Smith v. State

Decision Date26 January 1979
Docket NumberNo. 1408,1408
Citation398 A.2d 426,41 Md.App. 277
Parties, 18 A.L.R.4th 927 Homer James SMITH v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Alfred L. Scanlan, Jr., Assigned Public Defender, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donaldson C. Cole, Jr., State's Atty. for Cecil County on the brief, for appellee.

Argued before MOYLAN, MELVIN and COUCH, JJ.

MOYLAN, Judge.

This appeal turns upon a close examination of a single word the past participle "premeditated." It is a term of art which once had (and may or may not still have) legal significance. We will ask three independent questions about that significance, a negative answer to any one of which will be fatal to the appellant's present claim:

(1) Is the character of a murderous intent as "premeditated" a necessary element of the crime itself or is it simply, for purposes of grading punishment, an aggravating factor of a crime otherwise defined ?;

(2) Does the participle "premeditated" carry any unique, non-redundant content not conveyed, by necessary implication, by either of its statutory adjectival companions "wilful" and "deliberate" or by the two of them combined ?;

(3) Does "premeditated," standing alone, still convey any meaning at all or has it gone the way of its common law ancestor "aforethought" and been drained of all present content ?

The appellant, Homer James Smith, was convicted by a Cecil County jury, presided over by Judge H. Kenneth Mackey, of murder in the first degree. He attacks both the sufficiency of the indictment and the sufficiency of the evidence. The latter contention will not long detain us.

I. The Legal Sufficiency of the Evidence to Prove First-Degree Murder

At approximately 11 p. m. on February 25, 1977, Thomas Cifaldo was fatally struck by shotgun pellets fired from the gun then held by the appellant. Although there was conflicting testimony as to the circumstances leading up to the shooting, that version most favorable to the State was enough to support the theory that the appellant had been with the victim, theretofore his friend, in the Royal Bar; that the appellant was perturbed by a discussion about a divorce between him and his wife; that the victim had kidded the appellant about being so ugly that his wife could not be blamed for divorcing him; that the appellant had made obscene comments to the deceased; that the appellant left the bar and went to a nearby home where he procured the shotgun; and that the appellant shot the victim immediately upon his return to the bar. It was within the jury's prerogative to disbelieve the appellant's story that the gun had gone off accidentally.

From all of the above, the jury could legitimately have concluded that the appellant was insulted by the victim an hour or two before the ultimate killing, that the grievance festered over the course of that hour or two, that the appellant went and procured the murder weapon with the fully formed design to kill his tormentor and that he subsequently executed his murderous purpose "wilfully," "deliberately" and with "premeditation."

Such an amplitude of evidence and of permitted inferences therefrom may have been necessary to persuade the jury beyond a reasonable doubt that the appellant was guilty of murder in the first degree. It was a "gilding of the lily," however, when we apply the very different measurement called legal sufficiency. Here we are concerned with that rock-bottom minimum of evidence necessary to establish a mere Prima facie case to enable the State to avoid the peril of a judgment of acquittal to permit the evidence to go to the jury for such weight as they, in their unfettered prerogative, may choose to give it. We are concerned not with how much evidence Will persuade the jury but with how much evidence, as a matter of law, Could persuade the jury. We ask only whether there is some competent evidence which could establish each element that must be proved. Williams v. State 5 Md.App. 450, 459, 247 A.2d 731; Metz v. State, 9 Md.App. 15, 23, 262 A.2d 331.

To establish murder it is initially necessary to establish homicide the killing of one human being by another. The evidence was not disputed that Thomas Cifaldo died on February 25, 1977, as a direct result of being blasted with a shotgun. It was not disputed that the appellant was the homicidal agent who was holding the shotgun at the time it went off.

