*1 PINKNEY Walter Maryland. STATE Term, Sept. 2000. No. Appeals Maryland. Special
Court 20, 2003. June *3 Defender, Glasser, Amy Kneep L. Asst. Public Sherrie B. Harris, Defender, brief), Baltimore, E. on for (Stephen Public appellant. (J. Curran, White, Atty. Atty. Joseph Asst. Gen.
Zoe Gillen Gen., Jessamy, Atty. City, for Baltimore Patricia State’s brief), Baltimore, appellee. for
Argued MURPHY, C.J., DAVIS, before HOLLANDER, SALMON, EYLER, R., SONNER, KENNEY, JAMES EYLER, S., ADKINS, DEBORAH KRAUSER, BARBERA, GREENE, (Ret., THEODORE G. BLOOM specially assigned), JJ. EYLER, J., R.
JAMES Appellant, Pinkney, Walter challenges degree his first mur- der and child abuse convictions for killing the brutal of his step-grandson, six-month-old Ta’mar Hamilton. Following a four-day merits, trial on the returned verdicts of guilty on the first murder felony child abuse counts, was subsequently sentenced to a term of imprisonment life the first murder conviction and years imprisonment for the conviction, child abuse to be consecutively. served appeal,
On appellant alleges First, three errors. argues he that the legally evidence was insufficient to sustain a convic- degree murder, i.e., tion of first that the court in failing erred grant his motion judgment acquittal. Next, contends that the trial court in admitting erred prior statements of Renita Pinkney, paternal Ta’mar’s grandmother, who appellant’s girlfriend at the time and who is now appellant’s Finally, wife.1 appellant claims that the court in precluding erred the defense from pursuing relevant testi- mony about the actions and behavior of Larry Hamilton, Jr., Ta’mar’s father. Perceiving no error the trial court’s evidentiary rulings finding that there was sufficient evi- dence to sustain the first conviction, affirm we *4 appellant’s convictions. Background
Factual On the evening 27, November officers of the City Baltimore Department Police went to Hopkins The Johns died, Williams, 1. At the time Ta’mar Pinkney's Renita last name was yet she had not appellant. married Ms. appellant Williams and were 9, 1999, married on eight days December after Ta’mar’s death. She will be Pinkney purposes referred to as Ms. appeal. for of this of.six- suspected child abuse response to a call Hospital Peckoo, of the inves- Hamilton. David one Ta’mar month-old Pinkney officers, appellant, Renita interviewed and tigating care and who, told, responsible for the he had been were Ta’mar, hospital Ta’mar rushed to the custody of before day. earlier 1, 1999. injuries from on December On
Ta’mar his died 3, 1999, performed had been autopsy an December after Ta’mar, Pinkney police investigators again interviewed Ms. 14, 1999, appellant was arrested appellant. and On December and child abuse. charged with first and chronology of following at trial portrayed The evidence surrounding Thursday, death. On November Ta’mar’s events Larry arrangements were made Thanksgiving, Hamilton, Sr., grandfather, appellant to paternal Ta’mar’s and brother, Hamilton, then 15 Davon pick up Ta’mar and his Rice, mother, old, their Shawntel and take them months from Pinkney stay Ms. and to the home of arrived at Thanksgiving weekend. men remainder in their car placed home of Ms. both children Rice Pinkney’s During appellant’s the car ride to Ms. seats. house, cranky trip. for most of the Ta’mar cried arrival, Hamilton, son, Larry his
Upon their Sr. instructed Hamilton, Jr., father, Larry boys’ the children remove There bring from the car and them into the house. Hamilton, conflicting testimony following Jr.’s actions about demand, suggesting varying father’s levels of harshness his Hamilton, brought into physically with which the children Jr. Hamilton, According Pinkney, home. to Ms. Jr. removed and, they strapped from still the children the car while were seats, steps into up into their car threw them several Hamilton, that he vestibule of the house. Jr. testified re- at a the first car seat off to trieved one child time handed retrieving Finally, the second. another wit- someone before Hamilton, into dropping ness described Jr.’s car seats vestibule, stairs, up pants carrying after them the because *5 falling
were down. was undisputed testimony There that the padded, car they upright. seats were and that landed house, Hamilton, Once the children inside were and Jr. other visitors They remained for one to two hours. then departed, leaving Pinkney Ms. and appellant alone with cry Ta’mar and Davon. Ta’mar continued to and was general- ly cranky. bed, putting Before appellant gave children to slept Ta’mar a only Thursday bath. Ta’mar hours on few night. morning He awoke at 3 a.m. on Friday required and feeding changing. and did not fall to sleep He back until 6 a.m. afternoon, Friday
On after observing Ta’mar’s continued crankiness, Pinkney Ms. took Ta’mar to a clinic. Davon custody Pinkney remained in the care and of appellant. Ms. only waited several hours to be told clinic not that the would treat Ta’mar because he was covered insurance. She Friday returned home with Ta’mar late afternoon. she When him, tried to feed Ta’mar would not eat or drink. Pinkney
Ms. and appellant asleep fell on the couch few for a They hours with both up- children. then took the children bed, stairs to keeping them, Davon with room and putting sleep Ta’mar to in another During night, room. Ta’mar constantly, cried and Ms. Pinkney appellant took back, patting walking room, turns him around trying briefly to calm him. slept Ta’mar between the hours Thereafter, slept and 6 a.m. he only periods for short time. a.m.,
At approximately Pinkney Ms. went the store diapers, leaving in appellant’s the children care. She checked Ta’mar asleep saw that left. According before she appellant, Pinkney while Ms. was away, Ta’mar awoke and began so crying, he went into the room Ta’mar where was and up picked try him to to calm him. tried to Ta’mar He feed bottle, only amount, from a but drank Ta’mar approxi- small mately Appellant 3 and a half ounces. testified he was changing diaper following suspected Ta’mar’s bowel move- ment gasped stopped breathing. when Ta’mar for breath Ta’mar CPR. Immediately, began giving called 911 and Pinkney Ta’mar Ms. *6 trying was still to resuscitate when He transported An arrived and home. ambulance then returned (“Hopkins”). Hopkins Hospital to Ta’mar The Johns Emergency Depart- admitted to the Pediatric Ta’mar was Walker, Department, of that Dr. Allen Director ment. Ta’mar diagnosed Dr. Walker to evaluate Ta’mar. contacted injury. Dr. inter- having brain Walker sustained severe to trying ascertain what Pinkney appellant, Ms. and viewed hospital. into the happened brought before Ta’mar was had interview, Ta’mar’s constant During appellant described crankiness, eat, stopped breathing Ta’mar had to how refusal diaper, immediately how had changing he was his while Thereafter, Dr. attempts and at CPR. contacted his spoke police. with the Walker hospital Brian Rice arrived at the and interviewed
Officer interview, appellant Pinkney appellant. During and Ms. explained cranky crying had all again Ta’mar been Saturday stopped breathing and that he had on weekend morning. Maddox, Hopkins, social worker at testi-
Devoark clinical form, regarding completion her of a child maltreatment fied appellant Pinkney on and Ms. at the based her interview with interview, hospital. During appellant described the events, his including telephone attempt call to 911 and his to Maddox as calm appellant Ta’mar. Ms. described resuscitate forthcoming during their interview. appellant David Peckoo also and Ms. Detective interviewed Pinkney hospital day. The interview revealed much the same information discussed above. autopsy
The revealed that the cause of Ta’mar’s death was injuries force trauma as a of four head. blunt result results, Peckoo receiving autopsy After Detective asked appellant police station for a Pinkney Ms. come voluntarily did so on December They second interview. from both. Dur- and he took recorded statements them interview, ing might this second indicated that he trying get hit Ta’mar’s head on the bed rail him have while breathing. respond stopped after he He also admitted that he had shaken Ta’mar a few times. part investigation,
As removed Detective Peckoo blood, from Ms. it Pinkney’s bed rail home and tested semen, and hair. results negative The test were those any substances did not reveal evidence of human contact. 14, 1999, appellant charged On December was arrested and with child murder and abuse of Ta’mar Hamilton. Following pre-trial selection of a and an unsuccessful on suppression hearing,2 began Septem- a trial the merits 19, 2000. testimony eight ber presented State Rice, following witnesses order: Officer Brian Devoark *7 Maddox, Walker, Rice, Dr. Pinkney, Allen Shawntel Renita Peckoo, Larry Hamilton, Jr., David Detective and Dr. Joseph of testimony Larry Pestaner. The defense offered the Hamil- Sr., Watkins, ton, appellant. Sheena and These witnesses following testified to the additional information. great
Dr. Walker testified in detail about the extent and (1) injuries, of Ta’mar’s fatal that explaining cause severe (2) brain injury diagnosis, was his initial Ta’mar’s chance for (3) non-existent, survival almost injuries was were almost e., everywhere, i. and skull virtually the brain had been de- (4) force, stroyed, violent similar when force someone through thrown windshield in a car crash falls from a window, required type injuries floor to inflict of third head, that had to his Ta’mar sustained and such violent immediately blows would have rendered Ta’mar unconscious drinking so as to make him incapable crying or formula. stay Dr. also the rest of at Hop- Walker described Ta’mar’s kins, couple explaining days that for a was maintained on trial, argued appellant police 2. Prior to that his statements to made 3, 1999, suppressed physical on December should be based on coercion officers, making interviewing involuntary. After statements hearing testimony finding appellant's and version of events to be incredible, the court denied the motion. he could not and ventilator because a number of medications himself, that, time, that his brain died. during and breathe testified, cross-examination, with Dr. During Walker records, Ta’mar had been delivered hospital assistance of breathing, and that requiring assistance with prematurely, sexually had a transmitted disease when Ta’mar’s mother also that Ta’mar was Ta’mar was delivered. He testified Hopkins Emergency Department Pediatric brought into the old for pneumonia months treated when he was three Dr. Finally, IV antibiotics and sent Walker with home. healing there was a rib autopsy testified that the revealed that prior an suffered injury fracture at the time his death from 27, 1999. to November Rice, mother, testified for the State Ta’mar’s
Shawntel picked when her sons were about events November Hamilton, Sr., about how she up by appellant Larry also Hopkins. that Ta’mar had been admitted She learned and his behavior generally testified about Ta’mar’s demeanor being picked up on the 25th. prior specific In testifying addition to about events 27, 1999, Pinkney Ms. occurred between November skills son and generally parenting about the of her testified Rice, son and Ms. as explained Shawntel Rice. She her boys, period well the two had lived in her home for that, just explained born. also time after Ta’mar was She they home, left her she and continued watch after *8 while, daily arrange- on a basis that the two children but to prior Thanksgiving ment ended a few weeks weekend if According Pinkney, visit. to Ms. Rice her she Ms. asked appellant and would watch the children the weekend. Ms. reluctantly promised provide Pinkney agreed after Ms. Rice place sleep. for Davon to asked Pinkney Ms. further testified that the reason she her they son and her was because used Ms. Rice leave home children, neglecting drugs good and did not take care of their play them. further testified that feed them with She they Ta’mar Davon that she witnessed them cursed at and
hit both boys on several occasions. prosecutor challenged Ms. Pinkney’s by assertions pointing out that she had never any mentioned past anyone abuse to prior to her testimony court.
