Belton & Worsley v. State

Terrence Belton v. State of Maryland, No. 0720, September Term 2020; Shakiea Worsley v. State of Maryland, No. 0290, September Term 2020. Opinion by Moylan, J. HEADNOTE: A SHOOTING AT AN OPEN-AIR DRUG MARKET – THE SON’S CONTENTION – A CASE NOT OF “WHODUNNIT?” BUT OF “WHYHEDUNNIT?” – DEMYTHOLOGIZING “MOTHER” – THE MOTHER’S NARRATIVE – THE SON’S NARRATIVE – THE MOTHER AS AN INITIAL AGGRESSOR – A NON- ISSUE: THE DEFENSE OF OTHERS – THE DEFENSE OF OTHERS: THE ROLE PLAYED BY THE “OTHER” – AUTOPSY AND BALLISTICS – PERFECT SELF- DEFENSE – A DRAMATIC APPELLATE CHAPTER: THE RECOGNITION OF THE IMPERFECT DEFENSES – IMPERFECT SELF-DEFENSE – THE ALLEGED SIGNIFICANCE OF THE VERBAL FRAGMENT – DON’T NEGELECT THE PROCEDURAL SIGNPOSTS – THE SELF-DEFENSE PARADIGM AS AN INDIVISIBLE ENTIRETY – STATUS AS A NON-AGGRESSOR – THE DUTY TO RETREAT VERSUS MOVING TO THE SOUND OF THE GUNS – THE RATIONALE FOR RESTRICTING SELF-DEFENSE – CUNNINGHAM V. STATE - “THE ROAD NOT TAKEN”: THE INAPPLICABILITY OF SELF-DEFENSE AS AN ISSUE – THE ROAD TAKEN: HARMLESS ERROR – A. THINKING ABOUT HARMLESS ERROR – B. A TSUNAMI OF HOSTILE – THE MOTHER’S CONTENTION – A CHALLENGE NOT ADEQUATELY PRESERVED Circuit Court for Baltimore City Case Nos. 119015009-10 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0720 & No. 0290 September Term, 2020 TERRENCE BELTON v. STATE OF MARYLAND SHAKIEA WORSLEY v. STATE OF MARYLAND Leahy, Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-01-03 15:18-05:00 Filed: December 28, 2021 Suzanne C. Johnson, Clerk In the Old English epic of Beowulf, the peace and tranquility of Hrothgar’s Hall was initially shattered by the unexpected appearance of the monster Grendel. It was, even more direly, terrorized by the subsequent arrival of Grendel’s Mother.

In the case now before us, the peace and tranquility of South Monroe Street at McHenry Street was ruptured on December 6 of 2018 by the simultaneous appearances of both the son, Terrence Belton, and the mother, Shakiea Worsley. Literary scholars tell us that Hrothgar’s Hall was situated in Geatland in what is now the southwestern corner of modern-day Sweden. Police experts tell us that the intersection of South Monroe Street and McHenry Street is an open-air drug market in what is now the southwestern corner of Baltimore City. The appellant, Terrance Belton (“Son”), was convicted in the Circuit Court for Baltimore City by a jury of manslaughter and of two handgun offenses.

The appellant, Shakiea Worsley (“Mother”), was convicted by the same jury in a joint trial of being an accessory after the fact to the manslaughter committed by the Son. Each appellant has filed a separate appeal raising separate issues. Because both appeals arose out of a single criminal incident, however, and because both sets of convictions were rendered in a single trial, we have consolidated the two appeals for present consideration. Each appellant has raised a single contention.

The contentions are completely unrelated. Although the legal analyses diverge widely and could easily have given rise to and, in effect, are two separate appeals, the two tightly interwoven factual narratives need to be told as a single tale. The Son’s Contention The Son raises a single contention: THE COURT ERRED IN EXCLUDING APPELLANT’S TESTIMONY REGARDING THE VICTIM’S STATEMENT, “THIS IS MY BLOCK,” WHICH WAS NOT HEARSAY AND CRITICAL TO APPELLANT’S SELF- DEFENSE AND DEFENSE-OF-OTHERS DEFENSES. The issue is not the admissibility of hearsay.

It is rather the definition of hearsay. All parties, including the Son, agree that hearsay is inadmissible. Maryland Rule of Procedure 5-802. Nor is there any quarrel over the basic, and universally accepted, definition of hearsay.

