Carter v. State

WILNER, Judge. Appellant was convicted by a jury in the Circuit Court for Baltimore City of first degree murder (art. 27, § 407 and common law) and carrying a dangerous and deadly weapon ⁵⁷⁰ (ar.t. 27, § 36). He was sentenced to life imprisonment on the murder conviction and to three years on the deadly weapon conviction, with the sentences to be served consecutively. At trial, it was apparently undisputed by appellant that he killed the victim, Kevin Smothers.

His defense was that (1) the killing was in “self-defense,” and (2) if not in self-defense, then he killed because of a “hot-blooded” response to provocation, a defense which would mitigate murder to manslaughter. Appellant noted a timely appeal and before us complains that: “I. The trial court erred in failing to instruct the jury on the offense of manslaughter.

II

The trial court erred in excluding evidence that the victim had shot Appellant a few months prior to the homicide.

III

The trial court erred in permitting Appellant to be impeached on the basis of a conviction of assault with intent to murder.

IV

The trial court erred in failing to to propound a requested voir dire question. V. The trial court erred in refusing to call Andre Farmer as a court’s witness.” We find merit in two of appellant’s contentions and therefore shall reverse and remand for a new trial on his murder conviction. I. Appellant first contends that the trial court erred when it refused to instruct the jury on the subject of manslaughter as he requested. The exact point in dispute is whether there was sufficient evidence adduced at trial to support a manslaughter instruction based on the “Rule of Provocation.” ⁵⁷¹ As Judge Orth noted in Whitehead v. State, 9 Md. App. 7, 10-11 , 262 A.2d 316 (1970), “For the ‘Rule of Provocation’ to be invoked there are four requirements: (1) There must have been adequate provocation; (2) The killing must have been in the heat of passion; (3) It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; (4) There must have been a causal connection between the provocation, the passion, and the fatal act.” See also Scott v. State, 64 Md.App. 311, 323 , 494 A.2d 992 (1985); Cunningham v. State, 58 Md.App. 249, 258 , 473 A.2d 40 (1984).

With these requirements in mind, we now turn to the evidence at hand, viewing it in the light most favorable to appellant, to determine if there was evidence from which the jury could have found that appellant killed in response to a hot-blooded provocation. Appellant testified that at approximately 8:30 p.m. on November 21, 1983, he encountered the victim on the corner of Milton Avenue and East Hoffman Street, that the two exchanged “a few words and whatnot,” and that an “altercation” arose. 1 He claimed that he and the victim “started tussling with one another,” that the victim brandished a knife but that he was able to get the knife from the victim. At this point, according to appellant, he was in an enraged state, having “lost complete control” of himself, and began ⁵⁷² chasing the victim, who had apparently started to retreat once disarmed. The chase lasted some 60 to 90 seconds.

On direct examination, appellant testified that when he caught the victim, he stabbed him “[b]ecause I felt he was trying to get a gun like he usually have.” 2 On cross-examination, he testified that the victim “got tired of running from me and turned to try to take [the knife] away from me.” He added, in this account, that he stabbed the victim in.the upper body as the victim “rushed” him. 1. Was there “adequate provocation”? For a provocation to be “adequate,” it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” R. Perkins, Perkins on Criminal Law, at p. 56 (2d ed. 1969). See also Wharton’s Criminal Law § 155 (C. Torcia ed. 1979). “There is adequate provocation when there is a mutual quarrel or combat. ‘The combat is mutual if the intent to fight is mutual, and in such situations the question of which one actually strikes the first blow is not controlling.’ ” Whitehead v. State, supra, 9 Md.App. at 11 , 262 A.2d 316 (quoting Perkins, supra, at p. 49).

In his brief, appellant’s principal argument is that he and the victim engaged in a “mutual quarrel or combat.” 3 In our view, his testimony recounting the “altercation” and the “tussling,” though hardly indisputable, fairly generated sufficient evidence of “adequate provocation” when considered in the light most favorable to him. ⁵⁷³ 2. Was the killing in the “heat of passion ”? The focus of the element is subjective: did the slayer act while in the throes of actual hot-blooded passion? See Tripp v. State, 36 Md.App. 459, 469 , 374 A.2d 384 , cert. denied 281 Md. 745 (1977).

