Pinkney v. State

Concurring Opinion by DAVIS, J. joined by BLOOM, THEODORE G., J. (retired, specially assigned).

I concur in the result reached by the majority only because I perceive no error of law in the charge to the jury or in the verdict rendered by the jury under Maryland law as presently constituted. I write separately, however, because, in my view, appellant’s conviction resulted from an obfuscation which has developed in the law between first degree and second degree murder and the likely failure of the jury to comprehend the concept that an intent to prevent the infant from crying is insufficient to sustain a verdict of murder in the first degree.

Six-month old Ta’mar Hamilton certainly deserved better. As the majority points out, his birth was premature, requiring medical assistance to facilitate breathing; he was treated with antibiotics for pneumonia when he was three months old; autopsy results revealed a healing rib fracture indicating injuries sustained prior to his fatal injuries; and the force employed in causing his ultimate death was so violent that it was the equivalent of that which occurs when one is thrown through the windshield in a car crash or falls from a third floor window. There was no serious contest, at trial, regard *344 ing criminal agency. It can be fairly said that appellant was not well served by his failure to be forthcoming and a defense strategy that, in hindsight, appears to have been, disingenuous and strained credulity.

To be sure, on the evidence presented, a finding of guilt of at least murder in the second degree and imposition of a severe sentence were clearly warranted in this case. Moreover, I recognize that, given the present state of Maryland law on felonious homicide, it was within the province of the jury, armed with the ability to consider inferences and the circumstances surrounding the death of young Ta’mar to conclude that, exasperated at his inability to force the young child to stop crying, he would kill young Ta’mar as the only means to achieve the desired end. The majority quotes from State v. Smith, 374 Md. 527 , 823 A.2d 664 (2003), No. 91, September Term, 2002 (filed May 9, 2003), in which the Court of Appeals observed that “the following cases further emphasize a trial judge’s or a jury’s ability to choose among differing inferences that might possibly be made from a factual situation and the deference we must give in that regard to the inferences a fact[ jfinder may draw.”

Consequently, absent clear error in its fact-finding, an appellate court is required, in deference to the fact finder, to accept those findings of fact. I wholeheartedly subscribe to the proposition espoused in Smith because it would be improper for this Court to engage in appellate fact-finding when a possible ultimate decision was, in fact, supported by evidence or inferences and circumstances properly deducible from that evidence. The majority opinion, with great clarity, makes the point.

All of the foregoing having been said, we must not lose sight of the principal focus in any criminal prosecution, i.e., the mens rea or mental state that determines the degree of culpability, except in those offenses as to which the requirement of proof of scienter is expressly obviated by statute. The heart-rending circumstances surrounding the short life and death of young Ta’mar have the tendency of causing the *345 jury to shift the focus from the culpability and accountability of the criminal agent to the well-settled inference that the fact finder may take into account the nature of the injuries in determining the intent of the actor.

Although the proceedings in the lower court may not have run afoul of Maryland law as presently constituted, the extent and heinous nature of the injuries would naturally tend to inflame the passions of the jury and permit it to discern intent solely from the evidence of those injuries, totally disregarding other circumstances consistent with the theory that appellant may have acted in a wild, frenetic state, rather than a state of mind which is rational, cool, and reflective. My second concern is that, on the facts of this case, the jury may have been confused in its deliberations, as a result of the emphasis on appellant’s stated goal, i.e., to make the infant stop crying, and thereby rendered a verdict of first degree murder without determining that appellant’s conduct was “willful” in the sense of intending to kill the child.

The expansive definition of the nature and character of the reflection of one who kills renders virtually all homicides, when there is any period of time prior to the killing, murder in the first degree in the absence of excuse, justification, or mitigating circumstances. With respect to the evidence of intent to kill, I am constrained to conclude that, because under Maryland law, intent may be inferred almost exclusively from the nature of the injuries inflicted, it was within the province of the jury in the case sub judice to return a verdict of murder in the first degree. A fully formed intent to kill and evidence of true reflection—that one made the decision (even in a split second) between the choice to kill or not to kill—in my view, are incompatible with circumstances which establish that the killer did not act rationally, i.e., he or she was robbed of his or her mental faculties such that he or she was incapable of forming the intent to kill.