Hearsay is an out-of-court assertion offered in court for the truth of the thing asserted. Maryland Rule 5-801(c). “[A]ppellate review of whether evidence is hearsay and, if so, whether it falls within an exception and is therefore admissible is de novo.” Hallowell v. State, 235 Md. App. 484, 522 , 178 A.3d 610 (2018). In this case, the out-of-court declarant was Edward Calloway, the ultimate manslaughter victim, now dead. He was speaking to several of his friends and associates as the Son, the auditor of the assertion, approached to within hearing distance.

The Son testified that Calloway spoke the words, “This is my block.” The State objected on the ground that the words were hearsay. After some wrangling at the bench, the State’s objection was sustained. Both the State and the Son now agree that the assertion, “This is my block,” was not offered to prove the truth of the thing asserted, to wit, that Calloway enjoyed an entrepreneurial monopoly over the selling of drugs sold in the Monroe- McHenry open-air market. That, of course, is the last thing in the world that the Mother and Son, as entrepreneurial rivals of Calloway, would have wished to prove.

The Son maintains that as non-hearsay, the words spoken were not, per se, inadmissible. He argues that he heard them and that they had an effect on his state of mind 2 as he concluded that Calloway was hostile both to him and to his Mother and that Calloway, therefore, posed a danger to both him and his Mother. Burgess v. State, 89 Md. App. 522, 538 , 598 A.2d 830 (1991); Brown v. State, 80 Md. App. 187, 194 , 560 A.2d 605 (1989). An appraisal of the admissibility of this particular instance of arguably pertinent non- hearsay depends, of course, upon the context.

Banks v. State, 92 Md. App. 422, 434 , 608 A.2d 1249 (1992). That context is the entire narrative of the criminal episode now before us. A Case Not Of “Whodunnit?” But Of “Whyhedunnit?” The issue before us is a limited one. We are spared the usual Big-W questions of WHO?, WHAT?, WHEN?, and WHERE?

WHO? The appellant, Terrence Belton (the “Son”). WHAT? The Son shot and killed Edward Calloway.

WHEN? December 6, 2018. WHERE? The intersection of South Monroe Street and McHenry Street in Southwest Baltimore.

Those answers were all undisputed. There remains only the little-W question of WHY? This case against the Son posed the single question: WHY did the Son kill Edward Calloway? In appellate brief, the Son advances two reasons for killing Calloway – self-defense and the defense of others, to wit, his Mother.

At trial, he offered evidence as to one of those defenses – self-defense. The presence of the other defense – the defense of his Mother – was largely taken for granted, but even its unspoken presence permeated the trial. Demythologizing “Mother” 3 With the only question before the jury being WHY?, the Son’s apparent answer was that he had no choice but to kill because he was protecting his Mother from the imminent and immediate threat of death. That defense packs a heavy emotional punch.

It is this defense of his mother, therefore, that creates the necessity for the following admonitory caveat. Before an appropriately neutral analysis of the hard facts could even begin to emerge, there was a potentially distracting ambience hovering over the trial that had to be dissipated. The intersection of South Monroe Street and McHenry Street was not the Hallmark Hall of Fame. The appellant Belton, however, cast his very presence at that crime scene as the fulfilment of his filial duty to protect his mother in a potentially dangerous and violent environment.

That was why he was there. He defended his ultimate shooting of Edward Calloway as necessitated by his defense of others, to wit, his Mother, from the imminent threat of death or serious bodily harm. Those, of course, are exemplary qualities, calculated to engender a sense of juror sympathy. The Son’s arguably dubious guilty verdict of mitigated voluntary manslaughter rather than of unmitigated second-degree murder may almost certainly be attributed to such sympathies in the minds of the jurors.

The skimpy factual predicate advanced for this defense of others may, to be sure, have permitted such an extenuated verdict, but the case for it was certainly not compelling. “The homicide victim was, after all, only a dope dealer” (forgetting the inconvenient fact that the mother whose life and limb were ostensibly being protected was also a dope dealer). 4 In this case particularly we must remove the sentimental stereotype. We must forgo any temptation to think of the appellant Shakiea Worsley as Whistler’s Mother1, calling out from her decrepitude for protection from the slings and arrows of the Monroe-McHenry open-air drug market. Far from being decrepit, the appellant Worsley was a young and vigorous 35-year-old. Two years earlier, she had lost her license to practice as a nursing assistant because of her conviction in the District Court for the unlawful possession of narcotic drugs.

