Blackwell v. State

⁵⁴⁹ Lowe, J., delivered the opinion of the Court. James Parker Blackwell was convicted by a jury in the Circuit Court for Calvert County of: 1. Murder in the second degree; 2. Manslaughter by motor vehicle; 3.

Driving while intoxicated; and 4. Leaving the scene after a fatal accident. The trial judge sentenced him to 15 years for murder, 3 years for manslaughter, 2 years for driving while intoxicated (second offense) and 6 months for leaving the scene of an accident. The last three sentences were to be consecutive with each other but concurrent with the first.

The evidence indicated that the victim, a teenage girl, was killed while riding her newly purchased ten speed bicycle after 10:00 o’clock on the evening of June 30, 1975. The bicycle was equipped with a front light generated by the bicycle’s propulsion, and reflectors on its back, pedals and wheels. The evidence was sufficient to support a rational inference that the victim’s death was caused by Blackwell, whose automobile struck her bicycle from behind at a point not more than two feet from the shoulder, although within the travelled portion of the road. The evidence was also sufficient to show that appellant left the scene of the accident without stopping to render assistance, and drove while intoxicated in violation of Md. Code, Art. 66V2, §§ 10-104 and 11-902.

Testimony from the State’s witnesses that appellant’s speed was within the posted limit, when observed immediately before and immediately after the accident, negated any possible inference of excessive speed as a factor causing the accident. There was testimony from two bicyclists that, when appellant left an inn immediately before the accident, his car was weaving from side to side as if having started too fast and was momentarily out of control. An autoist and his passenger testified that, while not having seen the accident, they did come upon the victim as appellant’s vehicle was leaving the scene. They observed ⁵⁵⁰ that a portion of the vehicle twice left the main portion of the road and travelled briefly on the shoulder.

Murder We are first concerned on this appeal with the sufficiency of the evidence of murder in the second degree, the propriety of the instructions related thereto, and the related issue of the effect of evidence of appellant’s prior drinking habits, including several instances of intoxication (in the opinion of witnesses), a prior conviction for driving while impaired, and evidence that, while apparently intoxicated, appellant had been involved in an accident 2 or 3 years prior to the accident at issue. The admissibility of this evidence will be considered hereinafter. The evidence introduced over objection included the testimony of a district court commissioner that appellant had pled guilty to driving while impaired on May 15, 1975. Another witness, the proprietor of an inn, testified that appellant’s propensity to overindulge compelled the proprietor to refuse appellant hard beverages, restricting him to the purchase of beer.

A third witness’ testimony is encapsulated in the State's proffer, later admitted through the witness: “Your Honor, we would proffer that this man was a member of the Rescue Squad in 1973 and he personally responded to the scene of an accident which this man was involved in and he was drunk at that time. He will testify to that. He will also testify that he has seen him on numerous occasions since then and on every occasion since then that he’s seen him that he has been drunk.” When defense counsel persisted in objecting, the court attempted to justify its rulings concerning prior intoxication: “The charge from manslaughter by auto I would not admit nicely but the charge here is murder and one of the essential ingredients of murder is malice. In this case it’s going to have to be equivalent of ⁵⁵¹ implied malice.

Part of that is the defendant’s knowledge of the risk to human life he was taking in the actions he was doing. It seems to me his previous experience with accidents while driving drunk as well as his previous experience with excessive drinking is some evidence for the Jury to consider in deciding what his state of mind was or the condition of his heart. It is equivalent malice is action by a person with a depraved heart may be so it seems to me that the evidence is relevant and the credibility is for the Jury.” The trial judge adhered to his reasoning when he instructed the jury on second degree murder. However, the jury apparently was not clear about the court’s instruction on malice, and asked: “Please define again what' constitutes 2nd degree murder explaining the degrees of malice”.

After again pointing out that: “Malice is the distinguishing element which makes the difference between an unlawful killing being murder either in the first or second degree or manslaughter.”, the judge instructed, inter alia: “Now, actual malice is something which indicates a deliberate intent to kill. That’s not the only kind of malice. That actual intent which makes it actual malice, you can have what is the equivalent of an actual intent even though the person doing the killing didn’t set out specifically to kill the person who died. Now, you will hear that called implied malice.

I don’t particularly like the term implied malice, equivalent to malice is a better way to express it. Now, when you’re trying to decide whether actions which result in death are equivalent to malice or are simply gross, reckless and wanton conduct which we discussed with you ⁵⁵² on the manslaughter by automobile charge, you are trying to draw a distinction between two different grades of behavior or conduct. Somewhere in the ascending or descending scale of seriousness, recklessness, wantonness and disregard for human life ceases to be manslaughter and becomes equivalent malice sufficient for you to find murder. The precise line or distinction between them you have to draw.