Finally, Pestaner, Dr. Joseph expert an in forensic and pediatric pathology, was by called testify the State regard- ing the autopsy performed he on Ta’mar. testimony His substantially similar to that of Dr. Walker but was more detailed. He was able to incidents, discount other such as injuries older or being seat, tossed his car possible causes Ta’mar’s fatal injuries, reinforcing what Dr. Walker said about the amount of force would required have been to cause such serious damage to Ta’mar’s brain and skull. Dr. Pestaner also echoed Dr. Walker’s opinion that Ta’mar would have been rendered unconscious almost immediately after struck, being such that crying and drinking from a bottle would not possible. have been
Larry Hamilton, Sr. and Sheena Watkins were called for the defense and generally testified regarding the events on No- 25,1999, vember when Ta’mar brought to the home of Ms. Pinkney appellant. Larry Hamilton, also Sr. testified that son, he Larry Hamilton, Jr., observed his strike Ta’mar in the head on several occasions September between prior the week to Thanksgiving of 1999.
Appellant defense, testified his own describing the events 25-27, of November emphasizing Ta’mar’s crying, continuous as well as his efforts to calm by him, him walking patting his back, attempting bottle, to feed him a and changing his diaper. He also described how Ta’mar stopped breathing and how he immediately called 911 for assistance tried to resuscitate him performing CPR.
During cross-examination, prosecutor asked about his during admission his December 3 statement Detective may Peckoo that he have accidentally hit Ta’mar’s head when was shaking he him to revive Acknowledging him. admission, appellant went on to say thinking after it about for some time after talking Peckoo, to Detective *9 .In to response not hit his head. the knew that Ta’mar did whether, by Saturday morning, prosecutor’s questions about by crying constant and frustrated Ta’mar’s he tired crankiness, being sleep- to tired from the appellant admitted he his nights, but that was frustrated failed less denied prosecutor attempts baby. Finally, the the reviewed quiet to appellant part of statement to Detective another his with Peckoo, appellant described Ta’mar’s cries as sound- hit, explained who been that when he ing like a child had head, beating cried out someone was touched Ta’mar’s like that he told Detective Peckoo that Appellant him. admitted himself, I first to think did do?” response to “What delivered, day closing arguments the that were the On same guilty on both jury returned verdict the 2000, 4, child counts. December the murder and abuse On appellant imprisonment to life for the first court sentenced conviction, and 30 for the years incarceration conviction, consecutively. to be child abuse served 21, Appellant an appeal filed this Court December parties argued three-judge 2000. for both Counsel before 11, February Following of this 2002.3 that panel Court on 2003, Court, argument, by order dated March this on its en motion, banc hearing on April own ordered that an be held theory to consider case that whether argued jury precluded convicting to the from State appellant Specifically, of first this degree murder.4 Court parties argued asked the address whether State from appellant’s stop crying was to Ta’mar as distin intent guished arguing appellant’s from intent was kill Ta’mar, stop crying as a motive for with the desire intent, so, argument. legal and if effect of the State’s considering reviewing arguments, After we record argued that the intended to are satisfied State argued panel The sole issues before the were the three issues set forth 3. beginning opinion. at the of this parties given opportunity were 4. an to submit memoranda address- argument. ing prior the issue for the Court to review en banc
kill Ta’mar. Consequently, we need not legal address the issue by raised the Court and will only address the issues by appellant. raised
Additional facts will be set forth as relevant to our resolu- tion of the issues.
Discussion begin We with a discussion of appellant’s evidentiary chal- lenges.
Alleged Errors in the Admission Evidence Appellant alleges two errors in the trial court’s eviden tiary determinations. Appellant’s first challenge involves a recorded statement that Renita Pinkney gave to police on 8, 1999, December a week after the murder. In that state ment, Pinkney Ms. having denied any seen Ta’mar sustain injuries abuse or diming Thanksgiving prior weekend visit to his death. She testified to the same effect on direct by examination During cross-examination, the State. howev er, she 25, 1999, stated son, November Larry her Hamilton, Jr., threw Ta’mar’s car aup flight seat of stairs into the vestibule while Ta’mar was strapped re-direct, inside. On challenged the State inconsistency by asking Pinkney Ms. questions about prior her statement and later admitted the statement through testimony of Detective Peckoo.
Appellant argues that the trial court admitting erred in 3, 1999, December statement because it failed to meet the requirements foundational laid out in Maryland 5-613(a), Rule requires which speaker that the be shown the statement and provided opportunity with an explain it its before admission. In response, argues State that this claim was waived because, when defense counsel objec- stated his basis admission, tion to its only mentioned Pinkney Ms. had testified, already jurors and thus the should base their deci-. sion on her testimony only. merits, On the argues the State that, if preserved, the court did not err because the statement properly pursuant admitted Maryland 5-802.1, Rule governs which the admission of prior by statements witnesses. preservation argument,5 disagree State’s we with the While under properly admitted agree that statement we evi- 5-802.1, of extrinsic governs the admission Rule it offered as when is prior inconsistent statement dence of a evidence, impeachment purposes. rather than substantive 5-802.1(a)(3) prior provides that statement Rule Specifically, trial and if who testifies at hearsay not made witness is concerning statement subject cross examination who verbatim fashion substantially if that statement is “recorded contemporaneously with means by stenographic electronic does contain the making of the rule statement!.]” 5-613; therefore requirements same Rule foundational requirements all of Rule Pinkney’s meets Ms. statement *11 properly admitted. 5-802.1 and was evidentiary challenge claims that
Appellant’s second excluding its relevant trial court abused discretion Larry Hamilton, of Jr.’s treatment testimony regarding Specifically, characteristics. general Ta’mar and behavioral per appellant argues that defense counsel should have been Hamilton, regarding of pursue questioning mitted to a line use, character, of his chil drug and abusive treatment Jr.’s dren, injuries that Ta’mar’s fatal were possibility to raise but, rather, Hamil by appellant not were the result of caused ton, acknowledges, Appellant of Ta’mar. Jr.’s mistreatment Hamilton, however, Pinkney Larry that both Sr. were Ms. Hamilton, of permitted testify to about their observation Jr.’s brother, Davon. neglect physical abuse of Ta’mar and properly that trial court exercised State contends precluding testimony regarding Larry its discretion certain (1) Hamilton, Jr., Hamilton, arguing regarding that evidence drugs no issue had relevance of Jr.’s involvement with Ta’mar, Hamilton, Jr.’s al- appellant whether killed reading We of counsel's basis for 5. think that the State's defense objecting Although initially focused is too narrow. defense counsel on itself, Pinkney's testimony speak went the fact Ms. should on that argue Pinkney was inadmissible because Ms. was statement given opportunity an to read it and determine whether there an inconsistency. 324
leged Pinkney tendency threats to Ms. had no it more make likely or less actually killed Ta’mar. Maryland 5-401 any Rule defines relevant having evidence “evidence tendency any to make the existence of fact that is of conse quence to probable the determination of action more it probable less than would be without the evidence.” We a ruling relevancy
have stated that the evidence within “quintessentially” the wide discretion the trial court. State, 241, 259, 79 Md.App. 701, See Best v. 556 A.2d cert. denied, (1989). 70, 562 addition, 317 Md. A.2d 718 In Court of has Appeals stated that a trial court’s determination relevancy as to evidence will not be reversed absent showing clear of abuse of discretion. See v. 324 White 626, 637, (1991); Md. A.2d 187 598 Hunt (1990), denied, A.2d 218 cert. U.S. S.Ct. 117, 116 (1991). L.Ed.2d did determining
The trial court not abuse its discretion Hamilton, regarding drug alleged evidence Jr.’s use and Pinkney threats toward Ms. was irrelevant the issue appellant’s Thus, guilt. properly evidence excluded pursuant 5^102, Maryland provides Rule that “[e]vi- dence that is not relevant is not admissible.”
