Hennessy v. State

Lowe, J„ delivered the opinion of the Court. Any appeal found in this appeal of James William Hennessy, Jr. imparts more remorseful concern than legal deficiency. Two young men, formerly friends, became ⁵⁶¹ estranged by the apparent attentions of a young lady. The deterioration of their friendly relations resulted in the death of one and the manslaughter conviction of the other.

It is apparent from the relatively lenient sentence of five years (of which only 18 months need be served) that all the tangential circumstances were considered fully by Judge John J. Mitchell, who imposed the sentence after appellant was convicted by a jury in the Circuit Court for Montgomery County. Appellant was a slightly built 23-year-old college student who had been impaired by a cleft palate and deformed lip affecting his speech, swallowing and appearance. This condition had been treated periodically for over a decade until 1971. The victim had for two or three weeks been antagonistically aggressive toward appellant after a misunderstanding over a girl.

Appellant’s evidence of the victim’s conduct just prior to his death would support a conclusion that the victim was assaulting appellant when he was fatally stabbed by appellant. It was upon such evidence that appellant’s primary defense of self-defense was premised. He contends here that it was improper for the court to have submitted the second degree murder charge to the jury, over his motion for judgment of acquittal, because although he had introduced the element of self-defense, it was not negated by the State. The issue, however, appears to be moot or, at worst, harmless beyond a reasonable doubt, see Dorsey v. State, 276 Md. 638 , in light of the not guilty verdict rendered by the jury.

See Comi v. State, 26 Md. App. 511, 520-521 . That notwithstanding, we would still see no error here. Appellant concedes by silence that there was sufficient evidence to sustain a manslaughter verdict, but argues that because the State did not affirmatively negate this self-defense testimony, he was entitled to what amounts to a judicially declared holding of self-defense as a matter of law. That is, of course, absurd.

Gilbert v. State, 36 Md. App. 196 . The factfinder may simply choose not to believe the facts as described in that, or any other, regard, Jacobs v. State, 6 Md. ⁵⁶² App. 238, 242 , and the very fact that a large knife was used, causing the death of an unarmed man, raises in itself the issue of excessive force even if appellant’s account had been believed. “The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary.” Ware v. State, 3 Md. App. 62, 65 . Appellant further contends that he should have been permitted to introduce a series of photographs showing his facial deformities as a child (age 4) and their progressive improvement through treatment that terminated at age 14. He explains that: “The admission of the photos was intended to further explain and describe to the Jury the treatment afforded the Defendant since 1959 by Dr. Bowdoin Davis, as set out in the two letters by the Doctor admitted into evidence and thus to explain the Defendant’s state of mind at the time of the occurrence.” The admissibility of photographs is ordinarily within the sound discretion of the trial court.

Bagley v. State, 232 Md. 86, 94 . Moreover, the purported purpose of emphasizing to the jury appellant’s abnormal apprehension over injury to his face, was already accomplished through the testimony of appellant’s doctor, his mother and himself. The pictures were of borderline relevance at best, but, on the other side of the coin, were provocative of sympathy from a “this was your life” type of preview. Our review of the record and of the photographs does not indicate that the refusal to admit photographs 10 to 20 years old was “plainly arbitrary”, Corens v. State, 185 Md. 561, 570 , nor even an abuse of discretion.

Finally, appellant asks: “Was the Trial Court’s Refusal to Instruct the Jury that Good Character and Reputation of the Appellant in and of Itself May Be Sufficient to ⁵⁶³ Greate a Reasonable Doubt of Guilt, Reversible Error?” The answer is no. Appellant excised from Hallengren v. State, 14 Md. App. 43, 49 , one sentence of our multi-page analysis of Braxton v. State, 11 Md. App. 435 , where we had reversed the trial court for not granting a similar requested instruction. That sentence pointed out that: “We [had] noted [in Braxton] that evidence of good character is not merely collateral evidence, but may in itself raise such a doubt as to require the acquittal of the defendant.” (emphasis added). Relying principally upon this authority, appellant complains to us, as he did to the trial judge, that there should have been included in the jury instruction on character testimony a charge: “ . . . that the testimony showing good character and reputation of the Defendant may be sufficient to create such a reasonable doubt as to justify the acquittal of the Defendant regardless of any other evidence which has been presented.” (emphasis added).

Appellant’s complaint here and below was obviously not that the court hadn’t given any instruction on the character testimony, as was our concern in Braxton , but that it denied the specific request, i.e., that such testimony could justify acquittal “regardless of any other evidence which has been presented.” We think that express language is so strong as to be misleading even in a case where such a character