State v. Earp

McAULIFFE, Judge. In this case we hold that an indispensable element of the crime of attempted murder is a specific intent to murder. We also hold that the trial judge did not abuse his discretion when he permitted testimony by witnesses who, prior to trial, had been shown a videotape recording of the victim’s deposition testimony. I. Facts This case grows out of a melee that occurred in Montgomery County on the evening of 31 October 1985.

The victim, Michael Dwayne Lawrence, was attending a Halloween party, together with more than 100 other people. When word spread that someone had been struck by a pick-up truck just outside the place where the party was being held, many of the persons in attendance, including Lawrence, went to the scene. ¹⁶⁰ Lawrence testified 1 to the subsequent events as follows. When he arrived outside, he observed 40 or 50 people engaged in fights. Other people were attacking the truck with sticks, pipes, and shovels, breaking the headlights and attempting to get to the two occupants.

Lawrence knew the passenger in the truck, and advised him to flee. Lawrence then questioned the driver, and upon learning that the driver had struck the pedestrian, Lawrence held him against the truck. At this point, while police officers were making their way through the crowd toward the truck, Randall Paul Earp grabbed Lawrence by the shoulder, attempted to hit the driver of the truck, and said, “let me have a piece of him.” Lawrence told Earp that only the police were “going to get something from him.” Earp responded with, “some slang words” and said, “well, I’ll take a piece of you.” Lawrence then felt a punch in his back, and looking over his shoulder saw a knife handle protruding from his back. He felt the knife being pulled down and saw it being withdrawn.

Earp then lunged at Lawrence a second time, and as Lawrence was attempting to defend himself, he was cut on the thumb. Lawrence said Earp attempted “about 10 to 15 slices,” but Lawrence was able to block most of them. Earp ran when the police officers reached the truck. Other witnesses confirmed the attack by Earp on Lawrence, and. the essential nature of the conversation between them.

One witness described the knife used by Earp as a “Buck 110,” having a blade three to four inches long. A doctor who treated Lawrence at the hospital described the stab wounds to the right shoulder and left thumb. He said the shoulder wound was three centimeters long and six centimeters deep, and that only the protection afforded by the shoulder blade had prevented deeper penetration. The doctor further testified that if the stab wound had extended into the chest cavity, it would have created a potential for ¹⁶¹ hemorrhaging which, if not stanched, could have been fatal.

The wounds actually incurred were not life threatening. Earp was indicted on charges of attempted murder in the first and second degrees; assault with intent to murder; assault with intent to maim, disfigure, or disable; and battery. His first trial in the Circuit Court for Montgomery County ended in a mistrial when the jurors were unable to agree on a verdict. Earp then waived his right to trial by jury, and was re-tried before Judge Paul H. Weinstein.

The State elected to proceed only on the counts charging attempted murder and assault with intent to maim, disfigure, or disable, and entered a nolle prosequi to the remaining counts. Judge Weinstein found Earp guilty of attempted murder in the second degree and assault with intent to maim, and imposed concurrent sentences of imprisonment of 25 years and 9 years respectively. Earp appealed to the Court of Special Appeals. That court reversed the conviction of attempted murder in the second degree, but affirmed the conviction of assault with intent to maim.

Earp v. State, 76 Md.App. 433 , 545 A.2d 698 (1988). We affirm that judgment.

II

The Intent Element of Attempted Murder Two questions arise concerning the element of intent in the attempted murder prosecution. First, what was the trial judge’s finding concerning Earp’s intent? Second, if the trial judge found an intent to inflict grievous bodily harm, but not an intent to murder, would that be sufficient to support a finding of attempted murder in the second degree? With respect to the first question, we agree with the majority of the Court of Special Appeals panel that the trial judge grounded his decision upon a finding that Earp intended to inflict serious bodily harm, and that the trial judge did not find that Earp harbored an intent to murder. ¹⁶² The relevant colloquy between the attorneys and the trial judge, and the trial judge’s statements concerning the defendant’s involvement, are set forth in the opinion of the Court of Special Appeals, 76 Md.App. at 440-43 , 545 A.2d at 702-03 , and need not be repeated here.

