text:
    JEFFREY AARON BURKO v. STATE OF MARYLAND
    [No. 278 (On Remand),
    September Term, 1973.]

      Decided November 26, 1975.

    The cause was argued before Moylan, Gilbert and Melvin, JJ.

      Karl G. Feissner, Assigned Public Defender, with whom were Feissner, Garrity, Levan & Schimel on the brief, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and William T. Wood, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Jeffrey Aaron Burko, was convicted by a Frederick County jury, presided over by Judge Samuel W. Barrick, of second-degree murder and of armed robbery. The trial had been removed to Frederick County from Montgomery County. In Burko v. State, 19 Md. App. 645, 313 A. 2d 864, we affirmed the convictions. A Petition for Writ of Certiorari was denied by the Court of Appeals. A Petition for Writ of Certiorari to the Supreme Court was granted, 45 L.Ed.2d 667 (1975), the judgment was vacated and the case was remanded to the Court of Appeals “for further consideration in light of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975).” The Court of Appeals, in turn, remanded the case to this Court for reconsideration in the light of Mullaney v. Wilbur. Supplemental briefs have been submitted by both parties and the case has been reargued with exclusive focus upon the applicability of Mullaney v. Wilbur. After searching reconsideration, we still affirm.

In Burko v. State, at 19 Md. App. 648-650, Judge Gilbert well summarized “the bizarre facts of this case”:

“Hahn’s shoe store was held up on the afternoon of March 9, 1972 by a lone gunman who, after taking a sum of money in excess of five hundred dollars ($500.00) from the cash register, compelled the employees of the store to get down on the floor. The gunman then fled. Immediately contiguous to Hahn’s is an alley, and the felon ran into that alley and disappeared. Within seconds a 1964 blue Rambler exited the alley. It was stopped by the police a short distance from the scene of the crime. The appellant was the driver of the Rambler. He was ordered from the car and frisked. The vehicle was searched for a weapon and the proceeds of the robbery, but neither was found. The glove compartment of the automobile was locked as was the trunk. The appellant denied ownership of the car and said that it belonged to a ‘Mr. Turner’. Appellant was given the warnings required by Miranda, v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In response to the police question as to what the appellant was doing in the rear of Hahn’s shoe store, he stated that he was on his way to J.C. Penney’s to seek employment. He said that he went to the parking lot in the rear of the Penney store. When he started to go, into the rear door of the store, he observed a sign which indicated that that entrance was for employees only. Appellant further stated that realizing the time of day and that he was required to meet his friend, Turner, some distance away, he got back into the car and was on his way to meet Turner when he was stopped by the police. The officers asked appellant for the registration card of the vehicle. The appellant responded that the registration card was locked in the glove compartment, and he did not have a key. The police, dissatisfied with appellant’s explanation of events, and fully cognizant that the permissive use of the vehicle by appellant had not been established, instructed the appellant to drive the car to the police station parking lot which was about one mile from the scene of the hold up. Upon arrival at the station house appellant was again given his Miranda warnings, and he waived the right to counsel. Appellant did, however, seek, and obtain permission to use the telephone to call Turner. In fact the call was placed for him through the police switchboard. There was no answer to appellant’s call to Turner for reasons hereinafter vividly clear.
One of the appellant’s interrogators went to the Rambler and again conducted a search of the car. The glove compartment and trunk were not searched. Thereafter, the vehicle was removed from the parking lot to the garage of the police building. Subsequently, Lieutenant Robertson, who was apparently puzzled by the failure of the police to find any evidence of the robbery in the car, inquired if anyone had checked the trunk. When the reply to that question was in the negative, the lieutenant and Officer Franklin Snider went to the car where a fourth search was commenced. The lieutenant and Snider entered the back seat of the vehicle and began to remove it when the lieutenant was suddenly shot in the head. A second shot narrowly missed Officer Snider. The gunman, whose body was subsequently extricated from the trunk, was Steven Van Turner. The appellant was still in the interrogation room. A police officer burst into the room and advised another officer that Lieutenant Robertson had just been shot and killed by a person who had been in the trunk of the Rambler. Upon overhearing this expletive, the appellant exclaimed, ‘Christ, if I knew he was going to shoot anybody I would have opened the trunk myself. I didn’t know he would shoot anyone; I didn’t want that Officer killed. I want to die. I wish I had been the one who was shot.’ ”

Motivated perhaps by the fact that the appellant was a principal only in the second degree who was not present during and may not have anticipated the actual killing of Lt. Robertson, the jury, as is always its prerogative, returned a legally illogical verdict of guilty of murder in the second degree, although the undisputed evidence clearly established, if it established any crime at all, a case of first-degree murder based upon the combination of the felony-murder doctrine and Article 27, § 410. The jury did, in its companion verdict, find the appellant guilty of armed robbery.

In affirming the establishment of the criminal agency of the appellant in our initial consideration of this case, we quoted extensively from Jeter v. State, 9 Md. App. 575, 267 A. 2d 319, aff'd 261 Md. 221, 274 A. 2d 337, a case in which the defendant, apprehended during the perpetration of a storehouse breaking, was already in police custody at the moment his yet unapprehended accomplice shot and killed a guard. We there held that the principal in the second degree was fully responsible for the actions of his accomplice while the underlying felony and the chain of circumstances it set in motion were still in progress. In applying the principle of Jeter to this case, we said, at 19 Md. App. 656-657:

“The testimony revealed that the appellant and Turner had been sharing a hotel room at the Parkside Hotel in the District of Columbia for a period of two or three weeks prior to the robbery. They were seen together by the hotel clerk on the day of the robbery. Appellant had been previously employed in a Hahn’s shoe store in Alexandria, Virginia. Turner committed the armed robbery of Hahn’s shoe store in Silver Spring, Maryland. When he fled from the store with gun in hand, he ran up an alley and disappeared from sight. Almost immediately thereafter a motor vehicle owned by Turner and driven by the appellant, exited that alley. Appellant, through subterfuge, misled the police into believing that he was on his way to meet Turner who was supposedly waiting some distance from the scene of the hold up. Moreover, appellant professed to attempt to place a telephone call from the police station to Turner. Turner, subsequently, from the trunk of the car, shot to death Lieutenant Robertson, and Turner was in turn shot to death while in the trunk of the car. Appellant, hearing of the shooting, exclaimed that had he known that Turner was going to kill somebody, he, appellant, would have opened the trunk himself.
We think that the facts of this case give rise to a clear inference that the appellant was a participant in the robbery of the store, knew Turner was armed and knew that revolvers, when used by robbers, are not just for the purpose of intimidating the victim into yielding their valuables, but are also utilized for the purpose of making good an escape even to the point of killing, if necessary. The appellant’s conduct following his detention by the police was all in furtherance of a plan to avoid, not only for himself, charges for the offense of robbery, but also to cover-up for Turner, whom he knew to be hidden in the trunk of the motor vehicle. The jury was entitled to find from the evidence presented to it that appellant was under the hope and expectation that Turner’s presence would not be detected, that the proceeds of the robbery and the weapon, consequently would not be found, and that both he and Turner would then eschew responsibility for their criminal act.”

The escape from and concealment of the armed robbery were still in progress (even in the unlikely forum of the police station) and the resulting murder was a natural and not-unforeseeable consequence thereof. Upon this reconsideration, it is not the criminal agency of the appellant which is in issue. The actions of the triggerman and accomplice, Turner, were attributable to the appellant.

With this background, we turn to the particular mens rea of the appellant and to the jury instructions bearing thereupon. We now examine those instructions in the light of Mullaney v. Wilbur. The instruction now under scrutiny was:

“Under the Maryland law all homicides are presumed to be murder in the second degree. This is the presumption under Maryland law, and it is the burden of the State to prove beyond a reasonable doubt that the homicide was, in fact, murder in the first degree. In other words, the presumption is in a homicide that it is murder in the second degree, and the State must prove, or has the burden of proving that the murder was actually murder in the first degree. . .Now by the same token, if you should find that there was an unlawful homicide, then the burden rests upon the Defendant not to satisfy you beyond a reasonable doubt but to a fair preponderance of the evidence that the killing happened under certain circumstances to reduce the homicide to manslaughter. In other words, the presumption, if you do find there is murder, it is murder in the second degree, . . .and the burden rests on the Defendant to show you that the homicide should be reduced to manslaughter, . . (Emphasis supplied)

As we analyzed at some length in Part IIG of Evans v. State, 28 Md. App. 640, 349 A. 2d 300, that instruction is now flatly unconstitutional in the light of Mullaney v. Wilbur. Notwithstanding that error, it was an error in a vacuum — a purely academic error — as far as this particular case is concerned. As we further analyzed in Evans (Part IF and Part IIH), Mullaney v. Wilbur will not be applied where “there was an erroneous allocation of the burden of persuasion on the questions of mitigation, justification or excuse but where they were not issues in the case.” We there concluded that “instructions need not and should not be given on particular defenses unless and until . . . a legitimate jury issue with respect to a particular defense” has been generated, either by the defense itself or by the evidence produced by the State. We further concluded, in Part IF of that opinion:

“When a defendant has then no right even to take an issue before the jury, any instruction on such an issue (erroneous or not) is more than he is entitled to. When any consideration of an issue by the fact finder (court or jury) would properly be totally foreclosed, the defendant cannot complain that the issue was submitted under an unduly heavy burden upon him, since he has, even in that event, received more than he deserved. To carry an undue burden of persuasion may be a critical handicap to one legitimately in a race; it is no handicap at all when one is not entitled to run in the race.”

