Tripp v. State

Moylan, J., delivered the opinion of the Court. Murder, which is unmitigated homicide, stands higher on the ladder of culpability than manslaughter, which is mitigated homicide. Because the negative element of non-mitigation is initially presumed, Evans v. State, 28 Md. App. 640, 722-730 , 349 A. 2d 300 , and need not be proved unless and until a genuine jury question as to mitigation has been raised, the State leaps at a bound to the murder plateau when it shows an intentional killing by the defendant. It does not pass upward through the manslaughter level; it rather leapfrogs the manslaughter level and is not obliged to go back for the “mop-up” operation of negating mitigation unless the defendant meets his production burden so as to necessitate the “mop-up.” The false assumption that the State passes upward through the manslaughter level, rather than initially bypassing that level, has engendered thousands of unnecessary digressions upon the law of manslaughter which are as utterly unrelated to the jury business at hand as would be a discussion of the causes of the War of the Spanish Succession.

We described the problem in Evans v. State, supra, at 28 Md. App. 665 : “As boiler-plate instructions have been handed down from judicial generation to judicial generation and solemnly intoned whether they have any bearing on the case then at bar or not, 9 there have been frequent occasions when erroneous jury instructions have been given but where the error has no conceivable relevance to any issue in the case. ⁴⁶² The appellant, Willie Tripp, observes that it has been the ingrained habit of many members of the judiciary, when instructing a jury on the subject of homicide, to catalog all the varieties thereof, defining each and setting out the penalty for each. That observed phenomenon, sadly to relate, is true; it is also unfortunate. Commendably, Judge Marshall A. Levin in the Criminal Court of Baltimore had the consummate wisdom and the intellectual boldness to decline so to clutter the minds of the fact finders with extraneous and irrelevant law. At the end of the case, the appellant timely requested an advisory instruction on the law of manslaughter.

Judge Levin declined to give it and told the jury simply that all unlawful homicide “is divided into two classes: murder and manslaughter. We are going to deal with murder only in these cases.” The appellant claims error. Our response to that non-instruction can be summed up in a single word, “Bravo!” The Gross Facts On October 12, 1974, the appellant went on a homicidal rampage at 1700 Guilford Avenue in Baltimore City with a .38 caliber revolver. He shot in the chest and killed 36-year-old Hazel Wilson, with whom he had been cohabiting over a two-year period until roughly one week before the killing.

The appellant also shot seven-year-old James Wilson, son of Hazel Wilson, twice in the head, killing him. He also shot eleven-year-old Deborah Brewer, niece of Hazel Wilson, once in the head, killing her. He also shot 62-year-old Sarah Brewer, mother of Hazel Wilson, several times in the head and face, killing her. He also shot eleven-year-old Derak Wilson, son of Hazel Wilson, once in the face, seriously wounding him.

There was no dispute as to the homicidal agency of the appellant — only as to his mens rea in two regards. The jury found the appellant to have ⁴⁶³ been sang at the time of the attacks, The jury found the appellant, guilty of four charges of murder In the first digne and of one charge of assault, with intent to murder, When Jury ImlnmUom tm Required The first of the appellant's contentions which w® shall discuss is hii claim that Judge Levin committed prejudicial error by declining to instruct the jury on the subject of manslaughter. Although we find no ultimate merit in the claim, we initially agree with the appellant that he is not foreclosed from raising it by anything in Dorsey v. State, 278 Md. 221 , 362 A. 2d 642 ; Dorsey and Wilson v. State, 29 Md. App. 97 , 349 A. 2d 414 ; or Evans v. State, 28 Md. App. 640, 658-662 , 349 A. 2d 300 . All of those cases dealt with the problem of the erroneous allocation of the burden of proof to the defendant on the subject of mitigation.

