Robinson v. State

McWilliams, J., delivered the opinion of the Court. Because the trial judge sentenced appellant to death he is entitled to have reviewed by this Court, rather than the Court of Special Appeals, his conviction of the crimes of double mur ²⁰⁴ der, larceny and assault with intent to rape. Code, Art. 5, § 12 (1967 Cum. Supp.).

The recital of what happened makes a gory story, almost as incredible as it is revolting. Late in the afternoon of Friday, 2 April 1965, the bodies of Florence Bond, 48, and James Edward Bond, her brother, 46, were discovered on the kitchen floor of their home near Bel Air, in Harford County. Florence, naked from the waist down, was lying on her back. The medical examiner “found a multitude of stab wounds and incised wounds of her neck” one of which had opened the jugular vein.

There were stab wounds which penetrated the abdomen, some of which were made after death. Spermatozoa were found “in her vagina and also, to a lesser degree, in her rectum.” There were at least 22 stab wounds in the left side of Edward Bond’s face and neck, one of which had opened his jugular vein. There were severe stab wounds in his chest and “a huge cut across the abdomen.” There was a stab wound “through this opening into the liver.” Some of these wounds appeared “to have been set after death.” There was a “defense wound” on the palm of Florence’s right hand and similar wounds on both of Edward’s hands. A massive air embolism was the principal cause of death in each case.

Edward’s blood contained 0.28% alcohol indicating intoxication at the time of death. No^ alcohol was found in the blood of Florence. Appellant, 26, a farm hand, was related by marriage to Florence and Edward. They knew each other well.

Florence told her sister, Mary Berry, that appellant — she called him “Piggy” —had been at her house “for two mornings in a row” and that “she was afraid of him.” Since childhood he has suffered from neurofibromatosis, a disease which manifests itself by the eruption of tumors requiring frequent surgical intervention. His older brother said his schooling had been interrupted periodically for the surgical removal of tumors on his face, that he “went only to the fourth grade * * * and finally left school at age 14.” Set forth below is the letter of Dr. John M. Hamilton, the superintendent of Clifton T. Perkins State Hospital (Perkins) to the trial judge: ²⁰⁵ “The Honorable Harry E. Dyer, Jr. Judge Circuit Court for Harford County Court House Bel Air, Maryland RE: ROBINSON, William Carr Hospital #1404 “Dear Judge Dyer : “The above named patient was committed to our hospital on May 17, 1965, by an Order of your Court, for a pre-trial mental examination. “In a letter to the Honorable Court, dated September 17, 1965, I indicated that our evaluation would be delayed because of the necessity for Mr. Robinson’s, undergoing major surgery at the University Hospital, because of a chest-neck mass which had to be removed. This surgery has recently been completed and Mr. Robinson has been returned to our hospital; and, we are now able to. render our report to the Court. “Since being in the Clifton T. Perkins State Hospital, Mr. Robinson has received a comprehensive-psychiatric evaluation with psychological testing, social service investigation, electroencephalography and other pertinent clinical and laboratory studies. He was presented before a Medical Staff Conference, on September 14, 1965, at which time it was the unanimous opinion of our Medical Staff, and I concur, that Mr. Robinson is currently competent to stand trial.

Two of the staff physicians giving opinions in this case, Doctors Michael J. Pescor and Juliette M. Simmons, felt that Mr. Robinson was of such mental capacity and reason at the time of the alleged offenses so as to be properly able to distinguish between right and wrong, and to know the nature and consequences of his acts as applied to himself; and, therefore, felt that he was responsible for his actions at the time of the alleged offenses. I do not concur in this opinion because of the ²⁰⁶ relatively severe pathology which our evaluation disclosed. “I found Mr. Robinson to be suffering from a 'Chronic Brain Syndrome of Unknown Cause (in view •of his long history of neurofibromatosis, it is quite possible that there has been an invasion of the brain and •central nervous system by the neurofibromata though ■this is something that we have not unquestionably established) ; and, I found his intellectual capacity impaired to the extent that he now functions at the Moderately Defective level of intelligence, with a full-scale score of 56 on the Wechsler Adult Intelligence Scale. I have real concern that Mr. Robinson was able to appreciate the nature, quality and consequences of his ■acts at the time of the alleged offenses. It seems evident he had some appreciation that what he was doing was an illegal act but even this is on the borderline.

