Thornton, Tamere H. v. State
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HEADNOTE: SECOND-DEGREE MURDER -- SPECIFIC INTENT TO INFLICT GRIEVOUS BODILY HA RM -- LIKELIHOO D REQUIRE MENT-- Where murder is predicated upon a theory of intent to commit grievous bodily harm, the intended harm must be such grievous bodily harm that death would be the likely result. When a crime involves an unintentional killing, the requisite mens rea is measured by an objective standard such as that a reason able person could hav e foreseen that death w ould be the likely result. Circuit Co urt for Baltim ore Cou nty Case No. 02 CR 3926 IN THE COURT OF APPEALS OF MARYLAND No. 62 September Term, 2005 TAMERE HASSAN THORNTON v. STATE OF MARYLAND Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Greene, J. Filed: March 20, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adop tion of this opinion. Petitioner, Tamere H assan Thornton, see ks review of a C ourt of Special Ap peals s judgment affirmin g his conviction for m urder in the second de gree. In his petition for a writ of certiorari, which we granted, Thornton essentially presents two questions for our review: 1. Did the intermediate appellate court and the trial judge correctly interpret and apply the mens rea element of second-degree murder of the intent-to-inflict-grievousbodily-harm variety? 2. Did the intermediate ap pellate court and the trial court correctly interpret and apply the law of imperfect selfdefense? Thornton v. State, 388 Md. 673, 882 A.2d 286 (2005). We shall hold that the Court of Special Appeals erred in affirming the trial court s interpretation and application of the intent element for the crime of second-degree murder. As trier of fact, the trial judge was permitted, but not required, to infer from Thornton s wilful act of thrusting the knife outward and into th e victim that Thornton inten ded to comm it such grievous bodily harm from w hich death would lik ely ensue; how ever, the trier of fact was n ot permitted to presume, from Thornton s conduct, that he intended to inflict grievous bodily harm as a matter of law or to presume anything from his use of the knife. Therefore, we reverse the judgment of the intermediate appellate court and remand the case for purposes of a new trial. Because of our disposition of the case, we need not address Thornton s second question. I. Tamere Hassan T hornton w as charged in the Circu it Court for B altimore C ounty with first-degree murder in violation of Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 407,1 and carrying a weapon openly with the intent to injure in violation of Md. Code 1 Section 407 prov ides: First deg ree mu rder-G enerally . All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and preme ditated k illing sha ll be mu rder in th e first de gree. Section 407 has been rec odified as Maryland C ode (2002), § 2-20 1 of the Criminal Law A rticle and no w reads in pertinent pa rt: Murder in the first degree. (a) In general.-A murder is in the first degree if it is: (1) a deliberate, premeditated, and willful killing; (2) comm itted by lying in wait; (3) committed by poison; or (4) committed in the perpetration of or an attempt to perpetrate: (i) arson in the first degree; (ii) burning a barn, stable, tobacco house, warehouse, or other outbuilding that: (1) is not parcel to a dwelling; and (2) contains cattle, goods, wares, merchandise, horses, grain, hay, or tobacco; (iii) burglary in the first, second, or third degree; (iv) carjacking or armed carjacking; (v) escape in the first degree from a S tate correctional facility or a local correctio nal f acility; (vi) mayhem ; (vii) kidnapp ing under § 3-502 o r § 3-503 (a )(2) of this article ; (ix) robbery un der § 3-40 2 or § 3-40 3 of this article; (x) sexual offense in the first or second degree; (xi) sodomy; or (xii) a violation of § 4-503 of this article concerning destructive devices. The State charged Th ornton under the statutory short form indictment. Md. Code 2 (1957, 2002 Repl. Vol. ), § 4-101(c)(2) of the Criminal Law Article.2 After a be nch trial, Thornton was found not guilty of first-degree murder, but guilty of second-degree murder and carrying a deadly weapon openly with the intent to injure. The trial court merged the weapons conviction with the conviction for second-degree murder. Thornton was sentenced to fourteen years imprisonment for second-degree murder. He appealed and a majority of a panel of the Court of Special Appeals affirmed the murder conviction, but vacated the weapons conviction.3 Thornton v. State, 162 Md. App. 719, 876 A.2d 142 (2005 ). A majority of the panel, in reliance upon State v. Ward, 284 Md. 189, 199, 396 A.2d 1 041, 10 47-48 (1978 ), Davis v. Sta te, 237 Md. 97, 10 4, 205 A.2d 25 4, 258 (1964), cert. denied, 382 U.S. 945, 86 S. Ct. 402, 15 L. Ed. 2d 354 (1965), and Webb v . State, 201 Md. 158, 162, 93 A.2d 80, 82 (1952), held that to prove second-degree murder, the evidence need only show that the death of the victim resulted from the intentional infliction of serious bodily harm, regardless of whether death was a likely or even a (1957, 1996 Repl. V ol.), Art. 27 § 616. Pursuant to § 616, even though the indictment specifically charged murder in the first degree, the defendant, nonetheless, may be convicted of murder in the first degree, murder in the second degree , or man slaugh ter. See State v. Ward, 284 Md. 189, 200 , 396 A.2d 1041, 10 48 (1978 ); Davis v. Sta te, 39 Md. 355, 376 (1874). 2 Section 4-101(c)(2) prohibits a person from wearing or carrying a dangerous weapon, chemical mace, pepper mace, or a tear gas device openly with the intent or purpose of injuring an individual in an unlawful manner. 3 The intermediate appellate court determined that the knife used in this case constituted a penkn ife withou t a switchbla de, within the meaning of § 4-101(a)(5) of the Crimin al Law Article, a nd ther efore w as not a wea pon u nder § 4 -101(c )(2). 3 probab le result o f that ha rm. Thornton, 162 M d. App . at 727- 28, 876 A.2d a t 147. (Emphasis add ed.) Further, the panel majority determined that the Pattern Jury Instruction, MPJI-Cr 4:17, which states that [s]econd degree murder is the killing of another person with . . . the intent to inflict such serious bodily harm that death would be the likely result[,] did not substantively change the law of Maryland beca use, [i]t does not add a likelihoo d requirement to the intentiona l infliction of serious bodily harm form of second-degree murder. Thornton, 162 M d. App . at 728, 8 76 A.2 d at 147 . Essentially, the pa nel majority con cluded tha t the intentiona l infliction of se rious bodily harm variety of second-degree murder does not include or require a separate likelihood requirement. Id. The likelihood requirement, as reflected in the jury instruction, accord ing to th e pane l, make[s] express that which was always implied: that the intentional infliction of serious bodily harm always carries with it the sub stantial risk that d eath will fo llow. Thu s to convict an accused of second-degree murder, the State need only convince the fact finder beyond a reasonable doubt that an accuse d acted w ith the intention to inflict seriou s bodily harm and that death was a consequence of the harm. Id. In opposition to that view, Judge Eldridge, in his dissenting opinion, pointed out that the majority s reliance upon Webb, Davis, and Ward was misplaced because those case s [w ]ith regar d to the el eme nt of inten t[,] . . . do n ot us e the majo rity s only language or language to the effect that the State need show only . . . the intentional infliction of serious bodily harm. Thornton, 162 Md. App. at 742, 876 A.2d at 155-56 4 (Eldridge, J., concurring in part and dissenting in part). According to the dissent, the language relied on by the majority, from the three cases cited, does not define the intentio nal inflic tion of s erious b odily harm variety o f secon d-degr ee mu rder. Moreover, [t]he language in Burch v. State[, 346 M d. 253, 6 96 A.2 d 443, cert denied, 552 U .S. 100 1, 118 S . Ct. 571 , 139 L . Ed. 2d 410 (1 997)], Mitchell v. State[, 363 Md. 130, 147, 767 A .2d 844, 853 (200 1)] and the pattern jury instructions, including as a f orm of second-degre e murder a hom icide with the intent to inflict such serious bo dily harm that death would be the likely result, does not, as suggested by the majority, change Maryland law or add a new element to the offense of second-degree murder. Thornton, 162 M d. App. at 7 44, 876 A .2d at 156 (E ldridge, J., con curring in p art and disse nting in part). To the c ontrary, [t]he langu age that de ath wou ld be the likely resu lt simply clarifies or illuminates the intent element. It is consistent with the evidentiary principle that evidence of using a deadly weapon directed at a vital part of the body may give rise to an inference of an inten t to com mit griev ous bo dily injury or a n intent t o kill. Id. (citations om itted). Thus, w hat the dissen t denotes as efforts [b y the majority pane l] to disapprove of the later opinions of the Court of Appeals in Burch and Mitchell and to overrule the pattern jury instructions [,] according to the dissent, is not supported by the very case s relied o n by the p anel m ajority. Thornton, 162 Md. App. at 743-44, 876 A.2d at 156 ( Eldridg e, J., conc urring in part and dissenti ng in pa rt). The interm ediate appe llate court held further that th e evidenc e was suf ficient to suppo rt the con viction o f secon d-degr ee mu rder. Thornton, 162 Md. App. at 728, 876 5 A.2d at 148. In addition, the court held that the trial court, by its rulings on the evidence, neither imp roperly relieved the State of its burden to prove that T