Tripp v. State

• Decision Date: 13 June 1977
• Docket Number: No. 1028,1028
• Citation: 374 A.2d 384,36 Md.App. 459
• Parties: Willie TRIPP, the younger v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 459

36 Md.App. 459

374 A.2d 384

Willie TRIPP, the younger v. STATE of Maryland.

No. 1028.

Court of Special Appeals of Maryland.

June 13, 1977.

James M. Kramon, Assigned Public Defender, Baltimore, with whom were Kramon & Graham, Baltimore, on the brief, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., and M. Sam Brave, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MOYLAN, POWERS and MOORE, JJ.

MOYLAN, Judge.

Murder, which is unmitigated homicide, stands higher on the ladder of culpability than manslaughter, which is mitigated homicide. Because the negative element of non-mitigation is initially presumed, Evans v. State, 28 Md.App. 640, 722-730, 349 A.2d 300, and need not be proved unless and until a genuine jury question as to mitigation has been raised, the State leaps at a bound to the murder plateau when it shows an intentional killing by the defendant. It does not pass upward through the manslaughter level; it rather leapfrogs the manslaughter level and is not obliged to go back for the "mop-up" operation of negating mitigation unless the defendant meets his production burden so as to necessitate the "mop-up." The false assumption that the State passes upward through the manslaughter level, rather than initially bypassing that level, has engendered thousands of unnecessary digressions upon the law of manslaughter which are as utterly unrelated to the jury business at hand as would be a discussion of the causes of the War of the Spanish Succession.

We described the problem in Evans v. State, supra, at 28 Md.App. 665, 349 A.2d 318:

"As boiler-plate instructions have been handed down from judicial generation to judicial generation and solemnly intoned whether they have any bearing on the case then at bar or not,9 there have been frequent occasions when erroneous jury instructions have been given but where the error has no conceivable relevance to any issue in the case.

The appellant, Willie Tripp, observes that it has been the ingrained habit of many members of the judiciary, when instructing a jury on the subject of homicide, to catalog all the varieties thereof, defining each and setting out the penalty for each. That observed phenomenon, sadly to relate, is true; it is also unfortunate. Commendably, Judge Marshall A. Levin in the Criminal Court of Baltimore had the consummate wisdom and the intellectual boldness to decline as to clutter the minds of the fact finders with extraneous and irrelevant law. At the end of the case, the appellant timely requested an advisory instruction on the law of manslaughter. Judge Levin declined to give it and told the jury simply that all unlawful homicide "is divided into two classes: murder and manslaughter. We are going to deal with murder only in these cases." The appellant claims error. Our response to that non-instruction can be summed up in a single word, "Bravo!"

The Gross Facts

On October 12, 1974, the appellant went on a homicidal rampage at 1700 Guilford Avenue in Baltimore City with a .38 caliber revolver. He shot in the chest and killed 36-year-old Hazel Wilson, with whom he had been cohabiting over a two-year period until roughly one week before the killing. The appellant also shot seven-year-old James Wilson, son of Hazel Wilson, twice in the head, killing him. He also shot eleven-year-old Deborah Brewer, niece of Hazel Wilson, once in the head, killing her. He also shot 62-year-old Sarah Brewer, mother of Hazel Wilson, several times in the head and face, killing her. He also shot eleven-year-old Derak Wilson, son of Hazel Wilson, once in the face, seriously wounding him. There was no dispute as to the homicidal agency of the appellant only as to his mens rea in two regards. The jury found the appellant to have been sane at the time of the attacks. The jury found the appellant guilty of four charges of murder in the first degree and of one charge of assault with intent to murder.

When Jury Instructions are Required

The first of the appellant's contentions which we shall discuss is his claim that Judge Levin committed prejudicial error by declining to instruct the jury on the subject of manslaughter. Although we find no ultimate merit in the claim, we initially agree with the appellant that he is not foreclosed from raising it by anything in Dorsey v. State, 278 Md. 221, 362 A.2d 642; Dorsey and Wilson v. State, 29 Md.App. 97, 349 A.2d 414; or Evans v. State, 28 Md.App. 640, 658-662, 349 A.2d 300. All of those cases dealt with the problem of the erroneous allocation of the burden of proof to the defendant on the subject of mitigation. The appellant's present claim is that the lack of any instruction at all as to manslaughter effectively precluded the jury from considering it, above and beyond any procedural question as to burdens of proof or allocations thereof. The present claim is substantive and not procedural.

