Smith v. State

BLOOM, Judge. A Baltimore County jury convicted appellant, Merlin Sherrill Smith, of assault with intent to murder, shooting with intent to disable, unlawful use of a handgun in the commission of a felony, unlawful carrying of a handgun, and assault. The conviction for assault was merged into the conviction of assault with intent to murder. He received a sentence of 25 years for the assault with intent to murder, imposed under Maryland’s Subsequent Offender Law, Md.Ann.Code art. 27, section 643B, and concurrent sentences of five years for each of the other convictions.

We will reverse as to the convictions for assault with intent to murder, shooting with intent to disable, and use of handgun in the commission of a crime of violence, but affirm as to the other convictions. ¹¹⁷ Facts At approximately 2:00 a.m. on June 20, 1985, Kenneth Munshower was shot while carrying a six-pack of beer to a car in the parking lot of his employer, the Seagull Inn. Witnesses to the incident identified appellant, Merlin Sherrill Smith, as the assailant. Testimony at trial indicated that Smith approached Munshower and demanded the beer, asserting that Munshower had purchased it on Smith’s behalf. When Munshower refused to hand over the beer, Smith produced a handgun and shot Munshower in the head.

Appellant’s counsel requested the court to give the jury an instruction concerning the effect of voluntary intoxication on the ability of the accused to form the necessary mens rea to commit the specific intent crimes with which he was charged. The court refused to do so, finding there was insufficient evidence of intoxication to warrant the requested instruction. Smith’s counsel also objected to certain remarks by the State’s Attorney during closing arguments. Issues Appellant raises the following issues: I. Whether there was sufficient evidence of intoxication to warrant the trial court to give a jury instruction concerning voluntary intoxication as a defense to the crime of assault with intent to murder?

II

Did the trial court err in failing to sustain defense objections to statements made by the prosecutor during closing argument to the effect that the prosecutor was not trying to “stick it to an innocent man” ?

III

Whether the State as a prerequisite to sentencing under Md.Ann.Code art. 27, § 643B has the burden of proving that appellant’s guilty pleas on two prior convictions were made freely and voluntarily? I Appellant argues that the evidence adduced at trial was sufficient to require the court to instruct the jury on volun ¹¹⁸ tary intoxication as a defense to the specific intent crime of assault with intent to murder. We agree. Although it has been stated that voluntary intoxication is no defense, Saldeveri v. State, 217 Md. 412 , 143 A.2d 70 (1958), Maryland has long recognized that voluntary drunkenness can negate the mens rea element of specific intent crimes.

See Spencer v. State, 69 Md. 28 , 13 A. 809 (1888). The Court of Appeals in State v. Gover, 267 Md. 602 , 298 A.2d 378 (1973), described the level of intoxication necessary to constitute a defense. After stating that the defendant “is criminally responsible so long as he retains control of his mental faculties sufficiently to appreciate what he is doing,” id. at 607 , 298 A.2d 378 (quoting Beall v. State, 203 Md. 380, 385-86 , 101 A.2d 233 (1953)), the Court concluded: The degree of intoxication which must be demonstrated to exonerate a defendant is great. Evidence of drunkenness which falls short of a proven incapacity in the accused to form the intent necessary to constitute the crime merely establishes that the mind was affected by drink so that he more readily gave way to some violent passion and does not rebut the presumption that a man intends the natural consequences of his act. 267 Md. at 607-08 , 298 A.2d 378 .

Dictum in Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982) implied that the circumstances in which voluntary intoxication negates mens rea are more narrow than the language of Gover indicates. Citing to Gover , in a footnote, the Court in Johnson stated that the degree of intoxication necessary to negate mens rea is “comparable with that degree of mental incapacity that will render a defendant legally insane.” Id. at 425 n. 10, 439 A.2d 542 . In Shell v. State, 307 Md. 46 , 512 A.2d 358 (1986), however, the Court expressly stated that Johnson was not intended to overrule Gover. Shell, at 64, n. 14, 512 A.2d 358.

Gover , therefore, continues to express the Court’s view of the degree of intoxication required to constitute a defense to a specific intent crime in Maryland. ¹¹⁹ A trial judge, when requested to do so, is obligated to instruct the jury on every essential point of law supported by the evidence. Waddell v. State, 65 Md.App. 606, 613 , 501 A.2d 865 (1985), cert. denied, 305 Md. 622 , 505 A.2d 1342 (1986); Tripp v. State, 36 Md.App. 459, 463 , 374 A.2d 384 , cert. denied, 281 Md. 745 (1977). We believe there is sufficient evidence, “if deemed weighty and credible by the trier of fact,” Fisher v. State, 28 Md.App. 243, 248-49 , 345 A.2d 110 (1975), cert. denied, 276 Md. 743 (1976), to support a finding that Smith was so inebriated at the time of the shooting that he was incapable of forming a specific intent to kill Mr. Munshower. Smith had consumed a large quantity of alcohol and drugs during the afternoon and evening prior to the shooting, which occurred around 2:00 a.m. on June 20, 1985.

Between 3:00 and 4:30 p.m. on June 19th, Smith ingested three beers, three shots of schnapps and six ten-milligram valium pills. He then traveled to his mother’s house where he consumed an additional two beers and three or four valium pills. Smith proceeded from his mother’s to a bar, the Main Event. Although there was no evidence as to what, if anything, Smith ingested at the bar, there is a reasonable inference that he consumed some additional inebriants, for it may be “presumed he saith not a pater noster” there. 1 In any event, there was direct evidence that Smith had at least ninety milligrams of valium, five beers and three shots of liquor over a relatively short period of time. ¹²⁰ Testimony concerning Smith’s demeanor would also support a determination that he was highly intoxicated.

A person with whom Smith rode from the Main Event to the scene of the shooting described Smith as acting “strange,” “slurring,” “down, drunk, unbalanced when he was walking.” Moreover, the victim himself testified that Smith rendered his repeated demands for the beer in a “dull monotone” without raising his voice. This would appear to be a most unusual way for a person to make a demand of another. Smith’s girl friend testified that when he arrived at her house about 2:30 a.m. (a half hour after the shooting) he was “drunk,” “totally out of it,” and “falling in the doorway.” After she got him into bed, he passed out and slept six hours, after which he was taken to his mother’s house where he slept until 11:00 p.m.

Additional significant testimony shedding light on Smith’s state of consciousness at the time of the shooting concerns the manner in which he walked as he approached Munshower. Uncontroverted testimony disclosed that Smith had previously suffered an accident that caused him to walk with a definite limp and experience a great deal of difficulty