Warren v. State

Lowe, J., delivered the opinion of the Court. In the Chinese tradition, the legal aftermath of the Supreme Court’s ruling in Mullaney v. Wilbur, 421 U. S. 684 , 44 L.Ed.2d 508 (1975) would have entitled this year of our Lord to the epithet “The Year of the Mullaney” — at least in Maryland. Even after the all encompassing effort of Judge Moylan in Evans v. State, 28 Md. App. 640 , to meet all questions, prospectively and retrospectively, Evans itself has given birth already to legitimate issue, e.g., Burko v. State, 28 Md. App. 732 ; and issue of strained legitimacy, Horn v. State, 29 Md. App. 23 , and Dinkins v. State, 29 Md. App. 577 . From the progeny, Mary Washington Brown v. State, 29 Md. App. 1 , of such young parentage as Edward Evans, supra, all of whom were the issue of Garrell S. Mullaney, supra, we now have Morris Joseph Warren who invokes the message of his great grandsire, Mullaney v. Wilbur, to whom he traces a direct legal relation.

We foresee Mullaney as rivalling Abraham or Isaac as a “begetter” of issue at least by claim, if not of right. Appellant Warren was convicted by a jury in the Circuit Court for Calvert County of first degree murder, assault with intent to murder, attempted robbery with a deadly weapon, and use of a handgun during the commission of a crime of violence. The events giving rise to his convictions occurred on the night of September 9, 1973, when one person was killed and two others wounded as a result of shots fired during an attempted robbery at a 7-Eleven store in Cheverly, Maryland. On September 20, police officers searched appellant’s apartment and found a .38 caliber pistol which expert testimony at trial established could have fired the bullets found at the scene of the crime.

At the time of the search, appellant was arrested for armed robbery. On November 6, 1973, he signed a confession of his participation in the ⁵⁶³ attempted robbery, which statement was admitted into evidence at his trial. I At the conclusion of the trial, the judge instructed the jury with all the customary and compulsory rights of a defendant at trial including the presumption of innocence: “and that presumption continued with him at every stage of the proceedings until it is overcome by legal and competent evidence which satisfies you ladies and gentlemen beyond a reasonable doubt of the guilt of the accused.... [I]t is the State’s responsibility to bring before you a sufficient amount of legal and competent evidence to satisfy you beyond a reasonable doubt of the guilt of the accused.” After a full discussion of reasonable doubt and the need to find proof of every element of each crime charged, he then commenced his more specific instructions on the murder count, containing the language to which appellant objects. He said: “Each of these offenses has certain elements and each element must be proven or the defendant must be acquitted as to that offense.

The 1st Count in this Indictment charges the defendant with the murder of a man named Stevens. You will understand ladies and gentlemen that the law presumes all unlawful killing to be murder. Once the State has established an unlawful homicide, it is presumed to be murder. You are advised that the elements of Murder are the unlawful killing of another human being with malice.

Malice is an essential ingredient in Murder and it is inferred by you — you ladies and gentlemen may infer malice from the proof of an unlawful killing. ’’(Emphasis added). ⁵⁶⁴ The judge went on to instruct substantially upon the elements of felony murder. Never again did he allude to the general presumption that “an unlawful homicide ... is presumed to be murder,” traditionally (although we now know erroneously) given, with its misleading statutory foundation in Md. Code, Art. 27, § 411. The entire emphasis of his remaining murder instructions centered upon felony murder and the felony murder presumption. Commendably, he intentionally refused to give the canned murder instructions opening up possibilities of verdicts for which there was insufficient supporting evidence.

He explained to counsel at the bench after instructing the jury: “That’s why I didn’t instruct them on Manslaughter. As I indicated to you in Chambers when we discussed these instructions, I see the evidence in this case as supporting only instruction on Felony Murder[, i]f the robbery was found to be in progress or murder, if it was not[.] I see no line of evidence which would support an instruction for Manslaughter nor for the other kind of First Degree Murder. So I have instructed them deliberately and intentionally based on my view of the evidence that they may find him guilty of Felony Murder, if he was the criminal agent while the robbery was in progress or failing that they may find Murder. I did not give the instruction to Manslaughter.

