Richmond v. State

623 A.2d 630, 330 Md. 223, 1993 Md. LEXIS 60

• Court: Court of Appeals of Maryland
• Decided: April 26, 1993
• Docket: 138, September Term, 1991
• Status: Published

Opinions

Opinion by

McAULIFFE, Judge.

As a result of an altercation with Thomas Winston, the defendant was charged in the Circuit Court for Prince George’s County with assault with intent to murder, assault with intent to maim, assault with intent to disable, malicious wounding with intent to disable, assault and battery, and carrying a dangerous weapon openly with the intent to injure. At the conclusion of the State’s case, the trial judge granted the defendant’s motion for judgment of acquittal on the charges of assault with intent to murder and assault with intent to maim.

At the conclusion of all the evidence, the defendant excepted to the refusal of the court to instruct the jury on the issue of imperfect self-defense, contending that a finding of imperfect self-defense would mitigate the remaining aggravated assault charges to “assault and battery.” The jury found the defendant not guilty of the weapons charge and of assault with intent to disable, but guilty of malicious wounding with intent to disable and of battery. The Court of Special Appeals affirmed the judgment of the trial court and we granted certiorari to consider the defendant’s contention that the trial court erred in not instructing the jury concerning imperfect self-defense.¹

The defendant argues that the principles of imperfect self-defense apply to every crime that requires proof of malice without regard to whether a criminal homicide is involved. He points to State v. Faulkner, 301 Md. 482, 485-86, 483 A.2d 759 (1984), where we said:

[T]he difference between murder and manslaughter is the presence or absence of malice.

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[Imperfect self-defense] operates to negate malice, an element the State must prove to establish murder. As a result, the successful invocation of this doctrine does not completely exonerate the defendant, but mitigates murder to voluntary manslaughter.

Thus, the defendant reasons, anything that “negates malice” must mitigate an offense requiring proof of malice to a lesser offense.

The State counters with a two-pronged argument. First, it says, “malice” as an element of the crime of murder differs from “malice” with respect to other crimes, and imperfect self-defense negates only that species of malice applicable to murder. Second, the State argues, the concept of mitigation has universally and historically been limited to offenses involving criminal homicide, or the “shadow” or inchoate forms of those offenses.² We agree with the State’s position, and with each of the interrelated prongs of its argument.

In State v. Faulkner, supra, 301 Md. at 486, 483 A.2d 759, this Court explained that the doctrine of imperfect self-defense, like that of hot-blooded response to adequate provocation, does not serve to exonerate a defendant “but mitigates murder to voluntary manslaughter.” We went on to hold that:

Logically, because the statutory offense [assault with intent to murder] is defined in terms of murder, all the defenses available in a murder prosecution are applicable in an assault with intent to murder prosecution.

Id. at 504, 483 A.2d 759. Thus, the Court held, the mitigation defense of imperfect self-defense applies to the statutory crime of assault with intent to murder. Recently, we characterized this latter holding as being perhaps “a generous expansion of the law of self-defense____” Watkins v. State, 328 Md. 95, 106 n. 3, 613 A.2d 379 (1992).

We also said in Watkins that “[t]his Court has never held that imperfect self-defense applies to the offense[ ] ... of ... unlawful shooting with intent to disable____” Id. The defendant in the instant case was convicted of unlawful wounding with the intent to disable, a variation of the offense of unlawful shooting with the intent to disable. These two forms of assault with intent to maim, disfigure, or disable arise from a single statute, Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 386. That statute provides as follows:

If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony and, upon conviction are subject to imprisonment for not more than 15 years.

With the exception of a change in the maximum permitted sentence, and certain minor amendments not here relevant, this statute exists today in the form in which it was enacted by Chapter 99 of the Laws of 1853. See Hammond v. State, 322 Md. 451, 453, 588 A.2d 345 (1991). The statute sets forth alternative types of assaults and alternative states of mind, as follows:

Types of Assaults

1. Unlawfully shoot at any person.

2. Unlawfully, and maliciously attempt to discharge any kind of loaded arms at any person.

3. Unlawfully and maliciously stab, cut or wound any person.

4. Assault or beat any person.³

States of Mind

A. With intent to maim, disfigure or disable such person.

B. With intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained.

There seems never to have been any doubt that the fourth type of assault, “assault or beat any person,” had to be combined with one of the two alternative states of mind (A or B) to constitute an offense under the statute. Early on, however, a question arose as to whether the first three types of assault listed in the statute were self-standing offenses not requiring proof of any specific intent.