The appellant is, furthermore, correct in his preliminary assertion of law that a trial judge is obliged to instruct the jury on every essential point of law supported by the evidence when requested to do so by either side. Christensen v. State, 274 Md. 133, 139, 333 A.2d 45, 48; Mason v. State, 12 Md.App. 655, 661, 280 A.2d 753, 758; Gaskins v. State, 7 Md.App. 99, 105, 253 A.2d 759, 763.

The chink in the appellant's armor is the phrase "supported by the evidence." When instructing on the law of homicide, as when instructing on any other part of the law, it is not only required but it is, indeed, inappropriate to instruct upon a principle of law not suggested by the evidence in the case. We discussed this at great length in Evans v. State, at 28 Md.App. 665, 669, 349 A.2d 300, and it is unnecessary here to replow the ground. See also Gilbert v. State, Md.App., 373 A.2d 311 (No. 956, filed on May 18, 1977).

The appellant urges that it is necessary to discuss manslaughter because it involves the same corpus delicti and the same homicidal agency as are involved with the murder charge but simply a lesser degree of blameworthiness a diminished mens rea. This does not serve to relieve the appellant of the necessity that each principle of law to be discussed even those involving a diminished mens rea for the same offense must be supported by the evidence in the case. Intoxication, for instance, may serve to lower a homicidal mens rea from first degree to second degree, but no instruction should be given where the evidence is not legally sufficient to generate a genuine jury issue as to intoxication. Bateman v. State, 10 Md.App. 630, 272 A.2d 64; Mock v. State, 2 Md.App. 771, 237 A.2d 811. Insanity would extinguish the mens rea completely but no instruction on that issue should be given, absent a genuine jury question. 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. Self-defense could extinguish the mens rea entirely but no instruction thereon is appropriate, absent the generation of a genuine jury issue. Street v. State,26 Md.App. 336, 338-341, 338 A.2d 72. Entrapment could extinguish a mens rea but no instruction thereon is appropriate, absent a genuine jury issue. Fisher v. State, 28 Md.App. 243, 345 A.2d 110.

As to the quantum of evidence necessary to generate a jury issue, as a predicate for a requested instruction, Judge Powers cogently spelled it out in Fisher v. State, supra, at 28 Md.App. 248-249, 345 A.2d 114:

"It should here be emphasized that the defense of entrapment cannot be considered as 'having been raised' that entrapment cannot become an issue for the trier of the facts unless there is sufficient evidence which, if deemed weighty and credible by the trier of the facts, would support a finding that the police, directly or through their agent, induced the defendant to commit the offense charged. . . .

The initial test of the evidence, within the framework of the substantive law of entrapment, is always a matter of law for the court."

The notion that manslaughter needs to be defined in the abstract, absent any legally sufficient supporting evidence thereof, is preposterous. Manslaughter is not a monolith but an umbrella term embracing a broad miscellany of unlawful but non-murderous homicides. In the abstract, should a jury be instructed as to involuntary manslaughter based upon gross negligence or as to voluntary manslaughter under extenuating circumstances? If the latter, should the theory of possible mitigation to be discussed be that of imperfect self-defense, that of imperfect duress, that of imperfect necessity, that of imperfect right to prevent a felony or that of provocation? If the latter, should the variety of provocation to be discussed be that based upon a battery, upon mutual combat, upon assault, upon illegal arrest, upon injury to close relatives or upon the sudden discovery of a spouse's adultery? The very catalog of questions dictates the answer. Absent a full semester to be devoted to the entire corpus of homicide law, instructions must be restricted to those legal principles supported by the evidence and therefore material to the case at hand.

The Species of Extenuation Urged Herein

In appellate brief and argument, though not in the trial evidence, the appellant has narrowed the focus of pertinent manslaughter relief. It is not involuntary manslaughter but voluntary manslaughter being urged by him. He narrows the focus further by claiming mitigation through hot-blooded response to legally adequate provocation. The suggested form of the legally adequate provocation is strangely blurred but seems to bear an at least impressionistic resemblance to that involving the sudden discovery of a spouse in an act of adultery. We will now turn to an examination of whether the evidence supports the necessary elements for extenuation of this variety.

The General Law as to...