To raise the homicide to the level of felonious homicide (murder or manslaughter) it is necessary to establish that the defendant intentionally did the act that resulted in the death and that he did so without justification or excuse. With respect to non-justification, the State in this case was entitled to rely upon the Thayer-Wigmore presumption that the homicide was not justified. The risk is upon the defendant of not producing legally sufficient evidence of justification to dissipate this presumption and to generate a genuine jury issue in this regard (unless, of course, the State's evidence itself accomplishes such "bubble-bursting" dissipation). Mullaney v. Wilbur, 421 U.S. 684, 701-704, 95 S.Ct. 1881, 1890-1892, 44 L.Ed.2d 508, 521-522 (1975); State v. Evans, 278 Md. 197, 207-208, 362 A.2d 629, 635-636 (1976); Evans v. State, 28 Md.App. 640, 722-727, 730, 349 A.2d 300, 350-352, 354 (1975). In this case, this hazard of not producing some evidence proved fatal and non-justification was therefore established as a matter of law. This was also true with respect to all varieties of excusable homicide, save only that of accident (or as the older texts referred to it, misadventure). The appellant himself testified that the shotgun went off accidentally. This dissipated the presumption of non-excuse of this particular variety and imposed upon the State the burden of proving non-accident beyond a reasonable doubt. The jury, however, was entitled to disbelieve such defense testimony. From the killing itself and from the disbelief of the evidence of accident, the jury was permitted to infer that the killing was non-accidental and, thereby, non-excusable. Gilbert v. State, 36 Md.App. 196, 373 A.2d 311 (1977).

When it comes to the intentional quality of the homicidal act, we are dealing with an affirmative element and not a negative one. The State here does not enjoy the benefit of a Thayer-Wigmore presumption but must prove the intent as it must prove all other elements of the crime. There are four varieties of intent which may establish felonious homicide 1) the specific intent to kill, 2) the specific intent to inflict grievous bodily harm, 3) the general intent to do the death-producing act in the course of the commission, or attempted commission, of a felony, (This intent applies to murder alone. Its mitigated, manslaughter-establishing equivalent is the general intent to do the death-producing act in the course of the commission, or attempted commission, of a misdemeanor or other unlawful act.) and 4) the general intent to do a life-endangering act with reckless and wanton disregard of the consequences. (This latter intent applies to murder alone. Its mitigated, manslaughter-establishing equivalent is the general intent to do the death-producing act in a grossly, criminally negligent manner.)

In this particular case, the variety of intent we are dealing with is the specific intent to kill. In this regard, we have evidence that the appellant fired a sawed-off shotgun at point-blank range into the chest of the victim. This represents, quite clearly, the directing of a dangerous and deadly weapon at a vital part of the human anatomy. It is well established that this gives rise to a permitted inference of the intent to kill. As we said in Evans v. State, at 28 Md.App. 640, 704, 349 A.2d 300, 339-340:

"The only inference of any significance in our homicide law is the permitted inference of an intent to kill or of an intent to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy or from some similar use of deadly force. The earlier case law sometimes spoke of the use of a deadly weapon as giving rise to a 'presumption of malice.' In Lindsay v. State, supra (8 Md.App. 100, 258 A.2d 760), however, Chief Judge Orth stole a march on Mullaney v. Wilbur and strove mightily to refine the appellate vocabulary of Maryland and to bring it into the 20th century. He meticulously explained that we do not 'presume' anything from the use of deadly force; we are only permitted (but not required) to draw inferences from such use of deadly force. He further pointed out that this permitted inference of fact passes full constitutional muster under Leary v. United States, supra (395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57). We reaffirm and add that it thereby also passes constitutional muster according to Mullaney v. Wilbur and Winship."

See also Lindsay v. State, 8 Md.App. 100, 104, 105-109, 258 A.2d 760 (1969); Thompson v. State, 38 Md.App. 499, 504, 381 A.2d 704, 706-707 (1978).

Thus, from 1) the evidence of homicide, 2) the evidence of the appellant's homicidal agency, 3) the presumption of non-justification, 4) the presumption of non-excuse other than accident, 5) the permitted inference of non-accident and 6) the permitted inference of the intent to kill, the evidence was legally sufficient to establish felonious homicide. To pin such felonious homicide at the murder level rather than the manslaughter level, it was necessary to establish that the felonious homicide was not mitigated. Bartram v. State, 33 Md.App. 115, 176-177 n. 7, 364 A.2d 1119, 1154 n. 7 (1976); Whitehead v. State, 9 Md.App. 7, 10-11, 262 A.2d 316 (1970). In this regard, the State again had the benefit of a Thayer-Wigmore presumption. "Absent some legally sufficient indication to the contrary, the homicide will be presumed...

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