Selby v. State

HARRELL, Judge. Charged with murdering his ex-girlfriend, eighteen-year-old David Paige Selby (Petitioner) was acquitted in 1987 at a ³²¹ bench trial in the Circuit Court for Prince George’s County of first degree and second degree murder, but convicted of voluntary manslaughter and the use of a handgun in the commission of a felony. Granted a belated appeal on 19 June 1998 in the course of a post conviction proceeding, Petitioner now argues that the trial court should not have found him guilty of voluntary manslaughter after finding as fact that he did not intend to kill his ex-girlfriend, Michelle Barber. The Court of Special Appeals rejected Petitioner’s argument and affirmed the lower court’s conviction in an unreported opinion filed 27 December 1999.

We granted Selby’s petition for writ of certiorari on 12 April 2000 to determine whether the elements of voluntary manslaughter were present in this case, given the trial court’s findings of fact. We shall reverse the judgments of the intermediate appellate court and the Circuit Court. Petitioner presents us with the same issue presented to the intermediate appellate court: Whether the trial court erred in convicting petitioner of voluntary manslaughter and use of a handgun in the commission of a felony after finding as fact that he did not intend to kill the victim. I. Evidence adduced during the 1987 trial revealed that Selby and Ms. Barber met in a detention home 1 and began a romantic relationship at age 16.

They dated for two years, during which time they produced a child. Barber ended their relationship in July 1986, but maintained contact with Selby on matters regarding their infant son. The record reflects a chain of emotionally charged events that led up to Barber’s death on 11 August 1986. On 2 August 1986, Petitioner met Barber and their son at a pediatrician’s ³²² office to discuss Barber’s return of certain items belonging to Petitioner, including a necklace of his.

Barber refused to give Petitioner a necklace of hers that she was wearing; in the midst of their disagreement, Petitioner admits to grabbing at the necklace around Barber’s neck and threatening to kill her. 2 Although the police were called, 3 Petitioner left the scene prior to their arrival, and Barber chose not to make a report. At approximately 3:00 AM on 3 August 1986, Petitioner went to Barber’s apartment to collect his belongings. According to Earleen Isaac, a friend staying with Barber, Petitioner and Barber argued over cassette tapes and a set of apartment keys while Barber gathered Petitioner’s belongings. Isaac testified that Barber called the police because Petitioner would neither return the tape nor leave the apartment.

Officer Brian Berdeguez, the officer responding to the call, testified that the police, after running a background check on Petitioner and finding no outstanding warrants, escorted Petitioner off the premises. According to Officer Berdeguez, Petitioner warned Barber as he left that “calling the police on him was the biggest mistake she could ever make and that he would be back.” Petitioner denied making this threat. Petitioner called Barber soon after he left the apartment. Isaac, who answered the telephone, testified that Petitioner said Barber’s calling the police was the worst thing Barber could have done and that he would kill Barber by Monday.

She admitted, however, that neither she nor Barber took Petitioner’s threat seriously. Bather, when told of the threat, Barber .“just laughed.” Although Petitioner admitted to calling Barber several times that weekend, he denied ever telling ³²³ Barber she would be dead by Monday. Monday, 4 August 1986, passed with no incident. On 11 August 1986, Barber called Petitioner to discuss their baby’s need for more formula.

Their discussion turned into an argument that ended when Petitioner said he would bring more baby formula to Barber’s apartment. 4 Petitioner testified that Barber told him to come over at his own risk because his presence would anger her current boyfriend. Packing a blue Nike gym bag with formula, placing his father’s loaded gun down the front of his pants, and asking friend Mike Butler to accompany him on the visit, Petitioner ignored Barber’s warning and went to the apartment. Petitioner testified that he loved Barber and did not go to her home with the intent to kill; rather, he brought the gun and his friend because he was frightened of Barber’s new boyfriend. Using his key to gain access to Barber’s apartment, Petitioner entered and saw two young boys and his son in the front room. 5 Petitioner testified that he entered the back bedroom and woke Barber, who sat up and called him “a stupid mother fucker.” Petitioner responded by asking whether Barber’s boyfriend was in the apartment.

Their conversation quickly escalated into a fight, with Petitioner testifying that Barber threatened to call his mother. Petitioner stated that when he tried to prevent the call by pushing down on the cradle button, Barber hit him on the head with the telephone receiver. Petitioner testified that the blow to his head knocked him down, and, as he fell, Barber reached and grabbed the gun from the front of his pants. Petitioner lunged at Barber, slamming Barber’s bed up against their baby’s crib and caus ³²⁴ ing the gun to fire.

