Thomas v. State

Moylan, J., delivered the opinion of the Court. A review of the convictions of the appellant, Donald Leroy Thomas, by a Montgomery County jury, presided over by Judge John F. McAuliffe, for D assault with intent to murder and 2) the use of a handgun to perpetrate a felony gives us the opportunity to assess the impact of Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), upon a jury instruction dealing exclusively with assault with intent to murder in a case where no actual homicide is involved. As we indicated in Part IIB of Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 , we will not read Mullaney v. Wilbur grudgingly and narrowly: “Although a very narrow reading of Mullaney v. Wilbur could conclude that it dealt only with instructions, in a jury trial, on the subject of the allocation of the burden of proof on the question of ‘heat of passion on sudden provocation’ in a case where the issue before the jury was whether a ⁴⁷ guilty verdict should be for murder or only for manslaughter, such would be a grudging and unduly restrictive reading of this groundbreaking decision. A fairer reading makes if clear that what is involved is the broader question of the allocation of the burden of persuasion where a wrongful allocation of that burden will operate to relieve the State of its obligation under the Due Process Clause, as interpreted by Winship, to prove each and every element of a criminal offense beyond a reasonable doubt.

This goes beyond the limited defense of mitigation and it goes beyond the limited confines of jury instructions.” The Facts in this Case At shortly before midnight on June 2, 1975, Gloria Jean Stewart, aged 29, was shot on an adjacent parking lot as she was leaving the American Legion Hall in Rockville. A bullet fractured a rib, damaged the liver and a kidney and fragments of it lodged against her spine. As a result, she is paralyzed from the vicinity of the navel downward. The appellant had known her for approximately ten years, had fathered a child by her, had lived with her some four years earlier and still visited her and her child.

He had visited her earlier on June 2. He testified as to having spoken with her earlier that very evening at the American Legion Hall. Gloria Stewart testified that on an occasion approximately one week earlier, the appellant had put a .25 calibre pistol to her head and indicated that he would kill her rather than see her with another man. Gloria Stewart herself testified that as she was approaching two friends on the parking lot, the appellant suddenly stepped out, announced, “I’ve got your ass now,” and fired at her from about twelve feet away as she stared him straight in the face.

Gerald Thomas, no relation to the appellant, was one of the friends whom Gloria Stewart was approaching. He testified that he saw the appellant, whom he knew, step out and fire at Gloria Stewart three times and then drive off. The appellant took the stand and flatly denied his criminal agency. He stated ⁴⁸ that he left the American Legion Hall well before midnight and went home to bed.

The Jury Charge Although for the future, several sentences could well be modified in the light of Mullaney v. Wilbur, the charge as a whole passed constitutional muster. It began: “Now, in the first count the defendant is charged with assault with intent to murder. The essence or the gist of this offense is the intent to murder, meaning simply, ladies and gentlemen, that if the intent had been carried out and the victim had, in fact, died, the resulting crime would be murder, either murder in the first degree or murder in the second degree. So that in order for there to be a conviction of the crime of assault with intent to murder, the State must show beyond a reasonable doubt that if that had resulted, it would have been at law either murder in the first degree or murder in the second degree.

Since that is so, I must briefly explain to you the crime of murder. Murder is the unlawful killing of a human being with malice aforethought. This malice may be either express or implied. The distinguishing characteristic of murder is this concept of malice aforethought.

But, ladies and gentlemen, this is a technical expression, and cannot be taken in the ordinary sense of the word ‘malice’, because as we use it in the law of murder it does not mean necessarily anger or hatred or ill will, but it includes an unlawful or wrongful motive or condition of mind. It means an act done intentionally without legal excuse.” (Emphasis supplied) To be absolutely correct, of course, malice should be more fully defined as “an act done intentionally without legal justification, excuse or mitigation.” In the full context of the whole instruction and in the factual posture of this case, it is ⁴⁹ clear that nothing hung on the technical precision of this definition. The charge went on: “So if you have an act done intentionally without legal excuse, you have malice within the meaning of this law; and that would apply to either murder in the first or second degree, and it is not essential for your consideration that I distinguish those. The other unlawful homicide in this state would be manslaughter, which does not involve the element of malice.

But as I have explained to you, in order for there to be assault with intent to murder, if the victim had died it would have to amount to either murder in the first degree or murder in the second degree. So this simply means this, if the victim in this particular case had died, would it have been murder in the first degree or second degree; and, of course, to determine that you have to determine whether assuming there had been a death, that the killing of the human being was unlawful and was with malice aforethought.” The important instruction in this case was that dealing with intent. The gist of this instruction was that an intent to do grievous bodily harm will sustain the conviction just as surely as an intent to kill: “As I have said, that malice can be either express or implied, and ‘malice’ means an act done intentionally and without legal excuse. By the statement that the malice can be either express or implied, we mean this: It would be express malice if there was an actual intent to cause the death of a person killed, or the death of some other person; whereas, malice would be implied when the act is willfully done, and the natural tendency of that act would be to cause death or grievous bodily harm, or when a deadly weapon is used, particularly when it is directed at a vital part of the body.

So when we speak of doing this unlawful act ⁵⁰ intentionally, and we speak of express malice, we are talking about the kind of a case where you would find from the evidence that there was an actual intent to cause the death of the person, but it is not necessary that you find that there was a specific intent to cause the death, because implied malice will also suffice for conviction, and ‘implied malice’ means that the act itself is willfully done, and the natural tendency of that act which is willfully done would be to cause death or grievous bodily harm; and, therefore, the aiming or directing a deadly weapon and discharging it when it is directed at a vital part of the body, the malice may be implied by the intentional doing of such an act. Let me read to you how that has been expressed in perhaps slightly different and probably more articulate words. A specific intent to murder is not a necessary element for conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm.

The essential distinction between murder and manslaughter is the presence or absence of malice, which is the intentional doing of a wrongful act to another without legal excuse or justification. The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body.” For two sentences, the instruction then flirts with disaster in a technically inaccurate statement about a presumption of malice. Since the “absence of mitigation” is a given fact, however, it cannot be that aspect of malice to which the presumption refers. Nor will the “intent” element of malice be presumed since the instruction as a whole makes it clear that the State must prove either an intent to kill or an intent to do grievous bodily harm.

Nor is the third aspect of malice — the absence of justification or excuse — a remotely material issue in the case. Even though the two sentences ⁵¹ that follow do no harm in this case, it is nonetheless clear that they are meaningless words: “The law presumes that in the absence of mitigation all homicides are committed with malice and constitute murder. This presumption also applies to cases of assault with intent to commit murder.” See Evans v. State, Part IIG. The charge goes