hornton a cted with specific intent to inflict serious bodily harm, nor presumed that Thornton intended the consequences of his actions and thereby did not unconstitutionally shift to Thornton the burden of pro of as to the elem ent of in tent. Thornton, 162 Md. App. at 731-32, 876 A.2d at 149- 150. In order to determine w hether the trial judge and the interm ediate appellate court correctly interprete d and app lied the intent e lement of second-d egree mu rder to the fa cts of the instant case, we will review the mens rea requirement for that offense, focusing on the definitions of murder, malice, and grievous bodily harm, including the meaning of the phrase that death would be the likely result. We emphasize that where murder is predicated upon a theory of intent to commit grievous bodily harm,4 the intended harm must be grievous bodily harm and must be the legal equivalent of malice. Furthermore, in the context of a murder prosecution, intent to inflict grievous bodily harm means such harm that a reasonab le person co uld or shou ld know , under the c ircumstanc es, would likely result in death to the victim. Because the crime involves an unintentional killing, 4 The terms grievous bodily harm, great bod ily harm or in jury, serious bo dily harm, or injury, in the c ontext of m urder, essen tially, mean the sam e thing: something more than bodily injury. The term grievous bodily injury implies an injury that is life threatening. In the words of Professor Lafave, it means something close to, though of course less than death. See Wayne R. Lafave, Criminal Law 738 (4 th ed. 2003) (citing Wellar v. People, 30 Mich. 16, 20 (1874) ( Every assault involves bodily harm. But any doctrine which would hold every assailant as a murderer where d eath follow s his act, wo uld be barbarous and unreasonable. )) 6 the def endan t need n ot actua lly know that his c onduc t will resu lt in the v ictim s d eath. The requisite mens rea is measured by an objective standard, i.e., could or should a reasonable person, under the circumstances, have foreseen that death would likely ensue as a result of his or her conduct. Thus, the likelihood requirement is no more than an objective, not a subjective, standard used to circumscribe and clarify the elements of intent and malice. We have said that [i]ntent to commit grievous bodily harm is but one of four qualifying states of minds for murder; specifically, second-degree murder. Selby v. State, 361 Md. 319, 335, 761 A.2d 335, 344 (2000) (citing State v. Earp, 319 Md. 156, 162, 571 A.2d 1227, 1230 (1990)). It is the absence or presence of malice, which distingu ishes m urder f rom m anslau ghter. Selby, 361 Md. at 331-32, 761 A.2d at 342 (citations omitted). The burden rests on the State to prove beyond a reasonable doubt the elemen ts of the crime o f secon d-degr ee mu rder. State v. Evans, 278 Md. 197, 206, 362 A.2d 629, 634 (1976). [G]enerally, there are two components to every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. Garnett v . State, 332 Md. 571, 577-78, 632 A.2d 797, 800 (1993) (citations omitted). Limiting our discussion to the element of intent, we note that the State must p rove that the defenda nt acted w ith a specific in tent to inflict griev ous bodily harm a nd ma lice. Evans v. S tate, 28 Md. App. 640, 700-01, 349 A.2d 300, 337-38 (1975) (noting that the substantive mental element, intent to inflict grievous bodily harm can be proven by direct or circumstantial evidence, and that proof of this mental state constitutes 7 malice by defin ition), aff d sub nom.; 278 Md . 197, 362 A .2d 629 (1 976). It is we ll settled that [w ]here intent o f the accus ed is an ingr edient of th e crime ch arged, its existence is a question of fact which must be submitted to the [trier of fact]. [T]he question of intent can never be ruled as a question of law, but must always be submitted to the [tr ier of fa ct]. No presum ption o f intent m ay be raise d by law from a n act. Morrissette v. U.S., 342 U .S. 246 , 274, 72 S. Ct. 24 0, 255, 9 6 L. Ed . 288, 30 6 (195 2). Specifically, malice may be inferred from (1) an act by the accused sufficient to show an intent to inflict great bodily harm or (2) an act the natural tendency of which would cause death o r great b odily harm . Lindsay v . State, 8 Md. App. 100, 106-07, n.10, 258 A.2d 760, 764, n.10 (1969). In other words, the trier of fact may infer malice where the defendant acts without provocation, justification or excuse, and could or should have foreseen that the consequences of his or her conduct might result in death to another person . Lindsa y, 8 Md. App. at 109, 258 A.2d at 766 (citing Clark an d Mars hall, Law of Crimes, § 10.06 p.577). No presumption arises from the use of deadly force in a case of homicide. But the trier of fact is permitted, but not required, to draw an inference of the intent to inflict gr ievous bodily ha rm from the use of dea dly force . Evans v. S tate, 28 Md. App. at 70 4, 349 A .2d at 340; see State v. Evans, 278 Md. at 205, 362 A.2d at 634 (noting that it is improper to infer malice from the directing of a deadly weapon at a vital part of the human anatomy because the use of deadly force does not itself negate the absence of mitigatin g circum stances ). 8 II. On August 30, 2002, Thornton, who at the time was sixteen years old, was at the Towson Town Center Shopping Mall with friends to shop for the upcoming school year when they ran into Jason, who was also with a group of friends, among them seventeen-year-old Kev in Taylor. Jan Rebecca W ilson and M atthew M ayrer, called as w itnesses for th e State, testified that they were employees at the Rain Forest Ca fé at Tow son Tow n Center M all. They testified that they were working there on August 30, and that between 8:30 and 9:00 p.m. that night they were in th e parking lot taking a smoking break. Wilson testified that she heard loud voices and turned to se e two gro ups of kid s arguing about fifteen feet awa y. Two of the kids, one from each group, then got into a physical fight. During the fight, Wilson heard one kid from the group that was standing closest to her say which one of you [expletive] wants to get in on this. In response to this statement, Taylor stepped up and walked towards the kid who had spoken with his hands positioned out on the side in a ready position. According to Wilson, the kid who had spoken then pulled out a knife5 and sta bbed T aylor in the stomac h. Wilson testified that when Taylor was stabbed, it was the individual with the knife who closed the last ground between the two by making one step towards Taylor, followed by a stabbing motion. Taylor s shirt then turned red and h e fell to the gro und. The individual with th e knife fled and Wilson called 5 The knife w as entered into evidence . It is a two-bladed folding knife that opens and closes and has a guard on each side to lock the bla des in an o pen position . Each blad e is approxim ately three inches long and is single-edg ed. Whe n both blades are folded, the knife is appro ximate ly five inc hes lon g. 9 the police. According to Wilson, the entire confrontation lasted probably less than five minute s. Matthew Mayrer testified that he was outside the Rain Forest Café with Wilson when he heard a group of six to ten k ids talking tra sh to each other. Acc ording to Mayrer, two of the kids started wrestling, and the group divided into two halves cheering on the two comb atants. M ayrer testified that one of the spectators on the right hand side said which one of you [expletive] want to jum p in[,] and that Taylor acc epted this challenge and strutted towards the issuer of the challenge wit h his hand s positioned to his sides in a tough guy position. Taylor did not have a weapon. As Taylor approached Thornton, Thornton lunged forward, apparently to punch Taylor in the stomach. Mayrer realized that Thornton had a knife when, instead of being driven backward as if he had been punched, Taylor froze, and his white shirt immediately burst bright red. Mayrer testified that the last distance between Taylor and Thornton was closed by Thornton. Detective Gary C hilds, another witness called by the State, testified that Thornton admitted to stabbing Taylor in the leg because he was afraid that Taylor would hurt him. Thornton told Detective Childs that he then left the area on a bus and took the knife to the house of an 11-year-old boy, whom he asked to get rid of the knife for him. Thornton subseque ntly took the investigating detectives to the young boy s house to retrieve the knife. When asked whether Thornton impressed him as a street wise kid, Detective Childs replied, not street wise in the sense you know of bad and that [Thornton] certainly wouldn t have in the connotation you are asking me taken me to where the knife 10 was if he were street wise. Detective C hilds further testified that T hornton w as visibly shaken durin g his inte rrogatio n. Dr. Aronica-Pollak, Assistant Medical Examiner for the State of Maryland and an expert in the field of forensic pathology, was called as a witness for the State. She testified that the autopsy showed that there were two stab wounds and one cutting wound, and that the victim died from complications with those wounds. The stab wound [was three inches deep] to the left inguinal area injured the lef t external iliac arte ry and vein (major blood ves sels), resulting in extensive b leeding. A nother stab wound cut oneand-a-half inches deep and was appro ximately two and a half inches from the three-inch wound. Dr. Aronica-Pollak agreed that that particular wound was a nonlife-threatening soft tissue wound and she testified that the cutting wound to the right forearm was a defensiv e wound, and injured only skin and soft tissue as well. She stated that the wounds all contribute because th ey all produce d blood, w hich is wh y I called them all together in my cause of death, but this one [th e three-inch wound] is the one that injured the ma jor bloo d vesse l and the structur es. According to one of Thornton s friends, Orion Rock Brandon Beard, who was called as a witnes s for the de fense, Jaso n and Th ornton did not get along and Jason and his group followed Thornton and his group around the mall. Beard and Jason started arguing and agreed to go outside to fight, at which point both groups went out to the parking lot. Beard took off his shirt, punched Jason, and the two started wrestling on the ground. 