Sufficiency the Evidence rejection appellant’s evidentiary Given our of both of *12 challenges, to appellant’s argument—that we turn main the evidence was insufficient to sustain a conviction of degree first Specifically, appellant murder. that argues the evidence failed (1) to appellant establish that was individual the who inflicted Hamilton, injuries upon that, the fatal Ta’mar or if appel lant in injuries, did fact inflict those he did with so malice with premeditation necessary finding the or deliberation for a degree of first murder. In support argument, of second appellant discussing Maryland’s statutory first turns cases degree murder, elements for arguing first that the evidence addition, satisfy does not the strict requirements. statute’s In appellant Maryland involving other reviews cases abuse inflict- death, that when resulting suggesting upon a child ed charged situation emotionally of an fatal is result act most, of is, guilty at found baby, a the accused involving consid- appellant urges us to Finally, second murder. jurisdictions have been hesitant fact that other er the for the of first death of convict a defendant child. argu- sufficiency of evidence response appellant’s
In not challenge is ment, argues appellant’s that first the State 4- Maryland Rule Pointing to appellate for review. preserved judgment acquittal, for of governs motions which the reasons appellant by that is bound stated argues State case, appellant’s the end of when the motion at he renewed “I Judg- my Motion for stated: renew when defense counsel intro- has no evidence Acquittal because there been ment of Pinkney Mr. prove doubt beyond duced reasonable (“A 4-324(a) may move for guilty.” See Md. Rule defendant trial, of all the acquittal jury of ... at the close judgment particularity with all shall state evidence. defendant granted.”). Consequently, why the motion should be reasons appellant’s preserved claims are contends State basis they for review were not articulated because close of all of the judgment acquittal his motion for merits, that, argues apply- On the State when evidence. chal- ing sufficiency of review for the deferential standard ample lenges, it is clear that there was evidence from appellant guilty properly could conclude murder. preservation While merit the State’s there some legally argument, because we conclude the evidence disturbed, conviction will not be we appellant’s sufficient and preservation uncertainty shall as to in favor resolve Accordingly, begin reach merits. we sufficiency of the evi reviewing the standard review challenges. recently, Appeals, dence Most the Court Smith, State v. A.2d LEXIS Md. *13 326 (Md. May 9, 2003),6
251 of discussed standard review in great depth, stating: appellate evidentiary
The standard for
review of
sufficien
whether,
cy
viewing
light
after
evidence in the
most
any
favorable to
rational
of fact
prosecution,
trier
could
have found
of
beyond
the essential elements
the crime
v. Virginia,
reasonable doubt. See Jackson
307,
443 U.S.
2785,
313,
2781,
560,
(1979);
99 S.Ct.
Moye
61 L.Ed.2d
569
State,
2, 12,
v.
821,
(2002);
White v.
369 Md.
796
827
A.2d
State,
150, 162,
855,
(2001);
363 Md.
State
767 A.2d
861-62
Albrecht,
v.
475, 478-79,
336,
Md.
336
649 A.2d
337-38
(1994). “Weighing
credibility
of
resolving
witnesses and
any conflicts in the
tasks
proper
evidence are
the fact
Stanley,
733, 750,
finder.” State v.
323,
351 Md.
720 A.2d
State,
(1998).
McDonald
See
v.
452, 474,
331
347 Md.
701
denied,
675,
(1997),
cert.
1151,
A.2d
685-86
522 U.S.
118
Albrecht,
1173,
(1998)
L.Ed.2d
(quoting
S.Ct.
140
182
336
State,
v.
478,
337);
at
at
Binnie
572,
Md.
649 A.2d
321
Md.
State,
(1991);
580,
1037, 1040-41
Wright v.
583 A.2d
312
Md.
(1988).
648,
give
regard
“We
‘due
the [fact
facts,
findings
finder’s]
its
of conflicting
resolution
evi
dence, and, significantly,
its
opportunity
observe and
”
Moye,
credibility
12,
assess the
witnesses.’
369 Md. at
State,
McDonald v.
A.2d
(quoting
452,
796
at 827
Md.
347
Albrecht,
474,
675,
701
685
(quoting
A.2d
Id. at A.2d 667-68. some amount deference Noting regarding confusion ability fact give an court should finders’ appellate evidence, on to from the Court went to draw inferences explain: or a emphasize judge’s a trial following cases further
jury’s ability
among differing
to choose
inferences
might
made from a factual situation and
possibly be
regard
give
we must
in that
inferences
deference
Jackson,
319,
may
draw.
In State v. 590-93, 606 A.2d (1992), 269-70 the Court stated: analysis “This indicates that the Court of Special Appeals n events, credited the Raines’s version of the one necessarily mitigated course, his culpability. Of the cred- ibility of the court, witnesses was matter for the trial finder, fact court, appellate to resolve. Further- more, the determination of an is, accused’s intention *15 instance, the first for the trial judge, when sitting without a jury, and this determination will not be disturbed on appeal unless clearly noted, erroneous. As the trial court discounted Raines’s version of Instead, the events. the court drew an inference based on other evidence offered at trial that killing the intentional, was deliberate and premeditated. This, court, finder, the trial as fact has the right exclusive to do. Special The Court of Appeals erred in conducting its own independent credibility analysis and in rejecting trial the court’s finding of facts.
“... This Court has that noted the may trier of fact infer the intent to kill from surrounding the circumstances: subjective and,
“[S]ince intent is without coopera- tion accused, of the cannot directly be and objectively proven, presence its must be by shown established facts permit a proper inference of its existence.” "... Raines’s in directing gun window, actions at the and at therefore the driver’s head on the other side of the window, permitted an inference that gun Raines shot the with the intent to kill. Relying upon inference, judge trial rationally find, could beyond a reasonable doubt, wilful, killing premedi- and deliberate tated so as to render guilty Raines of first degree murder.
“Although a different trier of may fact have viewed the evidence as establishing second murder instead of murder, decision was the trial court’s first Special Appeals erred clearly The Court erroneous. court that of trial on the judgment its substituting omitted.] evidence.” [Citations cases, Raines, the exact and in some other While in type to the proof respect to the of intent issues relate homicide, we, Special Appeals, the Court of have held cases, may established in murder intent be even underlying evidentiary from the of rational inferences use facts. at 534-35, 823 A.2d 668-69.
Id. explanation the stan articulation Court’s (1) give emphasizes important principles: we must dard three opportunity to to the trier of facts’ assess great deference evidence, witnesses, con credibility weigh resolve (2) evidence, can in the circumstantial evidence alone flicts can basis which a of fact rest its provide upon sufficient trier murder, guilt, determination even our own re-weigh judg do not the evidence substitute we ment, supported only but determine whether verdict of fact of by sufficient evidence convince trier guilt beyond principles reasonable doubt. These defendant’s by the it stated: were summarized Smith Court when *16 evidentiary to primary appellate respect function trial court inferences is to determine whether the made i.e., rational, reasonable, from facts. inferences extant Gen- sufficiently supporting if facts erally, evidentiary there are by court, appellate made the trial court inference to of examining fact-finder instead the record defers upon conflicting additional facts which a inference could made, conducting weighing and its own have been then any conflicting independently inferences to resolve con- perceives conflicting it to of the resolving flicts exist. The is inferences for the fact-finder. evidentiary 547-48, A.2d at Id. at 823 676. sufficiency presents separate is-
Appellant’s argument two first, sufficient sues; prove to that whether there was evidence
appellant was who injuries the individual the fatal caused by Ta’mar; second, suffered whether there was sufficient appellant wilfully, evidence demonstrate that Ta’mar killed deliberately, and with premeditation. Appellant’s first claim primarily premised theory on his that evidence that was both admitted tended to that excluded show Ta’mar’s Jr., father, Larry Hamilton, may the responsible have been party. previously that held the court We did abuse its by excluding regarding Larry discretion certain evidence Hamilton, addition, In any Jr. we do not think that of the precluded evidence that was admitted from jury finding that was the individual who fatal inju- inflicted the ries to Ta’mar’s head. (2001),
In Deese 786 A.2d a ease ours, with facts to Appeals similar the Court of affirmed the second degree defendant’s murder conviction7 based on its application the rule that is well that a “[i]t settled conviction may be sustained the basis circumstantial evidence.” Id. 219, 228, A.2d 751 (citing Hebron v. Md. (1993)). Applying the above rule the facts of case, explained the Court (1) Kyle most
the evidence favorable the State is that (2) morning February 8, Kyle alive on the was under supervision exclusive for a period Deese’s time on that (3) day, Kyle period, was found dead few hours after (4) force injuries death due blunt to the head [caused magnitude of a at work in force car crashes and falls from significant heights] possibly shaking, due (5) Kyle no had period one contact with after the described (3). and before From the event described these circumstances, inferred, beyond rational could have doubt, fatal injuries. reasonable that Deese inflicted the (reasoning Id. cases have affirmed other convictions defendant, based on circumstantial when a during evidence crime, control or commission exercised exclusive custo- *17 7. opinion. First was never discussed in the
331
occurred). The similar-
premises
the crime
dy over the
where
present
Deesa
those
case
the facts in
ity between
reasoning to hold
of the Deese Court’s
support
application
our
jury could
from which the
that there was sufficient evidence
beyond
appellant
a reasonable doubt
have concluded
to Ta’mar’s head.
who inflicted the fatal blows
the individual
407 of Article 27 of
under section
Appellant was convicted
Code,
murder which
provides
“[a]ll
Maryland
wilful,
by any kind of
deliberate and
be
...
perpetrated
shall
degree.”
in the first
killing shall be murder
premeditated
(1957,
Md.Code,
RepLVol.,
Supp.).8
§
2000
art. 27
1996
407
has the burden of
appellant properly recognized, the State
As
beyond
crime
a reasonable doubt.
element of the
proving each
305,
State,
311-12,
(citing
Wilful was con- means that the defendant the victim. Deliberate that the intent to kill. Premeditated means scious of the appears Maryland’s in section 2- murder statute now 8. 201(a)(1) Maryland article Code. Law Criminal *18 332 thought killing
defendant about the that there enough killing, though may only time before the it have brief, been for the defendant to consider the decision wheth- er or kill and enough weigh not to to time the reasons against premeditated the choice. to kill intent must killing. be formed before the Appeals The Court of has application reinforced the of those by stating definitions that requires “that possess (willful), the defendant kill intent to that defendant knowledge have conscious kill the intent to (deliberate), enough and that there be time for the defendant i.e., deliberate, to enough thought time to have that about State, (premeditate).” 126, 133, intent v. 328 613 Willey Md. (1992) (holding A.2d 956 that adequately instructions distinguish murder). between first and second
Despite seemingly definitions, these clear we mindful are that it is to concepts often difficult understand these in the abstract,9 and even more difficult to determine is whether each specific Fortunately, satisfied when with a faced set facts. a body guide has developed interpretation case law to our application of these definitions.