The appellant’s present claim is that the lack of any instruction at all as to manslaughter effectively precluded the jury from considering it, above and beyond any procedural question as to burdens of proof or allocations thereof. The present claim is substantive and not procedural. The appellant is, furthermore, correct in his preliminary assertion of law that a trial judge is obliged to instruct the jury on every essential point of law supported by the evidence when requested to do so by either side. Christensen v. State, 274 Md. 133, 139 , 333 A. 2d 45, 48 ; Mason v. State, 12 Md. App. 655, 661 , 280 A. 2d 753, 758 ; Gaskins v. State, 7 Md. App. 99, 105 , 253 A. 2d 759, 763 .

The chink in the appellant’s armor is the phrase “supported by the evidence.” When instructing on the law of homicide, as when instructing on any other part of the law, it is not only not required but it is, indeed, inappropriate to instruct upon a principle of law not suggested by the evidence in the case. We discussed this at great length in Evans v. State, at 28 Md. App. 665, 669 , and it is unnecessary here to replow that ground. See also Gilbert v. State, 36 Md. App. 196 , 373 A. 2d 311 (1977). The appellant urges that it is necessary to discuss manslaughter because it involves the same corpus delicti ⁴⁶⁴ and the same homicidal agency as are involved with the murder charge but simply a lesser degree of blameworthiness — a diminished mens rea.

This does not serve to relieve the appellant of the necessity that each principle of law to be discussed — even those involving a diminished mens rea for the same offense — must be supported by the evidence in the case. Intoxication, for instance, may serve to lower a homicidal mens rea from first degree to second degree, but no instruction should be given where the evidence is not legally sufficient to generate a genuine jury issue as to intoxication. Bateman v. State, 10 Md. App. 630 , 272 A. 2d 64 ; Mock v. State, 2 Md. App. 771 , 237 A. 2d 811 . Insanity would extinguish the mens rea completely but no instruction on that issue should be given, absent a genuine jury question.

Bremer v. State, 18 Md. App. 291, 315-316 , 307 A. 2d 503 ; Dennis v. State, 13 Md. App. 564, 569 , 284 A. 2d 256 ; Strawderman v. State, 4 Md. App. 689, 698 , 244 A. 2d 888 . Self-defense could extinguish the mens rea entirely but no instruction thereon is appropriate, absent the generation of a genuine jury issue. Street v. State, 26 Md. App. 336, 338-341 , 338 A. 2d 72 . Entrapment could extinguish a mens rea but no instruction thereon is appropriate, absent a genuine jury issue.

Fisher v. State, 28 Md. App. 243 , 345 A. 2d 110 . As to the quantum of evidence necessary to generate a jury issue, as a predicate for a requested instruction, Judge Powers cogently spelled it out in Fisher v. State, supra, at 28 Md. App. 248 -249: “It should here be emphasized that the defense of entrapment cannot be considered as ‘having been raised’ — that entrapment cannot become an issue for the trier of the facts — unless there is sufficient evidence which, if deemed weighty and credible by the trier of the facts, would support a finding that the police, directly or through their agent, induced the defendant to commit the offense charged. . . . The initial test of the evidence, within the framework of the substantive law of entrapment, is always a matter of law for the court.” ⁴⁶⁵ The notion that manslaughter needs to be defined in the abstract, absent any legally sufficient supporting evidence thereof, is preposterous. Manslaughter is not a monolith but an umbrella term embracing a broad miscellany of unlawful but non-murderous homicides.

In the abstract, should a jury be instructed as to involuntary manslaughter based upon gross negligence or as to voluntary manslaughter under extenuating circumstances? If the latter, should the theory of possible mitigation to be discussed be that of imperfect self-defense, that of imperfect duress, that of imperfect necessity, that of imperfect right to prevent a felony or that of provocation? If the latter, should the variety of provocation to be discussed be that based upon a battery, upon mutual combat, upon assault, upon illegal arrest, upon injury to close relatives or upon the sudden discovery of a spouse’s adultery? The very catalog of questions dictates the answer.

Absent a full semester to be devoted to the entire corpus of homicide law, instructions must be restricted to those legal principles supported by the evidence and therefore material to the case at hand. The Species of Extenuation Urged Herein In appellate brief and argument, though not in the trial evidence, the appellant has narrowed the focus of pertinent manslaughter relief. It is not involuntary manslaughter but voluntary manslaughter being urged by him. He narrows the focus further by claiming mitigation through hot-blooded response to legally adequate provocation.

