Willey v. State

• Decision Date: 01 September 1991
• Docket Number: No. 149,149
• Citation: 328 Md. 126,613 A.2d 956
• Parties: Neal Frederick WILLEY, III v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 126

328 Md. 126

613 A.2d 956

Neal Frederick WILLEY, III v. STATE of Maryland.

No. 149, Sept. Term, 1991.

Court of Appeals of Maryland.

Oct. 13, 1992.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

CHASANOW, Judge.

Neal Frederick Willey III was charged with first degree murder and related offenses in the death of Venus Ann Shifflett and tried by jury in the Circuit Court for Baltimore County, the Honorable John Grason Turnbull II presiding. The jury found Willey guilty of first degree murder and use of a handgun in the commission of a felony. The court then imposed a sentence of life imprisonment for murder and a twenty-year consecutive sentence for the handgun conviction.

Willey appealed his convictions to the Court of Special Appeals arguing, among other things, that the trial court did not adequately distinguish first degree murder from second degree murder in its instructions to the jury. The intermediate appellate court affirmed the lower court's judgment in an unreported opinion holding that the instruction given adequately reflected the essential distinction between the two degrees of murder. Willey petitioned this Court based on the adequacy of the jury instruction and we granted certiorari. We also affirm the judgment.

The parties have submitted an agreed statement of facts pursuant to Maryland Rule 8-501(g). The following rendition of the events underlying Willey's conviction is drawn largely from that submitted statement.

Neal Willey and Venus Shifflett had lived together but separated in the fall of 1988 shortly after the birth of their daughter, Brittany. During the separation, Willey enjoyed liberal visitation with Brittany, seeing her nearly every day. In July of 1989, however, Willey took Brittany away from her mother's home without permission on two occasions, each for a number of days. Thereafter, Ms. Shifflett forbade further visitation.

Willey testified that he did not have access to Brittany after July 19, 1989. The following week he was admitted to a hospital because he was depressed and suicidal. When he was released thirteen days later, he learned that his employment had been terminated and that Ms. Shifflett had become involved with another man, Jeff Williams.

Willey's longtime friend and former roommate, Harvey Leichling, testified that Brittany "was [Willey's] world" and that, by the onset of summer, Willey's behavior had become increasingly erratic. Leichling also testified that in July of 1989, he had found black clothing and a black ski mask in Willey's bedroom. When Leichling asked about the black attire, Willey told his friend that if Ms. Shifflett continued to press assault charges against Willey ¹, he was going to stand in the woods, by the Baltimore-Washington Parkway, behind Shifflett's home and shoot her. Willey denied that he ever told Leichling that he had assembled an outfit of black clothing to wear while shooting Ms. Shifflett. Willey, however, admitted that he had made threats to kill Venus Shifflett and that he had told the doctors at the hospital as well as Venus' friends of the threats. The State also adduced from other witnesses evidence that Willey had threatened Ms. Shifflett.

On August 27, 1989, Willey called Ms. Shifflett from a pay phone on the Baltimore-Washington Parkway. Willey apparently was hoping to see Brittany because he had heard from a friend the day before that Ms. Shifflett might agree to supervised visitation. After having told Willey that she did not want to talk to him, Ms. Shifflett reported to her mother that Willey had threatened to kill her and she immediately contacted the police. Following his phone call, Willey drove farther down the Baltimore-Washington Parkway and parked his car on the side of the parkway behind Ms. Shifflett's backyard. Willey got out of the car, loaded gun in hand, and headed toward the house. He looked in the window and saw Ms. Shifflett, Brittany, and other family members. Willey recounted these events to the jury:

"I looked at Brittany and she had, her hair had gotten longer and darker, she was walking around a lot better. I missed Brittany. It was the first time I had seen her in over six weeks. As I was watching Brittany, I then looked at Venus and trying to ask myself, why is she trying to keep Brittany away from me. I have done everything in this world I could possibly do to try to help our daughter, to see that she's provided for, to see that she'll be taken care of later on. As I was looking and looked at Venus and looked back at Brittany, Jeff Williams walked into the door and I could see him enter the doorway. At that moment, I knew that Venus had no plans for me to be Brittany's father or to be in Brittany's life. I looked at Brittany and I looked at Venus and I couldn't see why, why she was doing this, why she was keeping Brittany away. And at that time I had a gun on me, I brought it from the car, it was under my seat, when I stopped the vehicle, the gun slid out from under the seat. It was laying there loose and it was loaded. I start[ed] getting out of the car and then remembering that if I got anywhere near the house, that I had been told I was going to be shot. So I took the gun with me. I didn't know what I wanted to do. I just wanted to see Brittany. There was no intention to hurt anyone. After I got up to the house and saw Brittany, then I saw Venus and I saw Jeff walk in the door, and Venus had decided to keep me out and keep me away from Brittany, I pointed the gun at Venus and I had seen Brittany still walking in the room, and then without looking at Venus, I thought about Jeff being the daddy of my little girl and the gun went off. When the gun went off, my eyes didn't focus on anything but the glass breaking in front of me. I then turned and ran. I didn't know if I hit Venus or what, what happened. I turned and ran."

Willey shot one bullet through the living room window of Shifflett's house. Willey testified that he was a marksman in the military and that he pointed the gun first at Ms. Shifflett's midsection and then aimed at her head. Ms. Shifflett died of a single gunshot to the temple.

Willey had a number of witnesses at the trial testify to his emotional instability during the month preceding the murder. Among them was his sister, who described Willey as "overly happy" when Brittany was born and extremely depressed after being denied visitation. During the week before Ms. Shifflett's death, Willey's sister became convinced that he needed "a doctor, he needed some kind of help" and she sent for their father, who lived in Florida. Finally, she described Willey as having been upset and depressed on the day he killed Ms. Shifflett. After Willey's arrest, he told a police officer that he had tried to talk to Ms. Shifflett on the evening of her death and that when she would not talk to him he "just lost it."

Willey now argues to this Court that his conviction for first degree murder should be reversed because the trial court did not adequately instruct the jury as to the difference between first and second degree murder. The trial court gave the following instruction, which is contained in the Maryland Pattern Jury Instructions: ²

"The defendant is charged with the crime of murder. This charge, as I have indicated, includes first degree murder and second degree murder. First degree murder is defined as the intentional killing of another person with wilfulness, deliberation and premeditation.

In order to convict the defendant of first degree murder, the State must prove (1) that the conduct of the defendant caused the death of Venus Ann Shifflett, and (2) that the killing was wilful, deliberate and premeditated.

Wilful means the defendant actually intended to kill the victim. Deliberate means the defendant was conscious of the intent to kill. Premeditated means that the defendant thought about the killing and that there was time, though it need only have been brief, for the defendant to form the intent to kill. The premeditated intent to kill must be formed before the killing.

Second degree murder is the killing of another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result. Second degree murder does not require premeditation or deliberation. In order to convict the defendant of second degree murder, the State must prove, (1) that the conduct of the defendant caused the death of Venus Ann Shifflett and, (2) that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict serious bodily harm that death would be the likely result."

The instruction clearly conveys that one difference between first and second degree murder is that a defendant may be convicted of the latter absent an intent to kill. Willey focuses his attack on a narrower distinction, however, arguing that the instruction failed to point out to the jury any difference between first degree murder and the intent-to-kill variety of second degree murder. Although we will decide the issue raised in Willey's petition for certiorari, we should point out that Willey testified that he did not intend to kill Venus Shifflett. His own account of the shooting did not require the jury to make the distinction between the impulsive versus the reflective intent that he complains the instruction failed to clearly differentiate. Rather than saying that his intent was the product of impulse, he was telling the jury that he did not intend to kill Ms. Shifflett. As such, we cannot see that Willey's testimony raised the subtler distinction between the two degrees of intent-to-kill murder.

Assuming...