After citing Maryland precedents in this regard in Street v. State, 26 Md. App. 336, 340-341, 338 A. 2d 72 (where an erroneous allocation of the burden of persuasion on the question of self-defense was held to be immaterial where no fair jury question had been generated as to self-defense), and O’Connor v. State, 234 Md. 459, 461, 199 A. 2d 807 (where an erroneous allocation of the burden of persuasion on the question of insanity was held to be immaterial where no fair jury question had been generated as to insanity), we concluded, “Erroneous instructions on non-issues are self-evidently immaterial.”

In this case, the appellant offered no defense whatsoever. Nothing in his statement to the police and nothing else in the State’s case remotely suggested, let alone generated a legitimate jury issue with respect to, any conceivable theory of mitigation cognizable at law. There was no arguable hot-blooded response to legally adequate provocation. Under the circumstances, the appellant was not entitled to any instruction on the subject of the provocation which might in other situations reduce murder to manslaughter. There was no evidence to support such an instruction and, under the circumstances, the academically incorrect instruction was palpably immaterial in this case.

The armed robbery conviction has traveled up to the Court of Appeals, up to the Supreme Court, back to the Court of Appeals, and back to us in tow with the murder conviction. Mullaney v. Wilbur had no conceivable bearing upon it. After all of its travels, the robbery conviction stands affirmed just as it did in Burko v. State, 19 Md. App. 645, 313 A. 2d 864(1974).

Judgments affirmed.

      Note: Certiorari denied, Court of Appeals of Maryland, July 15,1976.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    MARY WASHINGTON BROWN v. STATE OF MARYLAND
    [No. 120,
    September Term, 1975.]

      Decided November 26, 1975.

      The cause was argued before Gilbert, Davidson and Melvin, JJ.

      Joseph B. Harlan, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General with whom were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City, and Philip V. Tambnrelh, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Charlotte Lessem, a sixty-eight year old resident of North Carolina, was stabbed to death in the ladies’ rest room of the Greyhound Bus terminal in Baltimore City on January 19, 1974. Mary Washington Brown and Tina Louise Green were charged with the murder of Lessem and the attempted robbery of her. Tina Louise Green was tried separately from the appellant, Mary Washington Brown. She is not a party to this appeal. A jury in the Criminal Court of Baltimore, presided over by Judge John R. Hargrove, found appellant to be guilty of murder in the first degree. Appellant, following her being sentenced to life imprisonment, appealed to this Court.

Appellant mounts a nine-pronged attack upon the judgment of the trial court. She urges us to hold:

“I. The Trial Court erred to the irreparable prejudice of the Appellant by failing to strike the entire jury venire for the reason that they had previously been charged with respect to the law out of the presence of the Appellant.
II. The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the Appellant’s tennis shoe and blood stains thereon.
III. The Trial Court erred to the irreparable prejudice of the Appellant by failing to suppress the introduction of the blood seized from the person of the Appellant.
IV. The Trial Court erred to the irreparable prejudice of the Appellant by refusing to permit the Appellant to call an expert witness with respect to the photographic identification of a coat.
V. The Trial Court erred to the irreparable prejudice of the Appellant, by permitting Tina Green to testify for the State.
VI. The Trial Court erred to the irreparable prejudice of the Appellant by permitting the State to enter the State’s Exhibits. No. ■ 3, 4, 7, 9,10A, 10B, 14,15 and 16. .
VII. The Trial' Court erred to the irreparable prejudice of the Appellant by striking the entire testimony of the character witness of the Appellant.
VIII. The Trial Court erred to the irreparable prejudice of the Appellant by erroneously placing the burden on the Defendant to overcome the presumption of second degree murder in a wrongful death case.
IX. The Trial Court erred to the irreparable prejudice of the Appellant by failing to direct a verdict in favor of the Appellánt at the conclusion of the State’s case in chief and at the conclusion of the entire case.”

We shall discuss each of appellant’s contentions in the order in which she has advanced them.

I.

The Venire

The practice before the Supreme Bench of Baltimore City is to assemble newly called jurors in an orientation program where the jurors are informed by a judge of the meaning of certain words. To some, the words may be part of an entirely new vocabulary. They are told the definition of such terms as “probable cause”, “beyond a reasonable doubt”, and “preponderance of the evidence.” The judge who relates the meaning of those terms to the jurors does not advise the jurors how to apply them to particular or specific facts.

When the instant case was called to trial, appellant’s counsel moved to disqualify the entire prospective jury panel on the basis that they had been “charged” by a judge of the Supreme Bench at the orientation as to legal principles applicable in criminal trials. The appellant contended that the “charging” of the venire was a “critical stage” of the proceeding, thus requiring the appellant’s presence. Appellant reasons that inasmuch as she was not present during the “charge” and was not afforded an opportunity to submit requested instructions or interpose objections to the “charge”, the entire venire must be disqualified. She apparently believes that she should be tried before a jury that has not been “tainted” by the orientation program.

Appellant’s counsel argued to Judge Hargrove:

“. . . I ... repeat again, . . . [that] she will be judged by a jury that was instructed as to the law generally, all about it, in criminal cases as well as in civil cases, that the jury that she never even heard instructions to, had no opportunity to object to the instructions to the jury that were given by a judge sitting on the bench, a judge not even presiding in this trial, nor did she have á chance to put in her own prayers:”- ' •

The first hurdle that appellant must clear ifFordér to reach the substance of her assault on the Supreme Bench’s orientation procedure is whether that educational program is a “critical stage” of the criminal process.

We note that all prospective jurors in the courts of the Supreme Bench are apprised at orientation of some of the terms more frequently employed by counsel and judgfes. The orientation seems' to be a verbalizing of the content' of' the booklet prepared by the Circuit Administrative Judges of Maryland, entitled, “A Handbook for Petit Jurors” and presumably in use throughout the State, with the addition of some other terms and local practices. The orientation is not intended ás a substitute for the advisory instructions usually given to' a jury at the close of the evidence in a criminal case. The orientation of the entire panel of jurors that is used throughout the courts of Baltimore City cannot be miscast by appellant as a “critical stage”-'of" a criminal prosecution. ' ■ -

We know of ho statute,. rule of court, decision of the Supreme Court, the Court of Appeals of Maryland or of this Court that requires the presence' of the accused when an entire panel of prospective jurors is being advised of its duties, and responsibilities. Notwithstanding. appellant’s laborious efforts to analogize the case now before us to . . a lineup . identification after formal charges . . .” whereby “. .. a defendant. is permitted the presence of an attorney during a pre-trial, lineup even though the capacity of the attorney is limited solely' to that of being an observer,” we fail to see the analogy'. ' ':

Implicitly, appellant opts for a system whereby a jury which heard one criminal case would thereafter be excluded from, further jury service unless all. other defendants awaiting trial before the same panel of jurors-were present during the first trial in order that they might interpose exceptions to the judge’s advisory instructions and perhaps request additional instructions. Such a system is absolutely unworkable. Alternatively, what appellant urges upon us would ultimately lead to a juror’s serving in one criminal case and thereafter be forever disqualified.

Appellant’s definition of “critical stage”, requiring the presence of the accused, would, if adopted by the courts, create absolute chaos in the orderly administration of justice. We think appellant’s contention ingenuous and devoid of merit.