First, examining
requirement,
the wilfulness
we have stated
killing
to
be ‘wilful’ there must
specific
“[flor
be a
State,
purpose and
v.
Snyder
Md.App.
intent
104
kill[.]”
State,
9. Much of this
the fact that
based on
the definition
definition,
language
just
"deliberate”
includes
from the "wilful"
“premeditation”
phrase
enough
the definition of
"time
includes
695, 717,
be deliberate.” See Tichnell v.
(1980).
606, 165
A.2d
Cummings
Md.
For example,
judge
trial
that the
(1960),
Appeals reasoned
the Court of
specific
“a
had
justified
finding
defendant
shot
kill,”
fact that “he
design to
based on the
purpose
weapon
point-blank
at
deadly
times with
deceased seven
body,
then,
on her dead
calmly,
pistol
laid the
range, and
”
Id.
I
I
it.’
go
glad
but
am
done
stating: might
jail,
‘I
who shot his
611-12,
(involving a
lover
scorned
165 A.2d
Cummings
if
had
argument). Even
paramour after
heated
victim,
his actions
shooting
not made the statement after
*19
bring
intended to
about
of an individual who
reflected those
therefore, demonstrates
reasoning,
death. The Court’s
her
death,
i.e.,
defendant’s
the
the
that
circumstances
clearly
actions,
they
when
so
speak for themselves
often
to
about
likely
bring
actions that
death.
involve
are
too,
though
So,
in the
Even
present
was the situation
case.
pistol in
deadly weapon
not
like the
appellant did
use a
victim,
six-month-old
Cummings, the
fragile nature
the
a
ordinary
hands,
ob-
baby,
and other
appellant’s
transformed
room,
given
deadly weapons
in
into
the
jects
potential
the
to
victim.
they
of harm
could cause
the
likelihood
that
therefore,
appel-
that
jury,
rationally
could have
concluded
to
objects
lant’s use of his hands or other
deliver
fatal
and
“specific purpose
blows to Ta’mar’s head reflected
intent
10
kill.”
State,
in Dunn
463,
A.2d
v.
226 Md.
174
185
Similarly,
(1961) (involving
bludgeoned to death his wife and
a man who
brief,
proved
Appellant,
recognized
10.
in his
intent
kill is often
that
209,
Hyde
through
weapon, citing
Md.
deadly
v.
228
the use of
(stab wounds);
606,
Cummings,
A.2d
223
165
Md.
A.2d
Faulcon,
(1960) (seven point-blank range
pistol);
shots from a
and
249,
car).
(1956) (dragging a
victim under
however,
here,
by
argues
proven
Appellant
that
cannot
means
intent
be
implement
bring
noted in
of an
used
about the victim’s death. As
above,
recognized
persuaded
text
we are
that
the absence of a
Instead,
deadly
negates
weapon
intent
we are satisfied
element.
appellant
could have
that
medical evidence demonstrates that
used
blows,
surrounding objects
his hands
to inflict the fatal
and that if
jurors
happened,
they
that
was
could infer an
believed
that
what
intent to kill from those actions.
baby
wife),
18-month-old
and was tried for the murder of his
of Appeals,
determining
the Court
in
whether
there was
sufficient evidence to
that
had a
demonstrate
Dunn
wilful
murder,
design to
the fact that the
considered
evidence re-
part
flected a clear
Dunn’s
motivation on
for the murder of his
Id.
wife.
Like the Court in we that it have would been jury appellant’s the to consider the fact that reasonable point, appellant argues 11. On in his brief lack of this that the evidence past by appellant abuse or to kill he threats Ta’mar means that could discussed, day question. intended the have that result on As supports finding appellant’s day evidence that on that actions were by inability sleep stop crying, influenced his lack of and Ta’mar's such that it was reasonable conclude that intended to by inflicting kill fatal Ta'mar the four blows.
335
case, if
present
In the
the other evidence.
contradicted
story
events, they could
appellant’s version
jurors disbelieved
evidence, medical
concluded,
on the
based
rationally
have
intended
appellant
explanation was
only possible
to his head.
kill
blows
four fatal
inflicted the
Ta’mar when he
deliberately
acted
demonstrating
The task of
single
as a
endeavor.12
treated
is often
premeditation
with
and
cases, the
in earlier
espoused
Summarizing
principles
133-34,
State,
613
Md. at
328
Willey
v.
Appeals,
Court
a choice
from
that,
killing results
956,
explained
“[i]f
A.2d
struggle
short
thought, however
result of
made
act,
to character-
it is sufficient
and the
the intention
between
Id.
murder.”
premeditated
and
crime as deliberate
ize the
88, 108,
in order intent, fully actual must find the the trier of facts enough kill with time for deliberation purpose to formed purpose of facts that this to convince the trier premeditation impetuous offspring of rashness is not the immediate its fully conscious of mind has become temper, but that the design. own (followed by Willey, Md. at
Cummings, 223
956).
133, A.2d
Md. at
element
overlap
the wilfulness
12. There is also some
between
deliberation,
dangerousness of
Appeals
used the
as the Court of
has also
determining
*21
the defendant
instrumentality
factor in
whether
as a
See,
Faulcon,
259,
A.2d 858.
deliberately.
e.g.,
A review of other provides support cases for the conclusion that presented the evidence in this justifies case a finding of deliberation and premeditation, as well as the element of State, wilfulness. For example, 130, Mitchell v. 767 (2001), A.2d 844 of Appeals, discussing Court the differ- murder, ence between first and second degree explained: Although it is true that a solely murder committed impulse—the offspring “immediate and impetu- rashness temper”—is ous not one committed with deliberation and premeditation, require the law does not that deliberation premeditation product be the clear rational thought; it may well result from anger impulse. or test for first degree murder is whether there was the premeditation—sufficient deliberation and time reflect— or quality rationality of the reflection or it whether may emotionally have been based. 149,
Id. at 767 A.2d appellant argues 844. While best, killing, at reflects actions emotionally of an drained and sleep deprived giver, care only goal whose was to have the cease, crying Mitchell teaches us that the could still have found deliberately premeditation acted and with despite may the fact that he not have thinking clearly been rationally sleep stress, because of a lack of and emotional long as had time reflect on his actions. helpful
Another
tool
making
this determination
comes from this Court’s review of a
State,
374,
conviction in Hounshell v.
Md.App.
61
486 A.2d
Hounshell,
789.
In
strangled
which the defendant
death,
victim
expressly
recognized
“[premeditation
we
may
circumstantially
be established
partic
from the facts of a
State,
ular
522,
murder.” Id. (citing
Md.App.
Bieber v.
(1970)).
A.2d 202
principle
especially important
This
given
that, “[o]rdinarily,
the fact
premeditation
is not established
Rather,
direct
usually
evidence.
it is
inferred from the facts
surrounding
State,
circumstances.”
v.
Hagez
Md.App.
194, 206,
(1996) (citing
337
brutality
Hounshell teaches
us that
“the
specifically,
More
itself, provide
may, in and of
sufficient
murder act
Md.App.
61
at
first
murder.”
to convict for
evidence
State,
523,
(citing Kier v.
513,
140
375,
216 Md.
In addition
murder,
committing
Maryland
it is well established
by an
firing
separated
or more shots
interval
“the
two
premeditation.” Tichnell
may be
as evidence of
time
viewed
State,
v.
695, 719-20,
(citing
Wilson
287
A.2d 830
v.
Md.
State,
(1971);
Cummings;
551,
261 Md.
In noticeable contrast to only which one shot head, was fired at the victim’s out three of the four shots fired at Mr. Alexander were part directed to. vital of the Thus, body. jury easily could premeditation infer jury deliberation. The -also was entitled to appel- consider lant’s fingerprint on the door, outside of the victim’s car showing ballistic tests that the bullets recovered from the body victim’s gun were fired from appellant’s found in bedroom. essence,
In
complaint
Braxton’s
is that
jury
“the
did not
draw the inferences that he wished it
Hagez,
to draw.”