She received a suspended sentence. It was then that she turned to selling drugs for a living, heroin and crack cocaine. To put her age in generational perspective, she lived with, and was charged with taking care of, her own grandmother, who was suffering from Alzheimer’s disease. We must remember, therefore, that the appellant Worsley in this case was not the grandmother in that household but the granddaughter.

In terms of physical prowess, moreover, the appellant Worsley was not the fragile victim of a physical assault, but was unquestionably the initial aggressor (see infra) who actually precipitated the fist- fight with her rival drug dealer that turned into the catalyst for the ultimate killing. Indeed, just several weeks earlier, the Mother had herself been the victim of a robbery at gunpoint, at night and in an alley just off McHenry Street. Her drugs had been taken from her by force. She did not even report the robbery to the police because she did not want to compromise her own drug-selling activity.

She did, however, notify her fellow drug dealers. This was why both Calloway and “Nut,” a close associate of Calloway, first 1 James Whistler, “Arrangement in Grey and Black No. 1” (“Whistler’s Mother”) (1871). 5 armed themselves. Their guns were deliberately on open display thereafter at the drug market to deter other would-be robbers from interfering with the orderly transaction of their unlawful business. That presumably traumatic incident, moreover, did not deter the Mother from continuing to sell drugs on a daily (nightly) basis.

It finally behooves us to remember that far from being imperiled by slings and arrows, the Mother was herself the source of many of the slings and arrows that randomly pervaded the Monroe-McHenry open-air drug market. She had been a regular drug peddler of heroin and crack cocaine there on a daily (actually a nightly) basis for over two years. She held her own in that largely male-dominated criminal venue for all of those two years. In making our mental appraisal of the cold hard facts, therefore, we must scrupulously avoid looking at the scene through the sentimentally distorting lens of James Abbott McNeill Whistler or of Norman Rockwell or of Currier and Ives.

We must appraise the legal status of the two co-appellants essentially as if they were unrelated. The Son may have been in league with his Mother but he was not protecting a helpless Old Lady from harm. It was not Whistler’s Mother selling drugs on South Monroe Street. In advancing his claim that he acted in defense of his Mother, the Son must not be suffered the benefit of an unexamined but powerful stereotype.

The Mother’s Narrative A large part of the total narrative and all of the narrative of events prior to the early morning of December 6, 2018, came directly from the testimony of the Mother, who took the stand in her own defense. As of December 6, she was, as we have mentioned, a 35- 6 year-old woman living at 1607 Lorman Court with her own grandmother. 1607 Lorman Court is but a four or five minute drive from the intersection of South Monroe Street and McHenry Street. She had at one time worked as a geriatric nursing assistant but lost her job in nursing because of her conviction for possessing drugs. It was then that the Mother turned to selling narcotic drugs.

From the beginning of her new career as a drug peddler, her regular work venue was the Monroe-McHenry open-air drug market. Her daily (nightly) regimen typically began at or shortly after 11 P.M. She regularly punched out at approximately 7 A.M. The homicide victim, Edward Calloway, was a rival drug seller in the same Monroe- McHenry open-air market. As of December 6, the Mother had known Calloway since at least the previous “July or August.” She referred to him as “Cally.” Her nickname was “Kia.” Asked about her relationship with Calloway, she described it as “pretty cool in the beginning.” She described the drug market generally as an “open market” where “anybody can come and pretty much sell anything.” She testified that her interaction with Calloway was on a regular daily basis. At the open-air drug market, Calloway was frequently accompanied by his associate and co-worker, “Nut.” Focusing in on the early morning of December 6, the Mother had first arrived at the drug market at approximately 2 A.M. Calloway was there, “drinking, smoking, selling drugs.” According to the Mother, he appeared to be “very intoxicated.” Calloway was also “more agitated than usual.” Asked whether she and Calloway were involved in an argument, the Mother replied, “Not really.

