Pinkney v. State

¶1For better or worse, bur law separates first degree murder from other killings based on the decision to kill in advance of the act. It is a separation for judges and lawyers to examine, understand, and explain to the jury. And when any evidence of first degree murder is presented, the trial judge, in the first instance, and as a matter of law, must determine whether the evidence could persuade a jury to convict. See Hebron v. State, 331 Md. 219, 232, 627 A.2d 1029 (1993). The judge cannot let a case go to the jury if there is only a morsel of evidence; there must be enough to allow a jury to jump the hurdle of reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury, on the other hand, is the sole judge of facts. Hebron, 331 Md. at *359233, 627 A.2d 1029. But just because juries have that power does not permit them to evaluate murders to determine which are the worst and then pick the degree of crime. This delegation of a judicial responsibility to a jury is exactly what the majority condones, and what causes me to dissent.

¶2First, let me make clear that I agree with the majority’s opinion concluding that Pinkney barely preserved the sufficiency issue. He was vague as to just how the State’s evidence failed. I also agree that we would be mistaken to use that shortcoming to evade deciding the important issue presented. Moreover, I understand that the State can prove all of the elements of first degree murder with circumstantial evidence, and I accept the majority’s definition of first degree murder. Lastly, I have no quarrel with the conclusion that sufficient evidence existed to show Pinkney was the perpetrator. My concern, instead, is that we have affirmed a conviction for first degree murder when there has been no showing, indeed, no real focus at trial, of Pinkney’s premeditation to commit the fatal acts.

¶3The tortuous history of the law of homicide in Maryland, and throughout the United States, can cause present day confusion and can lead to inconsistent application. This dissent is not the proper place to describe that history, or even to describe the apparent confusion.1 For my purposes, it is sufficient to work with accepted definitions of the crime:

*360For 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.

¶4Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830 (1980).

¶5To sustain a guilty verdict of first degree murder, there must be some evidence from which the jurors could have found beyond a reasonable doubt “the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose [wa]s not the immediate offspring of rashness and impetuous temper and that the mind ha[d] become fully conscious of its own design.” Chisley v. State, 202 Md. 87, 106, 95 A.2d 577 (1953) (citation omitted). The presence of deliberation and premeditation must be judged from the facts of each case because there is no particular length of time during which they “shall have been conceived or have existed.” Id.

¶6I agree that there was sufficient evidence to show Pinkney’s intent to kill; Ta’mar’s head injuries supply that. But the State produced nothing at trial to show that Pinkney’s mind had become “conscious of its own design,” that there was “a choice made as the result of thought.” See Chisley, 202 Md. at 106, 95 A.2d 577 (citation omitted). There is nothing in the record to show that there was deliberation for any period, long or short, any struggle, that is, between the intention to kill and the act.

¶7*361As Judge Rodowsky explained in Ferrell v. State, 304 Md. 679, 688, 500 A.2d 1050 (1985):

[U]nder the Maryland statute and this Court’s decisions premeditation is something more than forming an intent to kill____Professor Perkins goes so far as to say that “[t]he notion that a fully formed intent is always deliberate and premeditated, no matter how short the time between the first thought of the matter and the execution of the plan, is preposterous.”

¶8(Quoting Perkins, The Law of Homicide, 36 J.Crim. L. & Criminology 391, 449 (1946)); see also Willey v. State, 328 Md. 126, 613 A.2d 956 (1992) (upholding jury instruction distinguishing first and second degree murder and commenting “the judiciary would do well to clarify, rather than minimize, the existing distinctions between Maryland’s two degrees of intent-to-kill murder”).

¶9The State’s theory of the case at trial, as expressed in its closing argument, bears out the absence of premeditation. As the concurring opinion recognizes, the State proceeded on the implicit theory that the killing was of the depraved heart variety. Its approach was not that Pinkney planned the murder, or even thought about it in advance, but, rather, that he carried it out in a rage that burst forth from utter frustration. Essentially, the State asked the jury to return a verdict based upon facts that would support a depraved heart murder, as if those facts supported first degree murder.

¶10Pinkney, for his part, asserted a defense that he did not inflict the fatal injuries, not that he was guilty only of a lesser degree of homicide. That was certainly an understandable strategy. The double defense of having Pinkney maintain that he did not inflict the injuries, while simultaneously defending that he did not deliberate before inflicting the same injuries would not carry much chance of success with a jury. Each defense would weaken the other. Using the defense that someone else injured Ta’mar meant that he, like the State, did not inject an issue of premeditation into the case. Nonetheless, in affirming the conviction, the majority, working back*362wards and with hindsight, reads the record and declares that there was enough evidence to support a finding of first degree murder. I cannot agree.

