Blackwell v. State

Murphy, C. J., delivered the opinion of the Court. Whether Maryland’s death penalty statute violates the Eighth and Fourteenth Amendments to the federal constitution is the principal issue presented in this case. Anthony Lee Blackwell, Sr., was charged in the Criminal Court of Baltimore in separate indictments with having, on July 17, 1975, “feloniously, wilfully and of deliberately premeditated malice aforethought” murdered six persons, and with having, on the same date, committed arson by burning a designated dwelling house. The State sought the imposition of the death penalty, as authorized by chapter 252 of the Laws of Maryland of 1975, now codified as Maryland Code (1957, 1976 Repl.

Vol.), Art. 27, § 413. That statute provides, in subsection (a) that every person convicted of murder in the first degree shall be sentenced to life imprisonment “unless otherwise provided” in subsection (b). Subsection (b) mandates the imposition of the death penalty for first degree murder if (1) the accused actually committed an act which proximately caused the victim’s death, (2) the accused was 18 years of age or older at the time the crime was committed, and (3) the murder was committed “under one or more of the following circumstances”: “(i) The defendant committed the murder at a time when he was confined or under sentence of confinement to any correctional institution in this State; (ii) The defendant committed the murder in furtherance of an attempt to escape from or evade the lawful custody, arrest, or detention of or by a law-enforcement officer, correctional officer, or guard; ⁴⁶⁹ (iii) The victim was a hostage taken or attempted to be taken in the course of a kidnapping or an attempt to kidnap; (iv) The victim was a child abducted in violation of § 2 of this article; (v) The defendant committed the murder pursuant to an agreement or contract to commit the murder for pecuniary gain; (vi) At the time of the murder, the defendant was under a sentence of life imprisonment; (vii) The defendant committed more than one offense of murder in the first degree arising out of the same or separate incidents; (viii) The defendant committed the murder while committing or attempting to commit robbery.” (Emphasis added.) The murder indictments returned against Blackwell contained averments, required by § 616 (b) of Art. 27 in instances where the death penalty is sought, that each offense came within the provisions of § 413 (b). Specifically, it was charged in each murder indictment that Blackwell was “the person who actually committed an act which proximately cause[d] the victim’s death, that at the time of the commission of the act, . . . [he] was eighteen years of age, or older, and that at the time of the murder, the defendant committed more than one offense of murder in the first degree arising out of the same incident.” At Blackwell’s trial before a jury, evidence was adduced showing that on the evening of July 16, 1975, he visited the Baltimore City residence of a former girl friend, Jonline Gwynn.

Sometime during that evening, Jonline took some money from Blackwell and refused to return it. As a result, Blackwell left Jonline’s residence in anger and sought police assistance to recover his money. At 3 A.M. on July 17, Blackwell returned to Jonline’s residence with a police officer and awoke the household. Jonline denied that she had taken any of Blackwell’s money; ⁴⁷⁰ the officer told Blackwell to leave the house, which he did, saying “I’ll be back to burn the bitch down.” Blackwell thereafter obtained a plastic jug full of gasoline and returned to Jonline’s residence at 4:20 A.M. He filled three glass bottles with gasoline and into each he stuffed a makeshift wick.

He lit the wick of one of the bottles and threw the bottle through the front window of the house; the house caught on fire. Blackwell then lit the wicks of the other two bottles and also threw them into the dwelling. Thirteen people were sleeping in the house at the time of the fire; seven escaped while the remaining six died in the burning house from breathing smoke, soot and carbon monoxide. Blackwell was apprehended by police a few blocks from the scene of the fire.

In a written statement given to the police that same morning, Blackwell admitted that he had set the fire by throwing three “gas bombs” into the dwelling. Six character witnesses testified on Blackwell’s behalf. Each testified that Blackwell was generally regarded as a peaceful, quiet young man with a spotless record as a worker and job corps participant. Blackwell testified on his own behalf.

He said that in starting the fire he intended only to force Jonline out of the home. He admitted knowing that a number of people were in the dwelling when he threw the three “molotov cocktails” through the window, but he denied any intent to harm them. The jury found Blackwell guilty of six first degree murders and of arson. He was sentenced to death by the court, and to thirty years’ imprisonment, to run consecutively, on the arson count.

