Law v. State

⁴⁵⁹ Melvin, J., delivered the opinion of the Court. This appeal marks the second time this Court is called upon to review the propriety of the convictions of James Cecil Law, Jr. of second degree murder and assault with intent to murder. In Law v. State, 21 Md. App. 13 (decided April 19, 1974; certiorari denied by Md. Ct. of Appeals July 25, 1974) we reversed the convictions and remanded the case to the Circuit Court for Charles County for a new trial. On January 29, 1975, after trial before the court, sitting without a jury, the appellant was again convicted of second degree murder and assault with intent to murder.

Two questions are presented on this appeal: 1. “Was it error to deny Appellant’s Motion for Acquittal at his trial? ” 2. “Did the trial judge shift the burden of proof to the Appellant insofar as reducing the crime of second degree murder (and assault with intent to commit murder) to manslaughter or to justifiable homicide? ” I At a non-jury trial the sufficiency of the evidence is always before us when presented on appeal. Maryland Rule 1086. In determining sufficiency of the evidence we must view the evidence and all reasonably deducible inferences therefrom in the light most favorable to the State. So viewed, if the evidence is such that it would support a finding by the trier of fact, be it a jury or a court sitting without a jury, that the defendant is guilty beyond a reasonable doubt of the charges against him, the motion was properly denied; if the evidence would not support such a finding the motion was improperly denied.

Iozzi v. State, 5 Md. App. 415 (1968); Kelly v. State, 16 Md. App. 533 (1973) aff'd 270 Md. 139 (1973); Carter v. State, 15 Md. App. 242 (1972). The evidence presented at the re-trial was in basic outline the same evidence presented at appellant’s first trial. There is no need to repeat it here. See Law v. State, supra, pp. ⁴⁶⁰ 15-25.

After carefully reviewing the evidence before the trial court, we cannct say that the appellant was entitled as a matter of law to judgment of acquittal as to either of the charges against him. There were issues raised by the evidence which were properly submitted to the trier of fact. The trial court did not err in denying the motion. II On June 9, 1975, while appellant’s appeal to this Court was pending, the U. S. Supreme Court decided Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 .

The narrow issue in Mullaney was whether the homicide law of Maine “requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process”. 421 U. S. 684, at 692 . The Court held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case”. 421 U. S. 684, at 704 . In Evans v. State, 28 Md. App. 640 , this Court, in a scholarly opinion by Judge Moylan, thoroughly analysed the extensive and significant impact of Mullaney upon the procedural aspects of the criminal law of this State. In Evans we held, inter alia, that it is unconstitutional to impose upon a defendant in a criminal case the burden of proving, by any standard, his innocence as to any element of a crime, or to relieve the State of its burden of proving beyond a reasonable doubt any element of the crime charged.

We also held in Evans that “a verdict rendered in a court trial of murder in the second degree will bear scrutiny under Mullaney v. Wilbur if the judge, in the course of rendering his decision, indicates that he relied upon the now unconstitutional presumption of malice or that he in any way placed upon the defendant the burden of proving such mitigation as would reduce murder to manslaughter (mitigation fairly being an issue in the case).” 28 Md. App. at 663 . We further held in Shuck v. State, 29 Md. App. 33 , that ⁴⁶¹ “under a fair reading of the broad principle enunciated in Mullaney v. Wilbur (See part IIB of Evans v. State), a constitutional allocation of the burden of persuasion in an assault with intent to murder case is mandated just as surely as is a constitutional allocation of the burden of persuasion in a felonious homicide case.” In arriving at the guilty verdicts in this case the trial judge in an oral opinion carefully reviewed the evidence and what he considered to be the applicable law. In responding to the evidence of justifiable or excusable homicide based on appellant’s right to defend his home, the judge said, “. . . [I]t does not appear to the Court that the Defendant acted with caution in exercising that right, nor as Mr. Hockheimer stated, the killing was unavoidable”. The judge then described some of the “options” he felt the appellant should have exercised that would have avoided the homicide.

He then stated: “Accordingly, the Court finds that an unlawful homicide indeed was committed without justification and having reached this conclusion, the law presumes it to be murder in the second degree and also presumes that malice existed.” As we now know, this is an incorrect statement of the law. It is a good example of the confusion that has grown up in the lawr of homicide in Maryland because of the “treacherous procedural vocabulary [that] has been superimposed upon an equally treacherous definitional vocabulary”. Evans v. State, supra, Part IIC The Common Law’s Tower of Babel. In presuming second degree murder from the absence of justification, the State was thereby unconstitutionally relieved of the burden of proving beyond a reasonable doubt an essential element of the crimes of both second degree murder and assault with intent to murder, 1 that element being the absence of mitigating circumstances.

Not only was ⁴⁶² the State relieved of that burden, but the burden was placed squarely on the appellant to prove that element, albeit only by a preponderance of the evidence. Immediately after making the above quoted statement in his oral opinion, the trial judge said: “The burden at this point is then upon the Defendant to show only by a preponderance of the evidence sufficient facts to lower the homicide from murder in the second degree to manslaughter.” These dual errors (first, relieving the State of the burden of proving non-mitigation beyond a reasonable doubt, and second, imposing upon the appellant the burden of proving his innocence as to that element of the crimes) are clearly of constitutional proportions where the evidence has generated a genuine issue with respect to that element. Mullaney v. Wilbur, supra; Evans v. State, supra; In re Winship, 397 U. S. 358, 364 (1970). We now turn to the question of whether an issue of mitigation was generated by the evidence.

We may assume that when the trial judge found that “an unlawful homicide indeed was committed without justification ...” he did so by applying the proper standard of proof, i.e., beyond a reasonable doubt, and that he was negating by that standard the issue of defense of habitation raised by the evidence. Viewing the evidence in the light most favorable to the appellant, that an issue of defense of habitation was fairly in the case is abundantly clear. We think the evidence, viewed in that light, also fairly generated an issue of mitigation. At the time of the homicide, appellant and his bride of a few weeks were alone in the bedroom in their darkened house.

Two weeks before the homicide their house had been burglarized. They heard noises outside. Appellant got out of bed, nude, and went downstairs to investigate the matter. He continued to hear noises like