I mean, a couple, but not nothing that wasn’t 7 unusual. But, yeah, we had a couple of arguments.” She confirmed that it was not the first time that she and Calloway had had arguments. That argument was at about 2 A.M. or 3 A.M. No fight of any sort ensued. The Mother left the Monroe-McHenry market area briefly at about “daylight.” The Mother had been approached by a customer who wanted Percocet and the Mother did not carry it.

The Mother, however, drove the customer to her home on Lorman Court. She explained, “I drove to my house because my cousin was in there. And he sold Percocet.” It was at that point, approximately 7 A.M., that the Son, the appellant Belton, first enters the narrative. That day, December 6, just happened to be the fifth birthday of the Mother’s granddaughter.

The little girl whose fifth birthday was pending was the only child of the Son and the only grandchild of the Mother. On the return to the Monroe-McHenry drug market, therefore, the Son rode along so that he and the Mother could go and buy cupcakes to deliver, along with the granddaughter, to the granddaughter’s Headstart program at 8 A.M. At this point, the Mother had a busy agenda: So I had to take the gentleman that was with me back down to Monroe and McHenry. And I also had to meet somebody, you know, to sell drugs to them. So my son rode with me because he was going to go with me anyway, you know, to take my granddaughter to school.

(Emphasis supplied.) It will be noted that at that point there had been no suggestion that the Son was accompanying the Mother to protect her from any special danger of violence looming at her regular place of self-employment. The Son was not riding shotgun, except in retrospect. The initial focus was on cupcakes, not Calloway. On later cross-examination, the Mother 8 insisted that her Son had not accompanied her to the Monroe-McHenry open-air drug market on December 6 for her protection but only to get cupcakes for her granddaughter’s 5th birthday: A. No, it was supposed to be a quick stop.

We actually were going to the Head Start to take my granddaughter cupcakes. Like I said, it was her birthday. (Emphasis supplied.) In any event, the Mother, the Son, and the Percocet customer arrived back at the Monroe-McHenry drug market at between 7 A.M. and 7:15 A.M. When asked if Calloway was present, the Mother testified, “He had left before me…He was already gone.” The Mother then met her scheduled customer. She explained that a store, the Best Crabs located at 1850 McHenry Street, is regularly utilized by the drug dealers to facilitate their trade: Q. Was it typical to use that store for drug dealing?

A. Yes The Mother explained, “I went in the store, got out what I had to get for the person that I was getting it for.” It was also in that store, “in the corner by the door, on the ledge,” that Calloway routinely kept a gun. It was as the Mother, who had then finished her sales for the day, was preparing to leave the scene, that Calloway returned. The Son’s Narrative The narrative is now supplied by both the Mother and the Son, who also testified in his own defense. It was at this point, moreover, that the preliminary hand-to-hand combat broke out that became the final catalyst for the fatal shooting.

It was that preliminary 9 outbreak of violence that was proffered by the Son as his justification for or, at the very least, extenuation of the fatal shooting. On the question of why the Son was even with the Mother at the Monroe-McHenry drug market on the morning of December 6, the Son’s testimony differed widely from that of the Mother. The Mother’s testimony, of course, was that after she had briefly finished up her drug-selling business by returning the Percocet customer to his car and making her scheduled sale to yet another customer, she and her Son were scheduled to go and buy cupcakes for her granddaughter’s (his daughter’s) fifth birthday and then drive the granddaughter and the cupcakes to her Headstart program by the school’s 8 A.M. convening hour. The Son, however, made no mention of the cupcakes or of his daughter.

The Son gave his reason for accompanying his Mother to work: “Just to make sure she’s okay.” He further explained: Q. Why do you feel the need to make sure your Mom’s okay? A. It’s South Baltimore. It’s a violent area. It’s a drug shop.

(Emphasis supplied.) In his mind at least, he was riding shotgun. Advertently or inadvertently, a predicate was being laid for the defense of others defense. In any event, at approximately 7 A.M. the Mother, having earlier left the drug market, had returned to the scene. Calloway had also temporarily left the scene and he returned minutes after the Mother returned.

He was in an agitated state and he took obvious umbrage at the very presence of the Son. That is when he made to several of his friends and associates the angry comment, “This is my block.” He walked right up to the Son with 10 the challenging confrontation, “Do you want some smoke? Why did you come down here?” At that point, Calloway had his gun out. The Son attempted to de-escalate the encounter by suggesting that the disagreement, whatever it was, was not severe enough to call for gunplay but could be resolved by a non-lethal fistfight.