110
205,
Md.App. at
Our discussion in Braxton reminds us that our task is not to determine whether there were permissible other inferences Instead, we must ensure that could made. jury that have finding of the crime supports a that the elements the evidence Tichnell, also doubt. See beyond reasonable existed (explaining jury that not Md. events, but is obligated the defendant’s version to believe based on the other permitted to draw its own conclusions presented). evidence case, present rules to the facts applying
Before these being guiding principle, final that we are mindful one necessary support of the three elements the existence from conviction must be “discerned 830; Hyde, also Id. at 415 A.2d see facts the case.” 421; Faulcon, 211 216, 179 Md. at 228 Md. at A.2d A.2d 858. of this us to to the facts ease leads
Applying principles these from presented hold that there sufficient evidence reasonably acted with jury could conclude killing premeditation in Ta’mar. deliberation and events, appellant’s required accept version presented especially given much evidence *24 with story his was inconsistent the demonstrated how State obligated was the to conclude jury medical Nor evidence. testimony from and from the medical of other witnesses appellant’s could not have been done evidence that actions premeditation necessary support to with deliberation and degree for first murder. conviction Braxton, argues that Like defendant in evi- victim injury dence about the of the suffered nature support degree murder to his first conviction. We insufficient disagree. testimony by Dr. Walker presented The medical clearly Dr. that Ta’mar suffered four Pestaño established head, involving force to fatal to his violent similar blows through person force when a is thrown the windshield involved Both in a car or falls from a third floor window. doctors crash injuries, his fatal possible also discounted other causes likely to be the result emphasizing injuries that such were during attempts of an knock on head resusci- accidental 340
tate or even alleged mishandling of Ta’mar by his father when he at arrived Ms. Pinkney’s home in his car seat.
Accepting permissible that it was for the to use circum- stantial evidence establish the elements of degree first murder, the nature and number of deadly blows to head, Ta’mar’s in the evidence, context of all supports other finding of deliberation and premeditation. Like the Court of Appeals State, in Hyde v. we believe that the sup- evidence ports jury’s conclusion appellant possessed the neces- sary mental state and amount of time reflect on his actions in a manner consistent with a premeditated deliberate and killing. though
Even
our decision to affirm rests on our application
discussing
case law
Maryland’s
degree
statute,
first
murder
briefly
we take a moment to
address appellant’s alternative
argument
that his
murder conviction should be
reversed
Maryland
because there is no
case in which an
caring, responsible
otherwise
giver
care
has been convicted of
premeditated, deliberate,
first degree
child,
murder of a
when death resulted from a single
Appellant
incident.
at-
tempts
support
his argument by highlighting cases involv-
ing child abuse death in which the defendants were convicted
degree murder,
worst,14
of second
suggesting that second
State,
Md.App.
(1999)
14. See Fisher v.
128
(affirming
341 given here degree appropriate was the verdict murder than murders where killing was no worse those of Ta’mar degree murder. convicted of second the defendant was degree mur- Appellant acknowledge at least one first does a stemming physical form abuse of child but conviction der its present it case on facts. distinguish tries to from the 740, 569 v. of White Md. A.2d 318 Appellant’s discussion of first (1990), in which a mother was convicted 1271 a case boyfriend and child after she and her degree murder abuse daughter by beating her four-year-old caused the death of her separate in 40 to blows to five-day period, resulting a 50 over did not body, solely on the fact that the death her focuses prece- case not have single from a incident. The does result did any effect in event White dential because defendant Appeals murder challenge not conviction the Court should only argued that the child abuse conviction have but Court, in an merged murder conviction. This unre- into the affirmed opinion, ported both convictions. examples in
We also note that there are at least two other Maryland appellate degree affirmed first murder courts Both of parents’ convictions for murder of their children. resulting in the single, episode cases involved a violent child’s sufficiency case raised death.15 In neither the evidence maliciously inflicting corporal punish- of a father murder conviction upon three-year-old daughter). ment his 264, (1983) (involving Pouncey 297 465 A.2d a 15. See v. Md. killing convicted of her five- mother who was son, year-old drowned him be when the evidence disclosed that she only way thought pursuing cause she devil was him and Johnson, him); going prevent was to kill him from hell State father, (2002) (a history drug Md.App. who had abuse, decapitated child was con stabbed 13-month-old murder). Pouncey, argued, victed of first In the defendant guilty appeal, could not of first murder and that she be found affirmed, Appeals insane. 297 Md. at A.2d 475. Court of reasoning finding insanity simply that a relieved defendant liability criminal but did not mean that court could enter guilty impose consequences. Id. at 269- verdict and other non-criminal Johnson, proceeding, post In we had A.2d 475. conviction *26 342
and addressed in a reported opinion, however. previously- As discussed, we reach our conclusion that the in evidence this case was legally by sufficient applying the elements of the crime to the evidence. just The cases by discussed are no authority means to support contrary a conclusion. Finally, we comment on appellant’s attempts argue degree reversal the first murder by conviction attempting to demonstrate that jurisdictions courts in other have been hesitant to convict a degree defendant of first murder in the death of a reasons, child.16 For following we do not find appellant’s argument persuasive. to be
Appellant’s conviction was
Maryland’s
based on
degree
first
statute,
just
governed
as our review is
by Maryland
cases interpreting that statute. Courts from
jurisdic-
other
tions
by
law,
are
bound
our
thus,
statutes or case
their
analyses of similar
may vary
issues
based on those differences.
Additionally, with respect
legal
sufficiency, cases turn on
their facts. We have made no attempt
to research and
compare
jurisdictions
cases from other
because we believe
Maryland
supports
case law-
our conclusion.
always
areWe
cognizant of
every
different,
the fact that
jury
that,
is
end,
job,
it is our
“after viewing the
light
evidence
most
prosecution,
favorable to the
any
[to determine whether]
rational trier of fact could have found the essential elements of
beyond
the crime
a reasonable doubt.”
Virginia,
Jackson v.
307, 313,
443
(1979).
U.S.
99 S.Ct.
We num- murder, solely on the based for first sufficiency *27 merely hold that the evidence We ber of blows delivered. murder of first legally sufficient convict totality of child based on the of a six-month-old the death number, severity, evidence, including as to the the evidence up to the blows, leading brutality of circumstances the the of appellant’s version events. beatings, AFFIRMED. JUDGMENTS BE PAID BY APPELLANT. TO
COSTS BLOOM, DAVIS, Concurring Opinion joined by by J. G., (retired, assigned). specially
THEODORE J. by majority only I in the because concur the result reached in charge jury I the perceive no error law in the by Maryland presently jury verdict rendered under law view, however, because, my in separately, I write constituted. has appellant’s an conviction resulted from obfuscation developed in the law and second between likely comprehend and the of the murder failure crying from concept prevent that an intent to the infant degree. sustain a of murder in the first insufficient to verdict certainly better. Six-month old Ta’mar Hamilton deserved out, premature, requiring majority points As his birth was with breathing; assistance to was treated medical facilitate old; pneumonia was three months antibiotics when he indicating healing rib fracture autopsy results revealed injuries prior injuries; fatal force sustained to his it employed causing ultimate death was so violent that equivalent of that which occurs one is thrown when crash or from a third through the windshield in a falls car trial, contest, regard- floor window. There was no serious ing criminal agency. It can fairly be said that appellant was not well served his failure to forthcoming be and a defense been, that, strategy in hindsight, appears to have disingenuous credulity. and strained sure,
To be presented, the evidence finding guilt at least the second degree imposition of a severe clearly sentence were warranted this case. More- over, that, recognize I given present Maryland state of law homicide, on felonious it province was within jury, with ability armed to consider inferences and the circum- stances surrounding death young Ta’mar to conclude that, exasperated inability at his young to force the child to stop crying, young he would kill Ta’mar as only means to achieve the desired end. The majority quotes from State v. Smith, (2003), September No. (filed Term, 9, 2003), May in which the Court Appeals observed that following “the cases emphasize further a trial judge’s or a jury’s ability to among choose differing inferences might possibly be made from a factual situation and the *28 give deference we must in that regard to the inferences a jfinder may fact[ draw.”
Consequently, absent clear error in its fact-finding, ap- an pellate court required, is in finder, deference to the fact to accept findings those of fact. I wholeheartedly subscribe to proposition the espoused in Smith because it would improp- be er this Court to in engage appellate fact-finding when possible was, fact, ultimate decision in supported by evidence or inferences and circumstances properly from deducible majority evidence. The opinion, great with clarity, makes the point.
All said, of foregoing having the been we must sight not lose of principal any the focus in prosecution, i.e., criminal the mens rea or mental state that determines the of culpability, except in those offenses as to which require- the proof ment of of scienter is expressly obviated statute. heart-rending The circumstances surrounding short the life young death of Ta’mar have tendency causing the of the accountability culpability from the the focus jury to shift fact that the agent the inference of criminal well-settled the in injuries of account nature the may take into the finder determining of the actor. the intent have may in court
Although proceedings the lower constituted, extent Maryland presently law as run afoul of injuries naturally tend of the would and heinous nature it to intent jury and discern passions permit of the inflame totally disregarding injuries, from the of those solely evidence theory consistent with the other circumstances wild, state, of frenetic rather than a state may have acted cool, My con- rational, is reflective. second mind which that, case, jury may have been on facts of this cern is deliberations, of the emphasis in its a result confused i.e., stop crying, infant appellant’s goal, stated make the of without thereby first murder rendered verdict determining that conduct was “willful” in the sense appellant’s child. intending to kill the of the and character expansive definition nature homicides, virtually all of one kills reflection who renders prior any killing, of time to the period when there excuse, justification, or first in the absence of to the mitigating respect circumstances. With evidence kill, that, I am under conclude because constrained intent law, from may exclusively be almost Maryland intent inferred inflicted, within injuries province nature it was judice in the a verdict of murder case sub to return kill degree. fully A intent to and evidence formed (even split in a one made the decision true reflection—that second) view, my to kill not to kill—in between the choice incompatible which establish that the are with circumstances *29 i.e., his or rationally, not act was robbed of killer did she was incapable such that he or she her mental faculties forming the intent to kill. hand, in the jurors, deliberating case at under
The the law, properly appel- find that Maryland current state could if they lant his actions “reflected” even believed were not the i.e., product thought process, of a appellant rational was ability requisite robbed to form the intent. Conse- quently, although majority opinion accurately sets forth presently jury the law as constituted its returned instructed, pursuant verdict law as appellant’s convic- murder, tion in my judgment, of first resulted from blurred between demarcation first and second Maryland which has in developed past over the three decades. Impulsive evidencing ability and rash behavior lack of requisite specific recog- formulate the should not intent be nized as the basis for a conviction of murder in degree. Ta’mar, respect injuries by
With to the extensive sustained majority opinion principally relies Hounshell v. (1985), 61 Md.App. in which the victim strangled to death and Kier v. (1958), A.2d 896 in which Appeals the Court of had character- having ized the victim as been in a “brutal beaten manner” about objects the face and head with a protract- indicated period during ed the assault Noting continued. that the assailant procured plunged had butcher knife and it twice victim, concluded, Kier, body into the in Court ample there was evidence to justify the its conclusion willful, deliberate, the action of the Kier, premeditated. trial, a bench proof considered the premeditation deliberation in a case which victim by had many been found her husband with lacerations and face, head, bruises about the back of parts her her other body. wounds, apparently by of her most serious inflicted knife, butcher were one her throat and another in her chest extending through cavity some seven inches the chest the heart.
