State v. Evans

• Decision Date: 15 July 1976
• Docket Number: No. 173,173
• Citation: 278 Md. 197,362 A.2d 629
• Parties: STATE of Maryland v. Edward EVANS.
• Court: Maryland Court of Appeals

Page 197

278 Md. 197

362 A.2d 629

STATE of Maryland v. Edward EVANS.

No. 173.

Court of Appeals of Maryland.

July 15, 1976.

Clarence W. Sharp and Alexander I. Cummings, Asst. Attys. Gen. (Francis B. Burch, Atty. Gen., and Deborah K. Handel, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Alan H. Murrell, Public Defender, and Victoria A. Salner, Asst. Public Defender (Dennis M. Henderson, Asst. Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

MURPHY, Chief Judge.

Appellant Evans was charged with murdering Alonzo Counts by stabbing him to death on June 20, 1974. ¹ Testimony adduced at the trial before a jury established a pattern of angry and violent confrontations between Evans and Counts during the hours immediately preceding the homicide; the confrontations were broken by brief periods when the two men were out of contact with one another. There was evidence from which the jury could have concluded that Evans stabbed Counts without justification, excuse or legally adequate provocation. There was also evidence from which the jury could have concluded that Evans stabbed Counts in self-defense or in hot blood in the course of mutual combat.

The court instructed the jury that the burden of proof was upon the State 'to prove every element of the crimes charged'; it said that Evans was 'presumed innocent until proven guilty beyond a reasonable doubt.' The court defined murder in the first and second degrees and manslaughter; it said that the essential distinction between murder and manslaughter was the presence or absence of malice. The court defined malice as 'the intentional doing of a wrongful or illegal act to another without legal excuse or justification.' It instructed the jury that where the evidence proves beyond a reasonable doubt that the killing was done with malice, murder in the second degree had been proved. The court said that '(u)pon proof by the State of murder, without anything else, the presumption is that it is murder in the second degree.' The court instructed the jury that the State carried the burden of establishing the elements of willfulness, deliberation and premeditation in order to 'raise the degree to murder in the first degree,' but that the accused had the burden of 'showing the elements which would reduce the crime to manslaughter or which would make the homicide justifiable and excusable.' The court instructed the jury that the use of a deadly weapon 'directed at a vital part of the body gives rise to the presumption that malice existed.' It qualified that instruction by thereafter stating that '(i)n the absence of justification, excuse or some circumstance of mitigation,' malice could be inferred 'where there is an intent to inflict great bodily harm or where one does the act, the natural tendency of which is to cause death or great bodily harm.' The court followed this instruction with the further statement that '(s)ince malice can be inferred from the act of directing a deadly weapon at a vital part of the body, the State was required to show nothing more to present a jury question as to murder in the second degree.' The court then fully instructed the jury on the law of self-defense; it said that the accused was entitled to acquittal if he established, by a preponderance of the evidence, that the killing was committed in self-defense.

Evans did not except to the court's instructions. The jury found him guilty of murder in the second degree and he was sentenced to 10 years' imprisonment.

Evans appealed to the Court of Special Appeals, claiming that the jury instructions were defective, confusing, and misleading and, as such, constituted reversible error. While his appeal was pending, the Supreme Court, on June 9, 1975, decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). It held that a Maine jury instruction which required a defendant charged with murder to prove, by a preponderance of the evidence, that he acted 'in the heat of passion on sudden provocation' in order to reduce the homicide to manslaughter violated the rule of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that the due process clause of the fourteenth amendment requires the prosecution, to prove beyond a reasonable doubt, 'every fact necessary to constitute the crime' with which a defendant is charged. 397 U.S. at 364, 90 S.Ct. at 1073. Relying upon Mullaney, Evans contended that since provocation was an issue in his case, the jury instructions were constitutionally defective in stating that he had the burden of showing the elements which would reduce the crime to manslaughter; in stating that the use of a deadly weapon directed at a vital part of the body gives rise to the presumption that malice existed; and in saying that the State was required to show nothing more to present a jury question as to murder in the second degree. Evans contended that under Mullaney the jury should have been told that it could not presume malice if it found the existence of mitigating circumstances; that it could not find him guilty of murder unless it was satisfied beyond a reasonable doubt that mitigating circumstances did not exist; and that there was no burden on his part to reduce the crime to manslaughter.

The Court of Special Appeals, in a scholarly opinion by Judge Charles E. Moylan, Jr., in Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), held that the court's jury instructions violated the constitutional principles articulated in Mullaney. Although Evans did not except to the jury instructions, the Court of Special Appeals considered that 'plain error' had been committed and agreed to consider the issues raised by Evans on the merits. See Maryland Rule 756 g.

The Court of Special Appeals carefully analyzed the Mullaney decision. It noted that Wilbur, the defendant, had been charged with murder in a state court in Maine. He claimed that he killed the victim in a frenzy provoked by the latter's homosexual advances. He contended that at most the homicide was manslaughter since it occurred in the heat of passion provoked by the homosexual assault. The trial court instructed the jury that under the law of Maine, an unlawful killing of a human being with malice aforethought constituted murder, while an unlawful killing in the heat of passion, on sudden provocation, without malice, constituted manslaughter. The court said that malice was an essential and indispensable element of the crime of murder, without which the crime would be manslaughter. It told the jury that the common elements of murder and manslaughter were that the homicide be unlawful, i. e., neither justifiable nor excusable, and that it be intentional; that the prosecution was required to prove these elements beyond a reasonable doubt; and only if they were so proved was the jury to consider the distinction between murder and manslaughter. The court further instructed the jury that 'if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.' 421 U.S. at 686, 95 S.Ct. at 1883. The court emphasized that malice aforethought and heat of passion on sudden provocation were inconsistent things; that by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter.

The jury found Wilbur guilty of murder. On appeal, he argued that he had been denied due process of law because he was required to negate the element of malice by proving that he had acted in the heat of passion on sudden provocation. He claimed that under Maine law malice aforethought was not only an essential element of murder, but was the sole element distinguishing murder from manslaughter. He maintained that Winship required that the prosecution prove that element beyond a reasonable doubt, and that by permitting the jury to presume non-mitigation, the prosecution had been relieved of its burden under Winship to prove the existence of malice beyond a reasonable doubt. The Maine Supreme Court disagreed; it held that murder and manslaughter were not distinct crimes but rather different degrees of a single generic offense of felonious homicide. It said that the prosecution could constitutionally rest on a presumption of implied malice aforethought and require the defendant to prove that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. See State v. Wilbur, 278 A.2d 139 (Me.1971).

In holding unconstitutional that part of the Maine law that required the defendant to establish, by a preponderance of the evidence, that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter, the Supreme Court said:

'The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder-i. e., by life imprisonment-unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter-i. e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years.' 421 U.S. at 691, 95 S.Ct. at 1886.

The Supreme Court then traced the development of the law relating to homicide for several centuries; noting that in the last fifty years the large majority of the states have required the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt, it said:

'This historical review establishes two important points. First, the fact at issue here-the presence or absence of the heat of passion on sudden provocation-has...