The jurors, in the case at hand, deliberating under the current state of Maryland law, could properly find that appel *346 lant “reflected” even if they believed his actions were not the product of a rational thought process, i.e., appellant was robbed of the ability to form the requisite intent. Consequently, although the majority opinion accurately sets forth the law as presently constituted and the jury returned its verdict pursuant to the law as instructed, appellant’s conviction of first degree murder, in my judgment, resulted from the blurred demarcation between first and second degree murder which has developed in Maryland over the past three decades. Impulsive and rash behavior evidencing lack of ability to formulate the requisite specific intent should not be recognized as the basis for a conviction of murder in the first degree.

With respect to the extensive injuries sustained by Ta’mar, the majority opinion relies principally on Hounshell v. State, 61 Md.App. 364, 375 , 486 A.2d 789 (1985), in which the victim was strangled to death and Kier v. State, 216 Md. 513 , 140 A.2d 896 (1958), in which the Court of Appeals had characterized the victim as having been beaten in a “brutal manner” about the face and head with objects that indicated a protracted period during which the assault continued. Noting that the assailant had procured a butcher knife and plunged it twice into the body of the victim, the Court concluded, in Kier , that there was ample evidence to justify the jury in its conclusion that the action of the appellant was willful, deliberate, and premeditated. Kier , a bench trial, considered the proof of premeditation and deliberation in a case in which the victim had been found by her husband with many lacerations and bruises about her face, the back of her head, and other parts of her body. The most serious wounds, apparently inflicted by a butcher knife, were one in her throat and another in her chest extending some seven inches through the chest cavity to the heart.

Kier and Hounshell—as is true with virtually all of the cases cited by the majority—involve the slaying of victims wherein the nature of the injuries are not juxtaposed to *347 circumstances which are inconsistent. 1 Appellant, in his written submission to this Court, refers us to People v. Anderson, 70 Cal.2d 15 , 73 Cal.Rptr. 550 , 447 P.2d 942 (1968), in which the Supreme Court of California, discussing proof of the elements of first degree murder, concluded:

The type of evidence which this court found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (l)faets about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as “planning” activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing “was the result of pre-existing reflection” and “careful thought and weighing of considerations” rather than “mere unconsidered or rash impulse hastily executed”!;] (3) facts about the nature of the killing from which the jury could infer [The mjanner of killing was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s life in a particular way far a “reason” which the jury can reasonably infer from facts of type (1) or (2).

(Third emphasis added; citations omitted.)

More to the point, it is stated in the treatise of W. LaFave & A. Scott, Criminal Law § 7.7(a) at 645 (2d ed.1986), that “[t]he mere fact that the killing was attended by much violence or that a great many wounds were inflicted is not relevant in this regard [establishing premeditation], as such a killing is just as likely (or perhaps more likely) to have been on impulse.” The majority makes the point, citing Mitchell v. *348 State, 363 Md. 130 , 767 A.2d 844 (2001), that the test for first degree murder is not the quality or rationality of the reflection in determining deliberation and premeditation or whether it may have been emotionally based. The discussion in Mitchell centered on whether the elements of premeditation and deliberation were established by the agreement in a conspiracy to commit murder in the first degree as to the non-shooter. The Court of Appeals concluded:

We are unable to follow the metaphysical analysis of [United States v.] Chagra [, 807 F.2d 398 (5th Cir.1986)] or the intermediate appellate court in this case, that spontaneity or acting on impulse can, at the same time, suffice to establish an agreement to murder but not suffice to constitute the deliberation and premeditation that distinguishes first [degree murder] from this form of second degree murder, as we have defined those concepts.

Id. at 149, 767 A.2d 844 .