The suggested form of the legally adequate provocation is strangely blurred but seems to bear an at least impressionistic resemblance to that involving the sudden discovery of a spouse in an act of adultery. We will now turn to an examination of whether the evidence supports the necessary elements for extenuation of this variety. The General Law as to Provocation In Whitehead v. State, 9 Md. App. 7, 10-11 , 262 A. 2d 316 , Judge Orth set out fully the elements of provocation: “[T]here may be a homicide which would otherwise be murder which is reduced to manslaughter by ⁴⁶⁶ circumstances of alleviation or mitigation. Such a ease is where the eireumstanees surrounding the homieide establish that it was provoked, Por the ‘Rule of Provocation’ to be invoked there are four requirements: (1) There must have been adequate provocation; (2) The killing must have been in the heat of passion; (8) It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; (4) There must have been a causal connection between the provocation, the passion, and the fatal act.” Against these bench marks, we will now measure the evidence at hand.

Extenuation Limited to the Kitting of Provocateurs Except for rare instances of “transferred intent,” where one aims at A, misses and hits B by mistake, a defendant seeking to extenuate an intentional killing upon the theory that he killed in hot-blooded rage brought on by the provocative acts of his victim is limited to those killings where the victim is the provocateur. In the present case, Hazel Wilson was the only victim arguably in that category. In no event could the killings of Hazel Wilson’s 62-year-old mother, her 11-year-old niece, her 7-year-old son nor the murderous wounding of her 11-year-old son be mitigated by even hot-blooded response to actions not of their doing. Even as the discussion moves forward in the case of Hazel Wilson, the other four convictions are factored out as objects of this contention.

In this regard, LaPave and Scott, Criminal Law (1972), is unequivocal, at 582: “More difficult is the situation in which A, actually and reasonably provoked by B, in his ⁴⁶⁷ passion strikes out at and kills C, known by A to be only an innocent bystander. The courts have quite consistently held that the killing of C does not qualify as manslaughter, apparently upon the assumption that a reasonable man would never be so greatly provoked as to strike out in blind anger at an innocent person.” And see Dow v. State, 77 Ark. 464 , 92 S. W. 28 (1906); State v. Vinso, 171 Mo. 576 , 71 S. W. 1034 (1903); White v. State, 44 Tex. Crim. 346 , 72 S. W. 173 (1902); Regina v. Scriva, [1951] Vict.L.R. 298 (not manslaughter where defendant saw his child hit by car, attempted to attack driver, and then turned on bystander who tried to stop him and killed bystander); Rex v. Simpson, 84 L.J.K.B. 1893, 31 T.L.R. 560 (Ct. Crim. App. 1915) (defendant-father’s child was sick; mother refused to come home; father in anger at mother killed child; held, murder, not voluntary manslaughter).

Perkins, Criminal Law (Second Ed., 1969), makes the same point, at 69: “Additional light may be thrown upon this subject by reference to an exceptional situation. If one who has received adequate provocation is so enraged that he intentionally vents his wrath upon an innocent bystander, causing his death, he will be guilty of murder; but if his deadly force was directed at the provoker and hit the other by accident, or if as a reasonable mistake of fact he thought the provocative act had been perpetrated by the deceased, he is guilty of manslaughter only, if he otherwise meets the requirements of the rule of provocation.” Provocation in the Case of Hazel Wilson The appellant is in deep trouble when it comes to the legal sufficiency of the evidence to establish the elements of provocation. There must, of course, bo established all of the elements. We conclude that the appellant failed to establish ⁴⁶⁸ at least three of the necessary four elements.