In State v. Elborn, 27 Md. 483 (1867), the defendant was indicted in one count under the statute for an assault “by unlawfully shooting at a certain John W. Downes” (type of assault # 1) and in a separate count, for assault “by attempting maliciously and unlawfully to discharge a loaded pistol at Downes” (type of assault # 2), without any allegation that the defendant harbored specific intent A or B. The trial judge sustained the defendant’s demurrer to the two counts, and the case reached this Court on a Writ of Error. Our predecessors sustained the granting of the demurrer, holding that

the two counts in this indictment are defective in not averring in the language of the Act, that the shooting was done with intent to maim, disfigure or disable Downes____

Id. at 489-90. Accordingly, it is clear that a crime charged under § 386 is a specific intent crime, and although a number of alternative elements are available, one of the alternative states of mind must be alleged together with one of the alternative types of assault in order to allege a crime.

Even if the defendant’s argument concerning crimes involving malice would have some validity if the crime charged in this case were “unlawfully and maliciously wounding” the victim, it is clear that this is not the offense proscribed by the statute. The crime here involved is “unlawfully and maliciously wounding with intent to disable.” The grand jury charged that the defendant “did unlawfully, feloniously and maliciously wound Thomas Monroe Winston, with the intent to disable said Thomas Monroe Winston____” This offense is virtually identical, for the purposes with which we are here concerned, with the offense of “unlawful shooting with intent to disable,” which this Court held in Watkins was not an offense to which the defense of imperfect self-defense would apply. Watkins, 328 Md. at 106, 613 A.2d 379. The addition of the word “malicious” has little, if any, significance in the description of these specific intent crimes.

Moreover, imperfect self-defense would not apply even if the offense charged were “unlawful and malicious shooting,” and the concept of malice was conceivably of greater importance. Malice, as this Court has pointed out, is a chameleonic term, taking on different meanings according to the context in which it is used. In the context of murder cases, this Court has said that malice means the presence of the required malevolent state of mind coupled with the absence of legally adequate justification, excuse, or circumstances of mitigation. Ross v. State, 308 Md. 337, 340 n. 1, 519 A.2d 735 (1987). When correctly defined in criminal cases not involving murder, malice does not involve proof of the absence of mitigation. Simply put, mitigation that will reduce one offense to another is a concept peculiar to criminal homicide cases.

This concept of mitigation, i.e., the presence of circumstances sufficient to mitigate murder to manslaughter, developed in England at a time when murder was not divided into degrees and all murder was punishable by death. Recognizing that not all murders were equal in culpability, and that under some circumstances justice required that the perpetrator suffer a lesser stigma and sanction, the concept of mitigation was developed and the catchall of manslaughter was used as an appropriate repository for mitigated offenses.

Why is it that there exists such a crime as voluntary manslaughter to aid one who kills when provoked into a passion, yet there is no crime like, say, voluntary theft or voluntary mayhem to aid others who, reasonably provoked into a passion, steal from or maim their tormentors? The answer is historical. With most crimes other than murder the English court came to have discretion as to the punishment and so could take extenuating circumstances into account in the sentencing process; but with murder the penalty remained fixed at death, without the possibility of making any allowance for the extenuating fact that the victim provoked the defendant into a reasonable passion. ‘The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness.’

LaFave & Scott, Handbook on Criminal Law § 76, at 582 (1972) (footnotes omitted).

Perhaps the best known of the mitigators is the hotblooded response to adequate provocation. Although widely accepted as a mitigating circumstance in murder cases, this concept of mitigation has not ordinarily been used to reduce the grade or degree of any crime other than murder. In Sensobaugh v. State, 92 Tex.Crim. 417, 244 S.W. 379 (1922), where a husband caught his wife in the act of adultery and cut off her paramour’s sex organ with a razor, it was pointed out that although the doctrine of hot-blooded response to adequate provocation would have mitigated murder to manslaughter had the paramour died, the same provocation would not serve to reduce the crime of mayhem. See also LaFave & Scott, supra, at 617 (stating that “one who is ‘reasonably provoked’ into a rage to maim by the victim’s conduct cannot use the provocation as a defense”).

The defendant is in error in assuming that absence of mitigation is always an element of malice. The absence of mitigation is an element of malice only when the offense is one to which mitigation may apply to reduce the offense, i.e., offenses involving murder.