I can’t give you a precise line where one becomes the other. I can give you extreme samples on both ends.” Because upon our review of the record we find insufficient evidence of malice, the issue of murder was erroneously presented to the jury. 1 “Malice is the indispensable ingredient of murder; by its presence, homicide is murder; in its absence, homicide is manslaughter.” Lindsay v. State, 8 Md. App. 100, 104 ; see also Chisley v. State, 202 Md. 87, 105 . Express malice exists whenever an accountable person kills another intentionally, unless the killing is justified or excusable, or unless there are mitigating circumstances. Lindsay, supra.

The State conceded in its brief that “there was no evidence that the Appellant harbored any ill will against the decedent.” That concession, coupled with our observations upon reviewing the record, makes it clear that there was not the slightest evidence of “actual” or “express” malice. These terms are contemporary expressions used to connote an “intent to kill”, the sole original intent required to prove murder. See Evans v. State, 28 Md. App. 640, 696 , aff'd State v. Evans, 278 Md. 197 . Even if express malice does not exist, malice may be inferred from proof of certain facts.

Moore v. State, 15 Md. App. 396, 403-404 . This “implied” malice arose from the need felt to punish, as murder, homicides resulting from ⁵⁵³ life-endangering intents, even though such intents did not involve a literal intent to kill. As pointed out by Judge Moylan for this Court in Evans, supra, those additional mental states were added to the mens rea of murder and they are recognized today as: “1) intent-to-do-serious-bodily-injury murder; 2) felony-murder; and 3) depraved-heart murder. (Perkins gives this mental state the less emotionally charged and probably better label of ‘Wanton and Wilful Disregard of Unreasonable Human Risk’.)” (footnote omitted).

Id. at 696. It is apparent that the trial judge submitted the issue of murder to the jury on the assumption that evidence of appellant’s “depraved-heart” or, as Judge Moylan noted, what Perkins, Criminal Law § 1 at 36-37 (2d Ed.), described as a “Wanton and Wilful Disregard of Unreasonable Human Risk”, might be inferred. In discussing this element of implied mens rea for murder, Perkins carefully pointed out an important, if narrow, prerequisite to permitting such an inference: “In other words, the intent to do an act in wanton and wilful disregard of the obvious likelihood of causing death or great bodily injury is a malicious intent. The word ‘wanton’ is the key word here.

For reasons to be emphasized later a motorist who attempts to pass another car on a ‘blind curve’ may be acting with such criminal negligence that if he causes the death of another in a resulting traffic accident he will be guilty of manslaughter. And such a motorist may be creating fully as great a human hazard as one who shoots into a house or train ‘just for kicks’, who is guilty of murder if loss of life results. The difference is that in the act of the shooter there is an element of viciousness — an extreme indifference to the value of human life — ⁵⁵⁴ that is not found in the act of the motorist. And it is this viciousness which makes the act ‘wanton’ as well as ‘wilful’.” (footnote omitted).

Id. at 37. We do not believe that an inference of “viciousness” or “extreme indifference to the value of human life” may be drawn from the past, although persistent, drinking habits of an accused. While there may be depraved persons who persistently drink, it does not follow that those who do drink are implicitly depraved. The practice may be reprehensible, but it is not felonious.

It should also be noted that this depraved-heart type of implied malice must contain an element of “willfulness”, which connotes a deliberate intent to bring about the result which actually comes to pass, i.e.: “Proceeding from a conscious motion of the will; voluntary. Intractable; having a headstrong disposition to act by the rule of contradiction. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.” (citations omitted). Black’s Law Dictionary 1773 (rev. 4th ed. 1968).

Unless we assume that appellant’s drinking habits fulfill that interpretation of willfulness, rather than viewing his propensity to imbibe as a personal gratification — however selfish and objectionable — the record contains no evidence of “willfulness”. There is no evidence to indicate the drinking was motivated by a purposeful or deliberate intent to bring about the tragic result. Beyond that, we have held that in enacting the manslaughter by automobile statute, Md. Code, Art. 27, § 388, the legislature intended to preempt the subject matter of unintended homicides resulting from the operation of a motor vehicle. In a short affirming opinion, the Court of Appeals in State v. Gibson, 254 Md. 399 , adopted as correct the reasoning of the “careful and thorough opinion of Chief Judge Murphy” then of this Court, now of the Court of ⁵⁵⁵ Appeals.

