Jones v. State

Powers, J., delivered the opinion of the Court. In a court trial in the Criminal Court of Baltimore before Judge J. Harold Grady, the appellant was found guilty of second degree murder. The court had granted a judgment of acquittal as to first degree murder. Other counts in the indictment were held to have merged into the second degree murder conviction.

The court imposed a sentence of 30 years. On direct appeal this Court affirmed the judgment of conviction in an unreported opinion, Jones v. State, No. 598, September Term, 1974, filed 27 March 1975. The Court of Appeals denied a petition for a writ of certiorari. The present phase of the case arose when the appellant, in proper person, prepared and filed, on 21 July 1976, a petition for post conviction relief, encouraged, no doubt, by what was said in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), aff’d.

State v. Evans, 278 Md. 197 , 362 A. 2d 629 (1976), applying the holding of the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975). In his petition the appellant asserted that the trial court committed error in its instructions by stating that a. All homicides are presumed to be with malice, and b. To lower the degree of homicide to manslaughter or lesser degree the burden is on the defendant to prove that the homicide was without malice.

Appellant also questioned whether the prosecution met its burden of proving malice aforethought beyond a reasonable doubt. The petition was somewhat inaccurate, in that it spoke of error in the instructions given by the judge in the criminal trial. There were, of course, no instructions as such given in the criminal trial, which was held before the court without a jury. Judge Grady did, however, explain his finding of guilty ⁵¹³ of murder in the second degree, and it is his reliance upon a presumption of malice that appellant contends was error.

At the hearing on the petition, held before Judge Meyer M. Cardin in the Criminal Court of Baltimore, counsel for Jones withdrew the third contention, and submitted on the record with regard to the question of malice. Judge Cardin denied post conviction relief. Jones filed an application to this Court for leave to appeal from that denial. We granted leave, and transferred the case to our regular appeal docket, so that the case could be fully briefed and argued.

In his brief here, appellant puts the issues somewhat differently. He asks: “I. Did the evidence support a finding of manslaughter? A. Did the evidence fairly generate an issue of mitigation? B. Could the trial judge properly have found that Appellant did not act with malice and was guilty, therefore, of manslaughter? “II.

Can voluntary intoxication negate malice and, therefore, reduce murder to manslaughter?” In Judge Cardin’s opinion denying post conviction relief, he quoted the pertinent comments made by Judge Grady at the criminal trial. Judge Grady said: “The Court is of the opinion that it has been established beyond a reasonable doubt that the victim, Edith Dorsey, died at the hands of the Defendant, Melvin Jones. The autopsy report shows that the death was caused by six separate incisive wounds of the body about the chest, neck and arms. The use of a deadly weapon directed at that part of the body certainly under our law supplies the element of malice necessary to constitute the elements of murder in the second degree.

The Defendant’s explanation of consuming a large amount of alcohol and not having any recollection of the events from a time, approximately 10:00 or ⁵¹⁴ 11:00 P.M. until ten or eleven hours later in my mind does not negative the legal presumption that the use of a deadly weapon under the circumstances constitutes malice.” It will be seen that Judge Grady placed no burden of proof, no burden of persuasion of any kind upon the accused. It is true that he said that the evidence “supplies the element of malice necessary to constitute the elements of murder in the second degree”, and later referred to “the legal presumption that the use of a deadly weapon under the circumstances constitutes malice”. It must be said that Judge Grady relied upon a presumption of malice, but he did not say whether he referred to that limited aspect of malice involving the intent to kill (or the intent to do grievous bodily harm) or whether he referred to that broader aspect of malice which may be said to exist only in the absence of justification or excuse, and the absence of mitigation. As a practical matter, we have no doubt that Judge Grady applied the presumption of malice in its broad and unrestricted sense, as had been the universal practice in the courts of Maryland for generations.

Whether doing so was a mere intellectual error, harmless in the context of the issues involved, or was substantial in the circumstances, and therefore was prejudicial to the appellant, must depend upon the evidence before the court, and the issues raised by that evidence. In his opinion denying post conviction relief, Judge Cardin very aptly said: “It is manifest that the trial judge relied upon presumptions of law which were subsequently changed. By relying upon the presumption of malice through the use of a deadly weapon directed at a vital part of the human body, the State was unconstitutionally relieved of proving the absence of justification, excuse or mitigation and thereby thrusted the burden upon the petitioner to exculpate himself generally or of lowering his guilt to manslaughter. ⁵¹⁵ “However, there were no issues generated by the evidence as to justification or excuse. The only issue presented at trial was one of mitigation in terms of voluntary intoxication and this, as was previously discussed, would not reduce second degree murder to manslaughter.

Notwithstanding the error of the unconstitutional shifting of the burden of proof, where there are no issues generated by way of justification, or excuse or where mitigation through voluntary intoxication has been eliminated by a guilty finding of second degree murder, the petitioner has suffered no cognizable harm and therefore any error is manifestly harmless, at the constitutional level, and non-prejudicial, at the non-constitutional level.” In the opinion of this Court affirming the conviction on direct appeal, we summarized the facts in evidence. We said: “According to the evidence adduced at trial, around 6:00 A.M., on January 27, 1974, Mary Ballard was awakened by the calling of her sister, Edith Dorsey, (the victim). She observed her sister sitting on the side of the bed in a stooped over position. The appellant was standing at the foot of the bed holding a knife which was dripping with blood.