With respect to other offenses requiring proof of malice, imperfect self-defense does not negate malice because the definition of malice in those cases does not include the concept of absence of mitigation. We agree, therefore, with the conclusion reached by the Court of Special Appeals in Bryant v. State, 83 Md.App. 237, 244, 574 A.2d 29 (1990), that

imperfect self-defense as a mitigating factor (as, indeed, the very phenomenon of mitigation generally) is limited to criminal homicide and its shadow forms, such as ... attempted murder____

The defendant cites People v. McKelvy, 194 Cal.App.3d 694, 239 Cal.Rptr. 782 (1987), as authority for the proposition that imperfect self-defense will mitigate a non-homicide offense to a lesser offense. In McKelvy, the court stated that a genuinely held belief in the need for self-defense may constitute a defense to the crime of mayhem. Id., 239 Cal.Rptr. at 786. The California intermediate appellate court quoted extensively from People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1 (1980), a decision of the California Supreme Court establishing imperfect self-defense as a mitigating factor in murder cases. The McKelvy court spoke in terms of the defendant’s honestly held belief “negating malice” and mitigating the offense. The McKelvy decision, however, may be explained on the basis of the special definition the court gave to the term “malice” and to the hornbook proposition that proof of presence of the state of mind inconsistent with a specific intent required for the charged offense constitutes a defense to that offense. See People v. Goins, 228 Cal.App.3d 511, 279 Cal.Rptr. 42, 45 (1991).

In California, the instruction on mayhem informs the jury that “acting ‘maliciously’ means acting ‘with an unlawful intent to vex, annoy, or injure another person.’ ” McKelvy, 239 Cal.Rptr. at 785 n. 3. Thus, the McKelvy court concluded:

Although the ‘malice’ required for the offense of mayhem differs from the ‘malice aforethought’ with which Flannel was concerned, it is equally true in both cases that the requisite state of mind is inconsistent with a genuine belief in the need for self defense. One who truly believes there is a need for self defense cannot be said to act with intent to ‘vex, injure or annoy’ and may be found guilty of no more than an assault or battery.

Id., 239 Cal.Rptr. at 786 (emphasis added). More recently, the Supreme Court of California held that an honest but unreasonable belief that one is acting under duress is not a defense to the crime of robbery, because the defendant’s belief did not negate the requisite specific intent, i.e., the intent to deprive the owner of the property. People v. Bacigalupo, 1 Cal.4th 103, 2 Cal.Rptr.2d 335, 345-46, 820 P.2d 559, 569-70 (1991).

The defense of absence of the requisite specific intent to commit a crime should not be confused with the principle of mitigation. A defendant may intend the exact result he brings about, but be entitled to mitigation because of the circumstances that caused him to act. On the other hand, a defendant not entitled to mitigation may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict.

Certainly, if the jury in the case before us found that the defendant held a subjectively honest, albeit unreasonable, belief inconsistent with the intent to disable, that would furnish a complete defense to this specific intent crime. That fact has nothing to do, however, with the mitigator of imperfect self-defense, which has no application here. The defendant’s state of mind may be relevant and potentially decisive when it undercuts the essential element of specific intent that the State must prove beyond a reasonable doubt. No separate instruction is needed for this defense. Instructions dealing with the essential elements that must be proven by the State and the standard of proof applicable in a criminal case fully cover the point. An instruction on imperfect self-defense under these circumstances would not only be unnecessary, it would be inappropriate and confusing.

For entirely different reasons, however, we conclude that the conviction of malicious wounding with intent to disable must be reversed, and further, that the defendant cannot be retried for that offense. Three of the charges submitted to the jury were: assault with intent to disable; malicious wounding with intent to disable; and battery. The jury found the defendant not guilty of assault with intent to disable, but guilty of the other two charges. The explanation for the apparent inconsistency in the finding of not guilty of assault with intent to disable but guilty of malicious wounding with intent to disable is found in the instructions given by the trial judge.

In defining the crime of assault with intent to disable and its constituent elements, the judge explained the burden of the State to prove beyond a reasonable doubt the existence of an assault and the existence of a specific intent to disable. When defining the crime of malicious wounding with intent to disable, however, the judge incorrectly told the jury that only the wounding and malice need be shown; he did not explain that the State was required to prove a specific intent to disable. No exception was taken to the instruction and the defendant did not raise the issue here or in the Court of Special Appeals.