Generally speaking, only he can attest to the “hot-blooded” nature of the killing. Bartram v. State, 33 Md.App. 115, 175 , 364 A.2d 1119 (1976), affirmed 280 Md. 616 , 374 A.2d 1144 (1977); Tripp v. State, supra, 36 Md.App. at 469 , 374 A.2d 384 . Here, appellant did testify in this regard. Compare Tripp v. State, supra.

By his own account, he was in an enraged state; he was “more or less like in a blackout,” “couldn’t handle what happened, what had transpired” between him and the victim, and just “lost complete control.” Thus, we believe appellant adduced legally sufficient evidence to generate the question of whether he subjectively killed in the “heat of passion.” 3. Was the killing in the “sudden” heat of passion? In the analysis of this element, we are “concerned with the objective test of whether there had been a sufficient cooling time for the passions of an average and reasonable man to abate.” Tripp v. State, supra, 36 Md. App. at 470 , 374 A.2d 384 . From appellant’s testimony, his passions were aroused to the boiling point during his “altercation” and “tussling” with the victim.

Further, it was uncontroverted that the ensuing chase lasted some 60 to 90 seconds. In our view, this short elapse of time could hardly be deemed sufficient as a matter of law for a “hot-blooded” passion to subside and to allow for “cool deliberation.” Compare Cunningham v. State, supra, 58 Md.App. at 259 , 473 A.2d 40 ; Tripp v. State, supra, 36 Md.App. at 469 , 374 A.2d 384 . Indeed, a jury could find that the chase intensified the fury of appellant. ⁵⁷⁴ 4. Was there a “causal connection ” between the provocation, the passion, and the fatal act?

Lastly, the “Rule of Provocation” requires that there be some direct causal relationship between the provocation, the passion, and the fatal act. That is, “[t]he adequate provocation must have engendered the heat of passion, and the heat of passion must have been the cause of the act which resulted in death.” Perkins, supra, at p. 69. In the instant case, as we have pointed out in the “mutual quarrel or combat” analysis, during the “altercation” and “tussling” between the two, the victim purportedly expressed regret for being unsuccessful in a prior attempt to kill appellant, promised to be successful in his efforts next time, and apparently drew a knife on appellant during their quarrel. This, as appellant testified, evoked “hot-blooded” passion, and prompted him to fatally stab the victim after a heated chase.

We hold that appellant made the requisite minimal showing necessary to generate the issue of direct causal relationship between the provocation, the passion, and the fatal act.

II

As we noted (n. 1, ante), appellant claimed that the victim had shot him in the head during the summer of 1983 — a few months before the killing giving rise to the instant appeal — and sought to introduce evidence to that effect. The State objected, asserting that, except for appellant’s “bald allegation,” there was no evidence that the shooting had actually occurred. The court sustained the objection, opining that, if appellant had some basis for “alleging that he was shot by this deceased,” it would be admitted into evidence, but that otherwise the incident could not be referenced. Defense counsel made a proffer of the incident, and, although no formal charges or statement had been made accusing the victim, counsel offered a hospital record to show that appellant had been treated for the injury on a certain date.

In refusing appellant’s testimony ⁵⁷⁵ as to the prior shooting we believe that the lower court erred. As we said, appellant posited two theories intended to exculpate or mitigate the homicide — self-defense and “hotblooded” provocation. We agree with appellant’s contention that the shooting tended to show the victim’s violent proclivities and thus would be admissible in connection with the defense of self-defense to show that appellant acted reasonably. See Thomas v. State, 301 Md. 294, 306-07 , 483 A.2d 6 (1984).

We disagree, however, that the prior shooting could be introduced to show that appellant went “out of control.” As we pointed out in Part I, the theory of “hot-blooded” provocation requires that there be a causal relationship between the provocation (here, a mutual combat or quarrel), the “hot-blooded” passion aroused by the provocation, and the fatal act. Since the causal relationship is required, and this prior shooting could only evidence a “grudge,” not the “passion” invoked by the provocation, it could not, within the confines of the “hot-blooded” response to provocation analysis, tend to prove any of the requisite elements. Accordingly, we hold that evidence of the prior shooting was admissible for purposes of self-defense, although not with respect to the “provocation” defense.

III

Appellant’s third complaint is that the trial court erred in permitting the State to impeach him on the basis of a conviction for assault with intent to murder. He argues that impeachment founded on this conviction was erroneous “because it was never