Hook v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I (A) Homicide is the killing of a human being by a human being. It is culpable when it is felonious. It is felonious when it is not legally justifiable or excusable. 1 Felonious ²⁸ homicide is either murder or manslaughter. 2 Murder is in the first degree or in the second degree.

In Maryland, all murder perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing 3 or committed in the perpetration of, or attempt to perpetrate certain felonies (of which robbery is one) is murder in the first degree. 4 All other kinds of murder are murder in the second degree. 5 (B) The general rule is that voluntary drunkenness is not a defense to crime. Breeding v. State, 220 Md. 193, 199 , 151 A.2d 743 (1959); Saldiveri v. State, 217 Md. 412 , ²⁹ 424-425, 143 A.2d 70 (1958). See Shell v. State, 307 Md. 46, 60 , 512 A.2d 358 (1986). The general rule applies to murder.

But, although voluntary intoxication does not excuse murder, it may downgrade murder in the first degree to murder in the second degree. 6 Over a hundred years ago “this Court noted as a general principle that evidence of intoxication was admissible to negate the mens rea required for a first degree murder conviction.” Shell v. State, 307 Md. at 59 , 512 A.2d 858 citing to Spencer v. State, 69 Md. 28, 41-42 (majority), 46-50 (dissent), 13 A. 809 (1888). In Chisley v. State, 202 Md. 87, 107 , 95 A.2d 577 (1953), we quoted with approval Warren on Homicide, Vol. 1, § 61 at 204 (1914): “Where murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder.” We noted that Warren added: “It is held that the mere fact the accused was intoxicated is not sufficient to reduce the killing from murder to manslaughter.” Id. at 209. We reviewed Chisley in Shell, 307 Md. at 59 , 512 A.2d 358 . We observed: “On appeal [Chisley] challenged the sufficiency of the evidence underlying the first degree murder conviction relying in part upon his alleged intoxicated state at the time of the killing.” The Court in Chisley , in finding that there was sufficient evidence to submit the charge to the jury, held that the jury was properly instructed “as to the necessity for considering the effect of intoxication on the formation and existence of wilfulness, deliberation and premeditation.” Shell, at 59, 512 A.2d 358 , quoting Chisley, 202 Md. at 108 , 95 A.2d 577 .

Breeding v. State, 220 Md. 193 , 151 A.2d 743 , affirmed a conviction of murder in the first degree. It observed that “[voluntary drunkenness is generally not a defense.” Id. ³⁰ at 199, 151 A.2d 743 . But it indicated that voluntary intoxication was relevant with respect to the degree of murder, by adding: “Moreover, the triers of fact could properly find, as they did, that the accused was not drunk at the time of the murder.” Id. Maryland law is clear.

Although voluntary, intoxication is not a defense to murder, evidence with respect to it is relevant and material to a determination by the trier of fact of the degree of a murder alleged to be premeditated. In other words, did the accused by reason of his intoxication, lack the wilfulness, deliberation and premeditation necessary to sustain a conviction? If, because of his intoxication, the accused did not have the capacity to be motivated by any one of these factors, the murder is murder in the second degree. 7 A comprehensive review of cases dealing with the asserted defense of voluntary intoxication was made in Shell v. State, 307 Md. at 58-65 , 512 A.2d 358 (Eldridge, J.). It disclosed that “[v]oluntary intoxication as a defense to some criminal charges is clearly recognized in Maryland.” Id. at 58 , 512 A.2d 358 . “Maryland’s view deem[s] voluntary intoxication relevant to ‘specific intent’ crimes but not ‘general intent’ crimes....” 8 Id. at 63 , 512 A.2d 358 .

Robbery is a specific intent crime. It is clear that there can be no robbery without a larcenous intent____ Therefore, as larceny is an ingredient ³¹ of robbery, we look to the components of the former to ascertain the requisite mental element of the latter. Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent____ Because an intent to steal, the animus furandi, must be present, it follows that larceny, and therefore robbery, is classed as a specific intent crime. State v. Gover, 267 Md. 602, 606 , 298 A.2d 378 (1973) (citations omitted).

One of the elements of robbery is the additional mens rea of a specific intent above and beyond the doing of the actus rea. Therefore, voluntary intoxication serves as a defense to that crime. 9 In felony murder the underlying felony is an essential ingredient of murder in the first degree. Newton v. State, 280 Md. 260, 269 , 373 A.2d 262 (1977). The State is required to prove the underlying felony and that death occurred in the perpetration or attempted perpetration of the felony.