The cases cited by the majority for the proposition that appellant’s emotional state does not preclude a finding that he acted deliberately and with premeditation involve homicides in which the circumstances do not provide an alternative theory that not only is more plausible, but which, from the point of view of the lay jury, could reasonably have been endorsed by the State. In that regard, the State, in its closing argument said:

Now the last form of homicide that the judge instructed you on is first degree murder. It’s basically second degree murder with two additional elements], were the defendant’s actions deliberate and were they premeditated[?]

Deliberate means, was the defendant conscious of his intent to kill[?] Well let’s look at this [sic] actions, he had tried so many different things to get Ta’mar to stop crying and he couldn’t do it, and he was frustrated and he was tired. And he wanted to do something that would stop his crying. He didn’t do something that didn’t coincide with what his goals were. So he was conscious of his goal, his goal was to quiet the baby. So he took Baby Ta’mar and *349 slammed his head into a bed rail. He knew exactly what he was doing, he was conscious of his intent.

The last element is premeditation. Now people tend to think of premeditation as laying in wait, as plans that go in [sic] for weeks in advance, conspiracy, and all of those things are premeditation. But you don’t need time, a significant amount of time for premeditation. You don’t need a plan, you don’t write out a list [of] things to do. You just need a small amount of time so that you can make the decision whether or not to kill.

One, two, three, four. (Indicating.) Between any of those blows the defendant had the opportunity to decide, stop or continue. He chose to continue, he premeditated to kill Ta’mar Hamilton and intended to kill him.

Ladies and gentlemen, what this case really comes down to, the key issue of this case is did [appellant] kill Ta’mar Hamilton ....

At the in banc hearing before this Court, it was elicited that the prosecutor, at one point, argued to the jury that the evidence supported the State’s theory that it was appellant’s intent to kill young Ta’mar, rather than simply to stop him from crying. A review of the prosecutor’s argument reveals that its principal thrust was that appellant was attempting to stop the young child from crying and death ensued from acts that were wanton and demonstrated a disregard for human life. Such a finding would be quintessentially depraved heart second degree murder under Maryland law.

Judge Wilner, writing for the Court of Special Appeals in Simpkins v. State, 88 Md.App. 607, 611-12 , 596 A.2d 655 (1991) 2 (citing Robinson v. State, 307 Md. 738, 745 , 517 A.2d 94 (1986)), explained:

A depraved heart murder is often described as a wanton and wilful killing. The term “depraved heart” means something more than conduct amounting to a high or unreason *350 able risk to human life. The perpetrator must [or reasonably should] realize the risk his [or her] behavior has created to the extent that his [or her] conduct may be. termed wilful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

The Simpkins Court, discussing the element of intent, further explained:

But intent again will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act. The question then is, whether intent, in its turn, cannot be reduced to a lower term. Sir James Stephen’s statement shows that it can be, and that knowledge that the act will probably cause death, that is, foresight of the consequences of the act, is enough in murder as in tort.

Id. at 619, n. 1 , 596 A.2d 655 (quoting O. Holmes, The Common Law (1881) at 53).

The Simpkins Court traced the development of English and American decisions that involved the withholding of sustenance from, a young child and under what circumstances an intent may be found to elevate the offense from manslaughter to depraved heart second degree murder or first degree intent-to-kill murder. In the cases cited, when the actor intended the act, the natural consequences of which subjected the victim to a high or unreasonable risk to human life, although death was not intended, the cases generally hold that the defendant is guilty of depraved heart second degree murder. When the defendant intended for the withholding of sustenance to result in death, the offense committed is clearly first degree murder.

From the above, establishing that appellant intending for death to occur is indispensable to a finding of first degree murder. For that reason, emphasis should have been placed on the distinction between intending an act, the natural conse *351 quence of which involved a risk of death and intending that death occur as a means of causing young Ta’mar to stop crying, notwithstanding that the trial court properly instructed the jury that “willful means that the defendant actually intended to kill the victim.” Ordinarily, this instruction would have sufficed to inform the jury as to how to determine whether the evidence supported a finding of first degree murder.

