Morris v. State

Mason, J., delivered the opinion of the Court. The appellant, Sylvester Jerome Morris, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree, assault with intent to murder, and assault and battery. He was sentenced to a term of life imprisonment for the murder conviction and two concurrent seven-year terms for the assault with intent to murder and the assault and battery convictions. The principal issue in this case is whether the trial court in its instruction to the jury erroneously allocated to the appellant the burden of persuasion on the issue of excuse. 1 As a threshold matter, we note that the defense of excusable homicide based on a claim of accidental killing ¹⁸⁷ was generated by the evidence as a legitimate jury issue in this case.

During the evening of January 19, 1975, the appellant, his wife, and two of their children stopped at a tavern for a few drinks. Later, James Spriggs, a family acquaintance, joined them. After a period of time, they all went to another bar and consumed additional drinks. The appellant, apparently jealous of the attention his wife and Spriggs were paying to each other, told his wife he was ready to go home.

Upon her refusal, the appellant left without her. Later that same evening, the appellant’s wife and children returned home in Spriggs’s car. Moments after the children got out, a shotgun was fired, damaging Spriggs’s car and injuring the appellant’s wife and Spriggs. The appellant denied intending to shoot his wife or Spriggs.

He testified that the gun accidently discharged as he stepped from the curb onto the street. After this incident, the appellant was arrested and subsequently released on bail. Approximately three weeks later, the appellant’s wife was fatally wounded. According to the appellant, while they were seated in his car, his wife struck him in the face during an argument.

She then reached under the front seat and produced a gun which accidentally discharged when the appellant grabbed her hand. The offending instruction in the present case was: If you find beyond a reasonable doubt that there was an unlawful killing and that the defendant did it, in order to reduce the crime to manslaughter it is the defendant who has the burden of proving justification, excuse or some circumstance of mitigation, and he must do so by a preponderance of the evidence. We talked about the State having the burden of proof beyond a reasonable doubt. Now in order to reduce the crime to manslaughter, the burden of proving justification, excuse or some circumstance ¹⁸⁸ in mitigation is upon the defendant, but he must do that only by a preponderance of the evidence.

On authority of Mullaney, we held in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), aff'd, 278 Md. 197 , 362 A. 2d 629 (1976), that it is unconstitutional to impose upon a defendant a 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. The flaw in the instruction, as given, was the erroneous allocation to the appellant of the burden of persuasion on the question of excuse. Not only did this relieve the State of proving beyond a reasonable doubt that the offense was not accidental, as mandated by Mullaney, it required the appellant to assume the burden of proving the offense was accidental as proscribed by Mullaney. Here, the issue is whether the jury verdict of murder in the first degree cured the error by indicating that the State had carried its rightful burden of proving every element of the offense beyond a reasonable doubt.

In explicating Mullaney, we held in Evans that a jury finding of guilty of murder in the first degree would operate to cure an erroneous allocation of the burden of persuasion on the subject of mitigation: By the same token, any error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree. The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, therefore, have been pivotal. Where, on the other ¹⁸⁹ hand, the verdict is murder in the first degree, the State would have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended. 28 Md. App. at 658 .

See also Brown v. State, 29 Md. App. 1 , 349 A. 2d 359 (1975) and Dorsey v. State, 29 Md. App. 97 , 349 A. 2d 414 (1975), aff'd, 278 Md. 221 , 362 A. 2d 642 (1976). The immediate issue is whether such reasoning would apply, by way of analogy, to a first-degree murder finding where the defensive issue was not mitigation but rather excuse and where the particular sub-variety of excuse was accident. This issue has been squarely answered in the affirmative by Chief Judge Murphy, specially assigned, writing for this Court in Newkirk v. State, 32 Md. App. 621 , 363 A. 2d 637 (1976). In dealing with precisely the same issue, we stated: The State points out that the defense of accident is based on a theory of no intent, no willfulness, no premeditation, and no deliberation.

It argues that by its verdict of first degree murder the jury found that the State sustained its burden of proof beyond a reasonable doubt that the appellant acted in a willful, deliberate and premeditated manner, thereby rejecting any claim of defense that the shootings were accidental. The State maintains that in these circumstances it did not rely on any unconstitutional presumption or inference of malice, and that notwithstanding the erroneous allocation of the burden of persuasion the first degree murder verdict “cured” the errors in the jury instructions. In Dorsey and Wilson v. State, supra, a homicide case in which the trial court erroneously instructed the jury that the burden of proving mitigation was upon the defendant, we held, and the Court of Appeals agreed, that the jury’s verdict of murder in the first degree cured the error in the instructions. ¹⁹⁰ We there noted that under the trial court’s instructions the State was required to carry the burden of proving willfulness, deliberation, and premeditation and thus did not rely upon an unconstitutional presumption of malice. . We said that the finding by a jury of the elements of first degree murder negated the existence of mitigating circumstances, since malice and mitigation due to provocation could not coexist.

Considering the facts of the present case in view of the instructions given to the jury, we think the same rationale is applicable to the defense of excusable homicide based on a claim of accidental or unintentional killing. Since the jury found the appellant guilty of first degree murder, it is clear that it did not rely upon the erroneous instruction presuming all felonious homicides to constitute second degree murder; instead it concluded that the State had sustained the burden properly placed upon it by the instructions of proving, beyond a reasonable doubt, that the killing was willful, deliberate, and premeditáted and hence not unintentional or accidental, as claimed by the defense. Cf. Stambaugh v. State, 30 Md. App. 707 , 353 A. 2d 638 (1976), a case in which we reversed a conviction of second degree murder where the defense was accident and the jury was erroneously instructed that homicide was presumed to be murder in the second degree and that the burden was upon the defendant to establish excusable homicide.

See also Wilson v. State, 28 Md. App. 168 , 343 A. 2d 537 (1975). Newkirk is fully dispositive of the present case. For precedential guidance, however, it behooves us to reconcile the holding of Newkirk with what at surface glance might appear