The Son explained: A. I’m trying to sort of de-escalate him, like, because I’m not aware of what’s going on. But I don’t want to show too much fear because he might go a little farther, you know, like, physically touch me or physically touch her. Q. Okay A. So I tell him, like, it’s not that serious. Like, we can just fight.

Q. And when you say, we can just fight, what do you mean? A. Meaning, like, whatever it is that’s going on, I’m not willing to go that far. Q. When you say, we can just fight what do you mean by fight? You mean physically fight?

A. Like, fistfight. Fistfight. (Emphasis supplied.) Instead of shooting it out, they would duke it out. Calloway apparently agreed and he handed over the gun that he had been brandishing to Nut, who was, in effect, acting as his second.

The Son, who was also armed, however, did not turn over his gun to anyone. The Son quoted Calloway, “He says, okay, we can fight.” The Son walked up McHenry Street away from the Best Crabs grocery store: A. Well, I guess, after everybody came to a conclusion, like, okay, this is going to be a petty fistfight, I started to walk away, taking my jacket off, thinking we going to fistfight. Q. Okay. So you walked away.

Do you remember where you walked? 11 A. I walked up McHenry – Q. Okay. A. -- away from the grocery store. Q. Okay. And where did your mother go?

A. Sort of watching Calloway. Q. And where did Cally go? A. Into the store. (Emphasis supplied.) As the Son was engaging in the leisurely preparation of shedding his jacket and hoodie (it was December), however, he was “frantically” summoned back with the unexpected news that the fight had started without him, his Mother taking his place on the fight card.

Nut informed him, using the words, “They’re fighting.” The Son put his own spin on the words, “Nut informed me that my mother was being physically assaulted.” (Emphasis supplied.) That’s more than spin. That is centrifugal fury. Far from being “physically assaulted,” the Mother was actually the initial aggressor. The Son’s attention at that juncture, however, focused on Nut, who had removed from his pocket the gun that had been turned over to him by Calloway and was holding it in his hand.

The fight between his Mother and Calloway was largely obscured from the Son’s view by a crowd of onlookers that had begun to gather. At one point, the crowd started to back up. 12 The Mother’s role as the initial aggressor could not have been more clear. On cross- examination by the State, she openly acknowledged her precipitating role in that initial fight: Q. Now, it’s your testimony that, when you followed the victim to the front of the store, you actually were the initial aggressor, right? You swung on him?

You threw a punch at him, right? A. Yes. (Emphasis supplied.) She elaborated: A. No, his back was to me. When he walked in the store and I was behind him, his back was to me.

Soon as he turned around, I swung. As soon as he turned around. I didn’t wait, I didn’t look, I didn’t do anything. My maternal instinct said fight him and keep him away from your son.

So that’s what I did. (Emphasis supplied.) The Son hurried toward the site of the ongoing fight. Although he did not see a gun, the Son inferred that Calloway probably had a gun, because the crowd was “a bunch of grown men” and a “fistfight wouldn’t scare someone that bad.” From that backing up of the crowd, the Son launched into a leap of logic that sounded in self-defense but did not remotely suggest a defense of others: A. It made me think he had a gun – Q. Okay. A. -- and that he was coming for me in a hostile manner.

Q. Why would them backing up like that make you think a gun was out? A. Because he just pulled the gun out on me. Q. He, who? 13 A. Mr. Calloway. (Emphasis supplied.) The Son’s conclusion of the necessity for self-defense, moreover, then proceeded not from the actual behavior of Calloway but from the Son’s assessment of Calloway as a human being: A. So, of course, I’m not going to give him that opportunity to shoot me – Q. And – A. --if he’s already aggressive and coming.

Q. So, in that moment, what – what was your thought? A. I don’t want to get shot. Q. Okay. And why did you think you were going to get shot?

A. Because – Q. Because of what he was – A. --he’s already – he’s already aggressive, he’s already up here, like. Q. What do you mean by that? A. Meaning, he’s at a point. It’s not reasoning with him at this point.

Q. So what happened next? A. I shot him. Q. And how many times did you shoot? 14 A. I just kept shooting until he dropped the gun.2 (Emphasis supplied.) When explaining his reasons for firing at Calloway, the Son never mentioned his Mother nor said anything about her possible peril or endangerment. When asked about any injuries to his Mother, he replied: Q. Okay.