We agree with the State that the evidence was sufficient to have permitted a finding of an intent to murder. We think it clear, however, that the trial judge did not make that finding, but instead concluded that Earp’s intention was only to inflict grievous bodily harm. Concerning the second question, we believe it is equally clear that the trial judge accepted the argument of the assistant state’s attorney that because an intent to inflict grievous bodily harm is one of the several malevolent states of mind that will support a conviction for murder in the second degree when death results, it should be sufficient to support a conviction of attempted murder in the second degree when the victim does not die. It is true that a specific intent to kill is not an indispensable element of murder in the second degree.

As we said in Ross v. State, 308 Md. 337, 340 , 519 A.2d 735 (1987): Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation. These qualifying malevolent states of mind are: 1) the intent to kill, 2) the intent to do grievous bodily harm, 3) the intent to do an act under circumstances manifesting extreme indifference to the value of human life (depraved heart), or 4) the intent to commit a dangerous felony. (Footnotes omitted). The question here is whether an intent to do grievous bodily harm, which satisfies the mens rea element in a consummated murder, suffices for a conviction of attempted murder when death does not result.

The crime of attempt consists of a specific intent to commit a particular offense coupled with some overt act in furtherance of the intent that goes beyond mere preparation. Bruce v. State, 317 Md. 642, 646 , 566 A.2d 103 (1989); ¹⁶³ State v. Wilson, 313 Md. 600, 604-05 , 546 A.2d 1041 (1988); Cox v. State, 311 Md. 326, 330 , 534 A.2d 1333 (1988); Young v. State, 303 Md. 298, 303-06 , 493 A.2d 352 (1985). One may be guilty of an attempted murder in the first or second degree, State v. Holmes, 310 Md. 260, 268 , 528 A.2d 1279 (1987), Hardy v. State, 301 Md. 124, 139-40 , 482 A.2d 474 (1984), or of an attempted voluntary manslaughter, Cox v. State, supra, 311 Md. at 334 , 534 A.2d 1333 . The specific intent that is required may be a “transferred” intent, that is, the mens rea of a defendant as to his intended victim will be transferred to an unintended victim who suffers injury as a result of the defendant’s attempt.

State v. Wilson, supra, 313 Md. at 609 , 546 A.2d 1041 . The specific intent required to prove an attempt is the intent to commit a particular crime, in this case murder. Accordingly, the required specific intent in the crime of attempted murder is a specific intent to murder. It must be kept in mind that an “intent to murder” is not the same as an “intent to kill.” The former includes the latter, but the reverse is not true. “Intent to kill” means just what the term suggests — one person intends to bring about the death of another.

The harboring of this intent may be entirely without culpability in the eyes of the law, as when a soldier intends to kill his adversary in time of war, or an innocent person intends to kill another to save himself from an unprovoked attempt on his life. Or, the harboring of the intent to kill may be culpable but mitigated, as where the intent to kill proceeds from a hot-blooded reaction to an adequate provocation. Or, the intent to kill may satisfy the mens rea element of murder or attempted murder, as when it exists in the absence of legally adequate justification, excuse, or mitigation. It is then, in the truest sense, an intent to murder.

Our cases have sometimes used the terms “intent to kill” and “intent to murder” interchangeably. In most instances, the meaning is clear and the mixing of terms ¹⁶⁴ poses no real possibility of misunderstanding. Where, for example, evidence fails to generate any question of justification, excuse or mitigation, both terms are used to reflect an intent to kill. A word of caution is in order, however, particularly in the matter of instructing juries.

A familiar instruction informs the jury that an intent to kill may be inferred from the use of a dangerous or deadly weapon directed at a vital part of the body. That is true; but if the jury is instructed that an intent to murder may be inferred from such use of a deadly weapon, the instruction may be erroneous. If the jury has been instructed that intent to murder means intent to kill plus the absence of justification, excuse or mitigation, which indeed it does, the jury might understand from the instruction that the absence of justification, excuse, or mitigation could be inferred from the use of a deadly weapon directed at a vital part of the body, and that is clearly incorrect. See Glenn v. State, 68 Md.App. 379, 404-05 , 511 A.2d 1110 , cert. denied, 307 Md. 599 , 516 A.2d 569 (1986).

