Dorsey and Wilson v. State

Moylan, J., delivered the opinion of the Court. This case deals with yet another aspect of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), as applied to the law of homicide in Maryland by Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 . It is, indeed, a variation on Brown v. State, 29 Md. App. 1 , 349 A. 2d 359 , which was a variation on Evans . The appellants, Josephine Dorsey and Isaiah Sylvester Wilson, were convicted in the Criminal Court of Baltimore-by a jury, presided over by Judge Basil A. Thomas, of both (1) conspiracy to commit murder and (2) murder in the first degree.

Their most significant contention upon this appeal is ⁹⁹ that the jury instruction dealing with the presumption of malice and placing upon them the burden of proving such mitigation as would negate malice was unconstitutional under Mullaney v. Wilbur and In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970). We, therefore, turn immediate attention to the pertinent part of that instruction: “In the absence of justification, excuse or some circumstance of mitigation, the law presumes all homicides to be committed with malice and to constitute murder in the second degree. The burden is on the State to prove the elements of deliberation and premeditation which would raise the homicide to murder in the first degree. The burden is on the defendants to show the existence of mitigation, excuse, or justification which will reduce the offense to manslaughter or not guilty.” There is no longer room for doubt that that instruction was clearly improper under Mullaney v. Wilbur.

In Part IIG of Evans v. State, we analyzed at great length the impropriety of such an instruction. We have declared such instructions to be improper in Brown v. State, supra; Burko v. State, 28 Md. App. 732 , 343 A. 2d 251 ; and Newborn v. State, 29 Md. App. 85 , 349 A. 2d 407 . The constitutional impropriety in a vacuum, however, is not dispositive. The impropriety rather must be judged in terms of its materiality and impact in a particular case.

In Brown v. State, supra, we held such an improper instruction to be harmless. In Brown, as here, the arguable issue on which the appellant based his Mullaney v. Wilbur claim was that of mitigation. In Brown, as here, the conviction was for murder in the first degree. In one respect, however, the present case differs from Brown.

In Brown, Judge Gilbert, speaking for this Court, was able to rest the holding of harmlessness upon a dual predicate. He pointed out initially that even if mitigation had been a fair issue in the case, the verdict of murder in the first degree served to cure any improper instruction by ¹⁰⁰ demonstrating that the State had carried its burden of proving every element of the offense beyond a reasonable doubt. The holding in Brown was supported, however, by yet a second theory. Even absent the curative effect of the first-degree murder verdict, the appellant there was not entitled to an instruction on mitigation because of his failure to generate a legitimate jury argument with respect thereto.

As Judge Gilbert there summarized the situation: “Appellant, at trial, denied all knowledge of the crime, denied ever seeing the decedent in the bus station rest room, denied she cut her hand during an altercation with the decedent, but explained that her hand was cut before she went to the bus station. Appellant admitted, however, being at the bus depot and using the ladies’ rest room. Appellant has by her own testimony expressly negated the common law offense of manslaughter through her disclaimer of all knowledge of the act. Patently, if she knows nothing of the crime, she could not have committed it in ‘hot blood’ or with recklessness, devoid of intention to take a human life.

Even though Green spoke of the ‘commotion’ between appellant and the decedent, we think, in the light of appellant’s testimony, that fact does not fairly inject mitigation as an issue in the case.” Because of our conclusion that the issue of mitigation was fairly generated in this case (with respect to the appellant Dorsey at least and, arguably, with respect to the appellant Wilson), our ultimate holding of harmless error must, perforce, rest upon the single foundation of the curative effect of the first-degree murder verdict alone. In one respect, the generation of the jury issue here is interesting because it arose out of the State’s evidence itself (as in Mullaney v. Wilbur) and not out of any evidence produced by the defense. Neither appellant took the stand. Except for a stipulation as to a motel registration by way of arguable alibi for the appellant Wilson, no defense at all was offered.

For reasons to be hereinafter analyzed, however, we ¹⁰¹ conclude that the State’s case itself served to generate a jury issue as to mitigation. It was of this very possibility that we spoke in Evans in Part IF: “[B]efore it can be said that there is in a case a legitimate jury issue on the question of justification, excuse or mitigation, there must be evidence sufficient to generate the issue. That evidence may be, but need not be produced by the defendant. It may be found in the State’s own evidence.