11 Nicholas Vance J oyner, anothe r of Thor nton s frien ds present at the scene and called as a wit ness fo r the def ense, corroborate d Beard s testimony. Joyner further testified that once both groups were outside, he saw Beard and Jason start fighting, and that Taylor was getting mad because Jason was losing the fight. Joyner testified that Taylor walked back and forth saying that nobody had better jump in, and that at one point he saw Ta ylor take off h is shirt, approach Thornton with his fists balled up, and say that you look like you [ sic] going to jump in it. Thornton then took a step back toward the curb and said stay back, and Taylor continued to go toward him. Joyner looked away and to the fight between Beard and Jason and, when he looked back, Taylor had blood on his shirt. Joyner testified that he later heard Thornton s ay that he had stabbed Ta ylor. Thornton, testifying i n his ow n defe nse, explained that Taylor was mad that Beard was winning the fight with Jason, and began jumping around and talking ab out people jumping in the fight. Taylor then took off his shirt which, according to Thornton, meant that he wa s prepa ring to f ight. Thornton testified that T aylor then hea ded tow ard him saying, I dare you to ju mp in it, you loo k like you [sic] a bout to jump in it, and I m going to pop on e of you all. T hornton tes tified that he took a step back onto the curb, but Taylor kept approaching with his fist balled up and looking as though Taylor was going to hit him. According to Thornton, he took out the knife with the intention of scaring Taylor away, but Taylor kept coming and, in response, Thornton said he lunged forwa rd and s tabbed Taylor in the leg. 12 After hearing all of the evidence, the trial judge made the following factual findings an d rulings w ith respect to w hat occurre d that night: Jason and Mr. Bea rd got into a f ight. Now, here the ev idence is in d ispute. One side sa ys that the State s positio n is from two w itnesses that, M s. Wilson and Mr. Mayrer they were employees at a restaurant had gone outside to take a smoke break, and so they witnessed the fight. They have no interest in either side. Their testimony is that a t some point in time the Defendant issued a challenge to the other group about joining in the fight. The def ense says that it w as the victim who issued the challenge. I conclu de, I find as a fact that at some point in time the Defendant was the one that issued the challenge, and I say this for several reasons. First of all, he knew he had a knife. Nobody else did but he did. Secondly, the victim accepted the challenge, and I find that that is when he took his shirt off, and I also find that he did tell others not to get into it but then he approached the Defend ant, and he approached the Defendant because the Defendant was the one that had yelled. Now, he didn t know the Defendant had a knife. He did approach him in a menacing m anner, I have no doubt about that, and in an aggressive manner, and the Defendant pulled out the knif e, if he didn t have it out already and he expected the victim to back off an d the vic tim didn t, and the Defendant then thrust the knife out at the victim and stabbed him. It was a s erious w ound. It partially severed his left sternal iliac artery and vein, both of which are major blood vessels, and it lead to his death. Now, it is argued tha t he is entitled to self-defense. Well, in considering, he certainly I find he s no t entitled to perfect self-defense because, first of all, he was the one that 13 raised the level of confrontation to deadly force. Secondly, he could have retreated, which he did after he stabbed him, but he didn t do it before. Now, I do not believe that he had any specific inte nt to kill, but we are called upon to be responsible for our actions and when you take a knife such as introduced into evidence as State s Exhib it 7 . . . one know s that by thrusting that knife out, even though if it was in the leg, it was going to inflict serious bodily harm on whomever was struck and when you inflict serious bodily harm, one of the possible consequences or probable consequences, rather, is death. So f actu ally I don t believe that he was entitled to an imperfect self-defense because I find, one, th at there, by that act there was malice involved. There was n o prem editation , but there was malice, implied malice that way, and I reject the imperfect self-defense because as I found, I think he I find that he was the one that stirred, stirred the pot and stood his ground when the challen ge was a ccepted b y the victim . So I find him not guilty of first degree murd er but I find him guilty of sec ond deg ree murde r and I find him guilty of carryin g a we apon o penly w ith the in tent to in jure. (Emp hasis ad ded.) III. Thornton contended at oral argument, in this Court, that the trial judge committed four legal errors concerning his analysis of the element of intent for second-degree murder. Thornton argued that the trial judge erred: (1) in unconstitutionally shifting the burden of proof for intent to him (by making a presumption of the intent); (2) in stating that because an individual knows that thrusting a knife out could result in death, that satisfies the intent requirement; (3) in equating intent to do grievous bodily harm (seconddegree murder) w ith intent to do s erious physica l injury (first-degree assault); and ( 4) in 14 stating that Thornton could be held liable f or murde r if death w ere merely a po ssible consequence o f his action (rather than the likely conseque nce). Conversely, the State argued th at the trial court did not err and Tho rnton was properly convicted of second-degree murder. According to the State, Thornton was properly convicted, whether second-degree murder is defined as an act done with intent to commit g rievous bo dily harm and death occ urred in consequence of the attack, or as killing another person with the intent to inflict such serious bodily harm that death wo uld be the likely result. The State s position is that the evidence was legally sufficient to infer the requisite intent for either definition of second-degree murder and that the trial judge und erstood the law. The State posits that the trier of fact un derstood th at in order to find Thornton guilty of second-degree murder, Thornton would have had to sta b the victim with the intent to inflict grievous bodily harm such that death would be the likely result. And even though the trial judge found there was no intent to kill, he found malice in the defendant s actions. The State asserts, also, that because the trial judge properly understo od the law, he did not shift the burden of persuasion to the defendant by errone ously pre sumin g the inte nt elem ent. We will address the parties arguments and their relevance to the instant case, but we will first review the concept o f murder and analyze th e pertinent ele ments in or der to lay the foundation for our holding. MURDER DEFINED The following description of murde r under Maryland law serves as a basis for our 15 analysis: Under Maryland law the crime of murder remains a common law crime, although first and second degree murder have been delineated by statute. See Sifrit v. State , 383 Md. 116, 138, 857 A.2d 88, 100 (2004); Mitchell v. S tate, 363 Md. 130, 14647, 767 A.2d 8 44, 854 (2001 ). Section 40 7 of Art. 2 7 defined first degree m urder as: All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and preme ditated k illing sha ll be mu rder in th e first de gree. Maryland Code (1957, 1996 Repl. Vol.), Art. 27 § 407 was recodified without substantive change as Maryland Code (2002 ), § 2-20 1 of the Crimin al Law Article. Section 41 1 of Art. 2 7 defined second d egree mu rder as: All other kinds of murder shall be deemed murder in the second degree . Maryland Code (1957, 1996 Repl. Vol.), Art. 27 § 411 was recodified without substantive change as Maryland Code (2002), § 2-204 of the Criminal Law Article. Clemo ns v. State, 392 Md. 33 9, 345 n.2, 896 A .2d 1059, 1062 n .2 (2006). Although second-degree murder is defined by statute as encompassing all other kinds of murder, this Court has distinguished four different types of second-degree 16 murder. 6 Mitchell, 363 M d. at 146-47 , 767 A.2d at 853. In 19 97, this Cou rt stated in Burch, 346 M d. at 274, 69 6 A.2d a t 454, that: Second-degree murder embraces a killing accompanied by any of at least three alternative mentes reae: killing another person (other than by poison or lying in wait) with the intent to kill, but without the deliberation and premeditation required for first degree murd er; killing anoth er person w ith the intent to inflict such serious bodily harm that death would be the likely result; and what has become known as depraved heart murder a killing resulting from the delibera te perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harme d or no t. (Citations omitted.) Earlier, in Ross v. Sta te, 308 Md. 337, 340, 519 A.2d 735, 736 (1987), we summarized the crime of murder and the requisite malevolent states of mind but did not mention the concept that death w ould be the likely result of the harm as w e did in Burch a nd Mitch ell.7 6 There is a fourth category of second -degree murder murder committed in the perpetration of a felony other than those enumerated in the first-degree murder statutes. Roary v. State, 385 Md. 217, 236, 867 A.2d 1095, 1106 (2005) (holding that assault in the first degree may constitute the pred icate felony for second-deg ree felony murder where defendant s conduct during the c ourse of the felony is inheren tly dangerous to life ); see also Fisher v. Sta te, 367 Md. 218, 225, 786 A.2d 706, 710 (2001); Deese v. S tate, 367 Md. 293, 296, 786 A .2d 751, 752 (200 1). 