with whom were Alan W. Bernstein, and Goldstein, Solomon & Bernstein, Annapolis, on the brief, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Warren B. Duckett, Jr., State's Atty., for Anne Arundel County, and Gerald Anders, Asst. State's Atty., for Anne Arundel County, on the brief, for appellee.

Argued before MOYLAN, POWERS and LOWE, JJ.

MOYLAN, Judge.

The appellant, Mark A. Shuck, was convicted in the Circuit Court for Anne Arundel County by a jury, a presided over by Judge Matthew S. Evans, of both murder in the second degree and assault with intent to murder. Upon this appeal, he raises four contentions:

1) That the evidence was not legally sufficient to submit the charge of second-degree murder to the jury;

2) That the evidence was not legally sufficient to submit the charge of assault with intent to murder to the jury;

3) That an erroneous jury instruction was given on the use of a deadly weapon; and 4) That a jury instruction to the effect that malice may be presumed and that the burden was upon the appellant to show such mitigation as would reduce the crime to manslaughter denied him due process under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

With respect to the appellant's first contention, the evidence was legally sufficient to sustain the verdict of murder in the second degree. There was ample evidence from which the jury could have concluded that when the appellant struck and killed one Buddy Voelker with a baseball bat, he did so with either an intent to kill or an intent to do grievous bodily harm, he did so without legal justification or excuse and he did so without any circumstance of mitigation. Similarly, with respect to the appellant's second contention, the evidence was legally sufficient to sustain the verdict of assault with intent to murder George Parker, under circumstances where the appellant also hit Parker with the same baseball bat. The factual versions of what occurred in the confused and angry medley that took place on the morning of June 29, 1974, varied significantly in terms of who was the aggressor at various stages of the fight, who entered into the fight mutually and wilfully and who was simply defending in an effort to extricate himself from a difficult situation. In judging the legal sufficiency of the evidence, we have taken that version of the facts most favorable to the State. In dealing hereinafter with the appellant's fourth contention, however, we must reverse the slant and take the version of the facts most favorable to the appellant.

Before moving on to that fourth contention, however, we will point out that with respect to the third contention-the allegedly erroneous instruction on the use of a deadly weapon-that no objection was made below and the point is not preserved for appellate review. Maryland Rule 756 g. The point is, moreover, rendered moot by our judgment that the convictions must, in any event, be reversed because of the fourth contention, to which we now turn our consideration.

The court gave the following instruction:

'The law presumes that in the absence of justification or excuse or some other circumstances of mitigation all homicides are committed with malice and thereby constitute murder in the second degree. In other words, the presumption of homicide is that it is murder in the second degree and that the State must prove or have the burden of proving that the murder was actually murder in the first degree, and once the State has proved an unlawful homicide to have been committed by the accused, however, the burden rests upon the defendant not to satisfy you beyond a reasonable doubt but to a fair preponderance of the evidence that the killing happened under circumstances to reduce the homicide to manslaughter.'

We note initially that Mullaney v. Wilbur applies in this case to the instruction on assault with intent to murder just as surely as it applies to the instruction dealing with the murder charge itself. Since a necessary element of assault with intent to murder is the malicious state of mind such as would constitute murder if the assault victim had died, an instruction on the elements of murder, on irrelevant defenses to murder and on the burdens with respect thereto was called for. Under a fair reading of the broad principle enunciated in Mullaney v. Wilbur (see Part IIB of Evans v. State, 28 Md.App. 640, 349 A.2d 300 (filed on November 25, 1975)), a constitutional allocation of the burden of persuasion in an assault with intent to murder case is mandated just as surely as is a constitutional allocation of the burden of persuasion in a felonious homicide case.

There can be no doubt but that the jury instruction in this case, presuming malice and placing the burden upon the appellant to prove by a fair preponderance of the evidence that the killing was accompanied by such mitigating circumstances as would reduce the crime to manslaughter, was unconstitutional under Mullaney v. Wilbur; Evans v. State, Part IIG. In the assault with intent to murder case moreover, an improper instruction on the burden of proof with respect to mitigation might well mark the difference not simply between one degree of felonious homicide (second-degree murder) and another (manslaughter) but between guilt and total exculpation. As we further analyzed in Part IF and Part IIH of Evans v. State, however, an erroneous allocation of the burden of proof with respect to a particular defense will be deemed immaterial unless the evidence has generated a genuine jury issue with respect to that defense.

We now turn our attention, therefore, to the question of whether any issue of justification, excuse or mitigation was generated by the evidence. The lethal attack upon Voelker and the non-lethal attack upon Parker were so essentially contemporaneous and inseparable in terms of purpose that both convictions will stand or fall together as we proceed with our analysis.

We note initially, even taking that version of the facts most favorable to the appellant, that the evidence did not generate a genuine jury issue with respect to such self-defense as might totally justify or excuse the appellant's actions. Even granting that the appellant and his companion were mere victims rather than mutual combatants, the brawl or scuffle which was taking place was non-deadly in character. All four persons involved were in some state of inebriation. There had been angry words. The appellant and his companion were goodsized and healthy men who were by no means outclassed physically. There had been several blows struck with fists and the appellant's companion had been wrestled to the ground. It was at this point that the appellant himself escalated the combat to the deadly level by going to his companion's automobile, taking out a baseball bat and introducing that weapon into the fray. Even granting for the moment all other aspects of self-defense, the law is clear that 'Deadly force is not privileged in defense against nondeadly force.' Perkins, Criminal Law (2d Ed., 1969), p. 996. LaFave and Scott, Criminal Law (1972), makes the same point, at pp. 392-393:

'The law of self-defense (and of defense of others) makes a distinction between 'deadly' force and 'nondeadly' (or 'moderate') force, holding that there are situations wherein it is reasonable to use nondeadly force but not to use deadly force. . . .

In determining how much force one may use in self-defense, the law recognizes that the amount of force which he may justifiably use must be reasonably related to the threatened harm which he seeks to avoid. One may justifiably use nondeadly force against another in self-defense if he reasonably believes that the other is about to inflict unlawful bodily harm (it need not be death or serious bodily harm) upon him (and also believes that it is necessary to use such force to prevent it). That is, under such circumstances he is not guilty of assault (if he merely threatens to use the non-deadly force or if he aims that force at the other but misses) or battery (if he injures the other by use of that force). He may justifiably use deadly force against the other in self-defense, however, only if he reasonably believes that the other is about to inflict unlawful death or serious bodily harm upon him (and also that it is necessary to use deadly force to prevent it).'

It may be said as a matter of law that no issue of justification or excuse was generated by the evidence in this case. Such is not the situation, however, with the issue of mitigation. Again taking that version of the facts most favorable to the appellant, the evidence did fairly generate the issue of mitigation in two separate forms.

Hot-Blooded Response to the Provocation of Mutual Combat

From the evidence, the jury could fairly deduce the following picture. The appellant and his companion, John Jackman, were two young men and co-workers who had been visiting a bar and a party and consuming a number of beers from the early evening of June 28 through approximately midnight. At shortly after midnight, Jackman was driving his Corvette sports car. The appellant was a passenger in the car and they were both returning to a bar to pick up the appellant's girlfriend, who worked there. As they stopped for a light, a GTO sports car pulled up beside them. When the light turned green, the GTO pulled off suddenly, spinning its wheels and throwing up gravel. Interpreting this as an invitation to a race, Jackman and the appellant took off in pursuit. It was at that point that George...