There is no evidence to support it.” The trial judge is under no duty to instruct the jury as to the various lower grades or degrees unless there is some evidence tending to reduce the crime to one of the lower grades or degrees. Evans, supra, (IF) at 667. Appellant’s argument is brief but encompassing. Seemingly anticipating our holding in Brown, supra, that the Mullaney error might be cured by a first degree verdict, all that he contends is set forth in two sentences: “When the judge instructed the jury that malice could be presumed and that the defendant had ‘the ⁵⁶⁵ responsibility of going forward with the evidence/ he committed patent error.

Since the jury necessarily had to find malice before § 410 could be applied, the error was not harmless.” The reference to § 410 is intended to direct us to the felony-murder section of Md. Code, Art. 27: “All murder which shall be committed in the perpetration of, or attempt to perpetrate, any . . . robbery... shall be murder in the first degree.” Primarily because the statute begins “All murder”, rather than “All homicide”, appellant seems to say that before § 410 may be invoked, the killing must be raised to the murder level and that the jury could only do so through the instruction of which he now complains, i.e., “. .. that the law presumes all unlawful killing to be murder,” and “You . . . may infer malice from the proof of an unlawful killing.” Because appellant provides us with none of his reasoning, we presume he bases this upon that which Mullaney decried: that a necessary element of murder (malice) may not be presumed, thereby relieving the State from its burden of proof of every element of the crime, beyond a reasonable doubt. Re Winship, 397 U. S. 358 . Initially we remind appellant that while the statutory rule in § 410 speaks of all “murder” committed in the perpetration of a felony as being murder in the first degree, the common law felony-murder rule is that homicide, a killing, resulting from the perpetration (or attempted perpetration) of a felony is murder. Perkins on Criminal Law, Ch. 2 at 37, et seq.

(2nd ed.). The enactment of the statute did not abrogate the common law rule but supplemented it by graduating the punishment according to the circumstances of the crime: “At common law, a killing in the perpetration of a robbery was murder, regardless of intent. See Clark and Marshall, Crimes (4th ed.), sec. 245. As used in the statute, the ‘common law sense is left unimpaired; the measure of punishment only is ⁵⁶⁶ sought to be graduated according to the circumstances under which it was committed.’ Davis v. State, supra [ 39 Md. 355, 374 ].” Stansbury v. State, 218 Md. 255, 260 .

In Evans, supra, at 686 , n. 21B, Judge Moylan explained succinctly that: “It is sometimes falsely asserted that § § 408-410 constitute the felony-murder doctrine in Maryland. That is not true. The felony-murder doctrine (see Part HE 3 infra) is the common law rule — defining one of the at-least three varieties of ‘implied malice’ — which raises a homicide resulting from the perpetration or attempted perpetration of a felony to the murder level generally. It is only at that point, after the felony-murder rule has already operated, that § § 408-410 come into play to provide further that in the case of certain designated felonies, the already established murder shall be punished as murder in the first degree.

Only one state, incidentally — Ohio — fails to recognize the felony-murder doctrine. Moreland, Law of Homicide (1952), at 49. For good Maryland discussions of felony-murder, see Stansbury v. State, 218 Md. 255 , 146 A. 2d 17 , and Wood v. State, 191 Md. 658 , 62 A. 2d 576 .” It follows that since the State was required to prove beyond a reasonable doubt the underlying felony (or attempt thereat), it was not relieved of its constitutional burden under Mullaney v. Wilbur and Winship of proving every element of the crime beyond a reasonable doubt. The intent to perpetrate the robbery, which element the jury of necessity found in returning its verdict of attempted robbery, supplied the intent aspect of malice necessary to establish a felony-murder.