The prosecutor, however, took great pains to make the point that appellant “wanted to do something that would stop his crying” and “he was conscious of his goal, his goal was to quiet the baby.” The prosecutor then told the jury that appellant “slammed Ta’mar’s head into the bed rail and that he knew exactly what he was doing, he was conscious of his intent.” At that point in the prosecutor’s argument, the intent to which she referred is to stop young Ta’mar from crying. The jury could have very easily been misled if it believed that appellant acted only with the intent to prevent young Ta’mar from crying, but that he did not intend for the baby to die. Under such circumstances, the appropriate verdict should have been depraved heart second degree murder.

It is certainly within the province of the jury to come to its own conclusions as to what the circumstances reveal about appellant’s mental state; however, the emphasis by the prosecutor on what appellant’s “goal” was enhances the likelihood that the jury was confused because, notwithstanding dissembling by appellant, there were no circumstances extrinsic to the criminal act itself that indicated that appellant wished the baby dead. The only motive ascribed to appellant is that he wanted the baby to stop crying. The possibility existed that appellant intended to kill the young victim as a means to prevent him from crying. The more plausible explanation, however, is that, in a frenetic state, appellant applied force with little thought of the consequences. Great pains, in my view, should have been taken when such emphasis was placed on stopping the baby from crying as the stated “goal” in order that it be crystal clear that the jury must find that the “goal” was to kill the infant, not merely to stop him from crying. It *352 was incumbent on the court to insure that there was no confusion as to the point.

As I have acknowledged, it was within the province of the jury, based on the evidence, direct and circumstantial, and inferences deducible therefrom, to conclude that appellant possibly intended to kill young Ta’mar. My concern is whether, in a case when there had been articulated (and the prosecutor had reinforced) an intent other than to kill the young child, the distinction between an intent to kill and the intentional commission of an act, the nature of which is likely to cause death, may very well have become blurred.

Judge Charles E. Moylan, Jr., formerly of this Court, in his treatise, Criminal Homicide Law, traces the definitions of “willful,” “deliberate,” and “premeditated” to Hochheimer who, in turn, based his definitions on the Pennsylvania Act of 1794 For “interpretive guidance,” according to Judge Moy-lan, Hochheimer looked to a single Pennsylvania decision, Commonwealth v. Drum, 58 Pa. 9 (1868). In delineating the distinction between first degree and second degree murder, the Drum decision concluded:

A learned judge (Judge Rush, in Commonwealth v. Richard Smith) has said: “It is equally true both in fact and from experience, that no time is too short for a wicked man to frame in his mind his scheme of murder, and to contrive the means of accomplishing it.” But this expression must be qualified, lest it mislead. It is true that such is the swiftness of human thought, that no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent; that to say, the fully formed purpose to kill, with so much time, for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind, fully and consciously, the inten *353 tion to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and to premeditate.

Id. at 18 (footnote omitted).

The Drum decision, as is true with much of the scholarship regarding the law of first and second degree murder, discusses the time required for there to be the fully-formed purpose to kill and for deliberation and premeditation. In the case at hand, my position, unlike the dissent which focuses on the element of premeditation, is that the length of time, standing alone, should not be determinative of whether the jury could find from the facts and circumstances “the actual intent ... the fully formed purpose to kill.... ” An act evidencing a non-homicidal intent may be sustained over an extended period of time, despite the fact that it demonstrates a wanton disregard for human life. Appellant’s actions were more likely “the immediate offspring of rashness and impetuous temper, ...” and the mind has not “become fully conscious of its own design.” In other words, the instant case, I believe, is devoid of the qualitative, rather than the quantitative, element of reflection. Aside from the extensive injuries inflicted, all of the extrinsic circumstances tend to belie a contention that appellant harbored an intent to kill Ta’mar.

