Dennis v. State

WILNER, Chief Judge. On the evening of August 21, 1993, appellant, armed with a handgun, went to the home of Mark Bantz, apparently kicked in the door, entered the house, and shot Mr. Bantz nine times—in the chest, in the head, and in the back. At least three of the wounds were fatal. As a consequence of this conduct, a jury in the Circuit Court for Baltimore County convicted appellant of premeditated first degree murder, burglary, and unlawful use of a handgun, for which substantial sentences were imposed.

Appellant complains in this appeal that the court refused to instruct the jury ⁶⁹⁰ properly on the crime of manslaughter and that it erred in allowing into evidence, as excited utterances, certain statements made at the scene of the crime by his wife, Robin. We find no merit in these complaints and shall therefore affirm the judgments entered by the circuit court. FACTUAL BACKGROUND Although appellant claimed to have no memory of the actual killing, his defense was that it must have occurred in the heat of passion, as the result of a dual, or mixed, provocation— Robin’s two-month adulterous relationship with Bantz, culminating in the sight of seeing them in an amorous embrace; and knowledge gained earlier in the day that, on the previous evening, Bantz had smoked cocaine in the presence of appellant’s 12-year-old son. Appellant and Robin met while they were teenagers; they began to live together and married when Robin became pregnant.

Appellant worked hard to support his family, and all, apparently, went well until late 1990 or early 1991, when they began to suffer financial difficulties due, according to appellant, to Robin’s spending habits. In July, 1993, he and Robin declared bankruptcy. Meanwhile, on June 26, 1993, Robin left the marital home, telling appellant that she was going to live with a female friend. About a week later, Robin confessed that she was, in fact, living with Mr. Bantz.

Appellant became “emotionally upset” at this news, at least in part because he knew that Bantz was “involved with drugs.” This concern heightened when he learned, in mid-July, that Robin too had begun smoking cocaine. She rejected his pleas to come home, “because of the drugs and the sex.” Appellant then made two threats against Bantz—one in a conversation with Bantz’s parents and one in a letter he wrote to Robin. By late July or early August, appellant began to accept the situation. Although still professing strong feelings for Robin, he said that he “was starting to learn to accept the fact that she wasn’t going to come home” and to focus his attention on ⁶⁹¹ raising his son.

By August, he continued, “I was doing fairly good with all of this. I was pretty much coming back to earth.” On Tuesday, August 17, however, Robin told appellant that she wanted to return. The next day, appellant picked her up from work, took her to Bantz’s house to get some of her belongings, and had dinner and spent the night with her. Notwithstanding this romantic interlude and the representation that her affair with Bantz was over, Robin asked for a little more time to make up her mind.

She said that Bantz had moved back with his parents and allowed her to remain in the home they had shared until she could decide what she wanted to do. It is not clear whether appellant and Robin had contact the next day, but on Thursday, August 19, they again spent the evening together. On Friday evening, at Robin’s request, appellant allowed his son to stay with Robin. When appellant took his son to the house, Bantz was not there.

On Saturday, appellant learned from his son that Bantz had come to the house on Friday evening, and that, as they were watching television, Bantz smoked cocaine. Appellant decided to investigate. He tried to reach Robin by telephone, but, when there was no answer, he drove to Bantz’s house. He had with him in the car a .22 caliber handgun, allegedly because of a hunting trip planned for the next day. 1 Appellant stopped on the way and called Robin again, this time getting through to her; stating that she was going out with a girlfriend, she asked him to stay away, but he told her he was coming.

When he arrived at the home, appellant saw Bantz’s father’s truck, thereby indicating Bantz’s presence. He approached the house, opened the screen door, and looked through the window. He described in his testimony what he saw: ⁶⁹² “I seen [Bantz] standing there, and he had his hands around my wife, and they were kind of, like embraced in, I don’t know, some kind of mood, I guess. He had her dress all hiked up around her.

I could see her, you know. It was kind of hard to take. * * * * * * She was—it was, like, her back and.[Bantz’s] belly. He had her kind of around in front of him, and the best way I can say it, he had her all hooked up. * * * * * * He had her dress kind of hiked up around her and it just looked like he was maybe feeling her private parts or so. * * * * 5jS * It looked like they were'getting ready to engage in some kind of sex act.” Appellant claimed to have no memory of what next occurred, and, because he and Robin reconciled, she refused to testify. Testimony from two police officers who responded to the scene in response to emergency calls from Robin indicate that the front door had been kicked in and that the nine bullets fired into Bantz’s head and body had been fired from at least 18 inches away; they were not contact wounds.