Kier and virtually Hounshell—as true with all of the majority—involve cases cited slaying victims injuries wherein the nature of the are not juxtaposed
347 in his writ Appellant, are inconsistent.1 circumstances which Anderson, Court, People us to to this refers ten submission (1968), 550, 447 P.2d in which Cal.Rptr. 942 70 Cal.2d California, proof discussing of of the Supreme Court murder, of concluded: elements this found type of which court sufficient evidence into and falls finding premeditation a deliberation sustain (l)faets and what defen- categories: basic about how three killing show that the prior dant did to the actual which toward, activity engaged directed defendant in, may killing—what be explicable as intended result (2) activity; facts “planning” as about the characterized with relationship the vic- prior defendant’s conduct and/or a “motive” to jury reasonably tim from which the could infer victim, motive, together with facts kill the which inference of (1) (3), support in turn an type or would inference killing pre-existing the result of reflection” and “was thought weighing “careful considerations” rather hastily or rash impulse than “mere unconsidered execut- (3) ed”!;] killing from which the facts about the nature mjanner particular could was so jury killing [The infer intentionally that the must have exacting defendant a according design” killed take his “preconceived “reason” particular way victim’s in a which life far (2). can reasonably type infer from facts of (Third omitted.) added; emphasis citations it is in the of W. point,
More to the stated treatise LaFave 7.7(a) (2d ed.1986), Scott, § Law A. Criminal & killing much vio- mere fact that attended “[t]he great many or that wounds were inflicted is not lence regard [establishing premeditation], as relevant this such (or just likely likely) to killing perhaps more have been citing majority point, on makes the Mitchell v. impulse.” The caring only Appellant, step-grandfather the infant two 1. as a days Thanksgiving holiday, not absolve over did seek to himself child, long-term care of the a circumstance undermines theory child dead. wanted the (2001), Md. that the test for first quality murder is or rationality of the reflection in determining deliberation premeditation or whether it have may emotionally been based. The discussion Mitchell centered whether the premeditation elements of and delib- *31 eration were by agreement established in conspiracy a to commit murder in first degree as to the non-shooter. The Appeals Court of concluded: to
We are unable
follow metaphysical analysis
of [Unit
[,
(5th
Chagra
Cir.1986)]
ed States v.]
The cases majority cited for proposition appellant’s emotional state does not preclude finding that he deliberately acted premeditation with involve in homicides provide the circumstances do not an theory alternative only that not is plausible, which, more but from point of lay jury, view of the could reasonably have been endorsed the State. In that regard, the in its closing argument said:
Now the last form of homicide that judge instructed you on is first murder. It’s basically second degree elements], with two additional were the defendant’s actions deliberate and they premeditated[?] were means,
Deliberate was the defendant conscious of his to intent Well let’s look actions, kill[?] at this he had [sic] tried so many things to get Ta’mar to stop crying different it, he couldn’t do and he was and he was frustrated tired. And he wanted to do something stop would his crying. He didn’t do something that didn’t with coincide goals what his So he were. was conscious goal, his his goal was to quiet the baby. Baby So he took Ta’mar and exactly what He he into rail. knew slammed his head bed doing, intent. was conscious he to premeditation. people is Now tend The last element wait, in plans go premeditation laying as think advance, all of conspiracy, and those weeks [sic] time, a you need But don’t things premeditation. are You don’t premeditation. significant amount time things to do. You plan, out a list you [of] don’t write need you can amount of time so that make just need a small kill. decision whether three, One, two, Between (Indicating.) any of four. decide, had the opportunity
those blows the defendant continue, premeditated He or continue. chose stop him. Ta’mar Hamilton and intended kill kill really comes down what this case gentlemen, Ladies and to, did kill Ta’mar key this [appellant] issue case .... Hamilton Court, hearing this it was elicited that
At the banc before *32 point, argued to the that prosecutor, at one appellant’s theory that it was supported evidence State’s Ta’mar, simply stop than him young intent to kill rather argument crying. prosecutor’s from A review reveals attempting that its thrust was that was principal from and from acts stop young crying child death ensued disregard and a human that were wanton demonstrated depraved heart finding would be quintessentially life. Such degree Maryland law. second murder under Wilner, Appeals in Judge writing Special for the Court of 607, 611-12, Simpkins Md.App. v. 738, 745,
(1991)2 517 A.2d (citing Robinson (1986)), explained: as a depraved A is often described wanton heart murder killing. “depraved The heart” means some- wilful term amounting high to a or thing than conduct unreason- more Simpkins neglect; recognize based on I 2. that conduct however, in-depth discussion “intent.” the decision contains an able risk to human life. perpetrator The must [or reason- ably realize the risk should] [or behavior has her] created to the extent that his conduct may [or her] be. Moreover, termed wilful. conduct must an contain element of viciousness or contemptuous disregard for the value of human life conduct that characterizes behav- ior as wanton. Court,
The Simpkins intent, discussing the element of explained: further
But will again intent be found to resolve itself into two things; that foresight consequences certain will follow from act, consequences an wish for and the those working as question is, motive which induces the act. The then wheth- intent, turn, er in its cannot to a be reduced lower term. be, Stephen’s Sir James statement shows that it can death, that act knowledge probably will cause is, act, foresight consequences of the is enough murder as in tort.
Id. Holmes,
n.
The Simpkins development English Court traced the American decisions withholding involved the of suste- from, child young nance what an under circumstances may intent be found elevate the from manslaughter offense to depraved heart second murder or cited, In intent-to-kill murder. the cases when the actor act, intended the natural consequences subjected of which high life, victim to a risk to unreasonable human intended, although generally death the cases hold that guilty of depraved defendant heart second *33 murder. the defendant withholding When intended the death, in clearly sustenance to result the offense committed is degree murder. above, From establishing appellant the that intending indispensable finding death to occur is to of first reason, emphasis murder. For that should have placed been act, on the intending distinction between an the natural conse- intending a risk that of which involved of death quence causing young stop Ta’mar to occur a means death properly notwithstanding that the trial court instruct- crying, actually means defendant jury the that “willful that the ed Ordinarily, would to kill victim.” this instruction intended the to jury the as to how have sufficed to inform determine supported finding of first whether the evidence murder. however, great took to make prosecutor, pains point the
The something stop to do that would his appellant that “wanted goal quiet his to crying” goal, and “he was conscious was jury that baby.” prosecutor appellant then told the the The into the rail that he knew “slammed Ta’mar’s head bed doing, was conscious of his At exactly what he was he intent.” argument, the intent to which point prosecutor’s that young crying. jury is Ta’mar from The stop she referred to that very easily appellant been misled if believed could have it prevent young to from only with intent Ta’mar acted baby to but that did not intend for the die. Under crying, circumstances, appropriate should have been such verdict depraved heart second murder. its certainly province jury
It is within the of the come to as to what the circumstances about own conclusions reveal state; however, appellant’s emphasis prose- mental “goal” on what appellant’s cutor enhances likelihood because, jury notwithstanding that the was confused dissem- bling by appellant, there were no circumstances extrinsic to appellant the criminal act itself indicated that wished appellant motive that he baby only dead. ascribed is The crying. baby stop possibility wanted the The existed kill young victim as means to intended him prevent crying. plausible explanation, from more however, that, state, appellant applied in a frenetic force consequences. pains, my thought with little Great view, emphasis placed such should taken when have been crying “goal” stopping baby from as the stated order crystal “goal” it that the must find that be clear infant, merely crying. kill him from It stop was to *34 was incumbent on court to insure that there was no confusion point. as to the I acknowledged,
As have
it was within
province
jury,
evidence,
based on the
circumstantial,
direct and
therefrom,
inferences deducible
to
conclude that
possibly
kill
young
intended to
Ta’mar. My concern is wheth-
er,
(and
in a case when there had been articulated
reinforced)
prosecutor had
an intent
kill
other than to
child,
young
the distinction
an
between
intent to kill and the
act,
intentional commission of an
likely
the nature of which is
death,
may very
cause
well have become blurred.