Taking the evidence in the light most favorable to the appellant, with all inferences that fairly can be drawn therefrom, he may arguably have a jury issue with respect to the fourth element: “(4) There must have been a causal connection between the provocation, the passion, and the fatal act.” The story that emerges, from the testimony of the 11-year-old boy who lived and from the testimony of a neighboring minister who had but scant knowledge, is at best a surrealistic blur. It appeared that the appellant had been living with Hazel Wilson and her two sons for approximately two years, the last two months of which had been in the second-floor apartment at 1700 Guilford Avenue. When she would go out drinking or would make periodic visits to her former husband (or actual legal husband, for all we know), the appellant would be afflicted by fits of jealousy. He would beat Hazel Wilson.

One week before the killings, the minister observed the appellant, gun in hand, dragging Hazel Wilson along. Six days before the murders, he came to the minister’s church, where Hazel Wilson was then visiting, also with a gun in his hand. Events reached a critical impasse on the Tuesday, four days before the killings, when Hazel Wilson and her sons moved downstairs to the first-floor apartment and moved in with Hazel Wilson’s mother. Arguments and efforts to get Hazel Wilson to return to the apartment with the appellant continued sporadically throughout the final week.

From this, it might fairly be inferred that the actions of Hazel Wilson 1) in going out and drinking, 2) in visiting periodically her husband (or ex-husband) and 3) in moving out of the second-floor apartment had provoked a passion in the appellant and that that passion was the effective cause of his decision to kill Hazel Wilson. This, however, is but one of four constituent elements, all of which must be present for legally recognizable provocation. ⁴⁶⁹ We turn our attention to the second necessary element: “(2) The killing must have been in the heat of passion.” This is the subjective question of whether a particular defendant was actually in the heat of passion when he killed. (The objective, or reasonable man, question will constitute the next element to be considered.) All of the evidence in the case, clearly and decisively, indicated that the appellant was not in the heat of passion when he killed. At least a week had elapsed since the onset of domestic argument with Hazel Wilson.

Four days had elapsed since she moved downstairs. Several hours before the killing, he utilized a ruse, directed toward Hazel Wilson’s mother, in order to gain entrance to the downstairs apartment and particularly to the basement, where he manipulated in some fashion the lock to the basement door. After killing Hazel Wilson, he attempted to lure the other members of the family out of hiding in what inferentially appeared to be an effort to kill all witnesses to his first killing. The gun that he used was never recovered.

He wore gloves at the time of the killing. He was seen by one witness in a West North Avenue grocery store less than an hour after the killing, blithely buying groceries. When he returned to the crime scene between one and one-half and two hours after the killings, he approached, with groceries in hand, feigning total ignorance of and surprise at the situation he there found. Counterbalancing this evidence of actual, cool deliberation is not one shred of evidence indicating hot-blooded fury.

In this case, the only available source of such evidence, the appellant himself, chose not to testify in this regard. We feel in this case as we did in Bartram v. State, 33 Md. App. 115, 175 , 364 A. 2d 1119 : “The blood, however, must indeed be hot and, generally speaking, only the hot-blooded killer can attest to that.” We discern no legally sufficient evidence to establish that the appellant here did actually kill while in the heat of passion. ⁴⁷⁰ The next element to be considered is the third: “(3) It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool.” This element is the objective counterpart of the preceding one. We were there concerned with the subjective question of whether this particular killer was still in the throes of actual hot-blooded passion. We are here concerned with the objective test of whether there had been a sufficient cooling time for the passions of an average and reasonable man to abate.

Deferring for the moment consideration of the inadequacy of the cause, the cause of the appellant’s distress was jealousy. Eleven-year-old Derak Wilson testified that the appellant had argued with Hazel Wilson over the fact that “she go out and get drinks” and that “she be talking to somebody else” regularly over an unspecified but significant period of time. The neighboring minister had overheard quarrels between the appellant and Hazel Wilson over a period measured at least in weeks, if not over the course of the several months that they had been living on Guilford Avenue. A major flare-up of this domestic unrest had occurred at least one week before the killings.