Mary Ballard ran from the house to her daughter’s house after hearing the appellant say to her sister, ‘Get up bitch, get up bitch, or I will kill you.’ “When Mildred Johnson, the daughter of Mary Ballard, arrived at her mother’s house no one was there but her aunt, who was lying face down on the floor in a pool of blood. She left the house, flagged down a police car, and after riding a short distance with the officer, she saw the appellant. Officer Rivers, acting on information received from Mildred Johnson, parked his vehicle and approached the appellant, who said, ‘Yeah, I cut ⁵¹⁶ her.’ The appellant was then arrested and searched; a knife was found in his pants pocket. “The appellant testified the victim was his girl friend and that he had no recollection of stabbing or cutting her; that the two of them had been drinking for several hours and he must have blacked out; that he could not remember anything from around 10:00 P.M. on January 26, 1974, the time he was drinking with the victim and her sister, to the time he was questioned in the police station.” Our discussion in that opinion of the sufficiency of the evidence, one of the issues raised by Jones in that appeal, is significant to the questions now before us. We said then: “There is no dispute about the corpus delicti, and the criminal agency of the appellant was amply established by the following evidence: The appellant was seen standing in close proximity to the victim with a knife in his hand that was dripping with blood.

He threatened to kill the victim and admitted he had cut her. The blood on his clothes was the same type as that of the victim, and human blood was found on the knife in his possession at the time of his arrest. “The contention of the appellant that there was no evidence of malice is without merit. The essential distinction between murder and manslaughter is the presence or absence of malice. Chisley v. State, 202 Md. 87, 105 (1952).

The law presumes that in the absence of justification, excuse or some circumstances of mitigation, all homicides are committed with malice and constitute murder. Bagley v. State, 6 Md. App. 375, 379 (1969). No evidence was introduced and none apparently exists to overcome the presumption that this homicide was committed with malice. Additionally, an inference of malice may be drawn ⁵¹⁷ from the fact of the use of a deadly weapon, directed at a vital part of the body.

McCord v. State, 15 Md. App. 63, 69 (1972). The evidence here shows that the death of the victim was caused by multiple stab wounds to the chest, neck and back, which are vital parts of the body. Lindsay v. State, 8 Md. App. 100, 104 (1969).” To the extent that Judge Grady, at the criminal trial in June 1974, and this Court, in the direct appeal opinion in March 1975, may have been guided by principles or concepts relating to malice or a presumption of malice, which were modified by the subsequent holdings of Mullaney and the two Evans cases, we must determine whether there was any error prejudicial to the rights of the accused. In Evans v. State, supra, this Court, speaking through Judge Moylan, said at 705: “The danger lurks in the fact that ‘malice’ means all of three different things: 1) the intention of doing a.particular act; 2) the absence of justification or excuse; and 3) the absence of mitigating circumstances. “The use of deadly force properly gives rise to a permitted inference only of the first aspect of malice, that is, the intent to kill (or, alternatively, the intent to do grievous bodily harm).” We said further, at 706: “When we speak of the inference, therefore, we must scrupulously restrict its operation to that limited aspect of malice involving the intent to kill or the intent to do grievous bodily harm.

We must never speak of inferring malice generally. This universal statement may all too easily be taken as permitting the inference of those other aspects of malice which are 1) the absence of justification or excuse and 2) the absence of mitigation. Such an inference would, of course, be clearly un ⁵¹⁸ constitutional under Mullaney v. Wilbur and Winship. It would relieve the State unfairly of proving both the absence of justification or excuse and the absence of mitigation.

It would thereby put upon the defendant the unconstitutional burden of exculpating himself generally or of lowering his guilt to manslaughter.” Appellant, in his brief here, summarizes succinctly and accurately when he says: “The evidence adduced at Appellant’s trial showed simply that he killed the victim, his girlfriend, by stabbing her in the chest, neck, and back. At that point, however, the evidence stops; there is no evidence as to the circumstances surrounding the killing.” Each of appellant’s three arguments is based upon the same point. He apparently concedes that there was no evidence in the case which could be said to generate an issue of justification, or an issue of excuse. He contends that there was evidence — voluntary intoxication of the accused — which fairly generated the issue of mitigation.

If that issue were decided in his favor, he says, the crime would be reduced from murder in the second degree to manslaughter. He says that the fact finder was permitted to infer that the homicide was not mitigated, but was equally permitted to infer that it was mitigated. The trial judge, as the fact finder, was not permitted, appellant argues, to presume that component of malice which involves the intent to kill or to do serious bodily injury, from the fact of homicidal agency. In Gilbert v. State, 36 Md. App. 196 , 373 A. 2d 311 (1977), we considered the contention of the appellant, who had shot and killed her husband, that she was entitled to a judgment of acquittal on motion, when the State had offered no direct evidence that the homicide was not excused, and was not mitigated, and there was in the case sufficient evidence to raise a genuine issue as to each of those defenses.

We ⁵¹⁹ discussed the obligation of the State to prove the non-existence of certain elements. We said, at 199: “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.” We said further, at 200-201: “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.

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 ⁵²⁰ reasonable doubt, the defensive issue which has been generated. “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 effect of that presumption was explained in