State v. Evans

Murphy, C. J., delivered the opinion of the Court. Appellant Evans was charged with murdering Alonzo ¹⁹⁹ Counts by stabbing him to death on June 20, 1974. 1 Testimony adduced at the trial before a jury established a pattern of angry and violent confrontations between Evans and Counts during the hours immediately preceding the homicide; the confrontations were broken by brief periods when the two men were out of contact with one another. There was evidence from which the jury could have concluded that Evans stabbed Counts without justification, excuse or legally adequate provocation. There was also evidence from which the jury could have concluded that Evans stabbed Counts in self-defense or in hot blocd in the course of mutual combat.

The court instructed the jury that the burden of proof was upon the State “to prove every element of the crimes charged”; it said that Evans was “presumed innocent until proven guilty beyond a reasonable doubt.” The court defined murder in the first and second degrees and manslaughter; it said that the essential distinction between murder and manslaughter was the presence or absence of malice. The court defined malice as “the intentional doing of a wrongful or illegal act to another without legal excuse or justification.” It instructed the jury that where the evidence proves beyond a reasonable doubt that the killing was done with malice, murder in the second degree had been proved. The court said that “[u]pon proof by the State of murder, without anything else, the presumption is that it is murder in the second degree.” The court instructed the jury that the State carried the burden of establishing the elements of willfulness, deliberation and premeditation in order to “raise the degree to murder in the first degree,” but that the accused had the burden of “showing the elements which would reduce the crime to manslaughter or which would make the homicide justifiable and excusable.” The court instructed the jury that the use of a deadly weapon “directed at a vital part of the body gives rise to the presumption that ²⁰⁰ malice existed.” It qualified that instruction by thereafter stating that “[i]n the absence of justification, excuse or some circumstance of mitigation,” malice could be inferred “where there is an intent to inflict great bodily harm or where one does the act, the natural tendency of which is to cause death or great bodily harm.” The court followed this instruction with the further statement that “[s]ince malice can be inferred from the act of directing a deadly weapon at a vital part of the body, the State was required to show nothing more to present a jury question as to murder in the second degree.” The court then fully instructed the jury on the law of self-defense; it said that the accused was entitled to acquittal if he established, by a preponderance of the evidence, that the killing was committed in self-defense. Evans did not except to the court’s instructions.

The jury found him guilty of murder in the second degree and he was sentenced to 10 years’ imprisonment. Evans appealed to the Court of Special Appeals, claiming that the jury instructions were defective, confusing, and misleading and, as such, constituted reversible error. While his appeal was pending, the Supreme Court, on June 9,1975, decided Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975). It held that a Maine jury instruction which required a defendant charged with murder to prove, by a preponderance of the evidence, that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter violated the rule of In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), that the due process clause of the fourteenth amendment requires the prosecution, to prove beyond a reasonable doubt, “every fact necessary to constitute the crime” with which a defendant is charged. 397 U. S. at 364 .

Relying upon Mullaney , Evans contended that since provocation was an issue in his case, the jury instructions were constitutionally defective in stating that he had the burden of showing the elements which would reduce the crime to manslaughter; in stating that the use of a deadly weapon directed at a vital part of the body gives rise to the presumption that malice existed; and in saying that the State was required to show ²⁰¹ nothing more to present a jury question as to murder in the second degree. Evans contended that under Mullaney the jury should have been told that it could not presume malice if it found the existence of mitigating circumstances; that it could not find him guilty of murder unless it was satisfied beyond a reasonable doubt that mitigating circumstances did not exist; and that there was no burden on his part to reduce the crime to manslaughter. The Court of Special Appeals, in a scholarly opinion by Judge Charles E. Moylan, Jr., in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), held that the court’s jury instructions violated the constitutional principles articulated in Mullaney . Although Evans did not except to the jury instructions, the Court of Special Appeals considered that “plain error” had been committed and agreed to consider the issues raised by Evans on the merits.

See Maryland Rule 756 g. The Court of Special Appeals carefully analyzed the Mullaney decision. It noted that Wilbur, the defendant, had been charged with murder in a state court in Maine. He claimed that he killed the victim in a frenzy provoked by the latter’s homosexual advances.

He contended that at most the homicide was manslaughter since it occurred in the heat of passion provoked by the homosexual assault. The trial court instructed the jury that under the law of Maine, an unlawful killing of a human being with malice aforethought constituted murder, while an unlawful killing in the heat of passion, on sudden provocation, without malice, constituted manslaughter. The court said that malice was an essential and indispensable element of the crime of murder, without which the crime would be manslaughter. It told the jury that the common elements of murder and manslaughter were that the homicide be unlawful, i.e., neither justifiable nor excusable, and that it be intentional; that the prosecution was required to prove these elements beyond a reasonable doubt; and only if they were so proved was the jury to consider the distinction between murder and manslaughter.