7 From our review of Burch and Mitchell there is no clear indication why, at the time those cases were decided, we chose to define second-degree murder in terms of the likelihood that death would ensue. The Court of Special Appeals, however, concluded that [n]either case addresses the question of what constitutes intentional infliction of serious bodily harm second-degree murder. Thornton v. State, 162 Md. App. 719, 727, 876 A.2d 142, 14 7 (200 5). To the contrary, both cases are instructive in that they specify that the intent element 17 for this form of second-degree murder is an intent to inflict such serious bodily harm that death would be the likely result. Burch v. S tate, 346 Md. 253, 274, 696 A.2d 443, 454 (1997); Mitchell v. State, 363 Md. 130, 147, 767 A.2d 844, 853 (2001). According to the intermediate appellate court, the two cases perfunctorily and in passing define seconddegree murder, and, as to the intent element, state that either an intent to kill or with the intent to inflict such serious bod ily harm that dea th would be the likely result is an element of the o ffense . Thornton, 162 Md. App. at 727, 876 A.2d at 14 6. In our view , howev er, it should not be surmised that both cases do not set forth definitions of second-degree murder and do not rep resent the de cisional law of this Co urt. The debate between the majority s view and the dissent, as reflected in the respective opinions of the panel in the intermediate appellate court in this case, was whether Davis v. Sta te, 237 Md. 97, 104, 205 A.2d 254, 258 (1964) and MPJI-Cr 4:17.6 add a likelihood requirement to the intentional infliction [of] serious bodily harm form of second-degree murder. Thorn ton, 162 Md. App. at 728, 876 A.2d at 147. MPJI-Cr 4:17.6 provides: Second degree murder does not require premeditation or deliberation. In order to convict the defendant of second degree murder, the State must prov e: (1) that the conduct of the defendant caused the death of (victim); and (2) that the defe ndant eng aged in the deadly conduct either with th e intent to kill or w ith the intent to inflict such serious bodily harm that death wo uld be the like ly result. The majority, in the Court of Special Appeals s opinion filed in this case, concluded that the likelihood requirement make[s] express [what has always been] implied: that the intentional infliction of serious bodily harm always carries with it the substantial risk that death will follow. Thorn ton, 162 M d. App . at 728, 8 76 A.2 d at 147 . The dissent, however, countered, asserting that [t]he language that death would be the likely result simply clarifies or illum inates th e intent e lemen t. Thorn ton, 162 Md. App. at 744, 876 A.2d at 157 (Eldridge, J., concurring in part and dissenting in pa rt). O nly a partial answer to the question raised can be found in Davis v. Sta te, supra. As Judg e Eldridge, in his dissent in the intermediate appellate co urt, points ou t, [t]he princip al issue in Davis v. Sta te . . . was the validity of a jury instruction that all homicides are presumed to be murder and that the burden is on the acc used to sho w circumstances of alleviation, excuse o r justification. Thornton, 162 Md. App. at 743, 876 A.2d at 156 (Eldridge, J., concurring in part and dissenting in part). Although Davis upheld the instruction, it was overrule d by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), and State v. Evans, 278 Md. 18 197, 362 A .2d 629 (1976 ). Speci fically, Davis, supra, involved a conviction for seconddegree murder. The Court acknowledged the nature of the injuries inflicted upon the victim, and th e brutality and s everity of [the] beating as eviden ce of ma lice and inten t to commit a hom icide. Davis, 237 Md. at 104, 205 A.2d at 258. Although the Court did not define intent to inflict serious bodily ha rm, per se, in terms of the severity of the beating, one could reasonab ly infer from the nature of the harm inflicted that the crime embraces the kind of injury from w hich one w ould likely die. T his is suppo rted by this Court s language in Burch and Mitchell. In Burch, we observed that the beating and stabbing of a 78-year old, 97-po und frail victim, by the defendant, was so severe that the compelling inference from the facts of the case was that the defendant must have acted with the intent either to kill or to do such serious bodily harm th at death would be the likely result. Burch, 346 Md. at 280, 696 A.2d at 457 (affirming the trial court s decision that there was no basis for a depraved heart murder instruction as to the Davis victim, but there was a basis for the other instructions, including the intent-to-do-serious-bodily-harm variety of second-degree murder). In Mitchell, we acknowledged our decision in Burch and observed again that second degree murder embraced a killing acc ompa nied by a ny one o f at least t hree alte rnative s tates of mind . . . [i.e.,] killing anoth er person w ith the intent to in flict such serio us bodily harm that death would be the likely result[.] Mitchell, 363 Md. at 147, 767 A.2d at 853 (noting that [t]here was no allegation that the conspiracy was merely to inflict such grievous bodily injury that death w ould be the likely re sult ). Even in our e arlier cas es, in the context of our discussion of malice, this Court acknowledged that malice may be inf erred wh en there is an intent to inflict g reat bodily harm or when one wilfully does an act, the natural tendency of which is to cause death or great bodily harm. Faulcon v. State, 211 Md. 249, 257, 126 A.2d 858, 862 (1956) (holding that [t]he trial judge could well find from the evidence that Faulcon [deliberately ran over the victim with an automobile], without legal justification or excuse, [and Faulcon] intended to inflict great bodily harm to the deceased, the natural tendency of which was to cause death ) Faulc on, 211 Md. at 259, 126 A.2d at 863. In Webb and Ward, supra, this Court mentioned that [i]f the in tent were to commit grievous bodily harm, and death occurred as a consequence of the attack, then the case w ould have been mu rder in the sec ond deg ree; Webb, 201 M d. at 162, 93 A.2d at 82 ; Ward , 284 Md. at 199, 396 A.2d at 1048 (quoting Wharton 12 th ed. s 841, pp. 1131-1 132.) Although, ne ither case men tions the likelihood requireme nt, it is not unreas onable to c onclude th at grievous bodily harm, as the adjective, grievous implies, is an injury from which death is likely to ensue. Otherwise, if the law accepted as murder an intention to cause any bodily injury resulting in death, without qualifying the nature of the injury, then there would be no clear distinction between murder and involu ntary man slaugh ter. See Selby v. State, 361 M d. 319, 332, 761 A.2d 335, 342 (2000) (noting that an intent to commit grievous bodily harm will support a conviction for 19 We said in Ross: Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation. These qualifying malevolent states of mind are: 1) the intent to kill, 2) the intent to do grievous bodily harm, 3) the intent to do an act under the circumstances manifesting extreme in differenc e to the valu e of hum an life (depraved heart), or 4) the intent to commit a dangerous felony. Id. (citing Rollin M. Perkins, Criminal Law 46 (2d ed. 1969)). Stated differently, [a] murder conviction may . . . be supported by proof of any one of four separate mentes reae. Glenn v. S tate, 68 Md. App. 379, 384-85, 511 A.2d 1110, 1113 (1986); see also Judge Charle s E. Moylan, Jr., Criminal Homicide Law 38 (2002). [E]ach of these four intents is independently blamew orthy to support a murder c onviction in its own right and [they are not] mere[ly] evidentiary aven ue[s] to [prov ing an in tent to ki ll]. 8 Id. at 39. In addition, [t]he presence of one of these intents is an indispensable ingredient, although not the only necessary ingredient, of that slippery legal concept known as malice. Glenn, 68 M d. App . at 385, 5 11 A.2 d at 111 3. (See o ur discu ssion, infra.) murder, and that [i]nvoluntary manslaughter . . . [is] an unintentional killing done without malice, by doing some unlawful act endan gering life, . . . . ) (citatio ns omitted); see also Comm onwea lth v. Sneed, 597 N.E.2d 1346, 1349 (Mass. 1992) (stating that if malice cou ld be proved by a showing that the defendant only intended to cause [m inor as opp osed to gre at] bodily injury, murder could involve less threatening and less morally blameworthy conduct than involuntary manslaug hter ). 8 Depraved-he art murder, like intent-to-do-grievous-bodily-harm murder (and felony murder), does n ot requ ire proo f of a sp ecific in tent to kill. Robin son, 307 Md. 738, 746, 517 A.2d 9 4, 98 (1 986). 