I am, therefore, unable to agree with the members of the Medical Staff who gave the opinions of responsibility and it is my own personal opinion that Mr. Robinson was probably not responsible for his actions ■at the time of the alleged offenses in that he did not have the mental capacity or reason to appreciate the nature, quality or consequence of his acts at that time, because of the brain disease and mental deficiency from which he suffers. “In view of the above opinions, we would appreciate it if you would make arrangements for Mr. Robinson’s return to your custody, as soon as possible, since our evaluation has been completed. If there is any other information that you might require concerning our evaluation of Mr. Robinson’s course in our hospital, please do not hesitate to request it of us. Sincerely, JOHN M. HAMILTON, M.D. Superintendent ■“cc: The Honorable Edwin H. W. Harlan, Jr. Dr. Wilfried R. Freinek” ²⁰⁷ When Dr. Hamilton was produced as a witness on behalf of appellant he said: “It is my opinion that at the time of the alleged offenses, Mr. Robinson was of such mental incapacity and reason so as not to be able to properly distinguish between right and wrong, nor know the nature and consequences of his acts as applied to himself.” Appellant was taken into custody on 7 April. He was transported to Maryland State Police Headquarters at Pikesville where he confessed to the murders and the larceny of $3.00 which was taken from Florence’s pocketbook.

His trial, before Dyer, J., and a jury, began on 28 February 1966. On 8 March the jury declared him to be sane at the time of trial and sane at the time of the alleged offenses. The jury, on the same day, also found him guilty of first degree murder without capital punishment in both cases, guilty of petty larceny, and guilty of assault with intent to rape, with no recommendation as to capital punishment. On 30 March, Judge Dyer imposed a sentence of 18 months in the larceny case and life imprisonment in each of the murder cases.

Death by the administration of lethal gas was the sentence in the assault case. We shall deal with appellant’s 10 contentions in the order in which they were presented by his court-appointed counsel, stating such additional facts as may be necessary. I. Appellant contends his conviction of the first degree murder of Florence was a felony murder based on Code, Art. 27, § 410 (Repl. Vol. 1967) which makes a murder committed in an “attempt to perpetrate any rape * * *” murder in the first degree.

The doctrine of merger, he argues, precludes his conviction of assault with intent to rape, thereby nullifying the sentence of death. No decisions of this Court flatly supporting his contention are cited 1 but there are cases in other jurisdic ²⁰⁸ tions which seem to have adopted the general principle advanced by appellant. 2 So that appellant’s contention can be considered in its proper context it is necessary to examine the instructions given to the jury by the trial judge. After having directed a judgment of acquittal of the charge of rape the trial judge instructed the jury, in part, as follows: “As to the crime of First Degree Murder, the Code of Maryland states, (Article 27, Section 407) — ‘All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of willful, deliberate and premeditated killing shall be Murder in the First Degree.’ ” * * * “Our Code (Article 27, Section 410) also provides that ‘All murder which shall be committed in the perpetration of, or attempt to perpetrate, any rape, sodomy, mayhem, robbery, burglary, shall be Murder in the First Degree.’ ” * * * “Now to justify a conviction of Murder in the First Degree the Jury must find the actual intent, the fully formed purpose to kill, with enough time for deliberation and premeditation to convince them that the purpose to- kill is not the immediate offspring of rash- ” ness and impetuous temper and that the mind has become fully conscious of its own design. “For a homicide to be ‘willful’ as required for a conviction of First Degree Murder, there must be a specific purpose and design to kill. To be ‘deliberate’ there must be a full and conscious knowledge of the purpose to kill.

