Ferrell v. State

⁶⁸¹ RODOWSKY, Judge. William Thomas Ferrell, Jr. (Ferrell) was convicted of premeditated murder and other crimes. He appealed to the Court of Special Appeals. His appeal presented a relatively straightforward, and meritless, question of the sufficiency of the evidence with respect to premeditation.

The intermediate appellate court chose to demonstrate sufficiency by using only Ferrell’s testimony. Ferrell v. State, 60 Md. App. 459 , 483 A.2d 777 (1984). This has prompted the Public Defender to petition on Ferrell’s behalf for a writ of certiorari to consider the following question: Whether the Court of Special Appeals erred in holding that the Petitioner’s assertion of the defense of “self-defense” provided proof of premeditation and thus, established sufficient evidence to convict him of first degree murder. We granted the writ and shall affirm.

On the evening of April 10, 1982, there was a carnival on a portion of the parking lot of the Eastover Shopping Center in Prince George’s County. Ferrell, then age 22, rode his moped to the Eastover lot where he encountered, by happenstance, a group of three other young men. Ferrell was previously acquainted with one of them, Shawn Hamilton (Hamilton), but had not previously met the other two, Mark Saunders (Saunders) and James Dixon (Dixon). After purchasing a six-pack of malt liquor, the four went behind a muffler shop, a freestanding building on the parking lot outside of the carnival grounds.

The area was dimly illuminated by lights from the carnival. There they drank and communally smoked two or three marijuana cigarettes. During that period two other young men came up to the group. One of these was the murder victim, Michael Young (Young), accompanied by his friend, Reginald Tyrone Copeland (Copeland).

All five survivors testified. While there were some variations in the generally consistent descriptions of the crimes given by Copeland, Saunders, Dixon, and Hamilton, there ⁶⁸² were substantial differences between their description and that given by the accused. From the testimony of the four survivors, other than Ferrell, the jury could have found the following. As Young and Copeland were passing near the rear of the muffler shop, Hamilton called to them and offered to sell them some “herb.” Hamilton had a “nickle” bag in his hand.

The potential purchasers inquired if they could check the quantity and were told that it was “good.” When the potential purchasers said that they would buy if it was good, Ferrell interjected himself saying, “ ‘If you buy it and open it regardless of what it is, you are going to pay for it.’ ” Young and Copeland began to walk away, and Ferrell said they should take the “ ‘stuff.’ ” Ferrell walked up behind Copeland who turned and told the former “don’t walk up on me like you was going to hurt me.” Ferrell replied, “ ‘Well, I can straighten all this out right now.’ ” Ferrell reached inside of his jacket and drew a loaded .38-caliber pistol from the waistband of his trousers. He held the weapon with both hands 1 and fired one shot at Copeland who had been walking backwards, away from Ferrell. Copeland estimated that he was approximately twenty-five feet from Ferrell when the shot was fired. The bullet struck Copeland in the neck.

Ferrell then fired one shot at Young who, by one witness’ estimate, was ten feet away from Ferrell. The shot hit Young between the eyes. Young died before he could be taken to a hospital. Ferrell fled the scene on his moped.

Within a few days he left Maryland. He was arrested in Florida in the early fall of 1982. ⁶⁸³ Ferrell testified at trial that Young and Copeland had approached the group, seeking marijuana, and that he, Ferrell, had offered to sell them a bag from his supply. Copeland felt the bag and complained of short weight, but would not return it to Ferrell. Copeland told Ferrell that Young had a gun and that the two customers were going to take the bag without paying for it.

While Ferrell was protesting, Copeland struck Ferrell, causing the latter’s legs to buckle at the knees. As Ferrell was in a semikneeling position, he drew his pistol, shot Copeland and then shot Young. The four other eyewitnesses, Copeland, Saunders, Dixon, and Hamilton, expressly denied that the major elements in Ferrell’s version of the events had ever occurred. In fact, no weapon was found either on Young or at the scene.

Ferrell’s testimony was further contradicted by the autopsy which revealed that the path of the bullet in Young’s skull was from front to back on a slightly descending angle. In addition, the State produced a witness to whom Ferrell had admitted, on two separate occasions and without sign of remorse, that he had “wasted two” persons at Eastover. Ferrell explained to that witness that “ ‘[njobody ain’t going to take me for bad [sic ]____’” The jury could have found that this expression meant that no one should try to be a “rough guy” with Ferrell. On the occasion of the second admission against interest, while Ferrell was admiring a .45-caliber pistol, he said that if he had had that weapon at Eastover he “ ‘would have wasted all of them.’ ” Ferrell was convicted of murder in the first degree, of assault with intent to murder Copeland, and of using a handgun in the commission of crimes of violence.

On appeal to the Court of Special Appeals Ferrell took no issue with the trial court’s instructions on willfulness, deliberation, and premeditation. He questioned only the sufficiency of the evidence, and he limited that argument to the premeditation issue. His contentions were that there was no motive and that he had acted out of rash temper. ⁶⁸⁴ There was obviously sufficient evidence of premeditation, i.e., of some appreciáble period of time during which Ferrell, after having formed “a specific purpose and design to kill,” had “full and conscious knowledge of the purpose to do so.” Chisley v. State; 202 Md. 87, 106, 95 A.2d 577, 585-86 (1953). Ferrell announced that he would “straighten out” the situation between Hamilton and the two buyers.

A proper, and indeed compelling, inference is that Ferrell at that moment intended to “straighten out” the matter by shooting the buyers. From the facts that Ferrell used both hands to aim in dim light and shot each victim above the torso, a jury could infer that he aimed for the victims’ heads and intended to kill each. The period during which Ferrell was drawing, aiming, and firing his handgun at Copeland, and then aiming and firing at Young was sufficient for premeditation in the murder of Young. See Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980); Wilson v. State, 261 Md. 551 , 276 A.2d 214 (1971); Cummings v. State, 223 Md. 606 , 165 A.2d 886 (1960), cert. denied, 366 U.S. 922 , 81 S.Ct. 1098 , 6 L.Ed.2d 243 (1961).

Rather than being compelled to conclude, as Ferrell contends, that a rash temper caused him to shoot, the jury could have found that the accused was motivated by a kind of machismo — by an ego which resented another person’s presenting the appearance of superiority over Ferrell and his temporary companions. In its opinion, the Court of Special Appeals chose to support affirmance solely on Ferrell’s own testimony, quoted below. Defense counsel had asked Ferrell why he had shot Young. He replied: I actually think that I took a life in order that my life may live.

The fellow [Copeland] was fairly much taller than I am. There was two of them. At this particular time I didn’t even realize how close Mr. Hamilton or whatever the other fellows was. Like I said, at the backward position sitting on the stoop at the [muffler shop], and I didn’t know them, and I didn’t know whether I had any help or what.

I didn’t know exactly what was going on. ⁶⁸⁵ I do know that the fellow had his hand lodged in his pants saying that he will take what I have, and his friend does have a revolver, and I felt that my life was in danger, and when he assaulted me, I knew that my life was in danger. The Court of Special Appeals