See Evans v. State, supra, (Part HE 3 c), at 697. The common law felony-murder rule does not substitute or transfer the elements of malice, Evans , (HE 2) at 686, nor does it permit malice to be “implied,” Evans , (HE 3 c) at 695. ⁵⁶⁷ “A jury may not be told that if it finds an intent to rape, rob, burglarize, etc., it may, but need not, find a resulting homicide to have been with malice. It is not the case that these mental states imply malice; it is rather the case that they are malice by definition. Since these mental states are today unequivocally a part of our substantive law on the mens rea of murder, they are unaffected by anything in Mullaney v. Wilbur. ” In Thomas v. State, 206 Md. 575, 581 , the Court of Appeals explained that it is unnecessary for the jury to consider further the question of malice when the killing occurs in the course of a robbery.

The reason for this is that the necessary “implied malice” has already been established. Thus, if the jury finds that combination of circumstances, (a robbery or attempted robbery from which a death ensued) there is no need to find any additional malice, nor is there need to rely on the erroneous presumption thereof. Furthermore, in so far as that instruction might have related to appellant’s burden to reduce the murder to manslaughter, it was academically in error but harmless beyond a reasonable doubt since there was no evidence 1 to generate an issue of mitigation. Brown v. State, supra, at 19.

Nor was there evidence of justification or excuse. “Erroneous instructions on non-issues are self-evidently immaterial.” Evans v. State, supra, (IF) at 665-69. There is also inferentially underlying our answer to appellant’s complaint the further question whether the statutory felony-murder rule is constitutionally affected by Mullaney . The instructions in that regard were in part as follows: “By Statute in this state, that is by a law enacted by the Legislature, any killing which occurs in the course of the perpetration of a felony is Murder in ⁵⁶⁸ the First Degree. You will hear this type of murder referred to as Felony Murder.

Now, you are advised that Robbery is a Felony in this State so that if you find from the evidence before you that a robbery was in progress or being perpetrated when the victim Stevens in this case was killed, whoever killed Stevens which would be equal to whoever participated in that robbery in which he was killed, all the parties involved in that robbery are guilty of Murder in the First Degree. Now, if you were to find from the facts in this case that no robbery was going on, then that rule does not apply and the elements of Murder would be left.” In Evans, supra, (HE 1) at 686, Judge Moylan concluded, after extensive reasoning, that the felony-murder statutes “are, therefore, not remotely affected by anything in Mullaney v. Wilbur. ” He reasoned that it is the mens rea, the malicious intent, which Mullaney forbids to be supplied by a burden-shifting presumption, rather than the actus reus, “the dreaded modality or means of the murder, which we have singled out for our gravest criminal sanction . ..” in our felony-murder statutes. That reasoning was equally applicable to the common law felony-murder rule which requires no intent to kill or injure. “Even without an intent to kill or injure, or an act done in wanton and wilful disregard of the obvious likelihood of causing such harm, homicide is murder if it falls within the scope of the felony-murder rule. The robber who kills the one he is attempting to rob is guilty of murder whether he intended any personal harm or not.” Perkins on Criminal Law, Ch. 2 at 37 (2nd ed.).

The erroneous portions of the instruction were harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254 ; Chapman v. California, 386 U. S. 18 , and substantive felony-murder rules are not affected by Mullaney v. Wilbur. ⁵⁶⁹ II Appellant also questions the validity of the search warrant on the ground that is was procured “on the basis of information supplied to a detective by an unidentified informant [and] no proffer as to the reliability of this informant was made at trial.” The affidavit upon which the search of Warren’s apartment was based 2 contains the following allegations: 1) That witnesses to a robbery and shooting at another 7-Eleven Store in the Washington area identified appellant as having fired the shots from a revolver, one of which struck a customer. An arrest warrant had been issued for appellant’s arrest in connection with this crime. 2) A recitation of the events leading up to appellant’s prosecution in the instant case, showed a similarity to the previous robbery. 3) Bullets recovered from both crime scenes were submitted to the F.B.I. for analysis and that “Mr. Seibert of the FBI lab reports that the bullets from the two offen[sic] were fired from a 38 caliber weapon of identical manufacture, with both samples having five lands and groves [sic] with right hand twists, and that the rifling on both