20 Malice Prior to 1990, most appellate opinions in this State, which discussed the law of murder, pointed out that malice is an indispensable ingredient of murder and defined malice as the intentional doing of a wrongful act to another without legal excuse or justification and as including any wrongful act done wilfully or purposely. See Fisher, 367 Md. a t 273, 78 6 A.2d at 738 (citations omitted). Malice may be either express or implie d. 9 As this Court stated in Fisher, under our decisions, . . . there is no requirement that a specific intent to kill, and thus express malice, exist; a person may commit murder without an actual intent to kill (express malice) for the law will infer or imply malice from the attendant circumstances in some unintentional killings. Id. at 273, 786 A.2d at 739. (Citatio ns omi tted.) The likelihood requiremen t referred to in Burch, Mitchell, and MPJI-Cr 4:17 clearly had its origins in the common law. It is well settled that, [o]ne may be guilty of murder at common law though there may have been no actual intent to kill. Whether or not the offense is murder depends upon the nature and extent of the injury or wrong 9 The distinction between express malice and implied malice is important only for historical purposes. In 1990, apparently recognizing the confusion inherent in using the terms, express malice and implied malice, this Court approved jury instructions that defined, among other crimes, first-degree murder and second-degree murder without using the word malice. Bruce v. State, 318 Md. 706, 73 2, 569 A .2d 125 4, 1267 (1990 ). See also Judge Charles E. Mo ylan, Jr., Criminal Homicide Law 40 (2002). Judge Moylan writing for the intermediate appellate court in Evans v. S tate, 28 Md. App. 640, 697, 700, 349 A.2d 300, 336-37 (1975 ), supra, explained that intent to inflict grievous bodily harm falls under the umbrella of implied malice. As one of four separate intents, this particular life endangering intent, like the other three, constitutes malice by definition. Thus, there is nothing to infer, presum e or imp ly once o ne of th e four m alevole nt states o f mind have b een pro ven. Id. 21 actually intended. Clark and Marshall Law of Crimes, supra, at 647. The text writers point out tha t: Society in an attempt to achieve maximum protection for human life reads in that mental element [i.e., malice] whenever a defendant, acting without provocation, justification or excuse, could or should have foreseen that the consequences of his behavior m ight result in death to another person. Id. at 645; see also Commonwealth v. Chance, 54 N.E. 551 (Mass. 18 99); Comm onwea lth v. Gricus, 58 N.E.2d 241 (Mass. 1944). 10 10 In his 1897 treatise, Lewis Hochheimer stated that [h]omicide caused by the intentional doing of an act of which death is the natural and probable consequence is felonious (meaning with malice), and so constitutes murder, but no one is liable for accidental consequ ences of a cts innocent and lawful in themselves, nor for undesigned and improbab le conseq uence s of un lawfu l acts. L ewis H ochhe imer, The Law of Crimes and Criminal Procedure, 387 (1st ed . 1847) (emphasis added). This passage from Hocheimer highlights the difference between the majority and dissenting opinions in this case when it was before the Court of Special Appeals. We, howe ver, disagree with the pan el majority s definition of murder in the second degree of the intent-to-inflict-grievous-bodily-harm type because that definition does n ot exemp t from mu rder unde signed or im probable consequences that flow from unlawful acts. Thus, [w]here intent is an element of the offense, the defendant is entitled to have the [trier of fact] determine intent or absence of intent. Mitchell, 346 M d. 253, 3 06-07 , 696 A .2d 443 , 470 (1 997). Herbert Wechs ler & Jerom e Micha el, discussed th e debate between Justice Holmes, as to American law, and Justice Stephens, as to Eng lish com mon la w. Herbert Wechsler and Jerome Michael, A Rationale of the L aw of Hom icide: I, 37 Colum. L. R ev. 701 (1937). App aren tly, Holmes thought that the actor s awareness of the danger was immaterial if he was aware of circumstan ces that wo uld lead a man of common experience to conclude that the danger was very great; that the common law employed an external standard even in the case of murder. Id. at 710. His ra tionale apparently was that one re ason wh y intent to cause serious injury suffices is that death is a highly probable consequence of acts intended to produce such injury. Id. at 712 n.38. Justice Stephens, however, believed . . . that the actor must have knowledge of the danger and not merely of the circumstances. Id. at 710. In other wo rds, Holm es s position w as that implied malice me ant that a m an might h ave to answer with his life for consequences which he neither intend ed nor fo resaw . . . . [H ]is failure or inability to predict [the consequences of his actions] was immaterial, if under the 22 INTENT In the area of criminal law [i]ntent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those conseque nces are substantially certain to result fro m his ac ts. LaF ave, supra, at 340. We have said that [a] general mens rea or intent includes those consequences which (a) repre sent the very purpose for which an ac t is done (regardless of the likelihood of oc currence), or (b) are known to be substantially certain to result (regardless of desire). McBurney v. State, 280 Md. 21, 29, 371 A.2d 129, 133 (1977) (citations omitted). By contrast, a specific intent requires more than the general intent to do the actus reus. Id. An offense is murder depending upon the resu lts and the na ture and ex tent of the inju ry or wrong actually intended. Intent to infli ct grievo us bo dily harm is a distinct form of second-degree murder and co nstitutes a specif ic intent c rime. See discuss ion, infra (Specific Intent Crime). Judge Campbell described the requisite intent for this type of murder in Wellar v. People, 30 Mich. 16, 19 -20 (1874): It is not necessary in all cases that one held for murder must have intended to take the life of the person he slays by his wrongful act . . . . But it is nece ssary that the intent with which he acted sh all be equiv alent in legal character to a criminal purpose aimed against life . . . . And if the intent be directly to produc e a bodily in jury, it must b e such an injury as may be expected to involve serious consequences, either circumstances known to him, the court or jury, as the case might be, thought them obvious. Id. at 710 n.31 . Holmes s view is contrary to Thornton s assertion in this Court and in the Court of Special Appeals that the State must prove, as a separate element of its case-in-chief for mu rder, tha t the def endan t was ac tually aw are of th e risk of the victim s death . 23 perilling life or leading to great bodily harm. There is no rule recognized as authority which will allow a conviction of murder where a fatal result was not intended , unless the injury intended was one of a very serious character which might naturally and commonly involve loss of life or grievous mischie f. (Empha sis added.) As we have previously discussed, malice is a necessary element of murder, and may be proven by direct or indirect evidence and the surrounding circumstan ces, includin g the wo rds and ac tions of the d efendan t.11 1. As Co mpare d with Assault The requisite mental state for murder in the second degree of the intent-to-inflictgrievous-bodily-harm variety is distinct from the requisite mental state for assault in the first degree.12 Maryland courts have held that such acts as spraying an individual in the 11 The design is not confined to an intention to take away the life of the deceased, but includes an intent to do a ny unlawfu l act, which m ay probably end in depriving th e party of life. Bantum v. State, 85 A.2d 741, 75 1 n.2 (Del. 1952) (citations om itted). 12 See Rob inson v. State , 353 Md. 683, 691-92, 728 A.2d 698, 701-02 (1999) for an analysis of the statutory history of Md. C ode (20 02, Re pl. Vol.) , § 3-202 of the Criminal Law Article, formerly Art. 27, §§12, 12A and 12A-1, repealed by 1996 Laws of Maryland, Ch. 632. In 1996, the Mar yland Gene ral Assem bly enacted A rt. 27, §§ 12, 12A and 12A-1, effective October 1, 1996. 1996 Laws of Maryland, Ch. 632. These statutes provide as follows: § 12. Definitions. (a) In general.--In this subheading the following words have the meanings indicated. (b ) Assault.-Except as otherwise provided in this subheading, "assau lt" means the offenses of assault, battery, and assault and batte ry, which terms retain th eir judicially determined meanings. (c) Serious physical injury.--"Serious physical injury" means physical injury which: (1) Creates a substantial risk of death; (2) Causes serious perm anent or ser ious protracted disfigu rement; (3) Causes serious permanent or serious protracted loss of the function of any bodily member or organ; or (4) Causes serious 24 eyes with pepper spray, or a bite on the arm, resultin g in scarring , may constitute f irstdegree assault. See Ha ndy v. State , 357 Md. 685, 700, 745 A.2d 1107, 1115 (1999) (recognizing that the use of the pepper spray in . . . [that] case did in fact cause the victim to suffer protracted loss or impairment of his vision[,] satisfying the elements of first-degree assault); Thomas v. State, 128 Md. App. 274, 303, 737 A.2d 622, 637 (1999) (holding that a bite wound on the arm that left the victim with a serious permanent or protracted disfigurement was sufficient to constitute serious physical injury within the context of first-d egree a ssault). T hese acts can cause serious physical injuries, but are not necess arily suffi cient alo ne to es tablish a n intent t o com mit griev ous bo dily harm . A person may be guilty of one out of four possible forms of first-degree assau lt, under Md. Code (2002), § 3-202 of the Criminal L aw Artic le, if he intentionally cause[s] or attempt[s] to cause serious physical injury to an othe r, w here ser ious physi cal in jury means injury which, [c]reates a s ubst antia l risk of death . S erious ph ysical inju ry permanent or serious protracted impairment of the function of any bod ily memb er or org an. § 12A. Second de gree assault. (a) Gene ral Pro hibition . --A person may not commit an assault. (b) Violation; penalties.