II

Suppression of the Shoe

The transcript of the suppression hearing reveals that Detective Walter T. Egger, then of the Homicide Division of the Baltimore City Police Department, was called to the scene of the slaying. The detective saw that there was a partial footprint in a pool of blood on the ladies’ rest room floor and what appeared to be blood smeared on a stairway wall and handrail, tie also observed that there were “. . . droplets of blood [on the floor] leading across the open hallway there in the bus station to the front door area.” He tracked the blood droplets to the 600 block of Howard Street, where, at the curb, the drops ceased to appear. A short time later he was called to the emergency room of Maryland General Hospital where he observed the appellant and another young woman. Detective Egger identified himself as a police officer, made a visual examination for blood stains on the clothing the two young women were wearing, and asked them to hold up their feet so that he could examine their shoe soles. The white tennis shoes worn by appellant were manufactured with “an insert” in the sole where there was a label, and blood was seen in the insert. The detective seized the shoes and informed appellant “. . . that she was going to be taken to the Police Department Headquarters, the Homicide Squad.”

Prior to the time that Detective Egger went to the hospital emergency room, he had obtained, at the scene of the crime, a description of two suspects. He testified:

“From my notes that I made on the scene I have ‘Suspects: Negro female, sixteen, checkfered] brown pants; Negro female, sixteen, yellow top, white jacket, fat.’ ”

Another description, slightly different, was received at the bus depot by Officer Robert L. Scott:

“Female Negro, fifteen to sixteen, five foot three, a hundred thirty pounds, brown checkered pants and white coat. The other female: Negro female, fifteen to sixteen, five foot three, a hundred and thirty pounds, had on green pants. . . .”

The description Officer Scott received was broadcast over the police radio network. Detective Egger readily admitted that appellant did not fit the height and weight portion of the broadcast description. He did state, however, that appellant “. . . fit the description that I [he] had received . ..” at the scene of the slaying. Egger said that appellant was wearing “... a white jacket and a yellow blouse.” The other “suspect” was wearing checkered pants.

The thrust of appellant’s argument in the trial court and here is that Detective Egger lacked probable cause to seize the blood stained tennis shoe. We do not see it that way. The Supreme Court in Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) stated:

“In dealing with the probable cause, however, as the very name implies, we deal v/ith probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” 338 U. S. at 175.

We have defined probable cause as a non-technical conception of a reasonable ground for belief of guilt requiring less evidence than would justify conviction, but more evidence than mere suspicion. Cuffia v. State, 14 Md. App. 521, 287 A. 2d 319 (1972); Cleveland v. State, 12 Md. App. 712, 280 A. 2d 520 (1971); Cleveland v. State, 8 Md. App. 204, 259 A. 2d 73 (1969). See also Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969); Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790 (1925); Edwardsen v. State, 243 Md. 131, 220 A. 2d 547 (1966).

The facts known to Detective Egger were that a woman had been slain, two young black women were seen leaving the site of the crime, one was wearing a yellow blouse and a white jacket, the other was wearing brown checkered pants, someone had been bleeding, someone had stepped into a pool of blood and there was a possibility that blood adhered to the shoe of that person. When appellant was observed at the hospital by the detective, she “fit” the description generally, if not specifically, of one of the two suspects. There was blood on the sole of her shoe. We think that knowledge on the part of Detective Egger to amount to more than mere suspicion even if we assume arguendo that it did not rise to the level of evidence that is sufficient to sustain a conviction. A warrantless arrest under Md. Ann. Code art. 27, § 594B (c) was justified by the facts known to the detective. Of course, once probable cause for the arrest was established the shoe was properly seized as evidence of the crime.

Ill

Seizure of Blood Sample

Pusuant to a seizure warrant issued by Judge James W. Murphy of the Supreme Bench of Baltimore City, the appellant was transported to the Maryland General Hospital where two vials of blood were extracted from her arm. See Robinson v. State, 18 Md. App. 678, 308 A. 2d 734 (1973). Appellant asseverates that because she was in custody and counsel had been appointed to represent her, “. . . she was entitled to be represented by counsel both at the proceeding in which the warrant was obtained and during the period of time when the blood was removed from her person.”

Appellant bottoms her assertion upon lack of probable cause for'the issuance of the warrant. She “reaffirms and realleges” her previous assertion' relative to lack of probable cause for'the arrest and further contends that the inclusion within the application for the warrant of the “confession” of Tina ' Green, renders the warrant defective. This is so, appellant' says/ because Tina Green’s statement is hearsay and, because Tina Green was by her own admission a “co-conspirator”, her statement “.. . should be viewed cautiously.” ■

The warrant and the procedure for withdrawing blood samples from the appellant for a comparison with blood found at the murder scene was in keeping with the strictures we set forth in Robinson v. State, supra. Appellant candidly admits that “. . . there exists no' case law [nor statute] directly on point in this State' granting the defendant a right to counsel to represent her during the application for a warrant of seizure of blood from her person and for an attorney to be present during said seizure.” There is no requirement that the accused’s attorney be present when application is made for a search warrant. If the warrant is in fact defective, an accused has recourse, not at the time of application for the warrant, nor at the time of its execution, but rather by way of a motidn to suppress the evidence. If the warrant is defective, for want of probable cause or otherwise, the evidence seized, in most instances, will be suppressed. The same is true if the warrant, while not defective, is unlawfully executed, such as where our holding in Robinson v. State, supra, is not followed.

The warrant- in this case was issued on probable cause which was demonstrated to the issuing judge by a recitation of the facts known to Detective Egger, as well- as a summary of the content of Tina Green’s statement to the police in which she told of her and appellant’s’ attempt to rob the decedent, an .ensuing struggle ■ between appellant and -the decedent, and the -stabbing of the decedent .by appellant. Tina Green’s statement was made at the time of her arrest. That- the seizure warrant was issued on the basis o.f what appellant perceives as “hearsay” does not undercut its being issued on probable cause. The rules of evidence do not apply to the issuance of search and seizure warrants.

IV

Expert Witness

Appellant maintains that she should have been allowed to call an expert witness to testify that the police mug shot, a black and white photograph, of the appellant wearing a jacket which appeared to Detective Egger to be white, was in fact not white at all. The underlying basis for the appellant’s seeking to call the witness was in order for her to demonstrate that the appellant was not wearing a white coat and, thus, show that Detective Egger was without probable cause to effect the arrest of appellant when she was observed by him in the emergency, .room at Maryland General Hospital. The record reveals that when Detective Egger was being examined by appellant’s cdunsel at-the suppression hearing, he was asked to state what color jacket the appellant was wearing. Egger replied, “white”. The mug shot was then shown to him and he was asked the color of the jacket as depicted by the photograph. He replied, “It was white.” The photograph was marked, at appellant’s request, for identification purposes only, and later introduced into evidence. Appellant sought permission to produce an expert witness who would testify from his examination of the photograph that the jacket worn by appellant was, in fact, not white. Judge Hargrove refused to allow the expert witness’s testimony declaring that the jacket itself was the best evidence and that the appellant possessed the right to produce other witnesses to testify that the jacket was, in fact, not white.

The general rule is that the allowance or disallowance of the testimony of expert witnesses is addressed to the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal unless such ruling is clearly erroneous or there has been a clear abuse of discretion. Spence v. Wiles, 255 Md. 98, 257 A. 2d 164 (1969); Dobson v. Mulcare, 26 Md. App. 699, 338 A. 2d 898 (1975); Murphy v. Bd. of County Comm’rs, 13 Md. App. 497, 284 A. 2d 261 (1971). While it is unclear from the record in this case what happened to the jacket, i.e., whether it was retained by the appellant or the State, we observe that if the State had the jacket, no subpoena duces tecum was issued by appellant for its production, nor was the State otherwise called upon to produce it. Further, we note, as did the trial judge, that other persons were available to the appellant to testify to the color of the jacket. Under the circumstances we see no abuse of discretion in Judge Hargrove's declining to allow appellant to call an expert witness to give his interpretation of the color of the jacket, as depicted by the black and white photograph.

