*1 DORSEY STATE OF MARYLAND 171, September Term, [No. 1975.] July 15,1976.
Decided argued The cause J., before C. Murphy, Singley, Eldridge and O’Donnell, Levine, JJ. Smith, Digges, Glaser, Harold I. with whom was Richard M. Karceski on brief, appellant. for Davis, Attorney General, Arrie W. Assistant with whom Burch, Attorney General, were Francis W. B. and Clarence Sharp, Attorney General, Assistant brief, appellee. *2 J.,C. opinion delivered the of the Court. Murphy, Eldridge,
J., in concurs concurring result and filed a opinion at page 226 infra.
Appellant Dorsey and Isaiah Wilson
guilty by
were found
jury
conspiracy
a
to commit murder and murder in the
degree.
appeal
first
On
to the
Special
Court of
Appeals, they
claimed that
dealing
instructions
with the
presumption
malice,
placed
and
which
them the
proving
burden of
such
negate
as
malice,
would
Mullaney Wilbur,
was unconstitutional under
421 U. S.
684,
1881,
In Winship,
(1975),
S. Ct.
A. 2d 300 ‘By token, any instructing the same error as to the allocation of persuasion the burden of subject mitigation on the (such mitigation, purposes holding rea homicidal mens manslaughter level, down to the being fairly an case) issue will by have been cured a degree. verdict of murder the first evil The by Mullaney Wilbur, aimed at v. where the manslaughter murder, issue is versus is a presumption unfairly of malice relieves the State of the non-mitigation (mitigation case). being fairly an issue in the Where the ultimate verdict is that of murder degree, may, presumption the second justification killing 2. No evidence of at to or excuse for the was adduced they the trial. Neither the nor Wilson testified and offered no defense killing. by by generated The issue was evidence adduced presenting its case-in-chief. therefore, pivotal. Where, have been hand, other the verdict is murder in the first degree, will proved every the State have element, including negating blood, of hot beyond a process reasonable doubt and due will not have been offended. Md. at [28 658.]’ outlining After State’s evidence against Wilson, court said: first-degree
“As . . . the State bore the proving wilfulness, premeditation burden of beyond a deliberation reasonable doubt. The jury, ipso facto, those elements negated the element of ‘hot blood’ or ‘heat of passion.’ situation, therefore, is as was by Judge Gilbert, described v. Brown State . . . App. 1, (1975)]: Md. 349A. 2d 359 [29 ‘Similarly, concerning an erroneous instruction lowering an accused’s burden the offense manslaughter from second murder to negated likewise cured because the State has fact, any the satisfaction of the trier of mitigation. result, cases, The net in such incorrect where mitigation instruction or “hot fairly blood” is not an issue is that instruction, worst, at is harmless Harrington reasonable under doubt California, 250, 254, 395 U. S. 89 S. Chapman (1969); California,
L.Ed.2d *4 18, 824, U. S. 87 S. 17 L.Ed.2d 705 (1967) denying corpus
“In a writ of habeas in the case of Maryland, F. Supp. (1975),Judge Wilkins 76 Stanley C. Blair the Unite'd States District Court Maryland reached similar a conclusion. It was very spoke situation Evans this that we ... Md. at [28 660-61]: State, wilfulness,
‘The
beyond
deliberation and
doubt,
have relied
reasonable
will not
will of
presumption
mere
of malice but
proved
necessity
the element of
have
malice
analysis,
within the context of this
(meaning,
killing
absent
an intentional
response to a
circumstance of a hot-blooded
adequate provocation). “Malice and heat
legally
Am.Jur.2d,
passion cannot coexist.”
State,
Homicide,
350,
Vaughan v.