An appellate court ordinarily will not decide any issue not raised in and decided by the trial court, and this Court ordinarily will not consider an issue not included in the petition for certiorari. Maryland Rule 8-131(a) and (b). This Court has held, however, that the word “ordinarily” in the Rule does grant an appellate court discretion, under some circumstances, to consider and decide questions not raised in the trial court. Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507 (1991); Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184 (1990); Taub v. State, 296 Md. 439, 441-42, 463 A.2d 819 (1983). Additionally, Maryland Rule 4-325(e), which requires a timely objection to an instruction in order to preserve the issue for appellate review, provides that “[a]n appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” The question of whether we should exercise our discretion to take cognizance of plain error in this case is a close one, which we resolve in favor of the defendant.

Plain error is “error which vitally affects a defendant’s right to a fair and impartial trial.” State v. Daughton, 321 Md. 206, 211, 582 A.2d 521 (1990). We have limited the instances in which an appellate court should take cognizance of unobjected to error to those which are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980). See also Rubin v. State, 325 Md. 552, 588, 602 A.2d 677 (1992); Calhoun v. State, 297 Md. 563, 594, 468 A.2d 45 (1983), cert. denied, 467 U.S. 1268, 104 S.Ct. 3564, 82 L.Ed.2d 865 (1984). We will “intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.” Trimble v. State, 300 Md. 387, 397, 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985). In each case, we will “review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention.” Hutchinson, supra, 287 Md. at 203, 411 A.2d 1035.

The materiality of the error in this case is uniquely apparent. It is clear from the record that the jury found that the defendant assaulted the victim. It is equally clear that the jury found that the State had not proven the defendant harbored an intent to disable the victim. Correctly instructed concerning the offense of assault with intent to disable, the jury found the defendant not guilty of that offense, even though convinced an assault had occurred. The record offers no possible explanation for the not guilty verdict other than the jury’s conclusion that the requisite specific intent had not been proven. The conviction of malicious wounding is explained by the erroneous instruction, which omitted any requirement of proof of intent to disable.

This is not a case, therefore, in which we must speculate as to the effect of an erroneous instruction; rather, here we can say with reasonable certainty that the error in the instruction resulted in a guilty verdict that otherwise would not have been rendered. That type of error “vitally affects a defendant’s right to a fair trial,” and is therefore plain error of which we will take cognizance.

The doctrine of collateral estoppel prohibits retrial of the defendant on the charge of malicious wounding with intent to disable.

The collateral estoppel form of double jeopardy is not based on two offenses being the same, but on two criminal charges having a common necessary factual component. If the common necessary factual issue is found in favor of the defendant in the first trial, the State may not relitigate the same factual issue in the second trial. If the fact is a necessary element in two offenses, a finding in favor of the defendant in the first trial on the issue requires an acquittal in the second trial.

Apostoledes v. State, 323 Md. 456, 463-64, 593 A.2d 1117 (1991) (citations omitted). See also Ferrell v. State, 318 Md. 235, 241-45, 567 A.2d 937, cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Powers v. State, 285 Md. 269, 288, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). The jury’s finding that the defendant did not harbor a specific intent to disable precludes a subsequent prosecution for malicious wounding with the intent to disable. The defendant’s conviction of battery, however, remains valid. He was not sentenced on that count because the trial judge determined the charge merged with the crime of malicious wounding. The defendant may now be sentenced on the battery count.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF CONVICTION OF MALICIOUS WOUNDING WITH INTENT TO DISABLE AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR SENTENCING ON THE CONVICTION OF BATTERY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE’S COUNTY.

Dissenting opinion by ROBERT M. BELL, J.

1 . Defendant’s petition for certiorari and the State’s conditional cross petition raised additional questions concerning an order for restitution that was imposed as a part of the sentence. Our disposition of this case necessitates resentencing of the defendant, and thus we need not reach those questions.

2 . The State also offers an alternative argument that the evidence did not generate an issue of imperfect self-defense. In order to reach the principal issues, we shall assume, without deciding, the sufficiency of the evidence to generate a question, of imperfect self-defense in this case.

3 . As originally enacted, this alternative element read: assault and beat any person. The 1888 Code (Art. 27, § 189) contains the original language, but in the 1904 Code (Art. 27, § 294) the language appears as “assault or beat any person.” We are unable to find any act of the legislature passed during that period authorizing the change. In any event, the disjunctive “or” received official sanction by ch. 628 of the Laws of 1966.