Brown v. State

DAVIS, Judge. Dexter Harvey Brown (appellant) was convicted by a jury in the Circuit Court for Prince George’s County (Missouri, J.) of voluntary manslaughter and use of a handgun in the commission of a felony. He was sentenced to a total of thirty years imprisonment for the two offenses. In this appeal, the following questions are presented for our review: 1.

Did the appellant properly preserve for appellate review the issue of the admissibility of the gun found in the motel room? 2. Did the trial court err in admitting evidence of a gun found in a motel room two months after the shooting? 3. Did the trial court err in instructing the jury with regard to the crime of voluntary manslaughter? ²²² FACTS The evidence presented revealed that at approximately 2:30 a.m. on June 24, 1990, Nathaniel Fogle sold a “30 piece” of cocaine to Steven Moran in a hallway outside of an apartment located at 5225 Marlboro Pike in Prince George’s County. Moran then went outside to smoke the cocaine with Jack Davern and Davern’s girlfriend, Sharon Chadwick.

A short time later, Moran approached Fogle and demanded his money back. When Fogle refused to refund his money, an argument ensued. While they were arguing, Fogle and Moran were approached by the appellant, an unidentified man, and Cynthia Raum. Raum asked Fogle if he was all right, to which he replied, “Yes.” The trio then walked past Fogle and Moran to the steps of the apartment building.

Once reaching the steps, Raum then turned and shouted, “[T]hat’s the one right there, bust him, Dexter, bust him, Dexter____” The appellant then pulled out his gun, pointed it at Moran’s head, and walked Moran back to his car, where Davern was standing. The appellant then began shooting. The appellant’s first shot missed both Moran and Davern. Moran then pulled Davern in front of him, as the appellant fired another shot.

The appellant’s second shot struck Davern, who ran a few feet before collapsing. The appellant then ran over to where Davern had fallen and shot him again. Two spent bullets were recovered from the scene. The appellant testified that when Raum yelled, “[T]hat’s the one right there, bust him, Dexter, bust him, Dexter ...,” Davern got out of Moran’s car with a baseball bat in hand.

The appellant further testified that Davern struck him once with the bat and attempted another swing before the appellant shot Davern and fled the scene. On August 24, 1990, the appellant and his girlfriend, who was pregnant at the time, were arrested in connection with the shooting. A .357 caliber handgun was recovered during a search of the room where the appellant was arrested. During questioning, the appellant initially stated that he ²²³ was present at the time of the shooting, but he was not the shooter.

The appellant subsequently gave a statement in which he stated that a white man had come towards him swinging a baseball bat. The appellant’s statement went on to say that when he saw the man with the bat coming towards him, he “flicked off” and when he came to his senses, he was standing, holding a gun. At trial, the appellant denied possession of the gun. The appellant explained that the reason he had earlier admitted to shooting Davern was to protect his girlfriend from indictment on gun and cocaine charges and from losing their baby upon arrest.

Prior to trial, the appellant made a motion in limine to suppress evidence of cocaine and the .357 caliber handgun found in the motel room at the time of the appellant’s arrest. The appellant pointed out that no ballistic tests were done on either the gun found in the room or on the two spent shells found at the scene. The appellant argued that, since there was no evidence to link the gun to the bullets that were found, the prejudicial effect of evidence of the handgun, though relevant, far outweighed any probative value and thus it should not be admitted. The State argued that evidence of the gun was relevant because the bullets found at the scene “[cjould have been fired from the type of gun found” in the motel room.

The trial court denied the appellant’s Motion to Suppress. DISCUSSION Preservation for Review The appellee argues that the issue of whether the trial court erred in admitting evidence of a gun found in a motel room two months after the shooting is not properly preserved for our review. We agree and, therefore, do not reach that issue. Maryland Rule 4-323 provides, in pertinent part: (a) Objections to Evidence. — An objection to the admission of evidence shall be made at the time the evidence ²²⁴ is offered or as soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived____ (b) Continuing Objections to Evidence. — At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party. For purposes of review by the trial court or on appeal, the continuing objection is effective only as to questions clearly within its scope. (Emphasis added.) The appellant made a motion in limine to suppress evidence of the handgun found in the room at the time of his arrest. The trial court denied that motion.

The appellant apparently recognized that a motion in limine is not a ruling on the evidence but is merely a procedural step prior to the offer of evidence, which serves the purpose of pointing out before trial certain evidentiary rulings that the court may be called upon to make. Funkhouser v. State, 51 Md.App. 16 , 440 A.2d 1114 (1982). The appellant made a timely objection to the evidence of the handgun when the appellee sought to introduce it at trial. The appellant, however, failed to object when the evidence was introduced at subsequent points in the proceedings.

An objection is deemed waived unless timely made. Md.Rule 4-323. At trial, when the State sought to introduce evidence of the handgun, the following colloquy took place: STATE: When you were arrested in a motel room there was a gun in that room? DEFENSE COUNSEL: Objection.

THE COURT: Overruled. STATE: Was the gun someone else’s gun? APPELLANT: The coke was mine. I’m not going to lie.