56, p.
citing
§
State,
378, White v.
and
201 Ala.
So.
fortiori, proof
A
Tex. Crim. S. premeditated beyond doubt of and a reasonable negate passion. malice will heat of deliberated Winship In re requirement of and prove Mullaney v. Wilbur that the State every necessary beyond a reasonable doubt fully will have been element of the offense satisfied.’ only reference to a standard of contends that the proof in instructions was to the “reasonable court’s standard, jury thought and that the must have doubt” required prove or innocence the defendant was beyond claims of the crime a reasonable doubt. She determining guilt innocence under the instructions this or way no have considered it the State’s “could disprove being it was the burden to ‘hot blood’ after told that Appellant’s it.” Judge Moylan and pointed
As out for the court Wilson, malice, deliberation, premeditation, on the. other, hand, provocation due to one of the issue where an incorrect cannot coexist is the nub Mullaney given respect has been with instruction under circumstances, prove mitigating and the the burden to in these returns a first murder conviction. The circumstances, negated would have the existence by proof, a reasonable mitigating circumstances unlawful, doubt, the result of a that the homicidal act was cool, constituting degree murder. We calm state
226 that, case, hold Special
therefore
this
of
Court
Appeals was
in concluding
jury’s
correct
that the
verdict of
guilty
degree
any
of murder in the first
cured
error in the
generally,
See
Maryland
instructions.
v. Edward
Evans,
197,
(1976);
278 Md.
Judgment Special the Court Appeals affirmed. Eldridge, J., concurring: I majority
While concur in the result reached grounds. this I do so different out, majority points As the where a returns verdict degree, finding of murder first its part legally deliberation on defendant mitigating inconsistent with the existence of circumstances manslaughter. which would reduce the offense See Maryland, v. Supp. (D. 1975); Wilkins 402F. 76 Md. Brown v. 1, (1975); 29 Md. 349 A. 2d 359 Hurt United States, (D.C. App. 1975); 337 A. 215 Anderson, 2d 1 Wharton’s Law and Procedure (1957); Criminal 275 §§ legal Am.Jur.2d, (1968). theory 40 Homicide might This § by returning suggest jury, a first murder verdict, necessarily has found a reasonable doubt the mitigating However, non-existence of am factors. I not sure every involving verdict, that in case a first jurors’ thought processes likely would conform to the legal theory, so render harmless an incorrect Mullaney Wilbur, instruction under U. S. S. 1881, 44 (1975). L.Ed.2d majority opinion presupposes jury, in finding that a premeditated that a defendant’s acts deliberate, were guilty and therefore defendant murder, necessarily rejects tending evaluates and evidence to show that the accused acted under such duress, provocation, intoxication, circumstances as etc. In to the a better my presupposition this ascribes view *6 understanding and elements of the crimes of of the nature likely manslaughter than to It assumes is exist. murder and legal inconsistency appreciate between jury the will the finding first necessary to sustain a of elements the mitigation of that would act and the factors murder jury, by its charge. It assumes that the further murder degree, first has resolved that of murder the concluding beyond inconsistency by a reasonable doubt that mitigating present. circumstances were no by assumptions justified are that these not believe
I do many portion A cases. of jury instructions homicide the case, which, majority the the instant as the instruction Wilbur, Mullaney supra, admits, clearly infirm under is jury: advised the justification,
“In or some the absence of excuse mitigation, presumes of the law all circumstance to be with malice and to homicides committed degree. The burden constitute murder the second to is on the State the elements deliberation premeditation which raise would the homicide degree. to in the first is on the murder burden mitigation, to show the existence of defendants excuse, justification will or which reduce the manslaughter guilty.” or not offense might explanation, instruction, well an further Such absent In where cases jury mislead a under certain circumstances. presence conflicting absence of as the or the evidence elements, might jury first decide the issue mitigating the his has sustained whether the defendant reject might mitigation. It the defendant’s the existence of tending based evidence establish duress, believing existence, the example, for proving the meet his burden of defendant has failed to having rejected defense to a existence Once the of duress.1 duress, being by told charge and not based on premeditation and judge that trial elements 110, 349 (1975). Md. A. See Wentworth 1. 2d required deliberation legally murder are duress, with jury inconsistent the existence of might not again concerning consider the defendant’s evidence duress in regarding its premeditation deliberations the existence of jury may and deliberation for first murder. The view considering circumstances without defendant, shown evidence issue of already decided, may had been and it otherwise find the premeditation existence and deliberation. explains judge