--A person who vio lates this section is gu ilty of the misdemeanor of assault in the second degree and on conviction is subject to a fine of not more than $2,500 or imprisonment for not more than 10 years o r both. § 12A-1. First degree assau lt. (a) Serious physical injury; use of a firearm.--(1) A person may not intentionally cause or attempt to cause serious physical injury to another. (2) A person may not commit an assault with a firearm . . . . (b) Penalty.--A person who vio lates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment for not more than 25 years. 25 constitutes a broad statu tory concept that by definition covers physical injury that may or may not cause a victim s death. T his differs from grievo us-bodily-harm murder, and not only in the ultimate result whe re the victim d ies. A perso n is guilty of the intent-to-dogrievous-bodily-harm form of mu rder only if he or she has the requis ite intent (and malice) to cause such severe harm that death would be the likel y resu lt, no t mer ely a possible result. Judge Eldridge illustrated this distinction in a hypothetical, stating: Under the majority s an d the trial cour t s formula tion, . . . if an accused directs a knife at the victim s finger, intending to inflict serious bodily harm, and the fing er is severed, and, unknown to the accused, the victim is a hemophiliac, and bleeds to death, the accused will be guilty of second degree murder. The form ulation of th e intent ele ment set fo rth in Burch, Mitchell, and the pattern jury instructions, would a void this result. Thornton, 162 Md. App. at 744, 876 A.2d at 157 (Eldridge, J., concurring in part and dissenting in part). A defendant should on ly be held liable f or second -degree m urder if death would be the likely result of the harm that he intende d. The requisite intent for murder of the intent-to-inflict-grievous-bodily-harm modality is a narrow concept. The requisite intent for the statutory crime of assault in the first degree, however, is a much broade r conce pt and e mbrac es at leas t four se parate a nd distin ct mod alities. 2. Specific Intent Crime A specific intent crime requires that the defendant, upon doing the act, have some intent other than to do the actus reus thereof . . . . McBurney, 280 Md. at 29, 371 A.2d at 133 (quoting R ollin M. Perkins, Crimina l Law 762 (2d ed. 1969)). The defendant must have the additional deliberate and conscious purpose or design of accomplishing a very 26 specific and remo te result. Shell v. Sta te, 307 Md. 46, 63 , 512 A.2d 358 , 366 (1986). In Fisher, this Court sa id that [a] specific intent is not simply the intent to do the immedia te act but embraces the requirement that the mind be conscious of a more remote purpose or design which shall eventuate from the d oing of the immedia te act . . . . [Specific in tent crimes] re quire[ ] no t simply the general inten t to do the immediate act with no particular, clear or undifferentiated end in mind, but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result. 367 Md. at 27 4, 786 A.2d at 73 9 (citations omitted). With crimes which require that the defendant intentionally cause a specific result, what is meant by an intention to cause that result? Although the theorists have not a lways been in agreem ent as to the answer to this question , the traditional v iew is that a person who ac ts (or omits to a ct) intends a re sult of his act (or omission) under two quite different circumstances: (1) when he consc iously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his c onduct, whate ver his d esire m ay be as to that resu lt. LaFa ve, supra, at 341. Murder of the intent-to-inflict-grievous-bodily-harm type is, by d efinition , a specific intent crime, even though there is no conscious or purposeful design to kill the victim. Fisher, 367 Md. at 274, 786 A.2d at 739. In Glenn, 68 Md. App. at 390, 5 11 A.2d at 1116, the intermediate appellate court acknowledged that [t]he critical distinction that needs to be made . . . is between the results specifically intended, not 27 between the presen ce or abse nce of a sp ecific intent. Although there is the purpose or design that the victim should suffe r serio us ph ysical harm, there is no necessary purpose or design that the victim should die 13 (citations omitted). See also Moylan , supra, at 95. (The differenc e betwee n specific intent-to-kill mu rder and sp ecific intent to c ommit grievous bodily harm is in the results specifically intended.). The following hypothetical is often cited to illustrate the co ncept: I deliberately amputated the arms and legs of my enemy for the purpo se of rend ering him a quadripleg ic for the rest of 13 Judge W ilner s analysis in Jenkins v. S tate, 59 Md. App. 612, 618, 477 A.2d 791, 794 (1984 ), reversed in part, Jenkins v. S tate, 307 M d. 501, 515 A.2d 46 5 (1986), is illustrative: An intent to maim , disfigure, or d isable [virtually, if not com plete ly, distinguishable from the intent to do grievous bodily harm] necessarily falls short of, and thus excludes, an intent to kill. The actor s object in such a case is not to end the victim s life, but to have him linger on, either temporarily or perm anen tly, in a disabled or disfigured co ndition. C onverse ly, although death is obv iously the ultimate form of d isablemen t, it is far more than that; one does not generally regard a killing as merely an extreme form of disa bleme nt. It is not the marking or hobbling of the victim that is really intended, but the termination of his very existence. That is the critical, overriding intent, even if death is to be preceded, or caused, by injuries that but for the death would constitute a disfigurement or disablement. Thus, both rationally and realistically, an intent to kill excludes the lesser in tent me rely to ma im, disf igure, o r disable . (Empha sis in original.) Acknowledging Judge Wilner s discussion in Jenkins, supra, the Court of Special Appeals in Glenn observed that the in choate fo rm of inten t-to-comm itgrievous-bodily-harm murder is a ssault with in tent to maim, disfigure, or disable. Glenn, 68 Md. App. at 390, 511 A.2d at 1116. Thus, it is clear, in some cases, that the specific intent to commit an assau lt in the first degree, under the statutory offense, may be sufficient to satisfy the intent element of second -degree murder. 28 his long and m iserable life. I did not remotely desire that a mercif ul death should interven e to frus trate my d esign. A fact finder, of c ourse, need not believe such a statem ent, and probably would not. That is beside the point. The issue is: If the fact finder should explicitly find such a stated intent to be the fact, what would its legal significance be in terms of [murder]? The answer is . . . [th at s]ociety s respo nse is that a death resulting from a defendant s possession of such a mens rea is just as blam eworthy and just as worthy of punishment as if there had been an a ctual intent to kill. It is an independent murderous mens rea in its own right and no m ere pale ref lection o f the inte nt to kill. Moylan, supra, at 96 (quoting Glenn, 68 Md. App. at 394 n.8, 511 A .2d at 1120, n.8). Thus, the trier of fact may find the requisite intent for second-deg ree murder, even w here the defendant did not intend to kill the v ictim, but did in tend to inflict g rievous bo dily harm.14 Murder of the intent-to-do-grievous-bodily-harm type is a specific intent crime, and the specific intent n eces sary f or co nvic tion is the inten t to do ser ious bodily inju ry, that death would b e the likely result. Again, the intent is measured by an objective See Rollin M. Perkins and Ron ald N. B oyce, Criminal Law 59 (3 rd Ed. 19 82). Depen ding upo n the infere nce draw n by the trier of f act, [a]n inte nt to inflict great bodily injury is sufficient for malice . . . if th ere is no justific ation, excus e, or mitigation ; Couser v. State, 221 Md. 474, 475-76, 157 A.2d 426, 427 (1960) (holding that the defendant s act of stabbing a police of ficer with a switchblad e knife w as sufficien t to show an intent to inflict grievous bodily harm where defendant stabbed the officer in the thigh during a struggle and the weapo n was aim ed at the of ficer s abdo men w ith the intent to incapacitate him); Abney v. State, 244 Md. 444, 449, 223 A.2d 792, 795-96 (1966) (holding that the evidence was sufficient to support a finding of malice in the killing and murder in the sec ond degree w here the defenda nt threatened to shoot or kill anyone who tried to break up the fight and he in fact shot the victim, even though the defendant claimed that the shooting was unintended, accidental and that he lacked capacity to commit murder due to his epilepsy, and drug and alcohol use). 