¶11The majority, and to some degree the concurring opinion, relies upon the appellate review of the facts in Hounshell v. State, 61 Md.App. 364, 486 A.2d 789 (1985), in which the accused contended that the State’s evidence failed because there was nothing introduced to show the length of time it would take to strangle a victim. We held that the jury could understand what was involved in strangulation, and so it could find the time necessary to kill by strangulation was sufficient to show premeditation. Contra State v. Bingham, 105 Wash.2d 820, 719 P.2d 109, 114 (Wa.1986). Speaking for this Court, however, Judge Getty observed that “the autopsy report does not reflect that death resulted from a fracture or sudden blow to the throat.” Id. at 372, 719 P.2d 109. To hold that the time necessary to give a powerful destructive blow to an infant is equivalent to the time necessary to “kill by squeezing the throat so as to shut off the breath,” id.,wrongly expands first degree murder beyond its separate sphere.

¶12Even more misleading, the majority quotes Hounshellthat “the brutality of the murder act may, in and of itself, provide sufficient evidence to convict for first degree murder.” Maj. Op. at 32. But the killing in Hounshellrequired a concentrated effort by the murderer to create the brutality, so premeditation was clearly present. Read literally and independently of the facts in Hounshell, and applied reflexively in appeals of murder cases, the quotation may come to mean that any and all brutal killings qualify for first degree murder, with the brutality serving as a substitute for competent evidence of premeditation.

¶13So, too, in Fuller v. State, 45 Md.App. 414, 413 A.2d 277 (1980), we affirmed a husband’s first degree murder conviction for the stabbing death of his wife, and noted the particularly brutal nature of the crime. The multiple stab wounds in that case, however, which stretched the length and width of the victim’s body, showed a “protracted and brutal assault.” Id. *363at 420, 413 A.2d 277. Protracted means an extended period of time—time enough to deliberate and support a finding of premeditation. Ta’mar’s death is a tragedy; the injuries he suffered were horrific and brutal, but they do not show the kind of premeditation that the injuries in Hounshelland Fullerdid.

¶14The majority also draws a parallel between Pinkney’s two blows and the defendant in Tichnell, who fired two shots from a gun. Tichnell’s first degree conviction, however, did not rest only on the firing of the two shots, but on the circumstances surrounding his confrontation with arresting law enforcement. A shallow comparison of the two cases invites the use of acts that show an intent to kill as a substitute for proof that the defendant premeditated.

¶15Ultimately, the majority reiterates its deference for the jury function, and the concurrence is optimistic that, notwithstanding the very real problems with the evidence, the jury successfully waded through the confusion presented to it. I emphasize that the State must prove every element of a crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; see also Thomas v. State, 143 Md.App. 97, 121, 792 A.2d 368, cert. denied, 369 Md. 573, 801 A.2d 1033 (2002). Neither the trial judge, nor this Court, can ease this burden for the State.

¶16[T]he reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty.

¶17In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Moreover, the reasonable doubt standard is “more than simply a trial ritual.” Jackson, 443 U.S. at 316-17, 99 *364S.Ct. 2781. When a properly instructed jury in a state trial convicts, “even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt,” the conviction violates Fourteenth Amendment due process and cannot stand. Id. at 317-18, 99 S.Ct. 2781.

¶18We respected these constitutional principles in Rasnick v. State, 4 Md.App. 114, 241 A.2d 420 (1968), in which we reversed a first degree felony murder conviction because there was insufficient evidence of the underlying robbery. The State had put forth evidence that the victim yelled before his death, “He is robbing me.” Although we recognized the trial judge’s finding that the State’s evidence on this point was credible, we did not find the evidence sufficient to allow a jury to conclude that the robbery occurred. There was something to support the required element of robbery, but not enough to sustain a conviction, and we were careful to mark the distinction. We applied the same reasoning and review later in Robinson v. State, 5 Md.App. 723, 249 A.2d 504 (1969). See also William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515 (1991) (categorizing evidence into five “zones” of proof and analyzing the difference between a lack of evidence and the presentation of some evidence that is insufficient to meet the burden of proof).

¶19In the context of this case, the enumerated principles of law mean that the jury could not have found Pinkney guilty of premeditated murder if there was no evidence from which it could find, beyond a reasonable doubt, that he went through a thought process and chose to act with the intent to murder the baby. The majority would allow juries to take the evidence that supports an intent to kill and use that evidence, if it so wishes, to find premeditation, even though the evidence falls short of showing, as it must, that the defendant deliberated at all. Our law does not permit such a misuse of evidence, such an obscuring of the elements of a crime.

¶20Premeditation is by no means a simple concept. See J. Moylan, supra, at 54 (providing examples of “questionable *365circumstances,” in which premeditation and deliberation were found); Matthew A. Pauley, Murder By Premeditation, 36 Am.Crim. L.Rev. 145, 157 (1999) (discussing different approaches taken to defining and applying premeditation); Lee R. Russ, Modem Status of the Rules Requiring Malice “Aforethought,” “Deliberation,” or “Premeditation,” as Elements of Murder in the First Degree, 18 A.L.R.4th 961 (same). The majority opinion evades the concept of premeditation, at best, or misconstrues it, at worst. It leads us down a path of eliminating the distinction between first and second degree murder and having juries pick the degree as a means of increasing punishment. Indeed, with this decision, we have upheld a jury’s verdict of first degree murder without proof of the essential element of premeditation. We, in an overly deferential review, join the jury and the court below in a visceral resolve to punish severely the man accused of a disturbing and horrific crime.