V

Tina Green’s Testimony

Tina Green’s counsel was called as a witness for appellant. The attorney testified that Tina Green’s trial had ended in a mistrial and that counsel had requested Gwendolyn Felder, Green’s “classification officer or social worker” at the jail, to explain the nature of the plea bargain that counsel was endeavoring to enter into on behalf of Green. Ms. Felder subsequently telephoned Green’s attorney and advised the attorney that she had discussed the plea bargain in a meeting “ ‘... with the two girls,’ ” Green and the appellant. Green’s counsel “. .. expressed great shock that she [Ms. Felder] took this course.” On the basis of Ms. Felder’s speaking to both Green and appellant, appellant sought to preclude the testimony of Green. Appellant declared that her constitutional rights “.. . were violated by her being called into a meeting by a government official [Ms. Felder] was a witness who would testify against her when she was not represented by counsel.” Appellant asserts that the meeting with the city employed social worker was, specifically, a violation of her Miranda rights and, thus, Green’s testimony should have been excluded. While we agree with the appellant that the better course of conduct would have been for the social worker not to have interviewed Green and the appellant together for the purpose of explaining the plea bargain to Green, we fail to see how that interview proscribes Green’s testimony at the trial of the appellant. Green’s testimony was based upon the statement she gave to the police on the night of the slaying and not upon what may or may not have been said during the interview with the social worker. The social worker’s possible infringement upon appellant’s Miranda rights, occurring subsequent to the time that Green had made her statement to the police concerning her own and appellant’s involvement in the crime, does not retroactively vitiate Green’s prior statement nor prohibit Green from testifying relative to that statement at appellant’s trial.

VI

Evidentiary Rulings

Appellant claims that State’s Exhibit 3, a human blood stained, eight (8)-inch knife found at the scene of the slaying; Exhibit 4, a short knife recovered from behind the door in the ladies’ rest room where the decedent was found; Exhibit 7, a handbag; Exhibit 9, the victim’s eyeglasses upon which there were blood stains; Exhibit 10a, a photograph of coins that were discovered in the handbag; and Exhibit 10b, an envelope containing earrings that were in the handbag; should not have been admitted into evidence because all were irrelevant.

J. Wigmore, A Student’s Textbook of the Law of Evidence 36 (1935) defines “irrelevant” as meaning, in strictness, “. . . that the offered piece of evidence has no probative value. The rules of circumstantial evidence are what determine irrelevancy.”

1 F. Wharton, Criminal Evidence § 151 (13th ed. C. Torcia 1972) states substantially the same principle:

. . Any evidence which is helpful in getting at the truth of a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable.
“. . . Evidence will be excluded as irrelevant, then, when the fact which it would prove or disprove is not material to the prosecution or defense.”

, , This Court, in Parker v. State, 7 Md. App. 167, 189, 254 A. 2d 381, 393 (1969) said:

“It is established that only the probability of connection with the accused or the crime is required for the admission of evidence. Lack of positive identification goes to the weight of the evidence not to its admissibility.”

The testimony in the instant case manifests that the eight (8)-inch knife was found at the murder scene; the knife contained human blood; the victim had been stabbed to death; Green said appellant possessed a knife during the accosting of the victim; the appellant was treated for lacerations on two fingers; Green testified that appellant had jabbed at the victim. Although the eight (8)-inch inch knife, State’s Exhibit 3, was not specifically identified as belonging to the appellant or having been used by her during the commission of the crime, we think the testimony adduced by the State demonstrates “the probability of connection with the accused.” Parker v. State, supra. Judge Hargrove did not err in admitting the knife into evidence.

Exhibit 4, the short knife, was relevant because of Green’s admission that she had possessed that knife and discarded it at the scene of the slaying behind a door, wdiere it was found, because she did not want to leave with it.

Exhibits 7, 9, 10a, and 10b, the handbag, eyeglasses, photograph of coins, and the earrings were all relevant. The handbag was found on the steps leading to the rest room hallway. Green said that appellant and the victim were “.. . speaking about the pocketbook or something.” The photograph of the coins and the envelope containing the earrings were admissible as contents of the handbag. All of the exhibits were connected by “probability” to the offense, hence, all were admissible. The fact that the trial judge subsequently granted a judgment of acquittal on the robbery count does not eliminate the challenged physical evidence. They are admissible as evidence of the murder charge, not just the robbery.

The admission of the tennis shoes, Exhibit 11, into evidence was proper as a physical exhibit of the appellant’s probable presence at the scene of the crime. The blood samples, Exhibit 15, and the “evidence control slip”, Elxhibit 16, pertaining to the blood samples, were so interlaced as to be almost inseparable for evidentiary purposes. Both were admissible as tending to show appellant’s presence at the scene through blood comparison. Appellant’s blood type matched blood found on the bus station first floor and entrance doors.

VII

The Character Witness

The appellant called a social worker as a character witness. The witness told the jury that she had known appellant since “. . . the latter part of 1970” when the witness’s daughter brought the appellant to the home of the witness, her husband and her four children. Appellant moved into the witness’s home and while living there did not cause the witness any problem “whatsoever.” Appellant was “a big help” assisting with the care of the witness’s “small children”, and with “housework”. The State moved to strike the testimony of the witness on the ground that it was not character evidence. The trial judge agreed, ordered the testimony stricken, and instructed the jury to disregard it.

Appellant argue;; that the court erred because Courts and Judicial Proceedings Article ij 9-115 permits the testimony of the witness. Section 9-115 provides:

“Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.”

We recently, in Taylor v. State, 28 Md. App. 560, 346 A. 2d 718 (1975), said that Courts Art. § 9-115 “vastly broadened” the common law rule relative to character witnesses. We opined:

“... No longer is a character ^yitness prevented from speaking of specific acts or precluded from demonstrating a basis of knowledge leading to his own independent opinion. To an extent, this State has eliminated some of the underlying hearsay present in the common law rule relative to character witness testimony.” (Footnote omitted).

The testimony of the character witness, in the instant case, was properly stricken by the trial judge. His action was proper because the witness, while stating a basis of knowledge which could have led to her articulating her own independent opinion of the reputation of the appellant, was never asked any question concerning that reputation. The trial court was left with a foundation for posing questions concerning the appellant’s reputation, but no structure was erected upon that foundation. In short, the witness was not asked, and did not give, a personal opinion of the appellant’s reputation. Consequently, she was not properly a “character witness.”

VIII

The Jury Instruction

The trial judge in his advisory instruction to the jury said:

“. .. Now, felonious homicides are divided into three classes, first degree murder, second degree murder, and manslaughter. And if you find from all the evidence in the case beyond a reasonable doubt to a moral certainty that the Defendant [Appellant] is guilty of homicide, that is, one degree of homicide with nothing else, the law presumes that that is murder in the second degree and the State has the burden of proving the elements of the crime which would raise the degree to murder in the first degree, that is, that it was wilful, deliberate and premeditated. The Defendant [Appellant] has the burden of showing elements which reduce the crime to manslaughter. Where the evidence shows that death resulted from gross negligence or merely unlawful conduct and there was no intention to take a life or that the crime was committed without premeditation but in hot blood and under provocation the crime is manslaughter and manslaughter is not murder. The essential distinction between murder and manslaughter is the presence of malice. Malice has been defined in this connection as intentional doing of a wrongful act to another without legal justification or excuse. And it includes any wrongful act done wilfully and purposefully. The essential difference between murder in the second degree and murder in the first degree is that in order to establish murder in the first degree in addition to malice there must be shown the elements of deliberation and premeditation. The law presumes that all homicides be committed with malice aforethought and to constitute murder. All murders which shall be perpetrated by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree and that is codified in Article 27, Section 407 of the laws of Maryland. In order to justify a conviction of murder in the first degree you must find from the evidence the actual intent, the fully formed purpose to kill with enough time for deliberation and premeditation to convince that the purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design. ” (Emphasis supplied).

Appellant’s counsel noted timely exceptions to the charge, but tho.se exceptions are not direetly in point with the issue she now poses to us. We shall, however, take cognizance of the instruction as constituting a potential violation of appellant’s constitutional rights as enunciated by Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and thus “plain error” within the meaning of Md. Rule 756 g. See Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972) for a discussion of the meaning of “plain error” as used in Md. Rule 756 g.

When Judge Hargrove advised the jury, he relied upon what was believed to be the law of Maryland that all homicide was presumed to be murder in the second degree, and that the State had the burden of elevating the crime to first degree murder, while the accused carried the burden of reducing the offense from second degree murder to manslaughter. What the Maryland courts, for years, have seen so clearly as that rule of law, it develops, is, under the recent decision of Mullaney, not the law at all.

Judge Moylan, in a thorough exposition of Mullaney, states, in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), that Mullaney proscribes the placing of a burden of proof upon a defendant in a criminal cause and that Mullaney “. . . must be given fully retroactive effect.”