Where trial that in order to deliberation, find the elements of mitigating circumstances, must also no find then it prosecution proven could be said that the had the absence of mitigation. However, judges always do not define premeditation and deliberation in this fashion.2 Con *7 sequently, unwilling go along I am view, to with ap the parently majority opinion, taken in every the in that mitigation homicide case where the fairly issue of presented, judge gives the where trial an erroneous Mullaney Wilbur, supra, instruction under a first automatically verdict cures the 'erroneous instruction. case, however,
In I judgment this concur in the on the ground fairly the present that evidence did not the issue of mitigation.3 majority opinion concludes, without mitigation fairly 2. I Because believe that the issue of was not issue case, unnecessary express opinion the I find it instant an as to whether judge’s here, whole, effectively the the absence of instructions taken as informed murder, they that order to find first must determine the circumstances. response argument 3. In to the State’s the alternative issue of mitigation petitioner Dorsey was not in the the claims legitimately or not whether 1116evidence was to raise sufficient the issue was not encompassed by granting granting the order certiorari. The order the writ following question: was certiorari liihited to the jury having guilty degree murder, “A found Petitioner did Special Appeals reversing judgment the Court view the was err in not alleged erroneous of the instructions trial court that it necessary her the elements to reduce a
felonious homicide from status of a second murder to simple manslaughter?” that of obviously enough permit This is broad examination of whether or not the ground erroneous instruction constituted error on reversibile that the fairly presented by was issue not the evidence at the trial. generated by discussion, issue “[t]he presenting its adduced evidence case-in-chief,” pointing while out that evidence “[n]o killing was at justification or excuse for the adduced trial. testified, Dorsey nor Neither her co-defendant Wilson evidence, they Briefly, offered no defense at trial.” facts, agreed based an statement of is as follows. At morning, December approximately one o’clock which Josephine Dorsey arrived at her she residence Blake, Johnson, Mary Ann shared the deceased Russell with home, Upon arrival Dolores Pound and Isaiah Wilson. her argument Dorsey got with Miss Mr. Miss into an Pound. attempted As a Blake to intervene “to halt disturbance. fighting Dorsey.” . . . consequence, Mr. Blake started with investigated, request at the Miss The disturbance was Pound, by Police Officer Daniel After Officer Stern Stern. arrived, Dorsey, drinking, . . . who been he “overheard had say Wilson, just scene to . . . who had arrived on the from Bar, ought mess him the Preakness ‘You [Russell Blake] up.’ Dorsey then area. Wilson and left the morning, later, six o’clock Five hours at about with to the residence three Wilson and returned boys, of whom had chain. two of whom had sticks and one bedroom, where he was persons five Blake’s All entered Mary fight Ann A ensued and sleeping with Johnson. hallway where it “calmed down adjacent into the continued Wilson, petitioner said to “You somewhat.” The then away me?” Mr. get him with what he did to going to let obtained a knife with which he Wilson soon thereafter *8 allegedly Mr. killed Blake. generate any issue
I do believe that these facts not generally recognized is that if the defendant provocation. It could victim do acts which defendant caused “the him, claim kill victim and that provoked he cannot claim Anderson, Criminal Wharton’s Law provoked.” was he appears It here Procedure § (1957). her instigated now claims aroused altercation that she quell only passions. Mr. Blake had intervened Dorsey, Dorsey and Miss argument Miss Pound. between who drinking, had been engaged then in battle with Mr. agreed facts, Blake.4 On these it clear it was Miss provoked who giving incident rise to “hot blood,” responses and that Mr. Blake’s to her did actions give not legal provocation. rise to Moreover, even if provocation there had been sufficient a.m., constitute at 1:00 the homicide place took five hours later. There suggesting is no evidence that when petitioner Dorsey a.m., returned at acting 6:00 she was the sudden heat of blood. See Ware Md. App. 64-65, (1968), A. 2d 526 where the court affirmed the ample court’s that there was time to off” “cool during pause” a “short in which temporarily “hostilities ceased.”
I therefore conclude that the issue of mitigation was not fairly presented by trial, the evidence at and on this basis alone I concur conviction should be affirmed. argument 4. by petitioner No made that there was due to . capacity resulting diminished from alcohol.