Officer Wiley stated that he was the first to arrive, that Robin met him at the door, that she was “very upset, crying, screaming, almost to the point of where she was hysterical,” and that Bantz was lying on the kitchen floor, dead. Over objection, Wiley testified that Robin told him that, after receiving appellant’s call, she and Bantz were concerned that he would be “in a violent-type state,” and that they were trying to get their things together and get out of the house before he arrived. Wiley said that Robin was on the telephone with Bantz’s parents when he arrived. Mr. Bantz’s father testified that Robin had called, that she was extremely upset, and that she told him that appellant had “just shot” Bantz. ⁶⁹³ MANSLAUGHTER INSTRUCTIONS When counsel and the court first conferred on jury instructions, the court indicated that it proposed to give the Pattern Jury Instruction on voluntary manslaughter drafted by the Maryland State Bar Association Committee on Criminal Pattern Jury Instructions (MPJI-Cr 4:17.4C).

In pertinent part, that instruction states that a killing in hot blooded response to “legally adequate provocation” is a mitigating circumstance, that in order for such a mitigating circumstance to exist in the particular case, five factors must be present: (1) the defendant reacted to something in “a hot blooded rage”; (2) the rage was caused by something “the law recognizes as legally adequate provocation” and that the only act the jury could find to be adequate provocation under the evidence in this case is “the sudden discovery of the defendant’s spouse in an act of sexual intercourse”; (3) the defendant was still enraged when he killed the victim; (4) there was not enough time between the provocation and the killing for a reasonable person’s rage to cool; and (5) the victim was the person who provoked the rage. Appellant raised no objection then, and raises no complaint now, about any aspect of that proposed instruction other than the language in element (2) declaring that the only adequate provocation under the facts of this case would be if appellant suddenly discovered Robin “in an act of sexual intercourse.” Initially, counsel complained that the instruction suggested that appellant must have discovered Robin in the actual act of intercourse and asked that the instruction be broadened to include that the defendant have simply learned of the intercourse or have strong reason to believe it took place. The court’s first response was to suggest changing “intercourse” to “intimacy,” but, upon the State’s objection, the court reconsidered and agreed to modify the instruction in the limited manner requested, to read “sudden discovery by the Defendant of the Defendant’s spouse in the act of sexual intercourse or his having strong reason to believe that it recently took place.” It gave the instruction in that form. ⁶⁹⁴ Upon completion of the instructions, defense counsel asked for a further expansion of the manslaughter instruction. Citing Girouard v. State, 321 Md. 532 , 583 A.2d 718 (1991), he posited that “the total circumstances surrounding the murder, the killing, is something that is important to be considered in this case, particularly because one element seemingly left out of the Court’s instructions is the consideration of drug usage, the exposure of the wife to drugs and the exposure of the son to drugs and the wife using drugs and the Defendant’s knowledge of drugs being fed to his wife might have had on his actions.

That, taken along with the adultery, would be more motivation than might occur with just adultery itself....” The court declined to supplement its instruction. After, some period of deliberation, the jury sent a note asking the court to “clarify the term recent in the description of legal provocation in terms of recently had sexual intercourse, and must it be intercourse?” That provoked another discussion between counsel and the court, principally over the second aspect of the question. Defense counsel at one point argued that the proper instruction would be simply to “look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim” and that “any facts, which the jury deems could meet that provocation or make that provocation, as otherwise set out in the instructions of the Court, can be considered by the jury.” The court rejected that approach, which counsel more or less conceded went beyond the current Maryland case law, and, instead, instructed the jury that “[rjecent is a term which is imprecise, and its meaning is within your sound discretion” and “intercourse is to be interpreted as having its usual and generally accepted meaning.” In this appeal, appellant complains that the court erred in limiting the provocation to the discovery of actual sexual ⁶⁹⁵ intercourse, i.e., coition. 2 He urges that (1) the conduct observed by him “was sufficient to constitute an ‘act of sexual intercourse’ necessary to form legally adequate provocation for the killing,” (2) even if it was not, the law should recognize “significant sexual contact” or “sexual intimacy” as sufficient provocation, and (3) in any event, the jury should have been instructed to consider “the victim’s illicit drug use in the presence of appellant’s child” as sufficient provocation. To constitute a mitigating factor sufficient to negate the element of malice, and thereby reduce murder to manslaughter, the provocation must be “adequate.” In Girouard, supra, 321 Md. at 539 , 583 A.2d 718 , the Court explained that, for a provocation to be “adequate,” it must be “calculated to inflame the passion of a reasonable [person] and tend to cause [that person] to act for the moment from passion rather than reason.” (Emphasis added.) That describes one aspect of “adequacy.” There is another, which flows from the requirement that the passion be that of a reasonable person; the provocation must be one the law is prepared to recognize as