The court further instructed the jury that “if the prosecution established that the homicide was both intentional and \ ²⁰² unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation.” 421 U. S. at 686 . The court emphasized that malice aforethought and heat of passion on sudden provocation were inconsistent things; that by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter. The jury found Wilbur guilty of murder. On appeal, he argued that he had been denied due process of law because he was required to negate the element of malice by proving that he had acted in the heat of passion on sudden provocation.

He claimed that under Maine law malice aforethought was not only an essential element of murder,' but was the sole element distinguishing murder from manslaughter. He maintained that Winship required that the prosecution prove that element beyond a reasonable doubt, and that by permitting the jury to presume non-mitigation, the prosecution had been relieved of its burden under Winship to prove the existence of malice beyond a reasonable doubt. The Maine Supreme Court disagreed; it held that murder and manslaughter were not distinct crimes but rather different degrees of a single generic offense of felonious homicide. It said that the prosecution could constitutionally rest on a presumption of implied malice aforethought and require the defendant to prove that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter.

See State v. Wilbur, 278 A. 2d 139 (Me. 1971). In holding unconstitutional that part of the Maine law that required the defendant to establish, by a preponderance of the evidence, that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter, the Supreme Court said: “The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder — i.e., by life ²⁰³ imprisonment — unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years.” 421 U. S. at 691 . The Supreme Court then traced the development of the law relating to homicide for several centuries; noting that in the last fifty years the large majority of the states have required the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt, it said: “This historical review establishes two important points.

First, the fact at issue here — the presence or absence of the heat of passion on sudden provocation — has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact.” 421 U. S. at 696 . Rejecting the contention that the difficulty in negating an argument that the homicide was committed in the heat of passion justified placing the burden of proving this fact on the defendant, the Supreme Court said: “No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial.

But this is the traditional burden which our system of criminal justice deems essential.” 421U. S. at 701. The Court concluded by stating: “We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion ²⁰⁴ on sudden provocation when the issue is properly presented in a homicide case.” 421 U. S. at 704 . Following its analysis of Mullaney , the Court of Special Appeals concluded that it “dooms as unconstitutional any procedural device which 1) imposes upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime or 2) relieves the State of its burden of ultimate persuasion beyond a reasonable doubt as to any issue fairly in the case.” 28 Md. App. at 654 .

On the authority of Ivan V. v. City of New York, 407 U. S. 203 , 92 S. Ct. 1951 , 32 L.Ed.2d 659 (1972), which held that Winship was fully retroactive, the Court of Special Appeals held that Mullaney was also to be given complete retroactive effect. The Court of Special Appeals reversed Evans’ conviction for second degree murder and remanded the case for a new trial. It said that the issues of mitigation and self-defense had been properly generated by the evidence, and that the jury instructions given by the lower court violated the principles of Mullaney . It concluded: “.. . the jury instruction to the effect that malice might be presumed (including therein the presumption of non-mitigation) unconstitutionally relieved the State of its burden of proving the element of non-mitigation beyond a reasonable doubt.

When the instruction went further and placed an affirmative burden on the defendant to prove mitigation by a preponderance of the evidence, it aggravated what was already unconstitutional even without the aggravation. “. .. The jury instruction to the effect that malice might be presumed (including therein the presumption of non-justification and non-excuse) unconstitutionally relieved the State of its burden of negating justifiable or excusable self-defense beyond a reasonable doubt. The additional instruction placing an affirmative burden on the defendant to prove justification or excuse by a preponderance of the evidence simply aggravated ²⁰⁵ what was already unconstitutional even without the aggravation.” 28 Md. App. at 730-31 . We granted certiorari to consider the impact of Mullaney and Winship on the law of homicide in Maryland.

I One of the primary concerns of Mullaney and Winship was with “the societal interests in the reliability of jury verdicts” and those cases focused upon “the interests of both the State and the defendant as affected by the allocation of the burden of proof.” 421 U. S. at 699 . The Court noted in Mullaney that proving that the defendant did not act in the heat of passion on sudden provocation was similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. 421 U. S. at 702 . It said that where the defendant is required to prove a critical fact in dispute in a homicide case, the likelihood of an erroneous murder conviction was increased; it concluded under the particular facts in Mullaney that the State had “affirmatively shifted the burden of proof to the defendant,” 421 U. S. at 701 . We fully concur with the Court of Special Appeals that in view of Mullaney and Winship , the trial court’s instructions to the effect that malice could be presumed from pointing a deadly weapon at a vital part of the body unconstitutionally relieved the State of its burden of proving, beyond a reasonable doubt, the absence of mitigation where, as here, a jury had returned a conviction of murder in the second degree and the defense of provocation had been fairly raised by the evidence in the case.

While it may be proper to infer an intention to kill or to do grievous