And did you observe any injuries on her? A. When we got home, yes. She had, you know, little bruises on her face and stuff like that. (Emphasis supplied.) Injuries to his Mother that the Son first noticed some ten or fifteen minutes after the shooting and only after the Son and the Mother had reached the sanctuary of home do not, of course, supply a justification for or even an extenuation of the shooting.

The Son never indicated that he even saw her in actual hand-to-hand combat with Calloway. The Mother As The Initial Aggressor The Mother testified that as she and Calloway were first in contact that morning, Calloway brushed past her and assumed a confrontational posture in front of her son. Calloway and the Son knew each other, but “They were not friends.” The Mother actually indicated that she did not want her son down there in such a potentially violent area. “If I had my way, he’d have never been out there. He has a tendency to pop up and do all types of things.” When asked, “But you didn’t want him down there?,” the Mother replied, “No.” 2 At trial, no discussion ever came up about whether the Son, even in self-defense, had been guilty of a use of excessive force.

The Son was never asked why he felt it necessary to shoot Calloway five times. 15 On this occasion, Calloway challenged the Son with the question, “Do you have a problem?” As the Son and Calloway faced off against each other, the Mother became aware that, ostensibly, there was going to be a fistfight between the two: Q. Does it appear there’s going to be a fistfight? A. It was supposed to have been, yeah. He handed his gun that he had when he got out of the car to Nut. (Emphasis supplied.) Cannily, the Mother was aware that even though Calloway had handed over his gun to Nut, Calloway still had another gun available nearby, stashed immediately inside the door of the Best Crabs grocery.

As the Mother then observed Calloway not walking toward her Son, who was taking off his jacket on McHenry Street, but instead walking toward the store, she followed him. Her tactical appraisal of the situation was clear: So when I noticed that he wasn’t walking towards my son, while my son was taking off his jacket, he was going to the store, my first thing that kicked in was my maternal instinct. If he’s going to fight, why is he walking towards the store instead of towards my son. So I followed him.

(Emphasis supplied.) As the Mother then followed Calloway into the store, his back was to her. As soon as he turned around, she, as the undisputed initial aggressor, started swinging at him: As he’s walking in the store, of course his back is towards me. So I see him fumbling for something. So when he turn around, first thing I’m thinking about is the gun.

I know it’s only – I only seen one. And that’s the one that he handed to Nut. So I’m, like, it’s another gun over there. So as soon as he turned around, I just started swinging, to prevent him from getting anywhere near my son.

I’d rather just fight him myself. (Emphasis supplied.) 16 As the fight then “rolls out into the street,” the Mother soon is “getting beat up pretty bad.” The fight became a blur. The Mother’s image of the fight was: A. That part, after – everything after this is kind of a blur. I know that we were fighting and we was on the ground.

At one point, I’m still on the ground and he’s not there. Q. When you say he’s not there – A. Cally gets up. So when he gets up, he end up coming back. And he’s on top of me again.

But at this time I’m not knowing that he’s shot yet, because I heard the gunshots. But I still didn’t know he was shot because he was right there and I’m right there. I’m not shot. How is he shot?

So when he fell on me, I got up and just went to try to get my – some type of way – I don’t know if he was holding my leg, my arm, my coat, or whatever. And I heard him say, “This bitch shot me.” But he never said who. He just said, “This bitch shot me.” (Emphasis supplied.) The Mother’s testimony about her fight with Calloway itself and about the shooting also cast doubt on the Son’s testimony that Calloway was walking toward him with gun in hand when the Son deemed it necessary to shoot Calloway in self-defense. According to the Mother, Calloway was on top of her, physically fighting.

At one point he stood up. Briefly thereafter, he fell back on top of her, asserting, “The bitch shot me.” It is highly improbable that Calloway would have walked away from his tussle with the Mother, walked even a short distance up McHenry Street in a fight with the Son, been shot five times, and then returned (or even to have been able to return) to the spot of the original tussle to fall on top of the Mother, asserting, “The bitch shot me.” Calloway obviously believed that he had been shot by the Mother in the course of their fight and not by the Son. 17 No gun was ever recovered at the crime scene. No empty shell casing was ever found other than the five that were traceable to the Son’s gun. This testimony by the Mother also tends to belie the Son’s version of his final confrontation with Calloway, immediately before he opened fire.