Because of the Mullaney holding, and its “built in” retroactive feature, as explicated by Evans, the trial judge’s advisory instruction concerning the “presumption” of second degree murder in all homicides and that the burden of proof was upon the accused to reduce the offense to manslaughter was erroneous. Were it not for the jury’s verdict of murder in the first degree, we might be compelled to reverse and remand for a new trial. The incorrect advisory jury instruction, in this case, even with its faulty predicate as to the burden of proof shouldered by appellant, nevertheless, will not require reversal because the State has met its ultimate burden of persuasion and elevated the crime to that of murder in the first degree.

In Evans at § I. C., Judge Moylan said:

. . [A]ny error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree. The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, therefore, have been pivotal. Where, on the other hand, the verdict is murder in the first degree, the State will have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended.” (Footnote omitted).

Evans prescribes, in effect, an appellate litmus paper test in murder cases where Mullaney is interposed and the verdict was guilty of murder in the first degree. In such situations an erroneous instruction relative to a presumption of second degree murder arising ipso facto from a bare showing by the State of homicide is cured by the verdict of murder in the first degree because it is clear that the State has met its ultimate burden and proved that the crime was committed with wilful, deliberate and premeditated malice, the essential ingredients of first degree murder. By so proving to the satisfaction of the trier of fact, at a jury or a non-jury trial, the State has disproved second degree murder. Similarly, an erroneous instruction concerning an accused’s burden of lowering the offense from second degree murder to manslaughter is likewise cured because the State has negated to the satisfaction of the trier of fact, any mitigation. The net result, in such cases, of incorrect instruction where mitigation or “hot blood” is not an issue fairly in the case, is that the instruction, at worst, is harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), and, at best, a gratuity given for the benefit of the accused and to which he was not entitled.

Appellant, at trial, denied all knowledge of the crime, denied ever seeing the decedent in the bus station rest room, denied she cut her hand during an altercation with the decedent, but explained that her hand was cut before she went to the bus station. Appellant admitted, however, being at the bus depot and using the ladies’ rest room. Appellant has by her own testimony expressly negated the common law offense of manslaughter through her disclaimer of all knowledge of the act. Patently, if she knows nothing of the crime, she could not have committed it in “hot blood” or with recklessness, devoid of intention to take a human life, Even though Green spoke of the “commotion” between appellant and the decedent, we think, in the light of appellant’s testimony, that fact does not fairly inject mitigation as an issue in the case. Nevertheless, if mitigation were fairly in the case, the State has met its burden of proof by establishing, to the jury’s satisfaction, that the appellant was guilty, beyond a reasonable doubt, of murder in the first degree. Mullaney does not affect the ultimate result in the instant case.

Similar reasoning to that employed here is found in Wilkins v. Maryland, 402 F. Supp. 76 (D. Md. decided October 1, 1975). There Judge Blair of the United States District Court for the District of Maryland, addressing an almost identical contention as that raised by appellant, held:

“... In finding Wilkins guilty beyond a reasonable doubt of the wilful, deliberate and premeditated killing of the victim — or alternatively, of killing the victim during the perpetration of a robbery — the jury necessarily rejected, beyond a reasonable doubt, that the defendant acted recklessly without an intention to take a life or in the heat of passion. Phrased otherwise, in proving the elements of first degree murder beyond any reasonable doubt in the jurors’ minds, the [Sjtate necessarily disproved manslaughter beyond a reasonable doubt.”

Under the rationale of Evans v. State, supra, as articulated by this Court, and Wilkins v. Maryland, supra, as reasoned by Judge Blair, the trial judge’s instruction concerning burden of proof upon the appellant to reduce the crime from second degree murder to manslaughter was plainly in error, but harmless.

IX

Motion for Judgment of Acquittal

Finally, appellant contends that the trial court should have granted a judgment of acquittal in her favor. In order for the appellant to prevail on this issue, however, the record must show that there was no legally sufficient evidence before the jury to entitle it to deduce therefrom that the appellant was guilty beyond a reasonable doubt of the offense charged. If, however, the evidence was such that a jury could fairly be convinced of the guilt of the accused beyond a reasonable doubt, the verdict of the jury will not be disturbed on appeal. Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Mason v. State, 12 Md. App. 655, 280 A. 2d 753 (1971); Coolahan v. State, 10 Md. App. 365, 270 A. 2d 669 (1970); Shotkosky v. State, 8 Md. App. 492, 261 A. 2d 171 (1970).

The test for the sufficiency of the evidence, as stated in numerous cases, is whether that evidence, if believed, either shows directly, circumstantially, or supports a rational inference of facts to be proved from which a jury could fairly be convinced beyond a reasonable doubt of the guilt of the accused. Kelly v. State, 16 Md. App. 533, 298 A. 2d 470 (1973) aff'd 270 Md. 139 (1973); Carter v. State, 15 Md. App. 242, 289 A. 2d 837 (1972); Conway v. State, 15 Md. App. 198, 289 A. 2d 862 (1972); Young v. State, 14 Md. App. 538, 288 A. 2d 198 (1972); Metz v. State, 9 Md. App. 15, 262 A. 2d 331 (1970).

Without recounting all the evidence presented by the State, it is enough to know that the State showed in its presentation that the decedent was stabbed to death in a ladies’ room in the bus station in Baltimore City; that the appellant and Green were seen exiting the bus depot; that the appellant was observed. wearing a particular type of apparel; that one of the two persons who #ere seen leaving the depot was bleeding; that the appellant sought treatment in the emergency room of Maryland General Hospital, which is nearby the bus station; that at the scene of the crime someone had stepped into' a pool of blood; that the appellant’s hand was cut; that she had blood stains on her shoe; that the blood stains on the soles of appellant’s shoes matched the blood type of the victim; that appellant’s blood type matched that found in the trail of blood; that appellant’s blood type was different from the victim’s; that appellant had a knife; that an eight-inch long knife was found at the scene of the crime; that Green testified that the appellant had a “commotion” with the decedent and “jabbed” the victim; that the eight-inch knife found at the scene bore traces of human blood; and that the other knife belonged to Green; that appellant, while denying the crime, placed herself at the site where it was committed. Such evidence, if believed, certainly gives rise to a rational inference that the decedent was stabbed to death, and that the appellant was the perpetrator of the crime.

Judgment'affirmed.

      . Miss Green was convicted of murder in the first degree, but because of a procedural defect the trial court granted a mistrial. Miss Green then pled guilty to the offense of attempted robbery with a dangerous and deadly weapon and she appeared as a State’s witness against appellant.

      . Besides the various parts of the Criminal Court of Baltimore, jurors are used in the Superior Court of Baltimore City, the Court of Common Pleas and the Baltimore City Court.

      . The other young woman was Tina Green.

      . We also pointed out in Taylor v. State, supra, that when the law speaks of “character witness” it is using the word “character” as a synonym for “reputation”.

      . Indeed, that principle of law had been controlling for generations. See Evans v. State, infra.


author: Orth, C. J.,

text:
    ROBERT HORN a/k/a Maurice Johnson a/k/a Zachary Gladden v. STATE OF MARYLAND
    [No. 312,
    September Term, 1975.]

      Decided November 26, 1975.

    The cause was argued before Orth, C. J., and Davidson and Lowe, JJ.

      Victoria A. Salner, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Bums, Jr., Assistant Public Defender, on the brief, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City,
      and Alexander J. Palenscar, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

This is one of what will be, in all likelihood, a number of endeavors by those accused of criminal offenses to apply what they construe to be the teachings of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), to a broad range of the substantive and procedural rules of the criminal law.

Robert Horn, also known as Zachary Gladden and Maurice Johnson, asks on direct appeal that we reverse the judgment entered against him at a bench trial in the Criminal Court of Baltimore, wherein he was convicted of storehouse breaking with intent to commit grand larceny and sentenced to 4 years. Evidence to prove the State’s case was by way of a statement of facts recited by the Assistant State’s Attorney and expressly agreed by Horn to be “substantially correct.” The statement clearly established the corpus delicti of the offense of which Horn was convicted. A trailer of the Upland Corporation was broken during the early morning hours of 16 January 1974. Among the goods stolen were a saber saw valued at $109 and an electric drill valued at $100. Evidence as to criminal agency was as follows. About 2:15 p.m. on the same day of the breaking, a police officer saw Horn on the street carrying a saw and drill answering the description of the stolen goods. A representative of Upland identified the tools as those stolen from the trailer. He said that Horn had not been granted permission to enter the trailer or to remove any property therefrom.