The situation had so deteriorated that Hazel Wilson moved out at least four days before the killings. We conclude that the evidence in this regard shows clearly and decisively that there was sufficient cooling time for the average and reasonable man to have his passions abate. The law in this respect was well stated in LaFave and Scott, Criminal Law, at 579: “Assuming that the victim’s conduct actually provokes, and reasonably provokes, the defendant into a passion which robs him of his normal capacity for self-control, there still remains a problem of reasonable time for the passion to subside whenever there is a time lag between provocation and infliction of the fatal wound. By the majority view, a provoked defendant cannot have his homicide reduced to voluntary ⁴⁷¹ manslaughter where the time elapsing between the provocation and the death blow is such that a reasonable man thus provoked would have cooled; and this is so even though the defendant, being slower to cool off than the ordinary person, has not in fact cooled off by the time he delivers the lethal blow.” Perkins, Criminal Law (Second Ed., 1969), spoke to the same principle of law, at 67: “This, like the adequacy of the provocation itself, is measured by an objective test.

Whether or not there was a reasonable opportunity for the passion to cool, depends upon whether or not, under all the circumstances of the particular case, there has been such a lapse of time since the provocation was received that the mind of the ordinary reasonable man would have cooled sufficiently so that action once more would be directed by reason rather than by passion. If such time has elapsed before the fatal act the slayer does not have the benefit of the rule of provocation even if his own mind is still inflamed by passion at the time of the killing. He is guilty of murder in such a case.” We were dealing with this very question when we held that a jury instruction on the subject of manslaughter was not required in Bartram v. State, supra. There, the act of provocation was legally adequate beyond dispute: the outraged wife literally observed her husband in an act of adultery before her very eyes.

There, the provoking act was rather clearly the effective cause of the killing. The fatal flaw, however, for purposes of invoking the law of provocation in that case, was the lapse of time involved between cause and effect. The law, in its wisdom, extenuates certain killings by lowering the degree of blameworthiness because it recognizes human frailty when one is in the clutches of blind and sudden fury. The long-smoldering grudge, by way of contrast, may be psychologically just as compelling a force as the sudden impulse but it, unlike the ⁴⁷² impulse, is a telltale characteristic of premeditation.

The law extenuates certain killings not simply because they have been provoked but because there has also been the lack of time between the provoking cause and the impulsive response to think about the consequences or the alternatives. In the case of the spontaneous explosion, reason has no opportunity to intervene; in the case of the “slow burn,” it has. We demand that it intervene whenever it can. In Bartram v. State, supra, we said, at 33 Md. App. 175 -176: “It is hornbook law that if one spouse discovers another in an unexpected act of adultery, a killing of spouse or paramour in hot-blooded fury may lower the blameworthiness from the murder level to the manslaughter level. ...

By an objective standard, moreover, the time frame must be close enough so that an average and reasonable man would not have had an adequate ‘cooling period’ for the first fury to abate. . . . . . . [I]n terms of the legal adequacy of the provocation, the discovery of adultery must be sudden and unexpected. . .. The law recognizes the human frailty of sudden fury. For the long-suffering spouse, the way out of the unbearable predicament must be the divorce court and not a bullet.” Even in the face of blazing jealousy, what is demanded of a spouse is, a fortiori, demanded of one who is not a spouse. The absolutely foreclosing aspect, as we consider the availability of the defense of provocation, is our evaluation of the first essential element of that defense: “(1) There must have been adequate provocation.” The appellant sets himself a difficult task in arguing now that the killing was the result of hot-blooded provocation; his trial position was that he was not the criminal agent at all, provoked or unprovoked.

We are asked to speculate as to both the provoking act and the resultant state of ⁴⁷³ provocation. We will, nevertheless, give the appellant the benefit in this regard of any inferences that may reasonably be drawn from the evidence. We begin with the proposition that there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law. Clark and Marshall, Law of Crimes (Sixth Wingersky Ed., 1958), describes the objective character of this test, at 621: “To reduce a homicide from murder to manslaughter, the provocation must be adequate in law, and to be so it must be so great as reasonably to excite passion and heat of blood.

Passion without adequate provocation is not enough. If a man unreasonably allows his passion to control his judgment, he is responsible to the full extent for the consequences of his acts. The line which