If the Son and Calloway had been staring each other down, as if in a classic Dodge City face-off, Calloway would have known full well who shot him. He would not have collapsed, fatally wounded, on the Mother’s body and cried out in shocked surprise, “The bitch shot me.” He reacted as if the Mother had somehow pulled a gun on him as they were wrestling on the ground and hitting each other with their fists. The Mother neither knew who was shooting nor who got shot. She immediately got in her car and left the scene: Q. --at the time you heard the gunshots, did you know who was shooting?

A. No. Q. Did you know who got shot? A. No. I didn’t know until he said, “This bitch shot me.” Because everything just happened so fast. And from where I was at on the ground, in front the – in front of the store, I couldn’t see on the side of, you know, McHenry, where the shooting was coming from. I couldn’t see that.

Q. Okay. So once you got up, what’d you do? A. Got straight in my car and pulled off. Q. Okay, Where’d you go?

A. Home. Q. Why’d you go home? A. It was just a shooting. I’m shook up, I’m beat up, I’m terrified.

I don’t know what to do next. I’m just scared. 18 Q. And you obviously drove your son as well – A. Yes. Q. -correct? Why didn’t you tell him to get out of the car?

A. Well, first and foremost, I didn’t know anything until I got home. (Emphasis supplied.) It was only after they arrived at home that the Son told the Mother that he had been the shooter. This will obviously be of great significance when our analysis turns to the Mother’s role as an accessory after the fact. A Non-Issue: The Defense Of Others Only the Son, of course, could tell us what his reason was for shooting Calloway.

Having examined every syllable uttered by him as his reason for opening fire on Calloway, we can now confidently eliminate from any further consideration on this appeal the perfect defense of others or the imperfect defense of others. To be sure, as the trial started the rough framework of the script, the cast of characters, and the close mother-son relationship between two of the three leading characters gave every promise that the defense of others might play a significant role in the final analysis. The testimony of the Son, however, completely eliminated any concern for his Mother’s possible danger as his express motivation for shooting Calloway. From the start to the finish of his testimony, he articulated his need for nothing but self-defense.

The actual evidence simply did not generate any issue with respect to the defense of others. 19 In this case, there was clearly no viable issue generated with respect to the defense of others. If our declination to give any further consideration to an issue that was, without objection, submitted to the jury as a justiciable issue, is considered questionable, however, let us hasten to point out that the elimination of this issue will have no net adverse impact on the fortunes of the Son. His only contention is that when the non-hearsay fragment “This is my block” was ruled to be inadmissible, that had an adverse impact on his two claims of defense, self-defense and the defense of others alike. Self-defense very definitively remains before us for our consideration.

Any arguable impact on the defense of others would also have had, ipso facto, an indistinguishable impact on self-defense. Any prejudice, therefore, would have been redundantly harmless. The Defense Of Others: The Role Played By The “Other” In addition to the Son’s silence as to such a motive for the shooting, the role of the Mother as the initial aggressor in her fistfight and further scuffle with Calloway is an additional reason why the Son’s claim of defense of others, to wit, his Mother, had absolutely no viability as an issue generated by the evidence as a question for the jury. The doctrine of the defense of others contemplates intervention on behalf of an innocent victim and not intervention on behalf of an initial aggressor or even on behalf of a mutual combatant.

In Shuck v. State, 29 Md. App. 33 , 349 A.2d 378 (1975), the first and only Maryland case ever to deal with the imperfect defense of others, Shuck was deemed to be entitled to intervene on behalf of a companion who was engaged in a potentially deadly conflict with 20 two other persons. The opinion pointed out, however, that the companion was under unprovoked attack and had been neither an aggressor nor a mutual combatant. In this particular encounter on South Monroe Street, by contrast, how could the Mother possibly qualify for the defensive assistance of the Son, or of anyone? How could the Son be legally entitled to intervene in an encounter by lending assistance to the initial aggressor or even to a mutual combatant in that encounter?