With respect to the requisite elements of first degree intent-to-kill murder, Judge Chasanow, writing for the Court of Appeals in Willey v. State, 328 Md. 126, 133 , 613 A.2d 956 (1992)(quoting Tichnell v. State, 287 Md. 695, 717-18 , 415 A.2d 830 (1980)), explained:

For a killing to be “wilful” there must be a specific purpose and intent to kill; to be “deliberate” there must be a full and conscious knowledge of the purpose to kill; and to be “premeditated” the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate. It is unnecessary that the deliberation or premeditation shall have existed for any particular length of time.

*354 In discussing a homicide scheme 3 similar to that in Maryland, Leo Romero at 18 N.M. L.Rev. 73 (1988), observed at 74:

An intentional homicide includes only those killings where the actor desires the death of another human being; it does not include a hilling where the actor acts intentionally but without the purpose of bringing about death. For example, a person who intentionally shoots at the victim to scare him [or her], but without intending the result of death, does not commit an intentional homicide if the discharge should hit the victim and the victim should die. Even though the act causing death, the shooting, was intentional, the killing amounts to an unintentional homicide because the person did not intend the consequence of death. Hence, it is important to distinguish between intentional shooting and intentional killing.

(Footnotes omitted.)

The author speaks to a further concern presented by the case at bar:

... The more reprehensible the homicide, the greater the punishment the killing should warrant. The grading of *355 homicides on the basis of relative seriousness also reflects differences in stigma and moral wrongdoing.

Although all homicides are in some sense different, the division of homicides into categories should be based on principled, clear, and workable distinctions. Distinctions are principled in the sense that first degree murder includes killings that are more heinous than those killings encompassed by second degree murder. Distinctions are clear to the extent that they meaningfully differentiate the two degrees of murder; for example the line between murder in the first degree and murder in the second degree should be clearly recognizable. Finally, distinctions are workable if the lines between the different classifications are understandable by a jury of lay people in applying the distinctions and determining the degree of homicide. Because the different classifications of homicides should reflect differences in culpability, culpability terms should he defined precisely to clarify the distinctions.

(Footnote omitted; emphasis added.)

The above quotation is clearly a plea for some sense of moral relativism in the law of homicide. Currently, one can act almost spontaneously in an emotional or frenzied state and nevertheless be subjected to a conviction for first degree murder based solely on a theoretical instantaneous period of reflection and the nature of the injuries inflicted. At the same time, one whose actions are more calculating may be deemed to be guilty only of second degree murder as a consequence of the number and nature of the injuries sustained.

Apropos the instant case, no difference in culpability or moral accountability is imputed to appellant, who admittedly committed a heinous act, than to one who commits a murder for hire or one who murders in the course of conducting a criminal enterprise. As despicable as appellant’s conduct was, it cannot be equated with that of a professional killer or, for that matter, one who conceives of a calculated scheme to *356 murder a child. 4

The majority dismisses appellant’s argument that no Maryland case in which an otherwise caring, responsible care giver has been convicted of the premeditated, deliberate first degree murder of a child when death resulted from a single incident. The majority notes that appellant cites three cases, Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999), Simpkins v. State, supra, and Duley v. State, 56 Md.App. 275 , 467 A.2d 776 (1983), as cases in which heinous injuries were suffered by the child victims, but in which the defendants were convicted of either second degree depraved heart murder or manslaughter. Because each case must be decided on its own facts, I do not accept appellant’s argument that reversal is warranted simply because there is a paucity of cases that are factually similar in which a first degree murder conviction was rendered. Often, it is the prosecutor’s office that decides to pursue only second degree depraved heart murder as the flagship count in the indictment.

Although the distinction between murder and manslaughter is generally discernible by a jury with the aid of instructions from the court, the distinction between second degree and first degree premeditated murder often confounds juries. As a result, a defendant is subject to the vagaries of the charging process as well as confusion by lay persons on the jury.

Judge Chasanow, writing for the Court of Appeals in Wil-ley, referred to the confusion resulting from the lack of clarity as to the definition of premeditation:

[I]t would be preferable, especially where the distinction is clearly at issue, for the trial court to emphasize that in order for the jury to conclude that the defendant premeditated the killing it must - find that the defendant had sufficient time to consider the decision whether or not to kill and weigh the reasons for or against such a choice. Movement in this direction would be consistent with the developing *357 trend of courts and commentators to focus more attention upon, and more clearly define, the distinct mental states involved in first versus second degree murder.