Judge
Jr.,
Moylan,
Court,
Charles E.
formerly of this
in his
Law,
treatise,
Criminal Homicide
traces the definitions of
“willful,” “deliberate,” and “premeditated” to Hochheimer
who,
turn,
based his definitions
Pennsylvania
on the
Act of
“interpretive
1794 For
guidance,” according
Judge Moy-
lan,
single Pennsylvania decision,
Hochheimer
to a
looked
Drum,
Commonwealth v.
(1868).
A in Commonwealth v. Richard judge (Judge learned Smith) has said: “It equally true both in fact and from experience, that no time is too short a wicked man to murder, frame his mind his scheme of and to contrive the means of accomplishing it.” But this expression must be qualified, lest it mislead. It is true that such is the swift- ness of human thought, that no time is so short in which a man may kill, wicked not form a design to and frame the of executing purpose; yet means this suddenness is opposed to premeditation, jury and a must be well convinced upon the evidence that there was time to deliberate and premeditate. regards, find, The law and the must intent; actual say, fully kill, that to purpose formed time, with so much premeditation, deliberation and as convince purpose them this is not the immediate off- spring impetuous rashness and temper, and that the mind has fully become conscious of design. its own If there be mind, time to fully consciously, frame the inten- death, kill, or means weapon and to select tion short, beforehand, time though the be and know to think it, and to time to deliberate there is to be made use premeditate. *35 omitted). (footnote at 18
Id. scholarship the decision, true much of as is with The Drum murder, discuss- and second the law of first regarding fully-formed required purpose to the for there be the time es In premeditation. the case kill and for to deliberation hand, position, unlike the dissent focuses my time, standing of length premeditation, of is element could of whether alone, not determinative should be ... “the actual intent the facts and circumstances find from ” evidencing An act a to kill.... fully purpose formed peri- over an may be sustained extended non-homicidal intent time, a wanton the fact that it demonstrates despite od of likely Appellant’s actions were more disregard human life. impetuous temper, of offspring immediate rashness “the fully of its own the mind has not “become conscious ...” and case, words, believe, I In the instant is devoid design.” other of qualitative, quantitative, rather than the element inflicted, injuries from the all of reflection. Aside extensive circumstances tend to belie contention the extrinsic appellant harbored an intent kill Ta’mar. requisite of first intent- respect to the elements
With murder, Chasanow, writing for of Judge to-kill the Court 126, 133, Md. 613 A.2d Appeals Willey 695, 717-18, 415 A.2d (1992)(quoting Tichnell v. (1980)),explained: specific killing purpose For a to be “wilful” must be there kill; there must be a full and intent be “deliberate” kill; knowledge and to be purpose and conscious preceded design to kill must have “premeditated” is, length time, enough an killing by appreciable time unnecessary It is that the deliberation or to be deliberate. any particular length have premeditation shall existed time.
In discussing a homicide Mary- scheme3 similar to that land, (1988), Leo at 18 Romero N.M. L.Rev. 73 observed at 74:
An intentional only homicide includes killings those where the actor desires the death of human being; another it does not a hilling include where the intentionally actor acts but without purpose bringing about death. example, For person who intentionally shoots at the victim to him scare her], but without intending death, [or the result does commit an intentional if discharge homicide should hit the victim and the victim should die. Even though the act causing death, shooting, intentional, killing amounts to an unintentional person homicide because the did not consequence Hence, intend the of death. it important distinguish between shooting intentional intentional killing.
(Footnotes omitted.) *36 speaks
The author to a further presented by concern the case at bar:
... reprehensible homicide, The more greater the the punishment killing should grading warrant. The of provides: 3. The New Mexico statute degree A. Murder in the killing being by first is the of one human excuse, justification another by any without lawful or of the means may with which death be caused: (1) willful, by any kind of premeditated killing; deliberate and attempt in the any commission of or felony; to commit or (3) by any others, greatly dangerous act indicating to tire lives of a depraved regardless mind of human life. degree Whoever commits guilty capital murder in the first is of a felony. acting (cid:127)B. upon provocation, [or Unless he is upon she] sufficient a quarrel passion, person sudden or in the of heat who kills another being justification human without lawful or excuse commits murder degree performing in the second if in the acts which cause the death strong [or knows that probability she] such acts create a of death great bodily harm to that individual or another. degree Murder in the second is a lesser included offense of crime degree. of murder in the first Whoever degree commits murder in the guilty second is of a second degree felony resulting in being. the death of a human also reflects on basis of relative seriousness homicides wrongdoing. moral in stigma differences different, sense all are in some Although homicides should be based categories of into division homicides clear, Distinctions and workable distinctions. principled, degree includes in that first murder principled the sense are killings those encom- that are heinous than killings more clear to degree murder. Distinctions are passed by second meaningfully the two they differentiate the extent in murder; example line between murder of degrees degree be degree second should are recognizable. Finally, distinctions workable clearly if under- are the lines between classifications different applying the distinc- by jury lay people standable of homicide. Because determining tions of should differ- classifications homicides reflect different should culpability, culpability terms he defined ences precisely clarify the distinctions.
(Footnote omitted; added.) emphasis quotation clearly plea for above some sense can Currently, of homicide. one moral relativism in the law in an emotional or state spontaneously act almost frenzied to a conviction for first subjected be nevertheless solely period on a theoretical instantaneous murder based injuries inflicted. At the same and the nature of the reflection may time, calculating whose are more be deemed one actions only consequence murder as a guilty be second *37 injuries sustained. the number and nature of the case, no in culpability difference Apropos instant imputed admittedly accountability appellant, moral is who act, a who commits a murder committed heinous one than conducting a for or one who murders the course hire was, enterprise. despicable appellant’s conduct criminal As as or, equated for professional it be with that a killer cannot matter, one who conceives of a calculated scheme murder a child.4 majority
The
appellant’s argument
dismisses
Mary-
that no
land
caring,
case which an
responsible
giver
otherwise
care
premeditated,
has been convicted of the
deliberate first
murder of a child when death resulted from single
a
incident.
majority
notes that
cases,
cites three
Fisher v.
State,
128 Md.App.
(1999),
Although distinction between manslaughter murder and generally by jury discernible with the aid of instructions court, from the the distinction between second degree premeditated murder often juries. confounds As result, subject vagaries defendant is to the charging process as by lay persons well confusion jury. on the Chasanow,
Judge writing for Court of Appeals in Wil- ley, resulting referred the confusion from the lack of clarity as to premeditation: the definition of preferable, would be especially
[I]t
where the distinction is
issue,
clearly
trial
emphasize
court to
order
to conclude that the
premedi-
defendant
-
killing
tated the
it must find that the defendant had suffi-
cient time to consider the decision whether or not to kill and
weigh
against
the reasons for or
such a choice. Movement
in this direction would be
developing
consistent with the
Smith,
(1995),
4.
State v.
322 S.C.
Although to clarity respect with the greater to there needs be in first versus states involved second distinct mental pertain, murder, judice case not my concern in the sub does premedi- to there sufficient time principally, whether but, rather, only was confused as jury whether tate its to return required of the reflection and mandate character if it from evidence an only a first verdict found I it to inflict the recognize to kill. that the time took intent satisfy injuries in this case is more than sufficient to length as to of time. Whether the premeditation element of with intent kill killing was deliberate is intertwined of an to kill if certainly cannot be conscious intent because one Thus, jury although potential is no intent to kill. there kill, my I is the intent to it confusion to which address concern that, logically follows if there is confusion as kill, of intent to also can be no conscious- evidence then there and, ergo, killing of that intent cannot be deliberate. ness Court, Judge Moylan, writing for this discusses the interre- lationship requisite of the elements of first murder in (1979): 277, 300, Md.App. Smith v. “wilful,” adjectives and “premedi- Do three “deliberate” state aspects tated” distinct of the mental we describe three they, for searching are or are as a rhetorical device emphasis, synonyms purposes simply three same third adjectives mental state? Do the second and add specific anything to the first? there be “a whatsoever Can purpose design kill” “a full and conscious without How knowledge to kill”? does one have purpose wit, To purpose being purpose? without conscious of that By can an act be “wilful” and “deliberate”? same token, adjective anything does the third add to the second?
How can one be having “deliberate” without had “time enough to be deliberate”?
I acknowledge, must, as I that although the plausible more explanation appellant’s that, for actions is exacerbated and in a state, frenetic engaged conduct that a evidenced con- temptuous disregard of life, the value of human jury the entitled to find from the direct and circumstantial evidence and the properly inferences deducible therefrom that appel- lant employed lethal force to kill the infant as a stop means to him crying. from potential The for confusion jury, the my judgment, only could have been by drawing addressed its specifically attention to fact the that a simply mens rea bent on stopping baby the from crying is insufficient to sustain a conviction for murder in the first degree. punishment, As to a thirty years’ sentence of imprisonment, consecutive to the life imprisonment sentence for degree murder, first was imposed for child abuse. Had jury returned verdict of murder in the second degree, appellant’s exposure would have been aggregate, assuming sentences, sixty consecutive years’ imprisonment. The sentence for degree second murder would have appellant’s punishment differentiated from that reserved clearly killers who intend to kill pursuant their victims to a design. discernible
SONNER, J., dissenting.
