Avey v. State

McWilliams, J., delivered the opinion of the Court. On 29 June 1967 we ordered the writ of certiorari to be issued to the Court of Special Appeals “for the sole purpose of reviewing the correctness of * * * [its] holding * * * that there was no prejudice to the accused [Avey] in the trial court’s instruction or lack of instruction to the jury on the point of the effect on and relation of the intoxication of * * * [Avey] to his specific intent in the commission of certain of the crimes of which he was accused.” We shall state only those facts which are necessary for our consideration of the single, narrow issue here presented. A more complete statement will be found in Avey v. State, 1 Md. App. 178 , 228 A. 2d 614 (1967). It was about 2:00 a.m. on 26 January 1965 when Lt.

Thorn-berry of the Prince George’s County Police Department noticed a broken pane in the door of a shopping center delicatessen. He and another officer went in to investigate. When they ³⁸⁷ turned on the lights Avey stepped out of the men’s room and said, “Okay, copper, let’s see how good you are. Kill me.” In the ensuing gun fight both officers were wounded.

Avey, apparently unscathed, escaped. He was arrested about 6 hours, later and when asked why he shot the officers he said “because I was drunk.” Indicted for assault with intent to murder in the case of each policeman and storehouse breaking, he pled not guilty generally and not guilty by reason of insanity. His trial began before Parker, J., and a jury, on 13 October 1965. Avey testified that he and a woman named Bonnie Caldwell had been “riding around” and drinking during the 5 or 6 hours, before the shooting.

He said they consumed a “pint of moonshine” and 18 to 20 cans of beer. Avey guessed he had 9 or 10 cans, “maybe more.” At one point in his testimony he described his condition as “quite intoxicated.” Eater he testified he “wouldn’t say quite intoxicated” but he would say he “was. still under the influence.” At another point he guessed he was “pretty well plastered.” In the course of his charge to the jury the trial judge gave the following instruction: “Now, as to the assault with intent to murder and with the intent to maim, I instruct you in an advisory capacity that you may properly consider the state of mind of the defendant at the time of the shooting. I say that because of the type of evidence that has been introduced in this case.” Counsel for Avey, at the conclusion of the charge, made the' statement which follows and which we shall treat as an exception : “If Your Plonor please, as to the question of specific intent, we would ask the Court to advise the jury this too is the State’s burden and it is not the defendant’s. While Your Honor did state that the jury can consider the evidence that came from the stand, you didn’t make any specific mention of mental condition relating to the sanity or whether he had been drinking.” ³⁸⁸ Judge Parker noted his exception but he thought his instruction was adequate under the circumstances.

Avey was convicted of assault with intent to murder in both cases, and of the crime of storehouse breaking as well. He was sentenced to serve two consecutive 12 year terms in the Maryland Penitentiary, and one 18 month term to run concurrently with the first 12 year term. The Court of Special Appeals, affirming the conviction, said: “Avey objects to the charge to the jury * * * [b]e--cause the courtf’s] refusfal] to instruct the jury of the fact that the appellant had been drinking may have some effect as to whether he could form the specific intent to commit the crimes * * *. “The majority rule is that where intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent, he cannot be convicted •of a crime requiring that intent, e.g. assault with intent to kill or maim, 22 C.J.S. Criminal Law Section 68. Compare Clarke