On appeal, Blackwell challenges the constitutionality of § 413 and of the death penalty imposed upon him under its provisions. He also contends (1) that the court erred in its instructions to the jury, (2) that the court committed reversible error in sustaining an objection to the opening argument of his defense counsel, and (3) that certain of the prosecutor’s comments during the State’s closing argument were so prejudicial as to deny him a fair trial. ⁴⁷¹ I. Constitutionality of the Maryland death penalty. The Supreme Court of the United States, in six cases decided in July of 1976, considered whether the imposition of the death penalty for the crime of murder constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the federal constitution. The Court upheld the death penalty statutes of Georgia, Gregg v. Georgia, 428 U. S. 153 , 96 S. Ct. 2909 , 49 L.Ed.2d 859 ; Texas, Jurek v. Texas, 428 U. S. 262 , 96 S. Ct. 2950 , 49 L.Ed.2d 929 ; and Florida, Proffitt v. Florida, 428 U. S. 242 , 96 S. Ct. 2960 , 49 L.Ed.2d 913 .

In each of these states, the capital sentencing statutes called for a bifurcated trial procedure, guilt and punishment being separately determined, and for expedited appellate review. Imposition of the death penalty was limited to cases in which certain aggravating circumstances were shown and, most significantly, the sentencing authority was required to consider the existence of mitigating circumstances. Such a requirement, it was held, “guides and focuses the . . . [sentencing authority’s] objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Jurek v. Texas, 428 U. S. at 274, 96 S. Ct. at 2957 , 49 L.Ed.2d at 939 . The Court struck down as unconstitutional the death penalty statutes of North Carolina, Woodson v. North Carolina, 428 U. S. 280 , 96 S. Ct. 2978 , 49 L.Ed.2d 944 ; Louisiana, Roberts v. Louisiana, 428 U. S. 325 , 96 S. Ct. 3001 , 49 L.Ed.2d 974 ; and Oklahoma, Green v. Oklahoma, mem., 428 U. S. 907 , 96 S. Ct. 3216 , 49 L.Ed.2d 1214 .

What was primarily lacking in the statutes of each of these states was “. . . the fundamental respect for humanity underlying the Eighth Amendment, . . . [which] requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. at 304, 96 S. ⁴⁷² Ct. at 2991, 49 L.Ed.2d at 961. Since none of the capital sentencing statutes in these states required particularized consideration of such mitigating circumstances and otherwise failed to provide any “objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death,” Woodson v. North Carolina, 428 U. S. at 303, 96 S. Ct. at 2991 , 49 L.Ed.2d at 960 , the statutes were found violative of the Eighth and Fourteenth Amendments to the federal constitution. As heretofore indicated, the Maryland death penalty statute limits the imposition of the death sentence to eight narrowly drawn categories of first degree murder in cases where the accused actually committed an act which proximately caused the victim’s death and where he was at least 18 years of age when the crime was committed. The statute does not provide any other standards whereby the sentencing authority can consider the individual circumstances or characteristics of either the offense or the offender; indeed, all those convicted under the statute are treated alike, without regard to the circumstances.

The statute does not provide for a bifurcated trial whereby aggravating and mitigating circumstances can be specially presented, nor does it provide for any special or expedited appellate procedure to review the imposition of the death sentence. 1 The Attorney General suggests that the “key factor” in a constitutional capital sentencing system is a provision giving the sentencing authority the duty and opportunity objectively to consider aggravating as well as mitigating circumstances “which lead to consideration of both the individual offense as well as the individual offender.” He notes, with commendable candor, that while § 413 permits the sentencing authority to focus on the particular nature of the crime, it does not contain “any clear or precise guidelines enabling the sentencing authority to focus [upon] and ⁴⁷³ consider particularized mitigating factors.” In view of these deficiencies, the Attorney General reasons that the death penalty provisions of § 413 are unconstitutional, and we fully agree. It is true, of course, that § 413 permits elements of mitigation to be presented to the jury, i.e., proof of the defendant’s age and of the motive for the act in the context of resolving the question of the proximate cause of the victim’s death. We are unable to conclude, however, that the presentation of these two elements requires the sentencing authority to focus on the specific circumstances of the crime and the particular characteristics of the offender to the extent constitutionally required by the controlling Supreme Court decisions. That Blackwell was afforded an opportunity to present, and did present, broad circumstances of mitigation to the jury hardly suffices as the measure of the statute’s constitutionality; the jury was neither required nor permitted by the statute to weigh or objectively focus on Blackwell’s character and record before returning its verdict and causing the death sentence to be imposed upon him.