For worse, better or bur separates law degree first from killings other based on the decision to kill in advance of the act. It is separation judges and lawyers examine, understand, explain jury. any And when evidence degree presented, murder is trial judge, in the first instance, law, and as a matter of must determine whether the evidence could persuade a jury to convict. See Hebron v. 219, 232, (1993). 331 Md. judge The cannot let a go jury case to the if only there is morsel evidence; enough there must be jury to allow a jump hurdle of reasonable doubt. See Virginia, Jackson v. 443 U.S. 307, 320, (1979). S.Ct. L.Ed.2d jury, hand, Hebron, other is the judge sole of facts. 331 Md. at power just juries 1029. But have 627 A.2d because to determine permit them evaluate murders does not of crime. This pick the worst then are exactly what to a delegation judicial responsibility of a condones, what me to dissent. majority causes agree majority’s I with the First, clear that let me make Pinkney barely preserved the suffi- opinion concluding how ciency vague just He was as to the State’s issue. I would be mistaken to agree failed. also that we evidence shortcoming deciding important issue use that evade Moreover, can prove I understand that the State presented. of first murder with circumstantial all of elements evidence, of first accept majority’s and I definition Lastly, quarrel I no with the conclusion that murder. have perpetra- Pinkney to show was the sufficient evidence existed *40 concern, instead, My is that we have affirmed conviction tor. showing, no for first murder when there has been trial, indeed, Pinkney’s premeditation no focus at of real commit the fatal acts. Maryland, history tortuous of the law of homicide
The States, present day throughout and the United can cause application. and can lead to inconsistent This dis- confusion proper place history, is not the that or even to sent describe apparent my purposes, confusion.1 For it is describe the accepted to work with the crime: sufficient definitions Jr., Judge Moylan, publication, 1. Charles E. has done so in his recent expertly the disordered He describes (2002). Law Criminal Homicide developing case law and milestones that have emanated from the Judge appellate Maryland. particular, In review of murder cases in "wilful," "deliberate,” Moylan “pre- traces the of the words and roots meditated,” and remarks: State, (1953)], Chisley 202 Md. A.2d Hoch [v. [Lewis] 95 577 [, (1868)] 9 heimer and Commonwealth v. Drum 58 Pa. all define connoting purpose specific "wilful” as that "there must be a is, ipso facto, [They] design specific go to kill.” That intent to kill. on to define "deliberate” as “there be full and conscious must knowledge purpose of the ." Both notions of “willul to do so... "specific intent” and "knowl ness” and embrace "consciousness" is, definition, edge” "purpose." purposeless A act act an specific killing purpose For a “wilful” there must be be kill; a full to be “deliberate” there must be intent kill; knowledge purpose and to be and conscious design preceded to kill must have “premeditated” the is, time, enough that killing by appreciable length an time to be deliberate. (1980). 695, 717, 415
Tichnell v. 287 Md. A.2d murder, guilty To sustain a verdict of first there jurors from which the could have must be some evidence intent, fully found a reasonable doubt “the actual beyond kill, purpose to with so much time for deliberation formed them, this premeditation purpose [wa]s as to convince that impetuous temper of rashness and offspring the immediate fully become conscious of its own and that the mind ha[d] 87, 106, A.2d design.” 202 Md. Chisley omitted). (citation presence premedi- of deliberation and judged tation must be from the facts each case because length during they of time “shall particular there is no existed.” Id. have been conceived or have Pinkney’s agree I was sufficient evidence to show there kill; that. But the injuries supply intent to Ta’mar’s head Pinkney’s at trial to show that mind produced nothing State was “a design,” had “conscious of its own there become thought.” Chisley, choice made as the result See omitted). (citation nothing in the There any long period, to show that was deliberation for record there short, is, to kill any struggle, between the intention *41 and the act. specific specific a intent intent. One cannot entertain without unknowingly unconsciously. Chisley finally "premeditated,” is and Hochheimer There killing by by stating design preceded define that "the must have the time, length enough appreciable of time to be deliberate.” When an been, deliberation, necessity, there has of time for delibera- there is tion, wit, having "premeditation.” One cannot deliberate without premeditation, been there had time to deliberate. If there has no cannot have been deliberation.
Id. at 51-52. State, 304 Md. Rodowsky explained in Ferrell v. Judge As (1985): decisions the statute and this Court’s Maryland [U]nder something forming more than an intent premeditation is kill____Professor goes to say “[t]he Perkins so far as that always that a formed intent is deliberate fully notion how time the no matter short the between premeditated, plan, of thought of matter the execution the first the preposterous.” Homicide, Perkins, L. & The Law J.Crim.
(Quoting
(1946));
Criminology
Willey
see also
(1992) (upholding jury instruction distin-
126,
The State’s the As closing argument, premeditation. bears out absence concurring opinion recognizes, proceeded on the State theory killing depraved implicit that was of the heart approach Pinkney not variety. planned Its that advance, but, rather, murder, about it in that thought or even rage it in a that forth from utter he carried out burst jury to Essentially, frustration. the State return asked upon support depraved based facts would heart verdict murder, supported if facts murder. those not
Pinkney, part, asserted a defense that he did injuries, guilty only fatal not that of a lesser inflict the certainly That was an homicide. understandable strategy. having Pinkney defense maintain that double defending inflict injuries, simultaneously not while he did inflicting injuries did not before that he deliberate same carry a jury. not much chance success with Each would Using would defense weaken the other. defense he, injured Ta’mar like did someone else meant an into the inject premeditation issue of case. Nonethe- conviction, less, affirming majority, working back- *42 362 hindsight,
wards and with reads the record and declares that enough there was support evidence to a finding degree of first I agree. murder. cannot majority, and to degree some concurring opinion, upon appellate
relies
review of the facts in Hounshell v.
364,
Md.App.
(1985),
Even more majority quotes Hounshell that brutality “the act may, itself, the murder in and of provide sufficient evidence to convict for Maj. murder.” Op. at 32. But killing required in Hounshell a concentrat- ed brutality, effort the murderer to create premedi- so clearly tation was present. literally Read and independently Hounshell, facts in applied reflexively appeals cases, quotation may come to any mean that killings qualify murder, all brutal for first degree with the brutality serving as a substitute for competent evidence of premeditation.
So, too,
in Fuller v.
45 Md.App.
(1980),we
affirmed husband’s first
murder conviction
wife,
stabbing
death of his
particularly
noted the
brutal
multiple
nature
the crime. The
stab wounds
case, however, length
stretched the
and width of the
body,
“protracted
victim’s
showed a
and brutal assault.” Id.
period
Protracted
an extended
blows and the defendant however, conviction, not rest did gun. a Tichnell’s first shots, firing two but on the circumstances only on the of the arresting law his with enforcement. surrounding confrontation of acts comparison of the two cases invites use A shallow proof kill as a that the an substitute that show intent premeditated. defendant jury
Ultimately,
majority
reiterates its deference for the
that,
function,
notwithstand
optimistic
and the concurrence
evidence,
very
problems
jury
real
with
success
ing the
empha
to it.
I
through
presented
the confusion
fully waded
a crime
prove every
must
element of
size that
State
Jackson,
319,
[T]he reasonable-doubt community respect mand the and confidence law. is critical that the moral applications criminal It of the criminal law be diluted standard force in doubt men are proof people whether innocent leaves society is also in our being important condemned. It free ordinary every going his have individual about affairs adjudge government guilty cannot him confidence his convincing proper finder of a criminal offense without fact certainty. with guilt his utmost 1068, Winship,
In re
90 S.Ct.
25 L.Ed.2d
397 U.S.
(1970). Moreover, the reasonable doubt standard is “more
Jackson,
316-17,
443 U.S. at
simply
than
trial ritual.”
S.Ct. 2781.
a properly
jury
When
instructed
a state trial
convicts, “even when it can be said that no rational trier of fact
could
guilt beyond
doubt,”
find
a reasonable
the conviction
violates
process
Fourteenth Amendment due
and cannot
317-18,
stand.
Id. at
We
these constitutional
principles
Rasnick v.
4 Md.App.
(1968),
in which we
degree felony
reversed a first
murder conviction because there
was insufficient evidence of the underlying robbery. The
put
State had
forth evidence that
yelled
the victim
before
death,
robbing
“He is
Although
me.”
recognized
we
trial
judge’s finding that
the State’s evidence on
point
this
credible, we did not find the evidence
sufficient to allow a
*44
robbery
conclude that the
occurred.
something
There was
to support
required
robbery,
element of
enough
but not
conviction,
sustain a
and we were careful to mark the distinc-
applied
tion.
reasoning
We
the same
and review later in
(1969).
Robinson v.
Md.App. 723,
In the context of this principles enumerated of law mean that jury could not Pinkney have found guilty of premeditated murder if there no evidence from it find, could beyond doubt, a reasonable that he through went thought process and to act chose with the intent murder the baby. majority The would allow juries to take the evidence that supports an intent to kill evidence, and use that if it so wishes, to find premeditation, though even the evidence falls must, showing, short of as it that the defendant deliberated at all. permit Our law does not evidence, such a of misuse such an obscuring of the elements of a crime.
Premeditation is no means simple concept. See J. Moylan, at 54 supra, (providing examples of “questionable were premeditation deliberation circumstances,” in which and Premeditation, 36 found); Murder Pauley, By A. Matthew ap- (discussing different Am.Crim. L.Rev. Lee premeditation); defining applying taken proaches Malice Russ, Rules Requiring Modem Status R. of “Premeditation,” “Deliberation,” as Ele- “Aforethought,” (same). 18 A.L.R.4th Degree, in the ments Murder First concept at premeditation, majority opinion evades the path of it, down a best, It leads us or misconstrues worst. first and second eliminating distinction between a means of juries having pick decision, Indeed, we have increasing punishment. with this proof of murder without jury’s verdict upheld We, overly in an of premeditation. the essential element in a review, court below join deferential severely the man accused of a punish visceral resolve disturbing horrific crime.
Dwight EVANS Maryland. STATE of Term, Sept. 2001. No. Special Appeals Maryland.
Court *45 25, 2003.
June