Gilbert v. State

Moylan, J., delivered the opinion of the Court. In yet another of the legion of subsidiary issues spinning off from Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), and Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), affirmed State v. Evans, 278 Md. 197 , 362 A. 2d 629 (1976), we are in this appeal required to come to grips with the problem of how the State proves a negative element and with the inevitably attendant issue of the legal sufficiency of the evidence in that regard. In effect, we are asking, “How big a legal prize does a defendant win when he succeeds in ‘bursting the bubble’ of a Thayer-Wigmore presumption?” The answer is that he wins a significant procedural bonus but not, generally speaking, the total “jackpot” of an acquittal as a matter of law. The appellant, Barbara Jean Gilbert, was convicted in the Circuit Court for Prince George’s County by Judge William B. Bowie, sitting without a jury, of the first-degree murder ¹⁹⁸ of her husband, as well as the use of a handgun in the commission of a crime of violence.

The key appellate issue before us is the legal sufficiency of the evidence in terms of 1) negating self-defense and 2) negating mitigation through provocation. Since this was a court trial, no problem of jury instructions is involved. Nor is the fact of the first-degree verdict (in terms of disproving hot blood, at least) at all foreclosing on the appellant’s claim, because she objects to the right of the judge, as fact finder, even to consider such mental states as premeditation and deliberation. Hers is a flat claim of legal insufficiency.

The physical facts are undisputed. At shortly after 9:15 p.m. on April 14, 1976, the appellant intentionally shot her husband, William Gilbert, in the chest with a gun. He died the next day. Her homicidal agency is not contested.

At issue, rather, is her state of mind as she pulled the trigger. There was a great deal of testimony from both the State and the defense bearing upon the appellant’s state of mind. It is unnecessary to recount it in detail since what is here at stake is not its quantitative measure but rather its qualitative significance. Sufficeth it to say that the appellant produced legally sufficient evidence to generate legitimate jury questions on the issues of both self-defense and provocation. 1 What are the legal consequences of the appellant’s having done that?

We begin by looking to the operation of the model generally and then to the triggering effect of the proof in this case upon each successive step in that operation. Homicide in Maryland comes in five varieties—1) justifiable, 2) excusable, 3) manslaughter, 4) second-degree ¹⁹⁹ murder and 5) first-degree murder. The corpus delicti and the homicidal agency are the same in each of these varieties; which is the formalistic way of saying that they all share the common denominator of 1) a corpse lying on the floor and 2) a suspect standing there with a smoking gun in his hand. The variations are not in the actus but in the mens rea of the actor — the degree of moral blameworthiness.

We are not concerned with the usual question of “Whodunit?” but with the more psychic question of “Why he done it?” In ascending the ladder of culpability, the State needs to establish that the killing was 1) not justified and 2) not excused in order to climb from the non-criminal first and second rungs up to the third rung, where criminally felonious liability first attaches. It must then establish that the killing was 3) not mitigated in order to climb on from the third rung (or manslaughter level) onto the higher rungs (where the killing is not mitigated and is, therefore, murder). It must finally establish premeditation and deliberation (or some equivalent such as felony-murder) in order to climb from the fourth rung (murder in the second degree) onto the fifth and top rung (murder in the first degree). It will be perceived that only the final probandum involves an affirmative element.

The probandum required for each of the first three steps up the ladder of culpability is a negative element. Because such notions as justification, excuse and mitigation are not monolithic phenomena but come rather in infinite variety, anticipatory disproof of them in the abstract becomes a practical impossibility. An example may serve to illustrate the absurdity of requiring anticipatory disproof of every consideration that might lower a homicidal mens rea. Posit a bank robber, armed and wearing a ski mask, apprehended at the bank door as a teller lies dead inside.

It is hypothetically conceivable that the man in the ski mask is a trusted governmental agent who has, in the nick of time, saved the country from an archenemy, cleverly disguised as a bank teller. It is conceivable, but it is not likely. Indeed, it is so unlikely that we do not require the State to disprove, as a matter of course, all such possibilities in advance as an ²⁰⁰ element of its ease. The catalog of things to be disproved would be endless.