And to be ‘premeditated’ the design to kill must have preceded the killing by an appreciable length of time; that is, time enough to be deliberate. It is not, however, necessary that deliberation and premeditation shall have been conceived or shall have existed for any particular length of time before the kill ²⁰⁹ ing. If the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as a result of thought, however short the struggle between the intention and the act, the crime is sufficient to be characterized as deliberate and premeditated murder. “The existence of the elements of willfulness, deliberation and premeditation so as to constitute the homicide of First Degree Murder must be determined on the facts of the case; but a homicide is presumed to be Murder in the Second Degree and the burden is on the State to show that the killing was willful, deliberate and premeditated, if the crime is to be elevated to First Degree Murder. On the other hand, since murder is the unlawful killing of a human being with malice aforethought, the law presumes in the absence of justification, excuse or some circumstances of mitigation that all homicides are committed with malice aforethought and so are murder, the burden being on the accused to show circumstances of alleviation, or excuse or justification to reduce the offense to Manslaughter.” Since there is an abundance of evidence to support a verdict of premeditated murder under § 407 of Article 27 we must reject appellant’s presumption that the jury found him guilty of a felony murder under § 410.

It is entirely possible, and we think it more than likely, that the jury’s verdict reflects a finding that the murder of Florence was premeditated. They had before them, for instance, his own words (from the confession) : “* * * I turned around and came back down on Grafton Shop Road and knocked on Florence Bond’s door. I asked if Eddie was home and she said no and I asked her for some and she said “no”. Then we started wrasseling and she said she was going to give me some.

And that’s when I cut her and she was laying in the floor and Eddie came in and Eddie asked me what I was doing there. Then him and I got to wrasseling. Then I cut him. Then both was dead I went upstairs ²¹⁰ and got three dollars.

Then I come back down the steps then I shut the light out and went out the kitchen door.” They heard the medical examiner describe “the great variety of stab wounds * * * the defense wounds on the inside of her right hand * * * the bruises and scrapes about the body * * * [the wound which] penetrated into her abdomen” and which was inflicted after death. They could have concluded all of these wounds were sustained by Florence after she had consented to have intercourse with him. In a case much like the case at bar, Kier v. State, 216 Md. 513 , 140 A. 2d 896 (1958), we said: “Even if the assault with intent to^ rape was not in this case, there would still be evidence to justify the trial court in reaching the conclusion, as they did, that the murder was deliberate and premeditated under the provisions of Section 407. As the court said in Chisley v. State, 202 Md. 87 , 106: Tt is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing.

Their existence must be judged from the facts of the case.’ In that case this court held that the delay between firing a first and second shot was such evidence as justified a finding of deliberation and premeditation. See also Faulcon v. State, 211 Md. 249 . This court said in the recent case of BUiott v. State, 215 Md. 152 , 160: ‘To be “wilful” there must be a specific purpose and design to kill. To be “deliberate” there must be full and conscious knowledge of the purpose to kill.

To be “premeditated” the design must have preceded the killing by a sufficient length of time, even though short, to be deliberate.’ “An ornamental iron horse and a sword in its scabbard, both of which objects were marked with human blood, were found near the body. The brutal manner in which the victim was beaten about the face and head with these or other objects indicates a protracted period during which the assault continued. Then the ²¹¹ assailant procured and produced a butcher knife which he plunged into her body not once but twice. There was ample evidence to justify the trial court in its conclusion that the action of the appellant was wilful, that it was deliberate, and that it was premeditated. “The court is irresistibly driven to the conclusion that there was sufficient evidence to justify the trial court in arriving at its verdict of murder in the first degree.” Id. at 522-23.

