Duckworth v. State

RODOWSKY, Judge. Petitioner, Russell Lynn Duckworth (Duckworth), while handling a pistol, shot and seriously wounded a child who was in his custody. A jury in the Circuit Court for Allegany County found Duckworth guilty of child abuse and battery. The Court of Special Appeals affirmed in an unreported opinion.

We granted Duckworth's petition for certiorari to consider two issues: ⁵³⁵ “1. Did the trial court err when it admitted evidence of a prior accidental shooting? “2. Was the evidence sufficient to sustain Petitioner’s convictions?” The shooting charged in the indictment occurred on January 28, 1988. Miranda Bergdoll (Mandy), age three years and eight months, was in her mother’s apartment on Beall Street in Cumberland.

Mandy’s mother, Susan Ann Berg-doll (Bergdoll), was at work. Mandy’s father was in prison. Mandy was in the care of Duckworth, who also resided there and whom Bergdoll married by the time of trial. There were no other persons in the apartment when the shooting occurred.

The Bergdoll apartment consisted of the entire second floor of a small, two-story building. The front door of the apartment was at the bottom of the stairs which accessed the second floor hallway. Four rooms opened off the hall. Progressing from rear to front they were a kitchen in the rear, bedroom one, bedroom two, and a bathroom in the front.

Based upon a lengthy statement in question and answer form which Duckworth gave to the police, and which was audio recorded and transcribed, the jury could have found the following facts. 1 Duckworth was standing in the kitchen while running water for his bath in the bathroom. For no reason that he could articulate, Duckworth reached to a shelf above the refrigerator and took down a holstered Smith and Wesson, .44-caliber, magnum revolver. He said that “ ‘the gun was loaded, and I forgot about it.’ ” He took the weapon out of the holster. While holding the holster in one hand and the pistol in the other, he attempted to release the cylinder, but the revolver would not open.

While Duckworth held the gun Mandy said, “ ‘ “Don’t shoot me.” ’ ” Duckworth said, “ ‘ “Mandy, I’m not going to ⁵³⁶ shoot you.” ’ ” At that point Duckworth asked Mandy to turn the water off in the bathroom. She started down the hall, turned around, and seemed about to cry. Duckworth had his thumb on the hammer of the pistol. Mandy asked if Duckworth wanted her to turn the light on.

Duckworth “ ‘hollered at her for turning all the lights on, ‘cause her mother bitches because we got to pay the bill.’ ” Mandy said, “ ‘ “Don’t shoot me,” ’ ” and Duckworth said, “ ‘ “Honey, I won’t shoot you,” ’ ” when Duckworth “ ‘let go [of the hammer], and the gun went off.’ ” The handgun was loaded with bird shot in .44-caliber casing. Mandy was approximately ten feet away, standing between the doors to the bedrooms. She was hit by over fifty pellets of shot in the chest, neck, right arm, and some inside of the mouth. Some of the pellets lodged in the heart muscle.

Mandy was standing between bedroom one and bedroom two, nearer bedroom two. Duckworth was standing in the kitchen. In the wall between where Mandy was standing and the frame of the doorway of bedroom one twenty-seven other pellets were clustered in an area approximately fifteen inches wide extending from a low point of fourteen inches to a high point of twenty-five inches above the floor. There were only eight pellets imbedded in the frame of the doorway to bedroom two.

Duckworth rushed Mandy to a hospital in Cumberland. Because of the injury to the heart muscle, Mandy was transferred to a hospital in the District of Columbia. She eventually made a complete recovery. An expert from the Federal Bureau of Investigation who examined the handgun testified for the State.

The weapon could be fired in single or double action modes. In the double action mode, pulling the trigger causes the hammer to rise, subsequently to release, and to fire the cartridge. This mode of firing requires 11.5 pounds of pressure on the trigger. In the single action mode, used for target shooting, the hammer is first cocked, and then the trigger pulled. ⁵³⁷ The single action mode of firing requires 3.25 pounds of pressure on the trigger.

The expert further testified that one of the safety features of the weapon is a hammer block which prevents the hammer from striking the cartridge unless the trigger is pulled. The witness tested that safety feature by striking the end of the hammer spur, using a leather mallet with a considerable amount of force, while the hammer was in the cocked position. The witness was able to cause the weapon to fire on three out of thirteen attempts with hammer blows. At that point a blow broke the hammer spur.

In the witness’s opinion it was not possible for the weapon to go off, without pulling the trigger, when the hammer was cocked, “absent some unusual circumstances,” similar to those described in his test. At the time of the January 28, 1988, incident Duckworth, Bergdoll, and a house guest had four guns in the apartment, the .44-caliber magnum handgun, a Marlin, .22-caliber, scope rifle, a black powder pistol, and an old, Ruger, black powder, muzzle loader. Duckworth and the house guest had been out target shooting together a few days before the incident. The day of the incident, Duckworth showed Bergdoll how to load and use the .44-caliber handgun for her own self-defense.