STATE: But the gun was not yours? APPELLANT: No, it wasn’t mine, but I mean— ²²⁵ STATE: The gun was yours— APPELLANT: No, sir it did not belong to me. STATE: Alright. Did you know the gun was underneath the mattress?

APPELLANT: Yes, sir. STATE: Did you place the gun there? APPELLANT: I placed it from the other mattress under that mattress, yes, sir. STATE: But that was not the gun you had in your possession on the day of the shooting occurring?

APPELLANT: No, sir. [1] At no point during this exchange did defense counsel make an objection to this line of questioning. For his objections to be timely made and thus preserved for our review, defense counsel either would have had to object each time a question concerning the gun was posed or to request a continuing objection to the entire line of questioning. As he did neither, his objection is waived, and the issue is not preserved for our review. Jury Instruction on Voluntary Manslaughter The appellant next complains that the trial court erred in instructing the jury with regard to the crime of voluntary manslaughter.

The appellant asserts that voluntary manslaughter is a specific intent crime and therefore the trial court erred in instructing the jury that manslaughter is a general intent crime. The appellant further contends that, since voluntary intoxication is a defense to specific intent crimes, the trial court should have instructed the jury that the appellant’s ²²⁶ intoxication was a mitigating circumstance in the present case. The trial judge instructed the jury that [y]ou also heard testimony in this case, folks, and your recollection of that testimony will prevail, having to do with intoxication. The Defendant said he had been drinking on that occasion.

I now instruct you you have heard evidence that the Defendant acted while intoxicated by alcohol. Generally voluntary intoxication is not a defense. However, when charged with an offense requiring a specific intent the Defendant cannot be guilty if he was so intoxicated at the time of the act that he was unable to form the necessary intent. In this case, the specific intent offense is murder in the first and second degrees.

For the offense of murder in the first and second degree the State must prove that the Defendant acted with the specific intent to kill. A person can be drinking and can even be intoxicated but still have the necessary mental faculties to act with a specific intent. In order to convict the Defendant the State must prove beyond a reasonable doubt that the degree of the intoxication did not prevent the Defendant from acting with a specific intent. Speaking of specific intent, I now instruct you as to that.

The Defendant is charged with the crimes of first and second degree murder, an element of which requires specific intent ... You are instructed that you must find the element of specific intent before the Defendant can be convicted. If the State does not prove beyond a reasonable doubt that the Defendant acted with the required specific intent, you must find the Defendant not guilty. The manslaughter charge carries a different intent along with the use of a handgun, and that is what we call general intent____ [Emphasis supplied.] Appellant’s counsel excepted to these instructions, stating: ²²⁷ [T]he third exception is that when you instructed on specific intent and voluntary intoxication you told the jury that it did not apply to voluntary manslaughter and since this is not the reckless disregard type of case, I think there is intent to kill or at least intent to do grievous bodily harm, it’s not necessarily excluded from it.

Appellant in his brief refers to our decision in Cirincione v. State, 75 Md.App. 166, 171-72 n. 1, 540 A.2d 1151 (1988), in which Judge Moylan observed: There seems to be a paradox here, but careful recent analysis has resolved the apparent dilemma. Intoxication sufficient to erode the capacity to form a premeditated specific intent to kill (first-degree murder) would, ipso facto, erode the capacity to form a non-premeditated specific intent to kill (second-degree murder under a self-contradictory and illogical but nonetheless firmly established legal fiction that there could be a “conscious, fully formed and purposeful” intent to kill that would somehow not satisfy the watered-down definitions of “deliberate” and “premeditated”). One incapable of arriving at a decision (to kill) slowly is hardly capable of arriving at the same decision instantaneously, yet that is just what a hasty glance at the case law would seem to suggest. The principle that the absence of specific intent could preclude conviction for any crime requiring a specific intent — any of the attempts, any of Maryland’s aggravated assaults, burglary, larceny, robbery, etc. — save only second-degree murder predicated upon the specific intent to kill would be bizarre.

The logical explanation as to why voluntary intoxication may negate first-degree murder but not second-degree murder has been provided by W. LaFave & A. Scott, Criminal Law (1972). Recognizing that there are four forms of murderous mens rea — 1) intent to kill, 2) intent to inflict grievous bodily harm, 3) felony-murder, and 4) depraved-heart — the authors have explained that the absence of a specific intent to kill would, of necessity, obviate a conviction for that variety of murder in either of ²²⁸ its degrees but could nonetheless support a second-degree murder conviction upon the “depraved-heart” theory, which requires only wanton recklessness and does not require any specific intent. “Doubtless a better explanation is that one may be guilty of second degree murder, in most jurisdictions which divide murder into two degrees, by killing without any intent to kill or injure but with a high degree of recklessness (the “depraved heart” type of murder), and, as we shall see below, although intoxication can negative a required intention, it cannot (by the majority view) negative recklessness.” Id. at 345. “The real difficulty concerns the intoxicated person who conducts himself in a very risky way but, because of his drunkenness, fails to realize it. If his conduct causes death, should he escape murder liability? The person who unconsciously creates risk because he is