Blackwell contends that because he was specifically charged with “capital murder” under § 413 (b) (3) (vii) for having committed more than one offense of murder in the first degree arising out of the same incident, and because § 413 (d) provides that “no other penalty in lieu of the death penalty may be imposed” for convictions under § 413 (b), a holding that the death penalty is unconstitutional necessarily mandates a reversal of his murder convictions. We do not agree. Section 413 does not create a new crime; it is simply a penalty statute for murder in the first degree, which authorizes the imposition of one of two punishments for the offense — life imprisonment or death. Under § 413 (b) and (d), the death sentence is mandated as a separate punishment for common law murder perpetrated in specified circumstances.

The unconstitutionality of these provisions affects only Blackwell’s death sentences; it does not affect the legality of his underlying murder convictions. See Moore v. Illinois, 408 U. S. 786 , 92 S. Ct. 2562 , 33 L.Ed.2d 706 (1972). Nor does it affect the validity of § 413 (a) ⁴⁷⁴ authorizing imposition of a life sentence for those first degree murders not made punishable by death; those provisions are plainly severable from § 413 (b) and (d) under the general severability clause contained in Code, Art. 1, § 23. See Davidson v. Miller, 276 Md. 54 , 344 A. 2d 422 (1975); Shell Oil Co. v. Supervisor of Assessments, 276 Md. 36 , 343 A. 2d 521 (1975).

In Bartholomey v. State, 267 Md. 175 , 297 A. 2d 696 (1972), we considered the constitutionality of a statute, the precursor to present § 413, which authorized imposition of either life imprisonment or death for first degree murder, in the discretion of the sentencing court. We there held, in view of the Supreme Court’s decision in Furman v. Georgia, 408 U. S. 238 , 92 S. Ct. 2726 , 33 L.Ed.2d 346 (1972), that the death penalty authorized by the statute was unconstitutional because its imposition was discretionary. We noted that the invalidity of Bartholomey’s death sentence did not affect the legality of his murder convictions and we concluded that, in view of the unconstitutionality of the death penalty, the only lawful sentence that could be imposed under the statute was life imprisonment. We think the rationale of Bartholomey is applicable in the present case.

It is true that unlike the statute involved in Bartholomey — which permitted alternative sentences of life imprisonment or death in the court’s discretion — only the death penalty is authorized for capital murder under § 413 (b). The distinction, however, is without controlling significance. The unconstitutionality of § 413 (b) and (d) nullifies the death penalty as a lawful sentence under the statute and requires that Blackwell’s death sentences be vacated. Section 413 (a), authorizing life imprisonment for first degree murder, remains intact and viable; and since Blackwell was indicted and convicted for first degree murder, and not for an offense specially created by § 413 (b), to impose a life sentence upon him in lieu of the unconstitutional death sentence is not to sentence him to a penalty for a crime for which he was not convicted.

It is thus proper, as it was in Bartholomey , to remand to the sentencing court for imposition of the only permissible ⁴⁷⁵ sentence under the constitutional provisions of the statute, namely, life imprisonment. See Furman v. Georgia, supra; Roberts v. Louisiana, supra; Woodson v. North Carolina, supra; Green v. Oklahoma, supra; State v. Rumsey, S. C., 226 S.E.2d 894 (1976); State v. Rondeau, 89 N. M. 408, 553 P. 2d 688 (1976).

II

Jury Instructions. In its instructions to the jury, the court said that there were six “capital murder indictments in this case,” that Blackwell was presumed innocent and that the prosecution was required to prove his guilt beyond a reasonable doubt. The court read the substance of the murder indictments to the jury and thereafter said “the law proceeds on what we call a felony murder indictment.” The court then advised the jury that murder committed in the