Warren v. State

• Decision Date: 02 January 1976
• Docket Number: No. 334,334
• Citation: 29 Md.App. 560,350 A.2d 173
• Parties: Morris Joseph WARREN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 560

29 Md.App. 560

350 A.2d 173

Morris Joseph WARREN v. STATE of Maryland.

No. 334.

Court of Special Appeals of Maryland.

Jan. 2, 1976.

George E. Burns, Jr. and Harriett Cohen, Asst. Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Leroy Handwerger, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshal, Jr., State's Atty., for Prince Georges County Naji P. Maloff, State's Atty., and Joseph Sauerwein, Asst. State's Atty., for Calvert County, on the brief, for appellee.

Argued before POWERS, MOORE and LOWE, JJ.

LOWE, Judge.

In the Chinese tradition, the legal aftermath of the Supreme Court's ruling in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) would have entitled this year of our Lord to the epithet 'The Year of the Mullaney'-at least in Maryland. Even after the all encompassing effort of Judge Moylan in Evans, v. State, Md.App., 349 A.2d 300 (Filed November 25, 1975), to meet all questions, prospectively and retrospectively, evans itself has given birth already to legitimate issue, e. g., Burko v. State, Md.App., 349 A.2d 355 (Filed November 26, 1975); and issue of strained legitimacy, Horn v. State, Md.App., 349 A.2d 372 (Filed November 26, 1975) and Dinkins v. State, Md.App., 349 A.2d 676 (Filed January 2, 1976). From the progeny, Brown v. State, Md.App., 349 A.2d 359 (Filed November 26, 1975), of such young parentage as Edward Evans, supra, all of whom were the issue of Garrell S. Mullaney, supra, we now have Morris Joseph Warren who invokes the message of his great grandsire, Mullaney v. Wilbur, to whom he traces a direct legal relation. We foresee Mullaney as rivalling Abraham or Isaac as a 'begetter' of issue at least by claim, if not of right.

Appellant Warren was convicted by a jury in the Circuit Court for Calvert County of first degree murder, assault with intent to murder, attempted robbery with a deadly weapon, and use of a handgun during the commission of a crime of violence. The events giving rise to his convictions occurred on the night of September 9, 1973, when one person was killed and two others wounded as a result of shots fired during an attempted robbery at a 7-Eleven store in Cheverly, Maryland.

On September 20, police officers searched appellant's apartment and found a .38 caliber pistol which expert testimony at trial established could have fired the bullets found at the scene of the crime. At the time of the search, appellant was arrested for armed robbery. On November 6, 1973, he signed a confession of his participation in the attempted robbery, which statement was admitted into evidence at his trial.

I

At the conclusion of the trial, the judge instructed the jury with all the customary and compulsory rights of a defendant at trial including the presumption of innocence:

'and that presumption continued with him at every stage of the proceedings until it is overcome by legal and competent evidence which satisfies you ladies and gentlemen beyond a reasonable doubt of the guilt of the accused. . . . (I) t is the State's responsibility to bring before you a sufficient amount of legal and competent evidence to satisfy you beyond a reasonable doubt of the guilt of the accused.'

After a full discussion of reasonable doubt and the need to find proof of every element of each crime charged, he then commenced his more specific instructions on the murder count, containing the language to which appellant objects. He said:

'Each of these offenses has certain elements and each element must be proven or the defendant must be acquitted as to that offense. That 1st Count in this Indictment charges the defendant with the murder of a man named Stevens. You will understand ladies and gentlemen that the law presumes all unlawful killing to be murder. Once the State has established an unlawful homicide, it is presumed to be murder.

You are advised that the elements of Murder are the unlawful killing of another human being with malice. Malice is an essential ingredient in Murder and it is inferred by you-you ladies and gentlemen may infer malice from the proof of an unlawful killing.' (Emphasis added).