The State would have to prove that the bank robber was not a lawful executioner, a policeman in pursuit of a fleeing felon, a soldier in time of war, a threatened victim killing the teller in self-defense, the cleaner of a gun which went off by accident, a hot-blooded victim beaten by the teller, a hot-blooded combatant involved in a mutual affray with the teller, an outraged husband cuckolded by the teller, someone killing in imperfect self-defense, someone killing under imperfect duress, etc., ad infinitum. There are a number of reasons why we do not require such anticipatory disproof by the State, not the least of which is the devastating impact it would have upon judicial economy. At the most fundamental level, however, we do not require it, because to require it would be an absurdity. The device by which this relief is accomplished is called a presumption.

The presumption operates in favor of the State. Absent some legally sufficient indication to the contrary, the homicide will be presumed to be not justified, not excused and not mitigated. Under the due process clause as interpreted by In Re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), and applied by Mullaney v. Wilbur, supra, such a presumption in a criminal case has constitutional limitations. It may shift to the defendant the burden of producing evidence sufficient to generate a genuine jury question as to one or more of the possible defensive issues.

It may never shift to the defendant the heavier burden of ultimate persuasion. 2 In its lesser function of shifting to the defendant merely the burden of producing evidence, the presumption dissipates or totally disappears (“the bubble bursts”) as soon as the defendant has met his lesser burden of producing enough evidence to generate a genuine jury question. At that point, the State no longer has the benefit of the presumption. The State then assumes the burden of disproving, beyond a reasonable doubt, the defensive issue which has been generated. For a fuller ²⁰¹ discussion of these different forms of presumption, their proper functioning and their appropriateness to the criminal law, see Evans v. State, supra, at 28 Md. App. 706 -730.

Turning to the case at hand, the establishment of the fact that William Gilbert died and that the appellant was the homicidal agent gave rise initially to the presumption (in its properly limited sense of shifting simply the burden of going forward with evidence) that the killing was not justified, not excused and not mitigated. The evidence, emanating both from the State’s case and from the defense, then generated, however, a genuine jury issue as to possible excuse, by way of self-defense, and an arguable jury issue as to possible mitigation, by way of hot-blooded response to legally adequate provocation. When we look to the legal sufficiency of the evidence to generate such defensive issues (and, thereby, to dissipate the presumptions to the contrary), we take that version of the facts most favorable to the defense. Assuming the truth of that most favorable version of the facts, the trial judge would be able to say, as a matter of law, that there was evidence sufficient to establish the elements of self-defense and of provocation.

(Wé reiterate that we are not saying that the elements of provocation were established in this case; we are only making an assumption of convenience in this regard.) Once the judge makes a ruling of law that one or more presumptions are dissipated, the State constitutionally assumes its burden of disproving those defensive elements just as it must prove every affirmative element, by proof beyond a reasonable doubt. The appellant does not here contend that the judge, sitting as a fact finder, did not place the appropriate burden of persuasion upon the State as to all elements, affirmative and negative. She urges rather the interesting point that when she successfully dissipated the presumptions of non-excuse and non-mitigation, that dissipation of the presumptions operated not simply to create genuine factual issues but went further and stripped the State’s case of its legal sufficiency in those critical regards, so as to have required the trial judge to grant a judgment of acquittal as a matter of law. In effect, she claims that the judge was ²⁰² clearly erroneous when he found her guilty of murder.

We reject that thesis. The rejection is easy; the explanation therefor is somewhat more difficult. Both the presumption, in the first instance, and the dissipation of the presumption, in the second instance, move the protagonists forward and backward upon the chessboard of proof. In order to appreciate the sweep and legal significance of each such move, it is necessary to examine the board itself.