In our opinion, 4 Md. App. 236 , Chief Judge Murphy said: “We believe that the Legislature in enacting Section 388 to punish persons who cause the death of another ‘as the result of the driving, operation or control of an automobile * * * in a grossly negligent manner,’ intended to treat all unintended homicides thereby resulting the same way, without regard to whether the homicide occurred in the course of doing a lawful or an unlawful act, or whether such act was malum in se or merely malum prohibitum” Id. at 246. Although in that case the issue was whether the accused could be charged with common law involuntary manslaughter, as well as the statutory manslaughter by automobile, the “careful and thorough” language we used did not restrict the statutory preemption to common law manslaughter, but specifically applied our ruling to encompass all “unintended homicides”: “We conclude, therefore, that in enacting Section 388, the Legislature intended to deal with an entire subject matter — unintended homicides resulting from the operation of a motor vehicle — and that the common law crime of involuntary manslaughter, when based on homicides so occurring, is in conflict with the statute and must yield to it to the extent of the inconsistency. See Lutz v. State, 167 Md. 12 .” Id. at 247. In the absence of evidence of intentional homicide, we hold that the statutory preemption applies as well to second degree murder as it did in Gibson to manslaughter.

We hasten to add on the other hand, that under proper circumstances where the resultant death was intended, a conviction for murder may result, notwithstanding the use of an automobile as the instrumentality of death. See Connor v. State, 225 Md. 543 (defendant intentionally drove over deceased); Faulcon v. State, 211 Md. 249 (defendant ⁵⁵⁶ intentionally drove over deceased); Allison v. State, 203 Md. 1 (defendant pushed deceased from moving car); see generally Murder-Homicide by Automobile, 21 A.L.R.3d 116 . Furthermore, in a proper case where there is evidence of intentional homicide by use of an automobile, it is not improper to charge both crimes, and, if the evidence is sufficient, to submit both to the jury for its determination of which, if either, is applicable. It is equally apparent, however, that a guilty verdict on both counts would be inconsistent.

Manslaughter by Automobile and Driving While Intoxicated Md. Code, Art. 27, § 388 states in pertinent part that: “Every person causing the death of another as a result of the driving ... of an automobile ... in a grossly negligent manner, shall be guilty of a misdemeanor to be known as manslaughter by automobile .. ..” Gross negligence, a prerequisite to conviction, is defined as a “wanton or reckless disregard for human life.” Duren v. State, 203 Md. 584, 588 . It is deceptively akin to the definition of implied “malice”, one aspect of the ingredient of murder which distinguishes murder from manslaughter. See Lindsay, supra. As indicated above, Perkins defines that malice which we have depicted with the catch phrase “depraved-heart” as a “Wanton and Wilful Disregard of Unreasonable Human Risk.” One of two substantial differences between that definition and the definition of manslaughter applicable here is the absence of a need to prove willfulness in manslaughter cases.

Murder by implied malice, and manslaughter by gross negligence, are separated by a most narrow line. The other difference is the expressed use of the term “negligent” as a prerequisite to proof of the lesser crime. While simple negligence will not support a conviction of ⁵⁵⁷ manslaughter, Duren, supra, a conviction of manslaughter does presuppose proof of the basic elements of negligence as well as “wanton and reckless disregard”. An essential element of negligence is that there be some reasonable connection between the act or omission of the defendant and the death that ensued.

State v. Gibson, supra, 4 Md. App. at 242, n. 3 ; see also Palmer v. State, 223 Md. 341 ; Craig v. State, 200 Md. 590 . We look first to see what evidence appears in the record of appellant having negligently performed a lawful act, or having negligently failed to perform a legal duty — keeping in mind that the degree of negligence must be gross or criminal to support the conviction, viz., it must manifest a wanton disregard for human life. State v. Gibson, supra, 4 Md. App. at 242 . As summarized by the State’s brief, the evidence of negligence was fourfold: “The appellant had been drinking in at least three different establishments; had swerved back and forth when he left Solomon’s Inn; had been seen driving on the shoulder of the road [after having] left the scene of the accident without rendering aid to the victim; and denied to Corporal Ireland that he even remembered the accident taking place.” The State was able to show that when appellant left the inn just before the accident occurred his conduct gave rise to an inference of insobriety.