14 29 standa rd. The four alternative mental states that will establish the mens rea of murder, one of which is an intent to inflict g rievous bo dily harm, may be proven d irectly or indirectly by infere nce. Evans v. S tate, 28 M d App . at 701- 02, 349 A.2d a t 338. In Sandstrom v. Montana, 442 U .S. 510, 517-18, 99 S. Ct. 2450, 2456, 61 L. Ed. 2d 39, 46- 47 (19 79), the United States Sup reme Co urt clarified the substantive law and stated that, only an inference, rather than a presumption of in tent, may be drawn from voluntary acts. Otherwise, if the trier of fact is allowed to presume that one intends the natural and probable consequences of his or her acts, in the context of a criminal case, as a matter of substantive law, the rule would in effect destroy the concept of intention and replace it entirely with negligence[,] . . . [and] the defendant would be held to have intended whatever a reasonable man would have foreseen as probable. Wayne R. LaFa ve, Substantive Criminal Law 355 (2 nd ed. 2 003). Specific ally, in Sandstrom, the defendant was charged with deliberate homicide, which, under Mo ntana law, required proof that the defe ndant pur posely or kno wingly caused the dea th of an other. Sandstrom, 442 U.S. at 512, 99 S. Ct. at 2453, 6 1 L. Ed . 2d at 43. The trial judge instructed the jury, in accordance with Montana law, that the law presumes that a person intends the ordinary conseque nces of his voluntary acts. Sandstrom, 442 U.S . at 513, 99 S . Ct. at 2453, 6 1 L. Ed. 2d at 44 (citations omitted). The United States Supreme Court reversed Sandstrom s murder conviction on the ground that the instruction to th e jury violated th e Fourteen th Amen dment s re quiremen t that the State prove every element of a criminal offense beyond a reasonable doubt. Sandstrom, 30 442 U.S. at 512, 99 S. Ct. at 2453, 61 L. Ed. 2d at 43. Rejecting the State s argument that the instruction described only a perm issive inference, the Court reaso ned that the jurors were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. Sandstrom, 442 U.S. at 515, 99 S. Ct. at 2454, 61 L. Ed. 2d at 45. The Court explained further that, the jury might have interpreted the instruction in either of two [] string ent wa ys . . . . as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption[, or] . . . to find [guilt] upon proof of the defendant s volunta ry action s (an d the ir or dina ry consequences), unless the d efendan t proved th e contrary . . . . Sandstrom, 442 U.S. at 517, 99 S. C t. at 2456, 61 L. E d. 2d at 46-4 7. Thus, the Court ultim ately held that a conclusive presump tion, in the con text of that crim inal trial, would be unconstitutional as it would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, and would invade [the] factfinding function which in a criminal case the law assigns solely to the [trier of fact]. Sandstrom, 442 U.S. at 523, 99 S. Ct. at 2 459, 61 L. Ed. 2d at 50. See In re Windship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970) (holding that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is [tried] ). Thus, it is permissible under M aryland law to infer an intent to kill or intent to do grievous bo dily harm fro m the use o f deadly forc e, but it is not per missible to presume, in a contested case, such intent from facts in evidence without impro perly 31 shifting the burden of proof.15 The requisite intent may be established by either direct or circumstantial evidence.16 IV. In the present case, the trial judge found that Thornton did not po ssess a spec ific intent to kill his victim. According to the autopsy report, Taylor was stabbed in the left 15 In this opinion, we draw a distinction between the terms inference, or infer and presu mption , or presume. An inference allows but does not require the trier of fact to infer the e lemen tal fact f rom pr oof by th e prose cutor o f the ba sic [fac t] . . . and the inference places no burden on the defendan t of a ny kind and does not shift the burden of proof. By contrast, a mandatory presumption may affect not only the strength of the no reasonab le doubt burden but also the placement of that burden; it tells the trier of fact that [it] must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presum ed con nection betwe en the tw o facts. See County Court of Ulster C ounty, New York v. Allen, 442 U.S. 140, 156-57, 99 S. Ct. 2213, 2224- 25, 60 L . Ed. 2d 777, 79 2 (199 7) (citatio ns omi tted). As the trier of fact, the trial judge, in this case, was entitled to draw reasonab le inferences from established facts. Th is Court long ago ad opted the policy that the trier of fact may infer that one intends the natural and foreseeable consequences of his or her conduct. Davis v. Sta te, 204 Md. 44, 51, 102 A.2d 81 6, 819-20 (1954); see also, Glenn v. State, 68 Md. App. 379, 409, 511 A.2d 1110, 1126, cert. denied, 307 Md. 599, 516 A.2d 569 (1986) (noting that it is a lways perm issible to infer th at one inten ds the natur al and foreseeab le consequ ences of h is or her con duct); Ford v. State, 330 Md. 682, 704, 625 A.2d 984, 994 (1993) (holding that under the circumstances of that case it was reasonable to infer that a natural and probable consequence of throwing a large rock through the windshie ld of a fast mov ing vehicle [was] pe rmanent injury of various forms to the ve hicle s occup ants ). 16 It is well settled in this State that a d eadly weap on is gene rally any instrumen t with which death ma y be readily or easily produced; the instrument constitutes a deadly weapon either in its nature or in the manner in which it is used . See Brooks v . State, 314 Md. 585, 600, 552 A.2d 872, 88 0 (19 89) ( hold ing that a dead ly weapon is any instrument (1) . . . designed to be used in destroying, defeating, or injuring an en emy, or as an instrument of offensive or defensive combat; (2) under the circumstances of the case, imm ediately useable to inflict serious or deadly harm . . . ; or (3) actually used in a way likely to inflict that sort of harm . . . ). 32 leg, in the front of his thigh in the area near his groin. The judg e accepted Tho rnton s testimony that he stabbed Taylor just to get him away and that Thornton pulled the knife out expect[ing] [T aylor] to back off. Acco rding to the trier of fact, the stabbing occurred after Thornton had challenged the other group to join in the fight and Taylor accepted that challenge. The trial judge also indicated that malice was implied. Yet, at no time, did the trial judge state that Thornton stabbed Taylor with the intent to inflict grievous bodily harm. Essentially, the trial judge reasoned that because Thornton was responsible for his actions, i.e., stabbing Taylor one time in the leg, he, therefore, must have known that the act would inflict serious bodily harm and that death would be a possible or probable consequence of that harm. Thus, the issue for our review is whether the trial judge inferred intent to inflict grievous bodily harm from the facts as found or shifted the burden of proof of that elem ent to Tho rnton. The only way to reso lve that question is to examin e what the trial judge said in reaching the result in this case. Ord inarily, we will pre sum e tha t the t rial ju dge knows th e law and applies it prop erly. That presum ption, h owev er, is rebu ttable. State v. Chaney, 375 Md. 168, 184, 825 A.2d 452, 461 (2003 ). Sign ifica ntly, while discussing the legal meaning of the phrase intent to inflict such serious bodily harm that death would be the likely result, the trial judge stated: [I]f subjectively he s thinking, yeah, he swings out and stabs him in the leg just to get him aw ay but he dies, and he at no time had any in tent t o kill anyb ody . . . but he use s . . . [what] turns out to be serious bodily harm, even though that wasn t what he was after . . . I mean, isn t the law that you do something like that, the consequences are yours. 33 In this statement, even though the judge, arguably, was speaking hypothetically, he incorrectly stated the required mens rea for second-degree murder of the intent-to-dogrievous-bodily-harm type. The statem ent is consiste nt with other comments the trial judge made w hile discussin g the intent ele ment of the crime. To the contrary, using what turns out to be serious bodily harm, cannot serve as a substitute for intent to inflict grievous bodily harm. The intent to inflict grievous bodily harm is a life-threaten ing state of mind. Thus, in order to convict Thornton, the trier of fact was required to find that Thornton s desire or purpose w as to inflict such harm that a reasonable person, under the circumstances, could or should ha ve anticipated that death w ould likely occur. Con sequ ently, Thornton cannot be held liable, under an objective standard, for the ultimate consequence of death, if death or serious bodily harm wasn t what he was after. Later in his comments, while issuing a ruling as to his findings and conclusions of law, the trial judge stated: [W]e are called upon to be responsible for our actions and when you take a knife such as introduced into evidence as State s Exhibit 7 . . . one knows that by thrusting that knife out, even though if it was in the leg, it was going to inflict serious bodily harm on wh omever wa s struck and when you inflict serious bodily ha rm, one of the possible consequences or prob able co nsequ ences r ather, is d eath. Here, the trial judge erred by substituting the notion of re sponsibility for one s actions and the act of stabbing the victim in the leg for knowledge that death would likely occur. First, use of the knife to stab Taylor in the leg does not necessarily mean that Thornton possessed the intent to inflict g rievous bo dily harm such that death would be the 34 likely result. M oreove r, in this ca se, no determination was made th at the leg or any part of the leg constituted a vital part of the human anatomy or that intent was inferred from the manner in which the knife was used. Next, merely because Thornton may be blameworthy, because of the consequences of his actions, does not mean that he either had a desire to bring about those results or that those results were probable. The trial judge s explanation, above, on the issue of criminal responsibility does not suppo rt a finding that Thornton acted with the intent to inflict grievous bodily harm such th at death