Id. This is sufficient; there is no need to prove wilfulness, deliberation, and premeditation. Id. See State v. Frye, 283 Md. 709, 713 , 393 A.2d 1372 (1978).

Thus, when the underlying felony is the specific intent crime of ³² robbery, 10 voluntary intoxication is relevant to show that the perpetrator did not have the capacity to entertain the deliberate purpose of depriving the owner permanently of the stolen goods. Lacking proof of the necessary specific intent, proof of the underlying felony fails. Without proof of the underlying felony, there can be no conviction for felony murder. Therefore, on a felony murder charge with a specific intent crime as the underlying felony, evidence of voluntary intoxication is admissible as a defense.

II Jentry Lee Hook, II, was indicted on the presentment by a grand jury that he shot and killed two people. He was charged with the murder of them in the form authorized by Maryland Code (1957, 1987 Repl.Yol.), Art. 27, § 616, 11 and with related offenses. A jury in the Circuit Court for Baltimore County convicted him of all of the charges submitted to it. The jury found Hook guilty of the first degree murder of each of the victims on the basis that the homicide was wilful, deliberate, and premeditated.

It found him ³³ guilty of the first degree murder of each of the victims on the basis that the homicide was perpetrated in the commission of a felony. It found him guilty of the armed robbery of each of the victims. It found him guilty of the use of a handgun in the commission of a felony or a crime of violence. At the penalty stage of the trial, after a capital sentencing hearing, the jury rejected the death penalty sought by the State.

It designated Hook’s intoxication as one of the mitigating facts. The trial judge imposed consecutive life sentences on the murder convictions, a 20-year sentence on the armed robbery convictions to run concurrently with each other but consecutive to the life sentences, and a 15-year sentence on the handgun conviction to run consecutive to all of the other sentences. Hook turned to the Court of Special Appeals. The opinion and mandate of that court affirmed the judgment entered in the trial court with respect to murder.

It affirmed the convictions of armed robbery. It directed that the sentences thereon be vacated and that the convictions be merged into the convictions of felony murder. It implicitly affirmed the judgment on the handgun charge although the opinion and the mandate did not expressly so state. Hook v. State, No. 1395, September Term, 1987, per curiam, unreported, filed 13 May 1988, slip opinion at 5, 6, and 16.

We granted Hook’s petition for the issuance of a writ of certiorari but we ordered that the review “shall be limited solely to the following questions.... ” 1) Did the trial court err by allowing the prosecutor to withdraw second degree murder from the jury’s consideration? 2) Did the Court of Special Appeals err by holding that the trial court’s refusal to instruct the jury about second degree murder and its refusal to let defense counsel explain second degree murder to the jury were harmless errors? Ill We recount the circumstances under which the questions arose. The victims were Bobby Watson Cooper and Mildred S. Whelan. Witnesses testifying to the killings were Rosemary Gauthier and her sister, Karen Stewart.

It all began in the late afternoon of 11 October 1986 when Hook, Stewart, and Gauthier met Cooper outside a bar. Hook was drinking at the bar. When after a short time they left the bar, he continued to drink at Cooper’s residence, the caretaker’s house at Oak Lawn cemetery. During the course of the evening, Whelan, Hook’s current girlfriend, arrived on the scene.

Although Stewart was Hook’s former girlfriend, at Hook’s request, she told Whelan that she and Gauthier were Cooper’s ³⁴ daughters. Hook and Stewart went into the kitchen. Hook tried to persuade her to resume their former relationship but she refused to do so. Thereafter, Hook left the house.

He returned a short time later with a handgun. Stewart reentered the kitchen and Hook joined her. He showed Stewart the fully loaded gun and said he was going to kill Cooper and Whelan — “blow them away.” When Stewart attempted to dissuade him, he threatened her. He went into the living room and shot Whelan three times and Cooper three times.

On hearing the shots, Stewart ran into the living room. She saw Hook “in [Whelan’s]” pocketbook and “his hand was going into [Cooper’s] pocket.” According to Stewart: “He just said if I catch you and Rosemary [Gauthier] I am going to kill you’s.” Gauthier and Stewart fled. Scared, they did not report the killings to the police until some five hours later. Hook was apprehended in Tallahassee, Florida.

Three Baltimore County police officers were sent to fetch him back to Maryland. On the trip back Hook made a confession, the admission in evidence of which is now not challenged. The confession was reduced to writing by Detective James Tincher, assigned to the Homicide Squad, and signed by Hook. After describing the events leading to the killings, Hook said; “I grabbed another beer, pulled my pistol [which he had gotten from his car] and walked into the living room and just opened fire.” He then went outside to find Gauthier and Stewart but was unsuccessful.