Appellant cites, as supporting his contention, the recent case of Green v. State, 243 Md. 75 , 220 A. 2d 131 (1966), where the trial judge found the defendant guilty of rape and common law assault. We held that the two crimes were not separate and distinct and that the facts used to establish the lesser offense of assault were essential elements in establishing the greater offense of rape, “and fit was said] thus the assault was merged into rape.” Id. at 81 . The State, on the other hand, points out that, in Green , we also said: “Most jurisdictions, including Maryland, have abolished the common law doctrine of merger and the true test under the modern concept of merger of offenses, is whether one crime necessarily involves the other.” Id. at 80 . What seems to be an inconsistency is merely the ambivalence of the word “merger.” We think it was quite clear, in Green , that the crime of rape necessarily involved the crime of assault and we think it is equally clear, in the instant case, that the evidence supports a verdict of murder under § 407 and that none of the elements of assault with intent to rape are necessarily elements of premeditated murder under § 407.

Whether any of the elements of assault with intent to rape are necessarily elements of a felony murder under § 410 is a question which, in these circumstances, does not require our consideration.

II

Appellant next attacks the validity of the sentence of death. We shall discuss his reasons therefor in the order in which they appear in the brief. ²¹² (a) Appellant merely restates the merger argument. We have already pointed out, in section I, that it has no merit. (b) and (c) Code, Art. 27, § 12, which deals only with the crimes of assault to carnally know a female child under 14, assault with intent to rob, assault with intent to murder and assault with intent to rape, reads, in part, as follows: “* * * every person convicted of the crime of an assault with intent to commit a rape shall be guilty of a felony and shall be punished with death * * * provided, however, that the jury before whom any person indicted for the crime of an assault with intent to commit a rape shall be tried, if they find such person guilty thereof, may add to their verdict the words ‘without capital punishment’ * * * and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, ‘without capital punishment’, shall the court in imposing the sentence, sentence the convicted party to pay the death penalty or to be confined for more than twenty yew's in the penitentiary.” (Emphasis supplied.) Appellant contends the italicized language refers to the words “without capital punishment” which the jury added to their verdicts of murder in the first degree and that the jury, having rendered “a verdict in [the] manner and form as hereinbefore prescribed,” any sentence for assault with intent to rape in excess of 20 years in the penitentiary was prohibited.

Appellant is attributing to the word “hereinbefore” a connotation which cannot be sustained. Surely it does not relate to anything outside of § 12 and the only crime in § 12 which is punishable by death is assault with intent to rape. If we assume, however, that “hereinbefore” could refer to something elsewhere in Art. 27 one would expect it to be something “before” § 12. But the penalties, for murder will not be found in Art. 27 earlier than § 413 and therein will be found precisely the same expression, viz., “and in no case where a jury shall have rendered a ver ²¹³ diet in manner and form as hereinbefore prescribed, ‘without capital punishment,’ shall the court in imposing the sentence, sentence the convicted party to pay the death penalty.” (d) The death penalty, in the circumstances, says the appellant, constitutes the “cruel and unusual punishment” proscribed by the Federal Constitution and Maryland’s Declaration of Rights.

In passing, it should be noted, the appellant absolves the trial judge of any “passion, prejudice, ill-will or like unworthy motives.” He insists, however, that the “sentence is grossly and inordinately disproportionate to the offense.” The verdict of the jury was certainly not the result of a mistake nor of a misunderstanding. Judge Dyer, as a part of his instruction, read § 12 of Art. 27 to the jury and, moreover, he made it very clear to them that their possible verdicts were: 1. Guilty of Assault with Intent to Rape. 2. Guilty of Assault with Intent to Rape without Capital Punishment. 3.