At a point some forty pages into Ms statement to the police, Duckworth was asked again to describe the shooting. “ ‘Q ... Just take your time and tell me what happened. Get it off your chest.’ “ ‘A She was scared of me.’ “ ‘Q Okay. I realize that.’ “ ‘A And she’s scared of it.

And she’s like, “Don’t shoot me.” And I’m like, “I ain’t going to shoot you.” And she said ... “You just said....” She just said, “Don’t shoot me.” And I said, “I’m not going to shoot you.” And she was trying to cry. And I said, “If you don’t quit crying, IT1 shoot you.” ’ “ ‘Q Okay.’ ⁵³⁸ “ ‘A And I was standing there with it like that in my hand. I told you I had the holster in my left hand and the pistol was in my right hand____’ “ ‘Q And you was thinking the gun was unloaded?’ “‘A Right.’ “ ‘Q And that’s when the damn thing went off?’ “ ‘A Right. Officer Abe, there’s no way in hell I ... ’ “ ‘Q [Duckworth], I believe that you didn’t mean to shoot the girl.

Do you understand what [Mandy] thinks?’ “ ‘A She thinks I just said, “Hey, Mandy, you’re bad and I’m going to shoot you.” ’ ” Mandy’s mother testified in the defense case. On cross-examination by the State, the following transpired which gave rise to the first issue presented by Duckworth in his certiorari petition. “Q Mrs. Duckworth, had there ever been any other accidents involving [Duckworth] and your daughter? “[DEFENSE COUNSEL]: Objection. “A No sir. Except for the shooting. “Q Except for this shooting, there had never been another accident? “A Between ... “[DEFENSE COUNSEL]: Objection. She asked and answered the question. “BY THE COURT: Objection sustained. “Q Approximately a week before, wasn’t there an incident with a BB gun? “[DEFENSE COUNSEL]: Objection. “BY THE COURT: Objection is overruled. “A Is that answer or don’t answer? “BY THE COURT: Answer. “A Yeah.

I was there. The BB hit the chair and then it hit her. He didn’t stand there and hit her with it first. “Q You were there in the room when it happened? “A I was in the bathroom. But if you would like to go see my kitchen chair, I’ll take you over and show you. ⁵³⁹ “Q Ma’am, the question was, were you in the room when it happened? “A I was in the bathroom.” The jury found Duckworth not guilty of assault with intent to maim and of use of a handgun in a crime of violence, but the jury found Duckworth guilty of child abuse and of battery.

The trial court merged the convictions. Duckworth’s position is that “the ultimate issue in the case is whether the State proved beyond a reasonable doubt that [Duckworth] intentionally shot Miranda Bergdoll; if the shooting was accidental, [Duckworth] did not commit a crime.” He submits that “whether the State proved intent beyond a reasonable doubt resolves to whether the expert’s testimony excluded any reasonable possibility other than [Duckworth’s] intentionally pulling the trigger.” Brief of Petitioner at 11-12. Within that framework, Duckworth argues that “[w]hether [Duckworth] had been involved in prior accidents was irrelevant to whether he deliberately shot Miranda Bergdoll,” and thus, Bergdoll’s testimony, quoted above, was inadmissible. Id. at 7.

We reject the premise of this analysis, because it ignores the role of criminal negligence in criminal battery and in child abuse. I On the charge of battery, the trial court instructed the jury that “in order to convict the Defendant of battery, the State must prove the following elements: that the Defendant caused physical contact or harm to the victim; that the contact was the result of an intentional and reckless act of the Defendant and was not accidental, and that the contact was not legally justified.” 2 ⁵⁴⁰ Under the evidence presented in the instant matter, the jury could have found that Duckworth pointed the revolver at Mandy. The physical evidence clearly demonstrates that the weapon was pointing directly at Mandy when it fired. There is direct evidence in Duckworth’s statement that Mandy was pleading with Duckworth not to shoot her and that he threatened to shoot her if she did not stop crying.

From this the jury could infer that Duckworth intentionally pointed the handgun at Mandy while he was threatening to shoot her. That is precisely how the State argued to the jury. Emphasizing the recklessness element of an alternative method of proving battery, the State argued: “Again ... is it reckless to point a gun, whether or not you believe it loaded or unloaded, at anyone, little [sic] alone a three year old infant[?]” II “In most jurisdictions today battery may be committed by conduct amounting to criminal negligence which legally causes an injury.” W. LaFave & A. Scott, Handbook on Criminal Law § 81, at 605 (1972) (footnote omitted). And see 2 C. Torcía, Wharton’s Criminal Law § 178, at 296 (14th ed. 1979) (“[A] criminal battery is committed, in accordance with the prevailing view ... if the contact was the result of [the defendant’s] recklessness or criminal negligence.

The inclusion of the latter mental state is sound and complements logically the mental state which supports manslaughter liability.”); R. Perkins & R. Boyce, Criminal Law, at 157 (3d ed. 1982) (“For battery, as for manslaughter, more is required than ordinary negligence sufficient to support a civil action. But the rule is now well established that conviction of battery can be supported by harm to the person resulting from criminal negligence.” (Footnotes ⁵⁴¹