It is clear that Horn’s criminal agency was shown by applying the rule that in the absence of a satisfactory explanation, the exclusive possession of recently stolen goods permits the drawing of an inference of fact that the possessor was the storehouse breaker. Boswell and Poe v. State, 5 Md. App. 571 (1968); Burkett v. State, 5 Md. App. 211, 217-218 (1968), cert. den., 252 Md. 730; Fisher v. State, 5 Md. App. 155 (1968). It is Horn’s position that “[e]vidence showing merely that [he] was in possession of recently stolen goods is not sufficient to sustain a conviction of storehouse breaking in light of recent Supreme Court decisions.” He refers to Mullaney v. Wilbur, supra, “when read in conjunction with prior Supreme Court decisions on presumption in criminal cases. ...” Those decisions, Horn urges, reveal “serious constitutional infirmities” in the established rule regarding exclusive possession of recently stolen property.

We carefully analyzed Mullaney in Evans v. State, 28 Md. App. 640 (1975). We observed that the rule regarding possession of recently stolen goods does not create a “presumption” but merely permits an inference of fact. We concluded in Evans, at 703-704: “Since an inference does not shift a burden either of persuasion or of going forward with evidence, it does not come under the scrutiny of Mullaney v. Wilbur in that regard. Since an illogical or improbable ‘inference’ would, however, unfairly relieve the State of part of its burden of proving every element of a case beyond a reasonable doubt, the inference, even as a mere inference, must pass constitutional muster under United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U. S. 136, 86 S. Ct. 279, 15 L.Ed.2d 210 (1965), and Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969). It must, therefore, be based upon a rational connection between the facts established and the fact to be inferred. Conversely, it ‘must be regarded as “irrational” or “arbitrary,” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact [the inferred fact] is more likely than not to flow from the proven fact on which it is made to depend.’ Leary v. United States, supra, at 89 S. Ct. 1548, cited in Lindsay v. State, supra, at 8 Md. App. 109.” We expressly affirm this view and apply it to decide the case before us. We find that the rule with respect to exclusive possession of recently stolen goods, applied to permit an inference that the possessor broke a storehouse, is based upon a rational connection between the facts established, to wit, the breaking of the storehouse, the larceny of certain goods, and the exclusive possession by the accused of those recently stolen goods, and the fact to be inferred, namely, that the possessor was the criminal agent in the breaking. We think that it can be said with substantial assurance that the inferred fact is more likely than not to flow from the proved facts on which it is made to depend. Therefore, the rule of possession of stolen property passes constitutional muster and does not come under the scrutiny of Mullaney.

Judgment affirmed.

      . The storehouse breaking was charged by the first count of indictment 17500449. That indictment and indictment 17500451 were jointly tried. He was convicted also of the offense of petit larceny charged by the first count of the latter indictment and given a concurrent sentence of 18 months. He does not challenge that judgment. Upon the convictions, other outstanding indictments, 17500450, 17500452, 17500453 and 17500454, were disposed of by the entry of a nolle prosequi in open court.

      . Horn cites: Tot v. United States, 319 U. S. 463 (1943); United States v. Gainey, 380 U. S. 63 (1965); United States v. Romano, 382 U. S. 136 (1965); Leary v. United States, 395 U. S. 6 (1969); Barnes v. United States, 412 U. S. 837(1973).


author: Moylan, J.,

text:
    MICHAEL SEAN GARLAND v. STATE OF MARYLAND
    [No. 876,
    September Term, 1974.]

      Decided November 26, 1975.

    The cause was argued before Moylan, Moore and Mason, JJ., and reargued before Orth, C. J., and Moylan and Gilbert, JJ.
    Argued and reargued by William H. Murphy, Jr., for appellant.

      Argued and reargued by Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Joseph F. Lyons, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Michael Sean Garland, was convicted in the Circuit Court for Montgomery County by a jury of both murder in the second degree and the unlawful use of a handgun. The case had been removed from Baltimore City. The appeal before us was originally argued on April 10, 1975. Following the decision of the Supreme Court in the case of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508, on Juné 9, 1975, the appellant petitioned for reargument because of the bearing which that decision might have on the present appeal. We granted the petition and reargument was had on September 17,1975.

The critical defensive issue in this case was mitigation in that the appellant allegedly killed his victim in a hot-blooded response to legally adequate provocation, to wit, in the course of mutual combat. Without detailing the long and involved factual picture, it is enough to point out that the evidence, both from the State’s case and the defense case, was enough to generate a genuine jury issue on the subject of mitigation due to provocation. In making that determination, of course, we look at the evidence in the light most favorable to the defense. As we analyzed in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), in Part IIH of that opinion, once a defensive issue, such as mitigation, has been generated by the evidence, the clear burden falls upon the State to prove the absence of such mitigation beyond a reasonable doubt, just as it would have to prove any other element of a crime. When jury instructions purport to define the crime of murder and mitigation is fairly an issue in the case, the absence of such mitigation must be included as a necessary element which the State must prove beyond a reasonable doubt.

The general portions of the instruction, setting out the State’s burden, were exemplary:

“This being a criminal case, the burden is on the State to prove the guilt of the Defendant beyond any reasonable doubt.
In every criminal case, the defendant is presumed innocent at the commencement of the trial; and the law requires that the burden is on the State, as I have indicated to you, to prove guilt beyond any reasonable doubt.
There is no burden whatsoever on the Defendant, because the burden never shifts to the defendant in a criminal case.”

The court then moved on to a consideration of the first count of the indictment, which charged in the language of first-degree murder but which also subsumed both second-degree murder and manslaughter. The meaning of three critical paragraphs is dangerously ambiguous, since the same subject is referred to in shifting terms:

“As I have indicated, you have for determination two counts, the first count charging murder; and I will give your foreman a written statement of the possible verdicts in this case.
In dealing with murder, the presumption is that it is murder in the second degree, and even though you find that it is murder, the State still has the burden of proof that would raise it from second degree to first degree murder.
I am going to review the various types of homicide for you to consider.” (Emphasis supplied)

The middle paragraph is critical under Mullaney v. Wilbur, but it cannot be divorced from the context of the paragraphs which immediately precede it and follow it. In a literal and‘sophisticated sense, the statement, “In dealing with murder, the presumption is that it is murder in the second degree,” is constitutionally unoffending. See.Part IID of Evans v. State. If it were, clear from its context that the statement was not a careless or' ill-phrased way of saying that, “All homicide is presumed to be second-degree murder,” or, “All felonious homicide is presumed to be second-degree murder,” (both of which would offend Mullaney v ’. Wilbur) but was rather a clearly communicated and precisely literal statement to the effect that even proven murder is assumed to be only in the second degree until the State raises it to first degree, no harm would be done under Mullaney v. Wilbur, or In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). In this context it is not clear that this was the, message intended to be communicated or that this was the message received; indeed, the indications are quite otherwise. The immediately preceding sentence refers to “the first count” as the count “charging murder,” even though the count' comprehends all three degrees of felonious homicide. The same sentence pointed out that the jury would be' given a statement of “the possible verdicts” under that count, which list of verdicts included manslaughter. The sentence immediately following up on the statement as to the presumption of second-degree murder indicated that the court would then “review the various types of homicide for you to consider.” That review included manslaughter. We will not strain to hold the isolated sentence hypertechnically correct when a fair reading in full context makes it apparent that the actual message communicated did offend Mullaney v. Wilbur.

Our holding with respect to the jury instructions does not rest upon this reading alone, however. After correctly defining murder in the first degree, the court went on to define second-degree murder and then to define malice:

“Second degree murder is an unlawful killing with malice, but without the deliberation or premeditation.
Malice is something done intentionally and without a lawful excuse.”

Malice comprehends three aspects — 1) the intentional act, 2) the absence of justification or excuse and 3) the absence of mitigation. The first two aspects separate murder from non-culpable homicide. It is the third aspect, and the third aspect alone, which separates murder from manslaughter. In the act of defining malice, the failure to include the element of the “absence of mitigation” in a case where mitigation was a genuine issue operated to relieve the State of its rightful burden of proving this critical element beyond a reasonable doubt. The discussion of manslaughter and of provocation which followed was again exemplary:

“The third type of homicide, and the lesser of the three types of homicide, is manslaughter.
This is an unlawful killing without malice, and is generally defined as an involuntary killing not done with a specific intent to take lives, but where the killing was, nevertheless, done with a reckless and negligent indifference to another’s life.
In connection with manslaughter, there may be a homicide which would otherwise be murder, which is reduced to manslaughter by circumstances in mitigation or alleviation, as we call it; and this is where it is established that this killing was provoked.
In order to have a provocation in a homicide case to reduce it to manslaughter, there must have been adequate provocation, and the killing must have been done in the heat of passion. 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 to cool off.
There must have been a causal connection between the provocation, the passion, and the fatal shooting.
The Defendant claims in this case, among other things, provocation.
There was testimony concerning the incident from witnesses for you to consider in connection with the confrontation and what happened thereafter.
If you find that there was a combat, and the combat is mutual; that is, if the intent to fight was mutual, both intended to fight and were ready to do so, you may find that it was a mutual combat, although one party did not strike the first blow or one party did not strike any blow.
No provocation, however grievous, will reduce a voluntary homicide to manslaughter if the circumstances show that the person doing the killing acted not in the heat of blood, but from malice.”

