Armstrong v. State

444 A.2d 1049, 51 Md. App. 508, 1982 Md. App. LEXIS 286
CourtCourt of Special Appeals of Maryland
DecidedMay 5, 1982
DocketNo. 1093
StatusPublished

This text of 444 A.2d 1049 (Armstrong v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. State, 444 A.2d 1049, 51 Md. App. 508, 1982 Md. App. LEXIS 286 (Md. Ct. App. 1982).

Opinion

Gilbert, C. J.,

delivered the opinion of the Court.

On April 16, 1981, Willie Armstrong was convicted by a jury in the Criminal Court of Baltimore (Levin, J.), of common law mayhem and of statutory maiming (Article 27, § 385). Appellant was committed to the custody of the Division of Correction for ten years for the common law mayhem with a consecutive ten year sentence for the statutory maiming. On appeal he contends the court erred:

1. In excluding certain evidence, and
2. In imposing sentences for both offenses.

The record before us shows that at about 6 p.m. on Saturday, November 1,1980, when Wilbert Hessel went into the residence of Theodore Betts, he found Betts and the appellant, who occasionally stayed at the Betts’ residence, engaged in an argument. Specifically, Hessell said that he heard Betts say to Armstrong:

"I am tired of you messing with me. I will take my shotgun and blow your head off and throw the rest of you out the window.”

Subsequently, the appellant pulled out a bottle of acid and poured its contents over the head of Betts. Betts testified:

"[A]fter he poured the stuff over me, I felt it started burning, and that is when I left the chair and I ran to the bathtub to try and run some water over my head but I couldn’t get my head far enough down to get it underneath the spigot, and I ran from the bathroom to the kitchen sink and I tried to get some water from there but I couldn’t get there because the sink was full of dishes.
[510]*510So, then I had to leave the room because the stuff was so strong you couldn’t stay up there, and I came downstairs on my own and that is when I asked the young lady to get the ambulance for me, and the officer.”

As a result of the acid burns, Betts suffered disfigurement, loss of one eye, and a partial loss of vision in the other eye.

I. Exclusion of Certain Evidence

The thrust of Armstrong’s defense was that he acted in self-defense. According to him, Betts had been bending over, reaching along the floor, and the appellant said he thought Betts was reaching for a weapon.

At the trial, Armstrong attempted to introduce evidence concerning Betts’ propensity towards violence.

Testimony disclosed that Betts had been living with a woman identified in the record only as "Annie.” It also developed that Annie, unknown to Betts, had been seeing a man named Porter Francis. Although Armstrong knew of the situation involving Annie and Francis, he did not tell Betts. As a result, when Betts found out about appellant’s prior knowledge concerning Annie and Francis, Betts held appellant responsible for not telling Betts about it.

Judge Levin permitted appellant to testify that Betts owned a shotgun and a pistol, and that Betts had threatened both Annie and Francis. The instant problem arose when Armstrong wished to introduce evidence about an apparently unrelated incident, but the record is unclear as to the exact identity of the persons involved in that incident who were allegedly threatened by Betts. In any event, Judge Levin refused to allow the testimony.

On appeal, the appellant contends that the refusal to admit the evidence was error.

On the strength of Williamson v. State, 25 Md. App. 338, 333 A.2d 653 (1975), we agree. In Williamson, we said:

[511]*511"Contrary to the general reputation rule which prohibits evidence of specific acts, a defendant asserting self-defense may offer evidence of specific acts of which he was aware at the time of the killing. Such evidence bears on the reasonableness of his actions:

'It is, of course, generally true that the reputation of the deceased cannot be shown by evidence of specific acts. However, where there is testimony tending to support the theory of self-defense, the presence of such testimony entitles the defendant to the benefit of certain rules of evidence which would not otherwise be available. It is competent for him to prove his knowledge of facts which would have a reasonable tendency to justify his asserted belief as to the existence of a deadly purpose in the overt acts of the deceased. ... On the issue whether or not the accused had reasonable grounds to believe himself in imminent danger, he may show his knowledge of specifíc instances of violence on the part of the deceased. Previous acts of violence by the deceased, especially if committed recently, known to the defendant, might have an even stronger influence on his mind than would be produced by knowledge of the reputation of the deceased for violence.’ Jones v. State, 182 Md. 653, 659; Accord, Gunther v. State, 228 Md. 404, 410; Barger v. State, 2 Md. App. 565, 568-569, cert. denied, 249 Md. 731. [Emphasis supplied].” 25 Md. App. at 343-344, 333 A.2d at 656.

Our agreement with appellant, however, does not mean we shall reverse, because we think the error to be harmless beyond a reasonable doubt.

The record as a whole shows that the matter of the "inevitable triangle” between Betts, Porter Francis, and Annie, as it bore on Betts’ propensity towards violence in [512]*512general and towards the appellant in particular was well plotted before the jury. Thus, the error is not grounds for setting aside appellant’s conviction. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

II. Sentencing for Two Offenses

Appellant next claims that:

"The Court erred in imposing separate consecutive sentences for common law and statutory mayhem.”

Armstrong was convicted of violations of Md. Ann. Code art. 27, § 384, common law mayhem, and § 385, the so-called "statutory maiming.” He was sentenced to consecutive terms of ten years imprisonment. Appellant avers that the intent of the legislature in enacting section 385 was that when, as here, a single act violates both provisions, a separate sentence may not be imposed under each section.

Section 384 prescribes the penalty for common law mayhem and for "tarring and feathering.” The act provides:

"Every person, his aiders and abettors, who shall be convicted of the crime of mayhem, or of tarring and feathering, shall be sentenced to the penitentiary for not more than ten years nor less than eighteen months.”

The statute, section 385, proscribing maiming declares:

"Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of any person, of malice aforethought, with intention in so doing to mark or disfigure such person, shall be guilty of a felony and upon conviction thereof be sentenced to the peniten[513]*513tiary for not less than two nor more than ten years.1

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Related

United States v. Earl Cook
462 F.2d 301 (D.C. Circuit, 1972)
Lamb v. Cree
466 P.2d 660 (Nevada Supreme Court, 1970)
Barger v. State
235 A.2d 751 (Court of Special Appeals of Maryland, 1967)
Thomas v. State
353 A.2d 240 (Court of Appeals of Maryland, 1976)
Gunther v. State
179 A.2d 880 (Court of Appeals of Maryland, 1962)
Williamson v. State
333 A.2d 653 (Court of Special Appeals of Maryland, 1975)
People v. Green
59 Cal. App. 3d 1 (California Court of Appeal, 1976)
Commonwealth v. Hogan
387 N.E.2d 158 (Massachusetts Appeals Court, 1979)
Dorsey v. State
350 A.2d 665 (Court of Appeals of Maryland, 1976)
Newton v. State
373 A.2d 262 (Court of Appeals of Maryland, 1977)
Jones v. State
35 A.2d 916 (Court of Appeals of Maryland, 1944)
Kitchens v. State
7 S.E. 209 (Supreme Court of Georgia, 1888)
State v. Foster
101 So. 255 (Supreme Court of Louisiana, 1924)

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Bluebook (online)
444 A.2d 1049, 51 Md. App. 508, 1982 Md. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-state-mdctspecapp-1982.