Leyva v. State

PER Curiam. Appellant, Mariano Alonso Leyva, was indicted on Novem ¹²² ber 15, 1965 by the Grand Jury for Montgomery County on a one count indictment charging him with the murder of Patricia Mancuso. He entered written pleas of not guilty by reason of insanity and not guilty. The case was removed to the Criminal Court of Baltimore where, in a trial before a jury, Judge Joseph L. Carter presiding, he was found to be sane and guilty of murder in the first degree.

He was sentenced to life imprisonment. From his conviction he now appeals to this Court. At approximately 9:40 a.m. on March 29, 1965, Mr. Richard Stevenson, a beauty supply salesman, went to the La Femme Beauty Salon located at 8205 Georgia Avenue, Silver Spring, Maryland, and found the appellant lying in a pool of blood and observed the legs of a female lying behind the receptionist’s desk. The Montgomery County police were notified and Officer B. K. Stafford responded to the scene and found the appellant and the deceased as described and, in addition, a Smith and Wesson revolver lying three to four inches from the appellant’s left hand and pointed in the direction of the deceased.

The appellant was then transported to a hospital where it was determined that he was wounded by two bullets in the chest. At the hospital the appellant admitted to Lieutenant Harold Treadwell of the Montgomery County Police that he had shot the deceased three times and himself twice during a lovers’ quarrel. He stated he purchased the gun in question for self-protection since his apartment had been recently burglarized. On this appeal the appellant raises four questions for decision: 1.

Was the evidence legally sufficient for the court to submit to the jury the question of whether appellant was guilty of first degree murder ? 2. Was there error in the court’s advisory instruction that the law presumes all homicides are commited with malice in the absence of excuse or some circumstance of mitigation and the burden is on the defendant to show circumstances of alleviation, excuse or justification to reduce the offense to manslaughter ? 3. Did the trial judge’s answer to a question by the jury violate Article XV, Section 5 of the Constitution of Maryland? 4. Was there error in the trial court’s refusal to grant that ¹²³ part of the appellant’s Motion for Discovery which pertained to any evidence of an exculpatory nature that the State had in its possession ?

I The appellant first raises the question that the State did not carry the burden of showing that the killing was wilful, deliberate and premeditated as required by Article 27, Section 407, Code (1967 Rep. Vol.). Thus the appellant asserts that he did not have a specific design to kill (wilfulness) ; that he did not have a full and conscious knowledge of a purpose to kill (deliberation) ; and that the killing was not premeditated. “Premeditation” means that the killing must have been meditated, planned in the mind, beforehand; that the design to kill must have preceded the killing by an appreciable length of time, time enough to deliberate. It is therefore necessary, in order to justify a conviction of first degree murder, that the trier of facts find the actual intent (wilfulness), the fully formed purpose to kill (deliberation), with enough time for deliberation and premeditation to convince the trier of facts that this purpose is not the immediate offspring of rashness and impetuous temper (lack of deliberation and premeditation), but that the mind has become fully conscious of its own design.

See Hyde v. State, 228 Md. 209 , 179 A. 2d 421 (1962). In Hyde, supra, it was held that although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing be not the instant effect of impulse, if there is hesitation or doubt to overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. See also Cummings v. State, 223 Md. 606 , 165 A. 2d 886 (1960); Faulcon v. State, 211 Md. 249 , 126 A. 2d 858 (1956).

From a review of the record we find more than sufficient evidence to justify a conviction of murder in the first degree. In addition to the other evidence outlined above, Ronald Louie testified that Leyva spent the night before the killing with him and his wife, that Leyva told him to set the clock early so that he would be sure to awaken and that almost every day for ¹²⁴ nearly four years Leyva had stated that he “could kill” the deceased. Carmen Bengston testified that Leyva called her the night before the killing and told her not to come to the La Femme Beauty Salon where she was employed as a hairdresser at her usual time of 9:00 a.m. but rather to wait until 10:00 a.m. Leyva also gave a statement to Lieutenant Gabriel LaMastra that he shot the deceased three times and himself twice and that he could not remember whether he had reloaded the gun in explanation of why several spent shells Avere