The better practice, particularly in a case involving a legal issue of justification, excuse, or mitigation, would be to instruct the jury that the attempt must be accompanied by a specific intent to kill and must occur under circumstances that would not legally justify or excuse the killing or mitigate it to manslaughter if death should result. The State, although agreeing that an intent to murder may consist of an intent to kill and the absence of justification, excuse, or mitigation, argues that an intent to commit grievous bodily harm will serve as a substitute for an intent to kill, as it does in the case of second degree murder. We do not agree. We hold, instead, that where an attempted murder is charged, the State must show a specific intent to kill — an intent to commit grievous bodily harm will not suffice.

In addition, of course, the State must prove an attempt, and, where the evidence fairly generates the issue, the absence of justification, excuse, or mitigation. Our holding today is consistent with our determination in State v. Jenkins, 307 Md. 501, 510-15 , 515 A.2d 465 (1986), ¹⁶⁵ that a specific intent to murder is an indispensable element of the crime of assault with intent to murder. 2 We said in Jenkins that the clear language of the statute makes an intent to murder a critical element of that offense. Id. at 510 , 515 A.2d 465 . From what we have said of the common law of the offense of attempt, it is equally clear that an attempted murder is an attempt, manifested by an overt act, coupled with a specific intent to commit murder, i.e., an attempt with intent to murder.

The analysis of Jenkins therefore applies with equal force here, and we reach the same conclusion. Our holding on this point is in accordance with the nearly unanimous view of the authors of respected treatises in the criminal law field. One commentator suggests: Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. .Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life.

Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another). LaFave & Scott, Handbook on Criminal Law, § 59 (1972) (footnotes omitted) (emphasis supplied). See also 1 Bishop ¹⁶⁶ on Criminal Law, § 730 (9th ed. 1923) (“[t]o commit murder, one need not intend to take life; but to be guilty of an attempt to murder, he must so intend”); Clark & Marshall, A Treatise on the Law of Crimes, § 4.08 (7th ed. 1967) (“[t]o constitute an attempt to murder, specific intent to kill is necessary, and an intent to commit any other crime will not suffice”); Perkins & Boyce, Criminal Law, 637-38 (3rd ed. 1982) (“while a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill”); 1 Warren on Homicide, § 81 (permanent ed. 1939) (“to constitute an attempt to commit murder one must specifically contemplate taking someone’s life”); 4 Wharton’s Criminal Law, § 743 (14th ed. 1981) (“[although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill”). The overwhelming majority of state courts that have considered this issue also have reached the same conclusion.

See People v. Lee, 43 Cal.3d 666 , 238 Cal.Rptr. 406 , 738 P.2d 752, 754 (1987); People v. Harris, 72 Ill.2d 16 , 17 Ill.Dec. 838 , 377 N.E.2d 28, 31-33 (1978); Pearson v. State, 523 N.E.2d 747, 749 (Ind.1988); State v. Strother, 362 So.2d 508, 509 (La.1978); State v. Keefe, 553 A.2d 1253 (Me.1989); Com. v. Maloney, 399 Mass. 785 , 506 N.E.2d 1147, 1149 (1987); State v. Dahlstrom, 276 Minn. 301 , 150 N.W.2d 53, 58-59 (1967); Ramos v. State, 95 Nev. 251 , 592 P.2d 950, 951 (1979); State v. Lyerla, 424 N.W.2d 908, 912 (S.D.1988); State v. Maestas, 652 P.2d 903, 904-05 (Utah 1982); Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395, 398-99 (1935); State v. Schenk, 53 Wis.2d 327 , 193 N.W.2d 26, 29 (1972); Free v. State, 455 So.2d 137, 147 (Ala.Cr.App.1984); Huitt v. State, 678 P.2d 415, 419-20 (Alaska App.1984); Littles v. State, 384 So.2d 744 (Fla.App.1980); State v. Johnson, 103 N.M. 364