Dorsey v. State

Murphy, C. J., delivered the opinion of the Court. Eldridge, J., concurs in the result and filed a concurring opinion at page 226 infra. Appellant Dorsey and Isaiah Wilson were found guilty by a jury of conspiracy to commit murder and murder in the first degree. On appeal to the Court of Special Appeals, they claimed that the jury instructions dealing with the presumption of malice, and which placed upon them the burden of proving such mitigation as would negate malice, was unconstitutional under Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), and In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970). 1 The trial court had instructed the jury that an accused person is presumed innocent throughout the trial and that the State “must prove every fact material to the guilt of a defendant beyond a reasonable doubt.” It had properly defined murder in the first and second degrees and manslaughter.

In the course of its instructions, the trial court told the jury: “ ‘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.’ ” The Court of Special Appeals, in an opinion by Judge Charles E. Moylan, Jr., held that the instruction placing a burden of proof on the defendants to reduce murder to manslaughter or not guilty was improper under Mullaney . It concluded, however, that even though the issue of mitigation ²²³ had been fairly raised by the evidence in the case, the jury’s verdict of murder in the first degree cured the improper instruction by demonstrating that the State had carried its burden of proving every element of the offense beyond a reasonable doubt.

Dorsey and Wilson v. State, 29 Md. App. 97 , 349 A. 2d 414 (1975). 2 We granted Dorsey’s petition for a writ of certiorari to consider whether the Court of Special Appeals erred in holding that the erroneous instruction was cured as a result of the jury’s verdict of first degree murder. In its opinion, the Court of Special Appeals said: “. . . granting . . . that the evidence generated a fair jury question on the issue of mitigation, the jury’s verdict of guilty of murder in the first degree cured any error in the instructions. Just as the evidence was arguably sufficient for the jury to find mitigation, it was bountifully sufficient for the jury to find beyond a reasonable doubt, as they did, that the killing was deliberated and premeditated. As we said in Evans [v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975)]: ‘By the same token, any error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree.

The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, ²²⁴ therefore, have been pivotal. Where, on the other hand, the verdict is murder in the first degree, the State will have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended. [ 28 Md. App. at 658 .]’ ” After outlining the State’s evidence against Dorsey and Wilson, the court said: “As to first-degree murder . . . the State bore the burden of proving wilfulness, premeditation and deliberation beyond a reasonable doubt. The finding of those elements by a jury, ipso facto, negated the element of ‘hot blood’ or ‘heat of passion.’ The situation, therefore, is as was described by Judge Gilbert, in Brown v. State . . . [ 29 Md. App. 1 , 349 A. 2d 359 (1975)]: ‘Similarly, an erroneous instruction concerning an accused’s burden of lowering the offense from second degree murder to manslaughter is likewise cured because the State has negated to the satisfaction of the trier of fact, any mitigation.

The net result, in such cases, of incorrect instruction where mitigation or “hot blood” is not an issue fairly in the case, is that the instruction, at worst, is harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254 , 89 S. Ct. 1726 , 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 (1967) “In denying a writ of habeas corpus in the case of Wilkins v. Maryland, 402 F. Supp. 76 (1975), Judge C. Stanley Blair in the Unite'd States District Court for Maryland reached a similar conclusion. It was of this very situation that we spoke in Evans v. State ... [ 28 Md. App. at 660-61 ]: ‘The State, in proving wilfulness, ²²⁵ deliberation and premeditation beyond a reasonable doubt, will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice (meaning, within the context of this analysis, an intentional killing absent the mitigating circumstance of a hot-blooded response to a legally adequate provocation). “Malice and heat of passion cannot coexist.” 40 Am.Jur.2d, Homicide, § 56, p. 350, citing Vaughan v. State, 201 Ala. 472 , 78 So. 378 , and White v. State, 44 Tex. Crim. 346 , 72 S. W. 173 . A fortiori, proof beyond a reasonable doubt of premeditated and deliberated malice will negate heat of passion.

The requirement of In re Winship and Mullaney v. Wilbur that the State prove beyond a reasonable doubt every necessary element of the offense will have been fully satisfied.’ ” Dorsey contends that the only reference to a standard of proof in the trial court’s instructions was to the “reasonable doubt” standard, and that the jury must have thought that the defendant was required to prove mitigation or innocence of the crime beyond a reasonable doubt. She claims that in determining guilt or innocence under the instructions in this case, the jury “could in no way have considered it the State’s burden to disprove ‘hot blood’ after being told that it was the Appellant’s burden to prove it.” As Judge Moylan pointed out for the court in Dorsey and Wilson , that malice, deliberation, and premeditation, on the. one hand, and mitigation due to provocation on the other, cannot coexist is the nub of the issue where an incorrect instruction under Mullaney has been given with respect to the burden to prove mitigating circumstances, and the jury returns a first degree murder conviction. The State, in these circumstances, would have negated the existence of mitigating circumstances by proof, beyond a reasonable doubt, that the homicidal act was unlawful, the result of a cool, calm state constituting first degree murder. We ²²⁶ therefore hold that, in this case, the Court of Special Appeals was correct in concluding that the jury’s verdict of guilty of murder in the first degree cured any error in the instructions.

See generally, State of Maryland v. Edward Evans, 278 Md. 197 , 362 A. 2d 629 (1976); and State of Maryland v. Michael Sean Garland, 278 Md. 212 , 362 A. 2d 638 (1976). Judgment of the Court of Special Appeals affirmed. . The trial in this case was concluded before the Supreme Court announced its decision in Mullaney v. Wilbur, supra. . No evidence of justification or excuse for the killing was adduced at the trial.

Neither Dorsey nor Wilson testified and they offered no defense to the killing. The mitigation issue was generated by evidence adduced by the State in presenting its case-in-chief. Eldridge, J., concurring: While I concur in the result reached by the majority in this case, I do so upon different grounds. As the majority points out, where a jury returns a verdict of murder in the first degree, its finding of premeditation and deliberation on the part of the defendant is legally inconsistent with the existence of mitigating circumstances which would reduce the offense to manslaughter.

See Wilkins v. Maryland, 402 F. Supp. 76 (D. Md. 1975); Brown v. State, 29 Md. App. 1 , 349 A. 2d 359 (1975); Hurt v. United States, 337 A. 2d 215 (D.C. App. 1975); 1 Anderson, Wharton’s Criminal Law and Procedure §§ 274, 275 (1957); 40 Am.Jur.2d, Homicide § 56 (1968). This legal theory might suggest that a jury, by