In Trovato v. State, 36 Md. App. 183 , 373 A. 2d 78 (1977), we explained the stages of proof in the following terms: “Upon the spectrum of proof, three distinct bands are discernible. The two at either extreme of the spectrum are the domain of the judge in his capacity to make rulings of law. Within this domain, the judge does not weigh the evidence or apply any burden of proof. He rather takes that version of the facts most favorable to the party against whom the adverse ruling is contemplated and decides whether those facts 1) do not establish the necessary elements of the thing needing to be proved by that party or 2) are so clear and decisive that reasonable minds could not differ in resolving the question against that party.

There is a broad intermediate zone, however, wherein reasonable minds might differ as to the facts and wherein different readings of those facts would dictate very different legal results. This band in the middle is the unfettered domain of the fact finder with the prerogative to resolve genuine factual disputes in either direction. Each band has its own set of legal consequences.” At one extreme is the State’s “back court” or “end zone,” wherein the State is vulnerable to a legal ruling, a directed verdict, against its ease. Once the State has marshalled enough evidence to move out from this danger zone, it has moved out into that “mid-court” or “playing field” whereon the ball can bounce either way in the unfettered prerogative ²⁰³ of the fact finder.

At the far extreme, is the defendant’s “back court" or “end zone,” wherein he is vulnerable to a legal ruling, in effect a directed verdict, against him, at least as to significant sub-issues of his case. When the State has advanced this far, it is entitled to a ruling of law in its favor, at least as to sub-issues, and is no longer vulnerable to the hazards and unpredictabilities associated with the fact finder. A presumption, unlike an inference, has binding legal significance and, when unrebutted, moves the proof in a case into one end or the other of the spectrum of proof, where it is the judge’s domain to rule upon evidentiary questions as a matter of law. In a homicide case, the presumptions of non-justification, non-excuse and non-mitigation move the proof on these issues to the point where, unless they are dissipated, the judge rules as a matter of law that they are established.

In effect, he has directed a verdict against the defendant upon these sub-issues, although in a criminal case he cannot, of course, direct a verdict against the defendant as to the ultimate issue. Thus, in a jury trial, the jury receives no instructions upon these matters and is not entitled even to consider them. In a court trial, the judge does not consider these issues when he moves from his capacity as a legal referee to his other capacity of resolving factual disputes. Against this background, we are called upon to assess the sweep and legal significance of the successful defense maneuver of dissipating a presumption.

At the very least, it has the legal effect of relieving the defendant of a directed verdict against him on a significant sub-issue. It has the effect of getting the ball out of his own “end zone” and back onto the “playing field.” Generally speaking, however, this is all of the effect which the dissipation of a presumption has. It precludes a directed verdict in either direction and creates a genuine jury issue, which the fact finder may resolve in either direction (under appropriate instructions, in a jury case, and according to the appropriate burden of persuasion). The appellant urges more, however.

She argues that the ²⁰⁴ legal effect of dissipating a presumption is not simply to get the ball out of her own “end zone,” where a directed verdict could have gone against her, but serves to take it back, across the disputed middle ground of volatile fact-finding, all the way into the State’s “end zone,” where the State is now vulnerable to a directed judgment of acquittal against it. Her argument runs as follows: The State, theoretically, must prove the elements of non-justification, non-excuse and non-mitigation; it relies for that proof upon the presumption; the presumption, once dissipated, utterly disappears and the State is, therefore, bereft of any legally sufficient evidence as to these necessary elements to save it from a directed judgment of acquittal. The argument is subtle, and requires some subtlety by way of response. When the State establishes a homicide and a homicidal agency and moves thereby to the very brink of a murder conviction, it has crossed en route two legally significant boundaries as it moves across the spectrum of proof.

It has moved out from legal insufficiency and forward into the disputed middle ground of fact-finding, in the first instance, and has then moved on beyond, that middle ground of fact-finding, to the point where it is unnecessary to prove presumed facts, in the second instance. Actually, two distinct procedural devices are at work, but the lesser has almost universally been ignored in the discussion of the greater; It is the legal presumption which, when unrebutted, carries the State all the way into the defense “end zone,” where the judge directs verdicts in the State’s favor to these key sub-issues as a matter of law. Generally obscured by that more significant presumption,