Abernathy v. State

MOYLAN, Judge. Although one can commit murder or manslaughter without entertaining the specific intent to kill the victim or anyone else, one cannot commit an attempted murder or attempted manslaughter (or even an assault with intent to murder) without possessing such a specific intent to kill. The disposition of this appeal hinges on the critical difference between the broad mens rea (more properly, perhaps, the broad range of mentes reae) of consummated criminal homicide and the far more narrow and restricted mens rea of inchoate criminal homicide. ³⁶⁷ The appellant, Vincent Abernathy, was convicted by a Baltimore City jury of 1) attempted murder in the second degree, 2) common law battery, 3) the use of a handgun in the commission of a crime of violence, and 4) the unlawful carrying of a handgun. On this appeal, he raises four contentions: 1) That he was erroneously convicted of a non-existent crime; 2) That the trial judge erroneously instructed the jury on the subject of attempted murder of the depraved-heart variety; 3) That the battery conviction should have merged into the conviction for attempted murder and that the carrying of a handgun conviction should have merged into the conviction for using a handgun to commit a crime of violence; and 4) That it was reversible error for the trial judge to refuse to voir dire a juror as to her potential bias developed during the course of the trial.

More than a nutshell version of the facts is not necessary. As part of a senseless neighborhood squabble at approximately 1:20 P.M. on February 6, 1994, at the intersection of Milton Avenue and Biddle Street in East Baltimore, the appellant pulled out a handgun and fired five or six rounds at a group of boys who had been harassing him and his friends. One of the bullets struck and injured Jacklyn Holiday, an innocent pedestrian who was standing with her young son at a nearby bus stop. The appellant was charged with the attempted murder of Jacklyn Holiday.

In presenting its case, the State neither offered proof to show nor even argued that the appellant had harbored any specific intent to kill anyone. At the close of the State’s case, the Assistant State’s Attorney acknowledged to the court that the State was not “pressing for attempted first-degree murder” because of the lack of any evidence of an intent to kill. Accordingly, the trial judge granted the appellant’s motion for a judgment of acquittal as to attempted first-degree murder. At the close of the entire case, the State further acknowledged that it was not pressing for attempted second-degree murder ³⁶⁸ based on the theory that the appellant possessed any specific intent to kill.

It argued, rather, that “what we are presenting to the jury is the depraved heart issue, that he was firing recklessly.” In denying further defense motions, the trial judge concluded that the State was presenting to the jury a case of attempted depraved-heart murder and no other variety of second-degree murder. Accordingly, the trial judge instructed the jury on the subject of depraved-heart murder. She did not define any other variety of murder. She defined depraved-heart murder generally as the killing of another while acting with extreme disregard for human life.

There was no specific instruction on attempt law nor was there any mention of the fact that a defendant must possess the intent to kill in order to be found guilty of attempted murder. Following the giving of those instructions, the court adjourned for the day. By the outset of the next trial day and prior to closing arguments by counsel, the prosecution had entertained second thoughts and advised the judge not to send to the jury a charge that was, in effect, attempted depraved-heart murder. The State had concluded that there was no such crime.

Over the objection of both the appellant and the State, the trial judge, disagreeing with their argument, submitted the attempted murder count to the jury. During closing argument, the State did not argue that the appellant possessed any specific intent to kill. It argued only that, because the jury was considering attempted depraved-heart murder, “the State does not have to prove the existence of intent ... no intent is necessary.” The prosecutor castigated the appellant’s behavior as “reckless behavior that creates a substantial risk of death or serious physical injury to the victim.” The jury returned a verdict of guilty of attempted murder. The Jury Instruction in this Case The trial judge advised the jury that, because the victim had not died, the crime charged in this case was not consummated ³⁶⁹ murder but only attempted murder.

The instruction, however, made no mention of the required mens rea (a specific intent to kill) for a conviction of attempted murder. Through omission, it gave the false impression that any mens rea that would support a conviction for consummated second-degree murder would also support a conviction for attempted second-degree murder: Now as you are aware, Ms. Holiday very fortunately did not die as the result of the gunshot wounds she received, so that the alleged crime as to murder is attempted murder and because there is no evidence that the attempt, if there was one, to kill Ms. Holiday was under circumstances where the shots were fired through premeditation or deliberation, the crime charged is murder in the second degree rather than attempted murder in the first degree because the crime of murder in the first degree requires that the person committing the act have done so with premeditation and deliberation and there is no evidence in this case that such occurred. So you need not concern yourselves with the distinction between first degree murder and second degree murder. Having informed the jury that it need not concern itself with what would have constituted first-degree murder, had the victim died, but only with what would have constituted second-degree murder, the instruction then turned to the subject of second-degree murder.