But whatever its source, unless there is evidence sufficient to generate a fair jury question (or to generate the issue in like manner in a court trial), there is no requirement that instructions in these regards even be given.” In looking initially at the threshold question of whether the evidence generated a jury issue entitling the appellants to an instruction on mitigation, we will examine the evidence, and all inferences fairly drawable therefrom, in a light most favorable to the appellants. We are by no means intimating that mitigation was persuasively established. Indeed, as will hereinafter be discussed when we look to the sufficiency of the evidence to establish conspiracy to murder (and, inferentially, to legitimate the finding of murder in the first degree), the evidence was clearly legally sufficient to establish that there was no mitigation. Preeminently, the evidence may be legally sufficient to establish either mitigation or lack of mitigation, the resolution being left to the jury.

As we look at the evidence, therefore, in the light most favorable to the appellants, that evidence will be applied to the criteria for mitigation which were clearly set out by Chief Judge Orth in Whitehead v. State, 9 Md. App. 7, 10-11 , 262 A. 2d 316 : “But there may be a homicide which would otherwise be murder which is reduced to manslaughter by circumstances of alleviation or mitigation. Such a case is where the circumstances ¹⁰² surrounding the homicide establish that it was provoked. 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.” The deceased, Russell Blake; his girlfriend, Mary Ann Johnson; one Delores Pound; and the two appellants all shared a residence on December 30, 1973, at 2636 Loyola South way. At approximately 1 a.m. on that date, the appellant Dorsey had been drinking heavily.

The appellant Wilson had been drinking to some lesser extent. The two appellants apparently lived together as man and wife. At 1 a.m., the appellant Wilson went to the nearby Preakness Bar. The appellant Dorsey arrived home and immediately got into an argument and at least a minor scuffle with Delores Pound, who was then in her ninth month of pregnancy.

Russell Blake intervened. Extracting from the somewhat confused factual accounts that version most favorable to the appellants, the ensuing struggle between Blake and the appellant Dorsey became heated. Blake was a big man physically. With assorted pushing and shoving, the fight moved down a hallway to a stairway.

There were at least some indications that the appellant Dorsey was thrown down the steps by Blake. The police were summoned and the disturbance was quelled. The appellant Wilson arrived home at about that time and helped to calm down the appellant Dorsey. The appellant Wilson removed the appellant Dorsey from the area. ¹⁰³ At approximately 6 a.m., the appellants returned.

Three boys were with them, two with sticks and one with a chain. All five entered Blake’s bedroom, where he was sleeping with Mary Ann Johnson, and began to beat him. The appellant Wilson accused Blake of having thrown the appellant Dorsey down the stairs. Blake responded, “Man, I didn’t throw her down.

She fell down.” The appellant Dorsey interjected, “Don’t believe him. He did throw me down the step.” The fighting continued in the bedroom and in an adjacent hallway. Blake knocked down one of the boys and then ran down the stairs. The appellant Wilson moved to the kitchen and obtained a butcher knife.

He ultimately stabbed Blake in the neck, causing him to bleed to death. We turn initially to the question of the adequacy of the provocation. Although there are, tc be sure, versions of the facts far more favorable to the victim Blake, we are required at this juncture to take that version most favorable to the appellants. If Blake either engaged in a mutual affray with the appellant Dorsey or unnecessarily battered the appellant Dorsey by throwing her down the stairs, the law would indicate that this would be at least a jury question with respect to legally adequate provocation.

Moreland, The Law of Homicide, (1952), points out, at p. 76: “While a trivial blow is not sufficient, a substantial battery upon the defendant or a close relative will j ustify the reduction of an intentional homicide to voluntary manslaughter. A clout with a heavy hickory stick and a blow upon the back of the head with a pistol represent illustrations of the type of injury required. ... It is true that the law does not permit or excuse the taking of life in assault and battery cases for anything less than a cause which would justify a plea of self-defense, — a fear of grievous bodily harm or of death. But while the law does not excuse such a homicide, it does recognize the commonly accepted opinion that a substantial assault or battery may well provoke such heat of ¹⁰⁴ passion as to justify the reduction of the crime to manslaughter.

This is precisely the reasoning that is used in the other categories of legal provocation and is as sound a social policy in this instance as in the others.” To a similar effect is Perkins, Criminal Law (2d Ed., 1969), atp. 60: “Knocking a person down with a heavy stick, or hitting him over the head with a revolver, are rather obvious instances of such force; but a weapon is not indispensable for this purpose. Thus even a blow with the fist may be sufficient to reduce an intentional killing to manslaughter, particularly if it is a blow in the face or a ‘staggering’ blow.” See also Clark and Marshall, Law of Crimes (6th Ed., 1958), atp..623: “Every man, when assailed with violence or great rudeness, is inspired with a sudden impulse of anger, which puts him upon resistance before time for cool reflection; and if, during that period, he attacks his assailant with a deadly weapon, even with intent to kill, and