Garland v. State

Moylan, J., delivered the opinion of the Court. The appellant, Michael Sean Garland, was convicted in the Circuit Court for Montgomery County by a jury of both murder in the second degree and the unlawful use of a handgun. The case had been removed from Baltimore City. The appeal before us was originally argued on April 10, 1975.

Following the decision of the Supreme Court in the case of Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 , on Juné 9, 1975, the appellant petitioned for reargument because of the bearing which that decision might have on the present appeal. We granted the petition and reargument was had on September 17,1975. The critical defensive issue in this case was mitigation in that the appellant allegedly killed his victim in a hot-blooded response to legally adequate provocation, to wit, in the course of mutual combat. Without detailing the long and involved factual picture, it is enough to point out that the evidence, both from the State’s case and the defense case, was enough to generate a genuine jury issue on the subject of mitigation due to provocation.

In making that determination, of course, we look at the evidence in the light most favorable to the defense. As we analyzed in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), in Part IIH of that opinion, once a defensive issue, such as mitigation, has been generated by the evidence, the clear burden falls upon the State to prove the absence of such mitigation beyond a reasonable doubt, just as it would have to prove any other element of a crime. When jury instructions purport to define the crime of murder and mitigation is fairly an issue in the case, the absence of such mitigation must be included as a necessary element which the State must prove beyond a reasonable doubt. ²⁹ The general portions of the instruction, setting out the State’s burden, were exemplary: “This being a criminal case, the burden is on the State to prove the guilt of the Defendant beyond any reasonable doubt. In every criminal case, the defendant is presumed innocent at the commencement of the trial; and the law requires that the burden is on the State, as I have indicated to you, to prove guilt beyond any reasonable doubt.

There is no burden whatsoever on the Defendant, because the burden never shifts to the defendant in a criminal case.” The court then moved on to a consideration of the first count of the indictment, which charged in the language of first-degree murder but which also subsumed both second-degree murder and manslaughter. The meaning of three critical paragraphs is dangerously ambiguous, since the same subject is referred to in shifting terms: “As I have indicated, you have for determination two counts, the first count charging murder; and I will give your foreman a written statement of the possible verdicts in this case. In dealing with murder, the presumption is that it is murder in the second degree, and even though you find that it is murder, the State still has the burden of proof that would raise it from second degree to first degree murder. I am going to review the various types of homicide for you to consider.” (Emphasis supplied) The middle paragraph is critical under Mullaney v. Wilbur, but it cannot be divorced from the context of the paragraphs which immediately precede it and follow it.

In a ³⁰ literal and‘sophisticated sense, the statement, “In dealing with murder, the presumption is that it is murder in the second degree,” is constitutionally unoffending. See.Part IID of Evans v. State. If it were, clear from its context that the statement was not a careless or' ill-phrased way of saying that, “All homicide is presumed to be second-degree murder,” or, “All felonious homicide is presumed to be second-degree murder,” (both of which would offend Mullaney v ’. Wilbur) but was rather a clearly communicated and precisely literal statement to the effect that even proven murder is assumed to be only in the second degree until the State raises it to first degree, no harm would be done under Mullaney v. Wilbur, or In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970).

In this context it is not clear that this was the, message intended to be communicated or that this was the message received; indeed, the indications are quite otherwise. The immediately preceding sentence refers to “the first count” as the count “charging murder,” even though the count' comprehends all three degrees of felonious homicide. The same sentence pointed out that the jury would be' given a statement of “the possible verdicts” under that count, which list of verdicts included manslaughter. The sentence immediately following up on the