Significantly, however, the only form of second-degree murder that was mentioned was depraved-heart murder. There was no remote allusion to second-degree murder of the specific-intent-to-kill variety. Indeed, the instruction affirmatively advised the jury that there was on the part of the appellant in this case not only the absence of any intent to kill Jacklyn Holiday, but actually the absence of any intent even to harm Jacklyn Holiday: The murder which you have to consider is that of second degree murder by what we call a depraved heart. Now the evidence indicates that the shooting of Ms. Holiday was not caused with any intent to harm Ms. Holiday, who was, according to the evidence, standing on a corner and was the ³⁷⁰ innocent victim of the gunshots which struck her ... [emphasis supplied].

The instruction then affirmatively advised the jury that, but for the fact of death, the elements of consummated depraved-heart murder, on the one hand, and attempted murder, on the other hand, are one and the same. That equating of the two sets of elements clearly included an equivalency in the mental elements as well as in the physical elements: Now he is charged with the crime of second degree murder by a depraved heart, and let me tell you what that is. Second degree murder is the killing of another person, and here of course we’re talking only of attempted second degree murder. The same elements apply.

The only difference is that the crime not have been completed and Ms. Holiday survived. The instruction then, other than making allowance for the fact that it was dealing with a non-fatal injury instead of a death, essentially tracked Maryland Pattern Jury Instruction—Criminal 4:17.8, defining consummated second-degree murder of the depraved-heart variety. The jury was, in effect, told that the mens rea of “acting with extreme disregard for human life” was the only mens rea it need find to bring in a conviction for attempted second-degree murder: Second degree murder is the killing of another person by— second degree murder by depraved heart is the killing of another person while acting with an extreme disregard for human life. In order to convict the Defendant of second degree murder by depraved heart, the State must have proven beyond a reasonable doubt that the conduct of the Defendant caused the injuries to Ms. Holiday and that had she died of those injuries, the crime would have been murder ... and that the Defendant, conscious of such risk, acted with extreme disregard of the life endangering circumstances. [emphasis supplied]; As our analysis now turns to the legal inadequacy of that instruction, let it be clear what this opinion is not considering.

We are not dealing in this case with the possible legal suffi ³⁷¹ ciency of the evidence to give rise to a permitted inference of an intent to kill, but only with the failure of a jury instruction to advise the jury that it must draw such an inference in order to convict of attempted murder. It may well be that in certain situations, the evidence that could support a conviction for depraved-heart murder, should death result, might also give rise to a permitted inference of a specific intent to kill. That issue, however, is not before us in this case and we are intimating nothing with respect to it. We are only dealing, in a factual vacuum and as an abstract academic question, with the legal correctness of the jury instructions.

Attempted Second-Degree Murder Is A Crime The appellant initially complains that he was convicted of a non-existent crime. “If it were so, it was a grievous fault.” He claims specifically that he was convicted of the non-existent crime of attempted depraved-heart murder. That, however, was not literally the case. He was convicted of attempted murder in the second degree. That is a crime.

Murder is a crime. Murder in the second degree is a crime. Attempted murder in the second degree is a crime. The fact that the single crime of murder may be established by any of four alternative rationales does not thereby fragment it into four separate crimes.

The fact that any of four separate mental states may constitute the mens rea of the crime of murder does not thereby fragment it into four separate crimes. The appellant, however, is on the right trail, even if he has not yet cleanly differentiated the precise scent that he should be following. What he is accurately sensing is that he was improperly convicted of what may be an existent crime, but only on the basis of a non-existent rationale. Although the depraved-heart state of mind may serve as an adequate mens rea for a conviction of consummated murder, it does not exist as an available mens rea to support a conviction for attempted murder.

That, however, is a different contention than a claim that he was convicted for a non-existent crime. It is an argument, however, that takes on persuasive force in the ³⁷² context of the appellant’s next contention, to which we now turn. The Singularity of The Attempted-Murder Mens Rea The erroneous jury instruction, given over the protest of both the appellant and the State, encouraged the jury to conclude that the appellant’s extreme disregard for human life, a mens rea which could have sustained a conviction for murder had Jacklyn Holiday died, could also sustain a conviction for the attempted murder of Jacklyn Holiday.