The judge went on to instruct substantially upon the elements of felony murder. Never again did he allude to the general presumption that 'an unlawful homicide . . . is presumed to be murder,' traditionally (although we now know erroneously) given, with its misleading statutory foundation in Md.Code, Art. 27, § 411. The entire emphasis of his remaining murder instructions centered upon felony murder and the felony murder presumption. Commendably, he intentionally refused to give the canned murder instructions opening up possibilities of verdicts for which there was insufficient supporting evidence. He explained to counsel at the bench after instructing the jury:

'That's why I didn't instruct them on Manslaughter. As I indicated to you in Chambers when we discussed these instructions, I see the evidence in this case as supporting only instruction on Felony Murder (, i)f the robbery was found to be in progress or murder, if it was not(.) I see no line of evidence which would support an instruction for Manslaughter nor for the other kind of First Degree Murder. So I have instructed them deliberately and intentionally based on my view of the evidence that they may find him guilty of Felony Murder, if he was the criminal agent while the robbery was in progress or failing that they may find Murder. I did not give the instruction to Manslaughter. There is no evidence to support it.'

The trial judge is under no duty to instruct the jury as to the various lower grades or degrees unless there is some evidence tending to reduce the crime to one of the lower grades or degrees. Evans, supra, (IF) 349 A.2d at 318.

Appellant's argument is brief but encompassing. Seemingly anticipating our holding in Brown, supra, that the Mullaney error might be cured by a first degree verdict, all that he contends is set forth in two sentences:

'When the judge instructed the jury that malice could be presumed and that the defendant had 'the responsibility of going forward with the evidence,' he committed patent error. Since the jury necessarily had to find malice before § 410 could be applied, the error was not harmless.'

The reference to § 410 is intended to direct us to the felony-murder section of Md. Code, Art. 27:

'All murder which shall be committed in the perpetration of, or attempt to perpetrate, any . . . robbery . . . shall be murder in the first degree.'

Primarily because the statute begins 'All murder', rather than 'All homicide', appellant seems to say that before § 410 may be invoked, the killing must be raised to the murder level and that the jury could only do so through the instruction of which he now complains, i. e., '. . . that the law presumes all unlawful killing to be murder,' and 'You . . . may infer malice from the proof of an unlawful killing.' Because appellant provides us with none of his reasoning, we presume he bases this upon that which Mullaney decried: that a necessary element of murder (malice) may not be presumed, thereby relieving the State from its burden of proof of every element of the crime, beyond a reasonable doubt. Re Windship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.

Initially we remind appellant that while the statutory rule in § 410 speaks of all 'murder' committed in the perpetration of a felony as being murder in the first degree, the common law felony-murder rule is that homicide, a killing, resulting from the perpetration (or attempted perpetration) of a felony is murder. Perkins on Criminal Law, Ch. 2, at 37, et seq. (2nd ed.). The enactment of the statute did not abrogate the common law rule but supplemented it by graduating the punishment according to the circumstances of the crime:

'At common law, a killing in the perpetration of a robbery was murder, regardless of intent. See Clark and Marshall, Crimes (4th ed.), sec. 245. As used in the statute, the 'common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.' Davis v. State, supra, (39 Md. 355, 374).' Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17, 20.

In Evans, supra, 349 A.2d at 329, n. 21B, Judge Moylan explained succinctly that:

'It is sometimes falsely asserted that §§ 408-410 constitute the felony-murder doctrine in Maryland. That is not true. The felony-murder doctrine (see Part II E 3 infra) is the common law rule-defining one of the at-least three varieties of implied malice-which raises a homicide resulting from the perpetration or attempted perpetration of a felony to the murder level generally. It is only at that point, after the felony-murder rule has already operated, that §§ 408-410 come into play to provide further that in the case of certain designated felonies, the already established murder shall be punished as murder in the first degree.

Only one state, incidentally-Ohio-fails to recognize the felony-murder doctrine. Moreland, Law of Homicide (1952), at 49. For good Maryland discussions of felony-murder, see Stansbury v. State, 218 Md. 255, 146 A.2d 17, and Wood v. State, 191 Md. 658, 62 A.2d 576.'

It follows that since the State was required to prove beyond a reasonable doubt the underlying felony (or attempt thereat), it was not relieved of its constitutional burden under Mullaney v. Wilbur and Winship of proving every element of the crime beyond a reasonable doubt. The intent to perpetrate the robbery, which element the jury of necessity found in returning its verdict of attempted robbery, supplied the intent aspect of malice necessary to establish a felony-murder. See Evans v. State, supra, (Part IIE 3 c), 349 A.2d at 335.

The common law felony-murder rule does not substitute or transfer the elements of malice, Evans (IIE 2) 349 A.2d at 330, nor does it permit malice to be '...