Notwithstanding two references to malice in this manslaughter discussion, which might lead a trained lawyer to deduce that malice includes the absence of mitigation, the instruction itself does not fairly convey the necessary message that the burden of negating mitigation is upon the State and that if the jury is left in a state of equipoise in that, regard, or even is persuaded in that regard but not beyond a reasonable doubt, the verdict must be only as to manslaughter and not as to murder.

We hold that this instruction did not pass constitutional muster under Mullaney v. Wilbur and Winship. Since the verdict was for murder in the second degree, Mullaney v. Wilbur mandates a reversal. Evans v. State, Part ID.

It follows that with the reversal of the conviction for the underlying felony, the conviction for the handgun violation, predicated of necessity upon it, must also be reversed.

Upon a thorough review of the Memorandum Opinion and Order Granting State’s Suggestion for Removal, we are persuaded that there was no abuse of discretion in removing the case from Baltimore City to Montgomery County for trial. We would point out, for the guidance of the court on remand, the inadvisability of informing the jury of the possible sentences where the sentences are of no concern to the jury, as is always true except where the jury has the power to qualify the sentence. It is unnecessary to treat any of the other contentions raised by the appellant.

Judgments reversed; case remanded to Circuit Court for Montgomery County for retrial.


text:
      MARK A. SHUCK v. STATE OF MARYLAND
    [No. 226,
    September Term, 1975.]

      Decided November 26, 1975.

      The cause was argued before Moylan, Powers and Lowe, JJ.

      Selig Solomon, Assigned Public Defender, with whom were Alan W. Bernstein and Goldstein, Solomon & Bernstein on the brief, for appellant.

      Bernard A. Baum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald Anders, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Mark A. Shuck, was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge Matthew S. Evans, of both murder in the second degree and assault with intent to murder. Upon this appeal, he raises four contentions:

1) That the evidence was not legally sufficient to submit the charge of second-degree murder to the jury;

2) That the evidence was not legally sufficient to submit the charge of assault with intent to murder to the jury;

3) That an erroneous jury instruction was given on the use of a deadly weapon; and

4) That a jury instruction to the effect that malice may be presumed and that the burden was upon the appellant to show such mitigation as would reduce the crime to manslaughter denied him due process under Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970).

With respect to the appellant’s first contention, the evidence was legally sufficient to sustain the verdict of murder in the second degree. There was ample evidence from which the jury could have concluded that when the appellant struck and killed one Buddy Voelker with a baseball bat, he did so with either an intent to kill or an intent to do grievous bodily harm, he did so without legal justification or excuse and he did so without any circumstance of mitigation. Similarly, with respect to the appellant’s second contention, the evidence was legally sufficient to sustain the verdict of assault with intent to murder George Parker, under circumstances where the appellant also hit Parker with the same baseball bat. The factual versions of what occurred in the confused and angry medley that took place on the morning of June 29, 1974, varied significantly in terms of who was the aggressor at various stages of the fight, who entered into the fight mutually and wilfully and who was simply defending in an effort to extricate himself from a difficult situation. In judging the legal sufficiency of the evidence, we have taken that version of the facts most favorable to the State. In dealing hereinafter with the appellant’s fourth contention, however, we must reverse the slant and take the version of the facts most favorable to the appellant.

Before moving on to that fourth contention, however, we will point out that with respect to the third contention — the allegedly erroneous instruction on the use of a deadly weapon — that no objection was made below and the point is not preserved for appellate review. Maryland Rule 756g. The point is, moreover, rendered moot by out judgment that the convictions must, in any event, be reversed because of the fourth contention, to which we now turn our consideration.

The court gave the following instruction:

“The law presumes that in the absence of justification or excuse or some other circumstances of mitigation all homicides are committed with malice and thereby constitute murder in the second degree. In other words, the presumption of homicide is that it is murder in the second degree and that the State must prove or have the burden of proving that the murder was actually murder in the first degree, and once the State has proved an unlawful homicide to have been committed by the accused, however, the burden rests upon the defendant not to satisfy you beyond a reasonable doubt but to a fair preponderance of the evidence that the killing happened under circumstances to reduce the homicide to manslaughter.”

We note initially that Mullaney v. Wilbur applies in this case to the instruction on assault with intent to murder just as surely as it applies to the instruction dealing with the murder charge itself. Since a necessary element of assault with intent to murder is the malicious state of mind such as would constitute murder if the assault victim had died, an instruction on the elements of murder, on the relevant defenses to murder and on the burdens with respect thereto was called for. Under a fair reading of the broad principle enunciated in Mullaney v. Wilbur (see Part IIB of Evans v. State, 28 Md. App. 640, 349 A. 2d 300), a constitutional allocation of the burden of persuasion in an assault with intent to murder case is mandated just as surely as is a constitutional allocation of the burden of persuasion in a felonious homicide case.

There can be no doubt but that the jury instruction in this case, presuming malice and placing the burden upon the appellant to prove by a fair preponderance of the evidence that the killing was accompanied by such mitigating circumstances as would reduce the crime to manslaughter, was unconstitutional under Mullaney v. Wilbur. Evans v. State, Part IIG. In the assault with intent to murder case, moreover, an improper instruction on the burden of proof with respect to mitigation might well mark the difference not simply between one degree of felonious homicide (second-degree murder) and another (manslaughter) but between guilt and total exculpation. As we further analyzed in Part IF and Part IIH of Evans v. State, however, an erroneous allocation of the burden of proof with respect to a particular defense will be deemed immaterial unless the evidence has generated a genuine jury issue with respect to that defense.

We now turn our attention, therefore, to the question of whether any issue of justification, excuse or mitigation was generated by the evidence. The lethal attack upon Voelker and the non-lethal attack upon Parker were so essentially contemporaneous and inseparable in terms of purpose that both convictions will stand or fall together as we proceed with our analysis.

We note initially, even taking that version of the facts most favorable to the appellant, that the evidence did not generate a genuine jury issue with respect to such self-defense as might totally justify or excuse the appellant’s actions. Even granting that the appellant and his companion were mere victims rather than mutual combatants, the brawl or scuffle which was taking place was non-deadly in character. All four persons involved were in some state of inebriation. There had been angry words. The appellant and his companion were good-sized and healthy men who were by no means outclassed physically. There had been several blows struck with fists and the appellant’s companion had been wrestled to the ground. It was at this point that the appellant himself escalated the combat to the deadly level by going to his companion’s automobile, taking out a baseball bat and introducing that weapon into the fray. Even granting for the moment all other aspects of self-defense, the law is clear that “Deadly force is not privileged in defense against non-deadly force.” Perkins, Criminal Law (2d Ed., 1969), p. 996. LaFave and Scott, Criminal Law (1972), makes the same point, at pp. 392-393:

“The law of self-defense (and of defense of others) makes a distinction between ‘deadly’ force and ‘nondeadly’ (or ‘moderate’) force, holding that there are situations wherein it is reasonable to use nondeadly force but not to use deadly force. . . .
In determining how much force one may use in self-defense, the law recognizes that the amount of force which he may justifiably use must be reasonably related to the threatened harm which he seeks to avoid. One may justifiably use nondeadly force against another in self-defense if he reasonably believes that the other is about to inflict unlawful bodily harm (it need not be death or serious bodily harm) upon him (and also believes that it is necessary to use such force to prevent it). That is, under such circumstances he is not guilty of assault (if he merely threatens to use the nondeadly force or if he aims that force at the other but misses) or battery (if he injures the other by use of that force). He may justifiably use deadly force against the other in self-defense, however, only if he reasonably believes that the other is about to inflict unlawful death or serious bodily harm upon him (and also that it is necessary to use deadly force to prevent it).”

It may be said as a matter of law that no issue of justification or excuse was generated by the evidence in this case. Such is not the situation, however, with the issue of mitigation. Again taking that version of the facts most favorable to the appellant, the evidence did fairly generate the issue of mitigation in two separate forms.