Willey, 328 Md. at 138 , 613 A.2d 956 (emphasis added).

Although I agree with the observation by the Willey Court that there needs to be greater clarity with respect to the distinct mental states involved in first versus second degree murder, my concern in the case sub judice does not pertain, principally, to whether there was sufficient time to premeditate but, rather, only whether the jury was confused as to the character of the reflection required and its mandate to return a first degree verdict only if it found from the evidence an intent to kill. I recognize that the time it took to inflict the injuries in this case is more than sufficient to satisfy the element of premeditation as to length of time. Whether the killing was deliberate is intertwined with the intent to kill because one certainly cannot be conscious of an intent to kill if there is no intent to kill. Thus, although the potential jury confusion to which I address my concern is the intent to kill, it logically follows that, if there is jury confusion as to the evidence of intent to kill, then there also can be no consciousness of that intent and, ergo, the killing cannot be deliberate.

Judge Moylan, writing for this Court, discusses the interrelationship of the requisite elements of first degree murder in Smith v. State, 41 Md.App. 277, 300 , 398 A.2d 426 (1979):

Do the three adjectives “wilful,” “deliberate” and “premeditated” describe three distinct aspects of the mental state we are searching for or are they, as a rhetorical device for purposes of emphasis, simply three synonyms for the same mental state? Do the second and third adjectives add anything whatsoever to the first? Can there be “a specific purpose and design to kill” without “a full and conscious knowledge of the purpose to kill”? How does one have purpose without being conscious of that purpose? To wit, can an act be “wilful” and not “deliberate”? By the same token, does the third adjective add anything to the second? *358 How can one be “deliberate” without having had “time enough to be deliberate”?

I acknowledge, as I must, that although the more plausible explanation for appellant’s actions is that, exacerbated and in a frenetic state, he engaged in conduct that evidenced a contemptuous disregard of the value of human life, the jury was entitled to find from the direct and circumstantial evidence and the inferences properly deducible therefrom that appellant employed lethal force to kill the infant as a means to stop him from crying. The potential for confusion by the jury, in my judgment, could only have been addressed by drawing its attention specifically to the fact that a mens rea simply bent on stopping the baby from crying is insufficient to sustain a conviction for murder in the first degree. As to punishment, a sentence of thirty years’ imprisonment, consecutive to the life imprisonment sentence for first degree murder, was imposed for child abuse. Had the jury returned a verdict of murder in the second degree, appellant’s exposure would have been in the aggregate, assuming consecutive sentences, sixty years’ imprisonment. The sentence for second degree murder would have differentiated appellant’s punishment from that reserved for killers who clearly intend to kill their victims pursuant to a discernible design.

. Appellant, as a step-grandfather caring for the infant for only two days over the Thanksgiving holiday, did not seek to absolve himself of the long-term care of the child, a circumstance which undermines the theory he wanted the child dead.

. I recognize that the conduct in Simpkins was based on neglect; however, the decision contains an in-depth discussion of “intent.”

. The New Mexico statute provides:

A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:

(1) by any kind of willful, deliberate and premeditated killing;

(2) in the commission of or attempt to commit any felony; or

(3) by any act greatly dangerous to tire lives of others, indicating a depraved mind regardless of human life.

Whoever commits murder in the first degree is guilty of a capital felony.

•B. Unless he [or she] is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he [or she] knows that such acts create a strong probability of death or great bodily harm to that individual or another.

Murder in the second degree is a lesser included offense of the crime of murder in the first degree.

Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being.

. Cf. State v. Smith, 322 S.C. 215 , 471 S.E.2d 462 (1995), in which the defendant, Susan Smith, ostensibly murdered two sons because she believed them to be obstacles to liaison with prospective suitor.