When seen on the parking lot, he stumbled when he walked and appeared to attempt to enter a brown station wagon before finding and entering his own green station wagon. As he drove off, his car swerved “back and forth across the road”: “He took off faster than what he could handle it. He was on the other side [of the road] and it took a while to get straightened out.” These observations were made moments after the victim had been seen on her bicycle, riding up the road ahead of appellant but in the same direction. The testimony was clear that her running lights were on and that the bicycle, ⁵⁵⁸ purchased that day, was properly equipped with requisite safety devices, including reflectors.

Soon after the victim had been seen proceeding by bicycle on the road away from the inn, appellant’s vehicle followed, after the somewhat erratic beginning heretofore described. Moments later, two of the witnesses who had observed appellant on the parking lot proceeded in their vehicle in the same direction as victim and appellant. They came upon the accident scene too late to observe the actual impact, but saw the victim lying beside the road and the taillights of what later proved to be appellant's vehicle departing over a hill. Aware that other persons whom they had passed were approaching on bicycles and could render aid to the victim, the witnesses elected to follow the departing vehicle and obtain an identifying license number.

In doing so, they made two pertinent observations during a brief period in which they observed appellant: 1) he was driving under or within the speed limit, but, 2) his car weaved twice in less than a quarter of a mile, back and forth from the road to the shoulder. Very little evidence was available of the deceased’s conduct while riding her bicycle at the time, and that mostly circumstantial. 2 There was ample uncontroverted testimony that the bicycle was new and, as indicated, had all of the safety devices requisite thereto working at the time, including a running light and reflectors. Circumstantial evidence showed that the victim was struck not more than two feet from the right shoulder of the road, indicating that she was as nearly to the right side of the roadway as was practicable, conforming to her statutory duty. See Md. Code, Art. 66V2, § 11-1205. 3 Nothing indicated a violation of any ⁵⁵⁹ duty on her part, and she was thus entitled to all of the rights of any other vehicle on the road.

See Md. Code, Art. 66V2, § 11-1202. This included the right to proceed without fear of being struck from behind, which the damage to the bicycle clearly indicated had occurred. 4 Considering the uncontroverted affirmative evidence of the victim’s compliance with her cyclist responsibilities, contrasted to the evidence of appellant’s erratic driving, the evidence was such that a jury could properly have inferred that the accident was caused by appellant’s failure to maintain a proper lookout to avoid an accident, see Lord v. Pennsylvania R. R. Co., 251 Md. 113, 119 ; Murphy v. Bd. of County Comm’rs, 13 Md. App. 497, 510 ; or if he had seen the victim he failed to maintain control of his vehicle while attempting to pass her. In either instance, the breach of his duty of due care caused the accident. In addition (if further evidence of causation had been needed), the uncontroverted evidence showed that appellant left the scene of the accident without stopping to render aid in violation of Md. Code, Art. 66V2, § 10-104.

This evidence of flight from the scene was proper for the jury to consider and may give rise to an inference of guilt, see Clay v. State, 211 Md. 577, 585 ; Montague v. State, 3 Md. App. 66, 77 ; and indeed of a reckless disregard for human life. Furthermore, the jury could have considered appellant’s denial that he had been in an accident that evening, vis d vis the strong, if not conclusive, physical evidence to the contrary. 5 See Lilly v. State, 212 Md. 436, 440 . Denial under such circumstances might be indicative of appellant’s state of mind, but could also have been relevant to appellant’s state of sobriety or ⁵⁶⁰ inebriation, explaining the erratic manner in which he operated his motor vehicle. Wanton and Reckless Disregard But breach of duty and causation alone are not enough in a manslaughter by automobile case.

The negligence must be “gross”, and appellant argues that in no case has an appellate court in Maryland ever held evidence of intoxication alone to have been sufficient to show a “wanton or reckless disregard for human life”, raising simple negligence to “gross” negligence. The strongest cases we have found along these lines indicate that drinking is a factor entitled to some weight “although not controlling”. Lilly, supra, 212 Md. at 443 ; Clay, supra, 211 Md. at 585. In these cases other “flagrant violations” of the traffic law were coupled with drinking and other factors, such as flight, to meet the test of gross negligence.

On the other hand, in only one of the reported cases concerning manslaughter by automobile were we able to find substantial evidence of intoxication. 6 In all of the other cases, the degree of alcoholic influence on the driver was treated only as some evidence among other factors for the jury to consider in the overall question of gross negligence. In each of them, where alcohol was involved, the drinking amounted to something less than intoxication by statutory designation or factfinder’s determination. The “overall question” to be decided in these cases is