Not Guilty of Assault with Intent to Rape but Guilty of Assault. 4. Not Guilty of Assault. (Emphasis supplied.) Any lingering doubt that the jury knew what it was doing would seem to be dispelled by the colloquy which took place when the verdicts were announced: “(The Clerk) As to Case Number 3,061, Assault with Intent to Rape, is he Guilty or Not Guilty? “(The Foreman) If Your Honor please, is this two charges or one charge ? “ (The Court) One charge unless you find Not Guilty of the more serious; then you could possibly find Guilty of Assault, but it’s — - “(The Foreman) We had understood this was two charges, one Assault with Intent to Rape and Assault. “(The Court) No, the smaller merges into the larger. “(The Foreman) We have a decision then. Guilty of Assault with Intent to Rape. “(The Clerk) Do you care to poll the Jury? ²¹⁴ “(Mr. Tyng) Was there no mention — no recommendation on the last sentence, sir ? “(The Court) No recommendation on the last one? “(The Foreman ) No, sir. “(Mr. Tyng) II Your Honor please, I move that the Jury be polled as to the last sentence — I mean the last verdict, pardon me.” “(The Clerk) As i call your name, each stand and give your verdict. “WHEREUPON, each individual juror was polled, the unanimous verdict being Guilty of Assault with Intent to Rape.’ ” The contention that the imposition of the death penalty constitutes cruel and unusual punishment has been considered and rejected by this Court on other occasions.

Dutton v. State, 123-Md. 373, 91 Atl. 417 (1914) and Walker v. State, 186 Md. 440 , 47 A. 2d 47 (1946). In Walker it was said that “under our system the power to commute sentences resides in the executive.” Id. at 445 . It is appropriate and relevant, we think,, to repeat what Chief Judge Hammond, for the Court, said in. Jones v. State, 247 Md. 530, 534 , 233 A. 2d 791 (1967) : “Although this Court and the Review panel lacked jurisdiction to review the appellant’s sentence, Art. 11, § 20 of the Constitution of Maryland gives the Governor the ‘power to grant reprieves and pardons' and under this provision and those of Code (1965 Repl.

Vol.), Art. 41, § 120, many governors have commuted sentences. The court-appointed counsel for the appellant, who has so conscientiously and diligently sought to protect his client’s interests, undoubtedly will find it appropriate to urge upon the Governor who has the power we lack as a basis for commuting the sentence to life imprisonment the various factors he urged upon us, such as the youth of the appellant, the views of the psychiatrists as to his deficiencies of character and emotion and his inability to have a review of sentence,. ²¹⁵ which he would have had if his conviction had occurred several months after it did.” 3 III. Appellant next contends it was error for the trial judge to let the jury learn that, in his opinion, the evidence established that “any statement taken from this defendant was a voluntary one of his own free will.” After hearing testimony out of the presence of the jury the following transpired: “(Court) * * * Now, is it appropriate for a ruling on the admissibility of this statement ? “(Mr. Tyng) If it has not been made, Your Honor, I would like to formally make an objection to the admission of any confession on the basis of the testimony given, whether it’s oral or written. “(Court) I’ll overrule the objection and rule that in the Court’s opinion, the evidence established is that any statement taken from this defendant was a voluntary one of his own free will. “Bring in the Jury and let’s resume the case. “(Mr. Harlan) Your Honor, we have, also, a written statement. We go through the same procedure with that. “(Court) I wouldn’t think so, unless testimony develops that this was a day or so later or something. “(Mr. Tyng) May we approach the bench? “(Court) Yes. “ (Discussion at the Bench) “(Mr. Harlan) May it please the Court, I think the reporter should read the Court’s statement just prior to the bringing in of the Jury. “Thereupon, aforementioned statement of the Court (ruling on the admissibility of the statement) was read to the Jury by the Court Reporter.” “All right, anything further ? ²¹⁶ “(Mr. Harlan) No, sir. “(Court) Anything further, Mr. Tyng? “(Mr. Tyng) No, sir. “(Court) All right, then Court will stand adjourned until ten o’clock tomorrow morning.” It will be observed that appellant did not object to the reading of the court’s remark to the jury, that he did not move to strike it nor did he ask that the jury be instructed to disregard it; moreover, one should bear in mind, at no time thereafter did he make any objection, file any motion to strike or submit any request for an instruction to disregard the statement.

There was no request that the court cover the matter in his charge to the jury. The court did not mention it in his charge and appellant did not except to his failure to do so. It was neither mentioned nor referred to in any succeeding motion, including the motion for a new trial. It was neither mentioned nor referred to in the arguments of counsel at the trial nor in the arguments at the hearing on the motion for a new trial.

The question appears to