Petitioner gained control of the gun, but, as Barber continued to struggle on the bed with the gun pinned beneath her, the gun fired a second time. Petitioner testified that, thinking he shot Barber with the second firing, he grabbed the gun and got up off the bed. As he got up, Barber “reached for the gun ... and then it just went off.” William Albrecht, Jr., a firearms identification specialist with the Federal Bureau of Investigations, testified that three bullets were found in the apartment. One bullet was found in the mattress of the baby’s crib, one bullet was found in a pillow on Barber’s bed, and one bullet was found in Barber’s body.

His ballistics report indicated the first bullet penetrated through the crib mattress, ricocheted off the floor and wall, and landed back in the crib mattress. Mr. Albrecht determined that the discharge from the second bullet was “quiet” because it was fired into a pillow, “almost forming like a cocoon around the bullet” that smothered the sound. 6 The third bullet was the shot that killed Barber. Barber’s autopsy indicated she was shot in the upper left side of her chest. The configuration of the abrasions around the bullet wound suggested that the bullet struck something else before it hit Barber in the chest.

Because of a grazing gunshot wound to Barber’s right hand 7 .on the side opposite the thumb and the stippling around that wound that indicated the gun was fired at close range, 8 the pathologist concluded the same bullet caused both the hand and the chest injuries. He opined that Barber’s hand was likely in front of her chest, or in “defensive posturing,” when it was struck. ³²⁵ Petitioner testified that Barber, upon being struck by the third bullet, told him to “Call an ambulance. You shot me in the mouth.” 9 Prior to calling 911, Petitioner ran into the front room to get Butler and show him what happened. Butler viewed the scene, did not take it seriously, and left the apartment.

Petitioner called 911, grabbed the gun and his bag, told the young boys to watch his son, and left the apartment. He met up with Butler in the hallway, where Butler asked what happened to Petitioner’s dangling necklace and was told that Barber had broken it. Police quickly responded to Petitioner’s 911 call and, upon entering the apartment, found Barber sprawled across the bed, her arms over her head and a gunshot wound in her chest. Later that night, Petitioner emptied the rest of the bullets from the gun and threw them away.

When police stopped him outside of a 7-Eleven to question him about a theft that had recently occurred in the store, Petitioner handed over the gym bag containing the gun to a fifteen-year-old acquaintance for safekeeping, telling her “Here, take your bag with you.” After the police left, Petitioner retrieved the bag from the girl and then threw the gun down an elevator shaft. 10 The next day, Petitioner learned from the news that Barber was dead. Petitioner called his parents, who in turn called the police. The police arrested Petitioner that day. Petitioner was indicted on two counts: common law murder and the use of a handgun in the commission of a felony.

He elected a bench trial in the Circuit Court for Prince George’s County. The prosecution argued that Petitioner was guilty of premeditated murder. The defense countered that Petitioner never intended to kill Barber, and thus he was not guilty of first or second degree murder. It was the defense’s contention that Petitioner, at most, was guilty of involuntary manslaughter. ³²⁶ The Circuit Court acquitted Petitioner of first and second degree murder, but convicted him of voluntary manslaughter and the use of a handgun in the commission of a felony.

In pronouncing the verdict, the Court made the following findings of fact: In this case, the Court finds that the Defendant went to the apartment clearly at his own risk believing that there was some danger there that was going to be posed in all probability by a boyfriend. He, nevertheless, went with a loaded gun and a sidekick, I am sure, to back him up if he got into any problems with the boyfriend. He did not have that willful and deliberate intent specifically to kill Barber. The Court had an opportunity to observe Defendant on the witness stand.

Together with that observation, you have the fact of him calling 911 almost immediately. You can tell it was instantaneously just about from the records of the police dispatch. The Court heard the call and heard the voice of the Defendant then and heard him on the stand yesterday. Clearly he did not have an intent to kill Barber.

The third shot, however, is into her left hand. 11 His version is that she grabbed the gun and shot the first shot. Presumably that’s the one that went into the mattress. He got the gun from her and shot the second shot. Presumably that’s the one that went through the pillow.

The third shot went into her. He doesn’t remember pulling the trigger. He said it just simply went off. But it all came down because of an argument between the two over the breakup of their relationship, over whether or not the boyfriend had any control over his right to see and care for his son, and certainly over those chains again around their necks, and that in the heat of passion it reduces the murder from one to two manslaughter.