would be the likely resu lt. In addition, the trial judge s rea soning is inc onsistent w ith his earlier determination that Thornton pulled the knife out expect[ing] [Taylor] to back off, and because Taylor did not back off Thornton stabbed him in the leg. Likewise, that finding does not support a conclusion that Thornton stabbed Taylor w ith the intent to inflict grievous b odily harm. Es sentially, the trial judge found that because Thornton caused the injury to Taylor an d death resu lted, Thorn ton was g uilty of murde r. This determination resulted in a presumption that Thornton intended the conseque nces of h is actions and a modification of the mens rea requirement for specific intent-to-inf lictgrievo us-bod ily-harm m urder. A specific intent crime requires not simply the general intent to do the im mediate act with no particular, clear or und ifferentiated end in min d, but the ad ditional delibe rate and conscious purpose or design of accom plishing a ve ry specific and more rem ote result. Shell, 307 M d. at 63, 512 A.2d at 36 6 (citations om itted). Mere knowle dge that a result is substantial ly certain to follow from on e s actions is n ot the same as the specif ic 35 intent or desire to achie ve that re sult. See McBurney, 280 Md. at 29, 371 A.2d at 133 (explaining that a gene ral mens rea or intent includes those conse quences wh ich . . . are known to be substa ntially certa in to resu lt (regard less of d esire). A specifi c intent . . . is some intent other than to do the actus reus thereof which is specifically required for guilt. ) (c itations o mitted). Further, we agree with Thornton s argument that by holding him responsible for his actions w ithout findin g the requis ite intent for m urder in the second degree, the trial judge erred and, in effe ct, shifted the burden of proof of the element of intent to Thornton. The trier of fact may draw inferences from the facts presented in the case, but the trier of fact may not presume an element of the State s case. As Thornton points out, such shifting of the burden of proof is in direct violation of the due process provisions contained in the Fourteenth Amendment to the United States Constitution 17 and Article 24 of the Maryland Declaration of Rights.18 Similar to the facts in Sandstrom, 441 U.S. at 17 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law wh ich shall abrid ge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of lif e, liberty, o r pro perty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. C ONST. amend. XIV, § 1. 18 Md. Dec. of R. art. 24, Due process, states: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlaw ed, or exiled , or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgmen t of his peers, o r by the L aw of the land . 36 517-18, 99 S. Ct. at 2455-56, 61 L. Ed. 2d at 47, the trial judge in the present case stated that we are called upon to be responsible for our actions, and that, if you do something like that, the consequences are yours[;] he, shifted the burden of proof to the defe ndant, by presu ming th at he inte nded th e conse quenc es of h is action s. We hold also that the trial judg e, as did the in termediate a ppellate cou rt, erred in equating intent to do grievous bod ily harm (second-degree murder) w ith intent to do serious physical injury (first-degree assault). As Thornton argued, it has never been the law of Maryland that any time someone causes an injury and death results, h e or she is liable for murder. It is the State s burden to prove both the actus reus and the mens rea elements of the c rime of murde r beyond a reaso nable d oubt. See Sandstrom, supra. Malice is an essential element of second-degree murder, whereas first-degree assault may involve malice, but d oes not req uire it. Under Maryland law, the use of pepper spray may constitute a first-degree assault, but the commiss ion of suc h an offe nse, assum ing it could contribute to a victim s d eath, wou ld not nece ssarily constitute m urder. Con sistent with the intermediate appellate court s analysis in this case, any first-degree assault resulting in death would constitute murder; such a conclusion paints with too broad a brush the definition of murd er. Moreo ver, we dis tinguish our decision in Roary, 385 Md. at 236, 867 A.2d at 1106 (holding that first-degree assault may be the underlying felony in a felony-murder prosecution) from the instant case because pursuant to our ho lding in Roary, a person may be convicted of second-degree felony-murder only if the felony 37 constitutes an inh erently da ngerou s to life felony. Roary, 385 Md. at 235-36, 867 A.2d at 1105 . No su ch theo ry was ad vance d in this c ase. Thornton contends that the Court of Special Appeals, in its opinion affirming the trial court, erred when it eliminated an essential element of the required mens rea for the intent-to-inflict-grievous-bodily-harm form of second-degree murder, by removing the likelihood requirement from the definition of the offense. First, we disagr ee with Thornton s argument that the def endant must actually know with certainty that death w ill follow his actions. As we have stated, previously, in the process of finding inte nt to inflict serious bodily harm, the trier of fact employs an objective standard to determine the reasonable inferences that may be drawn from the defendant s conduct. Under these circumstances, it is relevant that th e defend ant claims h e did not inte nd to kill the v ictim or did not realize that the victim could have died from a stab wound to the leg, but such assertions are not disp ositive beca use the requ isite intent to inflict g rievous bo dily harm is measured against an objective standard. The intermediate appellate court m ajority cited several older cases for the proposition that to prove second-degree murder, the evidence need only show that the death of the victim resulted from the intentional infliction of serious bodily harm. See Webb and Ward, supra. The court focused on the question of whether MPJI-Cr 4:17 changed the law of M aryland by includ ing the phra se that dea th would be the likely result. 19 The majority concluded that MPJI-Cr could not substantively change the law of 19 MPJI-C r 4:17.6 pro vides: Second degree murder does not require premeditation or deliberation. In order to convict the defendant of second degree murder, the State 38 Maryland, as pattern jury instructions are merely advisory, and are not per se the decisional law of this Co urt. Thorn ton, 162 Md. App. at 147, 876 A.2d at 727. The intermediate appellate court found that what [MPJI-Cr 4:17] does do is make express that which was always implied: that the intentional infliction of seriou s bodily harm always carries with it th e substantial risk that death w ill follow. Judge Eldridge s opinion, dissenting in part, points out that [t]he language that death wou ld be the likely result simply clarifies or illuminates the intent element. Thorn ton, 162 Md. App. at 157, 876 A.2d at 744 (Eldrid ge, J., concu rring in part an d dissenting in part). This C ourt, consistent with the dissenting opinion, also interprets the phrase grievous bodily harm to mea n that, by d efinition , harm is measu red by an objectiv e stand ard. The qualific ation, that death would be the likely result, both circumscribes and clarifies the intent element of second-degree murder of the type under consideration. Moreover, the panel majority did not ackn owledg e the differe nce betw een serious bodily harm in the conte xt of murd er and in the context o f an ass ault. Second-degree murder of the intent to inflict grievous bodily harm is neither a strict liability crime nor a crime predicated upon a theory of negligence. Accordingly, the State must prove intent to injure the victim so severely that de ath wou ld be the likely result even though the must prov e: (1) that the conduct of the defendant caused the death of (victim); and (2) that t he defen dant eng aged in the dea dly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death wo uld be the like ly result. (Emp hasis ad ded.) 39 defendant did not intend that the victim should die. Malice remains an element of the prosecution s case. It can be satisfied by proving the inte nt to inflict such grievous b odily harm that death would be the likely result. Conversely, in the prosecution for an assault, in either the first or second degree, the State is not required to prove, in either case, that death would be a likely result of the defendant s conduct or that the defendant s conduct was malicious. T hese are cru cial distinctions that were omitted from the intermed iate appellate court s analysis when it stated that to prove second-degree murder, the evidence need only show that the death of the victim resulted from the intentional infliction of serious bodily harm. In summary, the trial judge s mistaken conclusions of law, which modified the specific intent requirement and unconstitutionally shifted the burden of proof to Thornton, warrants our reversal of Thornton s conviction for murder in the second degree and a reman d of the case fo r a new trial. See Lipins ki v. State, 333 Md. 582, 592, 636 A.2d 994, 999 (1994) (holding that where the trial judge improperly defined the elements of deliberation and prem editation a remand fo r a new trial was prop er). JUDGMENT OF THE COURT O F S P E C I A L A PP E A L S REVERSED. THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE J U DG M ENT OF THE C I R C U IT C O U R T F O R BALTIMORE COUNTY AND REMAND THE CASE TO THAT COURT FOR THE 40 PURPOSE OF A N EW TR IAL. BALTIMORE COUNTY TO PAY THE C OSTS IN T HIS COURT AND IN THE COURT OF S PEC IAL A PPE ALS . 41
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