He returned “back, upstairs and grabbed my jacket and 12 pack of beer and grabbed [Cooper’s] wallet and [Whelan’s] black purse that was sitting on the floor.” He took Cooper’s car and after looking for Gauthier and Stewart for about four hours (“I didn’t know whether to destroy them as witnesses or just try to talk to them”), he left the area and drove to Florida. The essence of Hook’s confession was in accord with the testimony of Gauthier and Stewart. Their testimony and Hook’s confession tended to show that Hook was intoxicated at the time of the killings. IV Maryland Rule 4-247(a) provides, in pertinent part: The State’s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court.

A statement of the reasons for entering a nolle prosequi shall be made a part of the record.[ 12 ] ³⁵ A nolle prosequi may be entered to a degree of an offense. State v. Ward, 284 Md. 189, 208 , 396 A.2d 1041 (1978). It “may be entered as to an entire charging document, or one or more counts, or even part of a count.” Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008 (1981). At the close of the State’s ease-in-chief, the State entered a nolle prosequi on the record in open court to murder in the second degree.

See note 11, supra, 13 Defense counsel made prompt objection “to the State’s nol prossing or not submitting to the jury the count of second degree murder.” Counsel cited to the court the Fifth, Eighth and 14th Amendments of the U.S. Constitution and allege[d] that the nol pros under those circumstances is a violation of the Defendant’s due process rights, fundamental fairness, equal protection and abuse of prosecutorial discretion. It seemed to the court that the State can submit whatever crimes it has previously charged the Defendant with to the Jury and nol pros whatever charge it wishes to submit to the Jury. The court overruled the objection with the comment: Certainly, if the Jury is not convinced that the Defendant is guilty of first degree murder but is in their minds convinced he’s guilty of second degree murder, the only verdict the Jury can return under this circumstances is a not guilty verdict, by virtue of the fact that the State has specifically not submitted any charge other than first degree murder to the Jury. This comment goes to the heart of the questions presented to us. “The entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.” Ward v. State, 290 Md. at 83 , 427 A.2d 1008 . 14 “This ‘settled rule’ allowing ³⁶ prosecutorial choice,” however, is not completely without restraint.

The prosecutor’s power is not absolute. United States v. Batchelder, 442 U.S. 114, 124 , 99 S.Ct. 2198, 2204 , 60 L.Ed.2d 755 (1979). We declared in Ward, 290 Md. at 83 , 427 A.2d 1008 , that “the prosecution cannot, by a nolle pros of part of a count, change the entire nature of the offense charged.” In Bordenkircher v. Hayes, 434 U.S. 357, 365 , 98 S.Ct. 663, 669 , 54 L.Ed.2d 604 , rehearing denied, 435 U.S. 918 , 98 S.Ct. 1477 , 55 L.Ed.2d 511 (1978), the Court observed: There is no doubt that the breadth of discretion [whether or not to prosecute] that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. We recognized in Ward v. State, 290 Md. at 83 n. 6, 427 A.2d 1008 , that “[t]here is authority ... suggesting that the court may or may not permit the entry of the nolle prosequi in order to prevent injustice.” 15 We referred to Simmons v. State, 165 Md. 155, 165 , 167 A. 60 (1933).

Simmons was concerned with misjoinder of counts, a matter generally left to the discretion of the trial court. This Court said: [T]he courts will guard against injustice and abuse whenever apparent, and not permit such a joinder of counts as will embarrass the traverser in his defense by, in the court’s sound discretion, quashing the indictment, permitting a nolle prosequi as to a count or counts, or compelling the prosecution to elect on which count or counts to proceed. Id. The right of an accused to a fair trial, although not a perfect trial, is paramount.

Crawford v. State, 285 Md. 431, 451 , 404 A.2d 244 (1979). See Mack v. State, 300 Md. 583, 598 , 479 A.2d 1344 (1984). The essence of Crawford is that fundamental fairness is essential to the very concept of justice; justice must satisfy the appearance of justice. “[0]ur system of law has always endeavored to prevent even the probability of unfairness.” Crawford, 285 Md. at 452 , 404 A.2d 244 , quoting In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955), and supplying emphasis. But we cautioned, quoting with approval Lisenba v. California, 314 U.S. 219, 236 , 62 S.Ct. 280, 289 , 86 L.Ed. 166 (1941): “In order to declare a denial of [fundamental fairness, the reviewing court] must find that the absence of that fairness ³⁷ fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial....” Crawford, 285 Md. at 452 , 404 A.2d 244 . 16 We believe that under the concept of fundamental fairness with respect to a trial in a criminal cause, the broad authority vested in a prosecutor to enter a nolle prosequi may be fettered in the proper circumstances.