So I find him not guilty of murder in the first degree, not guilty of murder in the second degree but guilty of voluntary manslaughter. Because manslaughter at common law ³²⁷ is a felony, then as to the second count of use of a handgun, clearly this was a handgun, and clearly this was a handgun in the commission of a felony. That is a separate and distinct crime, and he is also guilty of that offense as well. Petitioner appealed the Circuit Court’s judgment to the Court of Special Appeals, arguing that he could not be guilty of voluntary manslaughter and the use of a handgun during a felony because he did not have the mens rea for the predicate felony.

Quoting the Circuit Court, Petitioner contended it would be inconsistent to find him guilty of these crimes when “[cjlearly he did not have an intent to kill Michelle.” On 27 December 1999, the intermediate appellate court affirmed Petitioner’s convictions. Although it agreed with the Circuit Court that Petitioner did not intend to kill Michelle, it reasoned: Appellant’s argument overlooks the fact that “there is a difference between the intent that will suffice to prove a consummated murder, and that which is required when death does not result.” State v. Earp, 319 Md. 156, 163 [ 571 A.2d 1227 ] (1990). Although specific intent to kill is required to support an attempted murder conviction, an intent to commit grievous bodily harm will support a murder or manslaughter conviction. Earp, at 163 [ 571 A.2d 1227 ], It is well settled that the trial judge is presumed to know the law.

Applying that presumption to the factual findings of the trial court, we are persuaded that appellant is not entitled to a reversal of his convictions. We granted certiorari on 12 April 2000. Petitioner argues that the trial court erred in convicting him of voluntary manslaughter and the use of a handgun in the commission of a felony after finding as fact that he did not intend to kill Barber. The State (Respondent) counters that Petitioner misconstrues the trial judge’s opinion, arguing that the verdict implies, with its language of mitigation, a finding by the Circuit Court of Petitioner’s intent to kill “in the heat of passion.” ³²⁸ II.

We are called upon in this case to answer three questions concerning whether the Circuit Court erred in convicting Petitioner of voluntary manslaughter and the use of a handgun in the commission of a felony. First, what was the breadth of the trial judge’s finding concerning Petitioner’s intent? Second, if the judge found that Petitioner did not intend to loll Barber, would there be sufficient evidence to support a conviction of voluntary manslaughter and the layered crime of the use of a handgun in the commission of a felony? Third, was the Court of Special Appeals correct in its apparent interpretation of and reliance on State v. Earp, 319 Md. 156 , 571 A.2d 1227 (1990), holding that an intent to commit grievous bodily harm would support Petitioner’s voluntary manslaughter conviction?

For the following reasons, we hold that the Circuit Court found that Petitioner lacked an intent to kill Barber, and that finding precluded him from being convicted of voluntary manslaughter and the use of a handgun during the commission of that felony on this record.

III

A. When an appellate court is asked to determine whether sufficient evidence exists to sustain a criminal conviction, it is not the function of the appellate court to review the record in such a way as essentially to retry the case. Rather, we must review the evidence in the light most favorable to the State. See State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336, 337 (1994); Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979). We must give due regard to the trial court’s findings of facts and its unique opportunity to observe and assess the credibility of witnesses.

See Albrecht, 336 Md. at 478 , 649 A.2d at 337 ; State v. Raines, 326 ³²⁹ Md. 582, 589, 606 A.2d 265, 268 (1992); Maryland Rule 8-131(c). 12 B. With respect to the first inquiry, the parties dispute whether the Circuit Court found as fact that Petitioner possessed the required mens rea — an intent to kill — for a conviction of voluntary manslaughter. Petitioner argues that the Circuit Court clearly found that, based on the record evidence, Petitioner did not intend to kill Barber at any time, including the firing of the fatal third gunshot. Respondent counters that, during the trial, the prosecutor argued that Petitioner was “spoiling for a fight” when he went to Barber’s apartment, possessing the specific intent to kill Barber and acting in a willful and premeditated manner. Respondent contends that the Court rejected the prosecutor’s argument regarding first degree murder and instead adopted its theory of mitigated homicide, finding Petitioner did not plan to kill Barber, but rather acted in the heat of passion when he fired the third gun shot.

Respondent infers from the Circuit Court’s mitigation of murder that the Court found an intent to kill in