Hot-Blooded Response to the Provocation of Mutual Combat

From the evidence, the jury could fairly deduce the following picture. The appellant and his companion, John Jackman, were two young men and co-workers who had been visiting a bar and a party and consuming a number of beers from the early evening of June 28 through approximately midnight. At shortly after midnight, Jackman was driving his Corvette sports car. The appellant was a passenger in the car and they were both returning to a bar to pick up the appellant’s girlfriend, who worked there. As they stopped for a light, a GTO sports car pulled up beside them. When the light turned green, the GTO pulled off suddenly, spinning its wheels and throwing up gravel. Interpreting this as an invitation to a race, Jackman and the appellant took off in pursuit. It was at that point that George Parker, a 48-year-old man, was returning home in his pickup truck from his own evening of drinking at his own bar. The pickup truck pulled onto the highway and ended up between the GTO and the pursuing Corvette. The GTO pulled onto a side road. The Corvette, occupied by the appellant and his companion, pulled off after it, cutting off in the process but not hitting the pickup truck driven by Parker. In slamming on his brakes, Parker hit his head on his own windshield and became angry. Rather than let the matter rest, Parker then took off in pursuit.

The GTO soon pulled to a stop in a small court with a single entrance. Its occupant, the ultimate homicide victim, Buddy Voelker, alighted. The appellant and his companion, who were strangers to Voelker, pulled to a stop behind the GTO. Apparently because of their shared common interest in automobiles, Voelker and Jackman began a friendly conversation. At that moment, Parker arrived in his pickup truck, still red with anger. He parked his truck across the entrance to the court so as to block any vehicular exit therefrom. He approached the Corvette, in which the appellant and Jackman were still seated. (Voelker had walked up to the window and was carrying on the conversation from that vantage point.) Parker ordered Jackman out of the car. He shouted several obscenities. According to the appellant, Parker reached into the car and hit Jackman at least once in the face with his fist. After repeatedly being challenged by Parker in angry words, Jackman got out of his own vehicle. At one point, apparently, Jackman and the appellant attempted to get back in Jackman’s car and leave the area. Parker, with Voelker trying to restrain him, shouted several obscenities at them and they stopped the car and got out. According to the appellant, at one point Parker and Jackman were struggling with each other when Voelker leaped onto both of them, knocking everyone to the ground in the process. The appellant testified that he attempted to pull Voelker from the pile. At that point, Voelker turned to the appellant and ultimately was on his back, gripping him about the shoulders. The appellant stated that Voelker hit him several times. At this point, the appellant ran and got the bat from his companion’s automobile and swung at least twice. One blow hit Parker, injuring him slightly. The other hit Voelker in the head and ultimately resulted in his death.

At Voelker’s autopsy, the blood alcohol level was revealed to be 0.14%. A girlfriend of Jackman’s, Terri Jones, testified that when she saw Jackman shortly after the incident, he was bleeding from the mouth and nose and had strangulation marks on his neck.

Upon this evidence, the issue of mitigation by way of a hot-blooded response to mutual combat was fairly generated in the case. Whitehead v. State, 9 Md. App. 7, 262 A. 2d 316. Perkins, op. cit., at 57-59; LaFave and Scott, op. cit., at pp. 574-575.

Mitigation by Way of “Imperfect” Self-Defense

Although by far the most common form of mitigation is that of a hot-blooded response to legally adequate provocation, this is not the only form of mitigation that will negate malice and will reduce what might otherwise be murder to manslaughter. It was of this very possibility that we spoke in Evans v. State, Part IC, at n. 4:

“This analysis presupposes that the type of mitigation fairly in issue is of the common and orthodox ‘hot blood in response to legally adequate provocation’ variety. The foreclosing effect of a first-degree murder conviction would not, however, apply in those very rare cases where manslaughter is predicated upon the far more esoteric extenuating circumstances, ‘not yet far advanced,’ of ‘an “imperfect” right of self-defense or defense of others, or of crime-prevention, or of the defenses of coercion or necessity, in which the killing, though not justifiable, is not bad enough to be murder.’ LaFave and Scott, Criminal Law (1972), § 77, ‘Other-Extenuating-Circumstances Voluntary Manslaughter,’ pp. 583-586. This qualification, it should be noted, is little more than an academic possibility.” (It is now more than academic.)

Perkins, op. cit., at 69-70, described this legal phenomenon of “Mitigation Other Than Provocation”:

“Since manslaughter is a ‘catch-all’ concept, covering all homicides which are neither murder nor innocent, it logically includes some killings involving other types of mitigation, and such is the rule of the common law. For example, if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder. ‘It is not always necessary to show that the killing was done in the heat of passion, to reduce the crime to manslaughter;’ said the Arkansas court, ‘for, where the killing was done because the slayer believes that he is in great danger, but the facts do not warrant such a belief, it may be murder or manslaughter according to the circumstances, even though there be no passion.’ To give another illustration, the intentional taking of human life to prevent crime may fall a little short of complete justification or excuse and still be without malice aforethought.”

One of these other forms of mitigation is “imperfect” self-defense. Looking at the facts in a light most favorable to the appellant, his companion was neither an aggressor nor a mutual combatant. Pie was under unprovoked attack from at least one and possibly two persons. Under the circumstances, the appellant was entitled to intervene iñ defense of his friend. In this regard, see Perkins, op. cit., at p. 1020:

“If two are engaged unlawfully in a mutual fight (deadly or nondeadly) the law does not authorize anyone (close relative or stranger) to take sides in the contest and aid one in the effort to overcome his adversary, but the problem is quite different if the fight is not mutual. If one is using only privileged force in the effort to defend himself against an unlawful attack anyone is authorized to go to his defense and use force (subject to the familiar limitations) in the effort to save him from the threatened crime . . .”

And see LaFave and Scott, op.cit., at pp. 397-398:

“[M]any American statutes still on the books purport to limit the use of force in defense of others to the defense of those who bear some designated relationship to the defender. Yet the modern and better rule is that there need be no such relationship, so that one is entitled in an appropriate case to use force to protect a friend or acquaintance or even a stranger from threatened harm by a third person.

And cf. Tipton v. State, 1 Md. App. 556, 232 A. 2d 289, and Guerriero v. State, 213 Md. 545, 549, 132 A. 2d 466:

“A third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used.”

Even if the appellant’s belief that he had a right to intervene In defense of his companion was erroneous, however, and even granting further the unreasonableness of his excessive escalation to the deadly level of what had been a non-deadly combat, he had nonetheless generated the issue that even this “imperfect” right of self-defense might mitigate his guilt for the felonious homicide to the manslaughter level and might, thereby, totally exculpate him on the assault with intent to murder charge. With respect to this less common form of mitigation, we are highly persuaded by LaFave and Scott, op. cif., at 583-584:

“In order for a killer to have a ‘perfect’ defense of self-defense to homicide, (1) he must be free from fault in bringing on the difficulty with his adversary; and (2) he must reasonably believe (though he need not correctly believe) both (a) that his adversary will, unless forcibly prevented, immediately inflict upon him a fatal or serious bodily injury, and (b) that he must use deadly force upon the adversary to prevent him from inflicting such an injury. If one who is not the aggressor kills his adversary with these two actual and reasonable beliefs in his mind, his homicide is justified, and he is guilty of no crime — not murder, not manslaughter, but no crime.
What if a defendant who did not initiate the difficulty honestly but unreasonably believes either that he is in danger of the injury or that killing is the only way to prevent it; or, even though he reasonably believes these things, he was at fault in bringing about the difficulty? He cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable. But is murder the only alternative? Or should the matter fall into the category of manslaughter, consisting of those homicides which lie in between murder and no crime. Some cases so hold, whether the reason for the ‘imperfection’ of the defense is the defendant’s own fault in bringing on the difficulty or the unreasonableness of the honest but erroneous beliefs which he entertains. On principle, the same rule should apply to a killing done in the case of a homicide under an ‘imperfect’ right to defend others, as applies in the case of the homicide under an ‘imperfect’ right of self-defense. The manslaughter provisions of two of the latest comprehensive criminal codes — those of Illinois and Wisconsin — recognize the existence of this imperfect-right-of-self-defense or defense-of-others type of voluntary manslaughter.”

Under the circumstance, Mullaney v. Wilbur will apply and the convictions must be reversed.

Judgments reversed; case remanded for a new trial.

      . In this regard, however, see Article 27, Section 12A:
      “Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person’s defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself.”