A case-by-case evaluation is necessary. We evaluate the circumstances, set out supra, surrounding the entry of the nol pros to the crime of murder in the second degree in the case at hand. 17 We hark back to the trial judge’s comment when he overruled defense counsel’s objection to the nol pros of the second degree murder charge, set out supra. He said: Certainly if the Jury is not convinced that the Defendant is guilty of first degree murder, but is in their minds convinced he’s guilty of second degree, the only verdict the Jury can return under this circumstance is a not guilty verdict, by virtue of the fact that the State has specifically not submitted any other charge other than first degree murder to the jury. Aye, but therein lies the rub.

When the court overruled the objection to the entry of a nol pros to second degree murder, defense counsel, in light of the court’s ruling, requested that the court, nevertheless, instruct the jury as to second degree murder. Defense counsel also asked the court for a directory ruling with respect to discussing “second degree murder issues” in closing argument. The court refused to instruct the jury as to second degree murder and refused to permit defense counsel to argue to the jury the issue of second degree murder. The court indicated that the defense could bring to the attention of the jurors only that there was no charge of second degree murder before them.

Defense counsel “can’t argue to the jury crimes that aren’t before the jury.” The court went on: ³⁸ You can say there is no charge of second degree murder before the jury. The only charge here is first degree murder and you can say that in order to prove first degree murder, what the State needs to prove and that they haven’t proved it. I am not limiting your argument. All I am saying you can't argue to the jury crimes that aren’t present.

True to the court’s rulings, second degree murder was not brought to the attention of the jury, either by the court in its charge or by defense counsel in argument. The court’s instructions explained premeditated murder and felony murder as being murder in the first degree and that they were specific intent crimes. The court discussed that voluntary intoxication is generally not a defense to a criminal charge, but noted there is an exception when the perpetrator was so drunk that “he was unable to formulate the required specific intent.” The court explained: “The intoxication must have been to such a degree as to make [Hook] incapable of forming the specific intent to murder or rob.” The jury charge made perfectly clear that with respect to the murder charges the jury had only two choices — guilty or not guilty. The verdict sheet handed the jury was in accord.

It called for a verdict of either guilty or not guilty on both premeditated murder and felony murder. The court told the jurors: You will have to decide whether one or both or none of these types of first degree murder have been proved beyond a reasonable doubt. Second degree murder was not included in the verdict sheet. The jury convicted Hook of murder in the first degree based on both premeditated murder and on felony murder.

The utter silence with respect to murder in the second degree left the jury with a hobson’s choice 18 to the embarrassment of Hook’s defense and to his prejudice. In Keeble v. United States, 412 U.S. 205, 213 , 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 (1973), the Court observed: Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. ³⁹ The Court used as an example the case before it: In the case before us, for example, an intent to commit serious bodily injury is a necessaiy element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright.

We cannot say that the availability of a third option — convicting the defendant of simple assault- — could not have resulted in a different verdict. Id. The Court in Beck v. Alabama, 447 U.S. 625, 633 , 100 S.Ct. 2382, 2387 , 65 L.Ed.2d 392 (1980) (footnote omitted), pointed out: At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged.[ 19 ] “But,” the Court declared, “it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Id.

The Court quoted the explanation given by Brennan, J., in his opinion for the Court in Keeble : “Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Beck at 634 , 100 S.Ct. at 2388 , quoting Keeble 412 U.S. at 212-213 , 93 S.Ct. at 1997-1998 [emphasis in original].

Beck noted that the ⁴⁰ Court had “invalidated procedural rules that tended to diminish the reliability of the sentencing determination “to insure that a death penalty is indeed imposed on the basis of “reason rather than caprice or emotion.” 447 U.S. at 638 , 100 S.Ct. at 2390 . The Court declared: The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a state] is constitutionally prohibited from withdrawing that option from the jury in a capital case. Id.

Hopper v. Evans, 456 U.S. 605 , 102 S.Ct. 2049 , 72 L.Ed.2d 367 (1982), explicated the Beck holding as requiring that a lesser included offense instruction be given when the evidence warrants such an instruction, but only in such circumstances. “The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.” Evans at 611 , 102 S.Ct. at 2053 . Spaziano v. Florida, 468 U.S. 447 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984), characterized Beck as recognizing “the risk