As R.M. Perkins and R.N. Boyce, Criminal Law, (3d ed. 1982), Ch. 10, Sec. 5, “Defense of Another,” 1146, makes clear: If two are engaged unlawfully in a mutual fight (deadly or nondeadly) the law does not authorize anyone (close relative or stranger) to take sides in the contest and aid one in the effort to overcome his adversary…[o]bviously the law does not authorize anyone to join forces with the offender and aid him in harming the innocent victim. (Emphasis supplied.) The undisputed status of the Mother as the aggressor in her fistfight with Calloway absolutely disqualified that scuffle as an event in which the Son would have been entitled to intervene in ostensible defense of his Mother. If that disqualification of the defense of others were not enough, there is yet a further disqualification. The Son does not deign to suggest how he would have been entitled to intervene at a deadly level in defense of his Mother who was engaged in only a nondeadly conflict.

Even if he could have charged into the fray with fists flying, he could not have charged in with guns blazing. He could not escalate that confrontation from the non-deadly to the deadly level. In virtually every conceivable respect, therefore, the Son’s defense of others defense was simply not a viable issue to be submitted to the jury. At trial, however, no one even mentioned these inherent and obvious inadequacies as the issue was, indeed, submitted to the jury. 21 Autopsy And Ballistics Dr. Donna Vincente, the Assistant Medical Examiner who performed the autopsy on Calloway, testified that Calloway died as a result of five gunshot wounds.

All shots were fired from more than three feet away, because there was no evidence of stippling surrounding any of the wounds. Gunshot A entered the right side of Calloway’s upper back, nicking the spinal column, and then penetrating the left lung. That bullet was recovered. Gunshot B entered Calloway’s right lower back injuring the duodenum, the stomach, and the liver before exiting the right upper abdomen.

The trajectory of that bullet was upward. Gunshot C pierced the right side of Calloway’s stomach. That bullet was also recovered. It ultimately fractured the right side of Calloway’s backbone.

Gunshot D struck Calloway on the back of Calloway’s right hand. Gunshot E was a through-and-through wound of Calloway’s right thigh. The very positioning of Gunshot A and Gunshot B tend strongly to negate the Son’s testimony that Calloway was on his feet and walking toward him when he deemed it necessary to fire in self-defense. If that were the case, how did the bullets enter Calloway’s back?

When the police arrived at the crime scene a few minutes after the Mother and the Son had left, Calloway was gravely wounded but still alive. He was transported to the emergency room at the Maryland Shock Trauma Center. It was a little over 24 hours later, at 10:03 A.M. on the next day, December 8, 2018, that he was pronounced dead. On December 19, 2018, the police executed a search warrant at 1607 Lorman Court.

Recovered from a hallway linen closet was a .45 handgun. A subsequent ballistic examination showed that the two bullets recovered from Calloway’s body, one bullet 22 recovered from the crime scene, and five shell casings recovered from the crime scene had all been fired from that .45 handgun. The Son, of course, fully acknowledged that he was the shooter. Perfect Self-Defense Although the defense of others (perfect or imperfect) was not generated as a viable issue in this case, self-defense (both perfect and imperfect) was more arguably a viable issue.

At least one element of self-defense – the shooter’s fear that he was in imminent danger of death – was at least fully litigated. In cases of criminal homicide, what is now called the doctrine of self-defense was a recognized justification for a homicide almost as ancient as the common law itself. Under precisely the circumstances that would constitute perfect self-defense today, the homicide was early on deemed to be an instance of justifiable homicide. In Dykes v. State, 319 Md. 206, 211 , 571 A.2d 1251 (1990), Judge Orth laid out for the Court of Appeals the four necessary elements for a complete and perfect case of self-defense; the complete paradigm: (1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant; (2) The accused must have in fact believed himself in this danger; (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.

See also State v. Faulkner, 301 Md. 482, 485 , 483 A.2d 759 (1984); Tichnell v. State, 287 Md. 695, 718 , 415 A.2d 830 (1980); DeVaughn v. State, 232 Md. 447, 453 , 194 A.2d 109 23 (1963); Bruce v. State, 218 Md. 87, 96-97 , 145 A.2d 428 (1958); Guerriero v. State, 213 Md. 545, 549 , 132 A.2d 466 (1957). With respect to self-defense, the initial burden of production, to wit, the burden of generating a prima facie jury issue, is cast on the defendant. As Chief Judge Robert C. Murphy explained for the Court of Appeals in State v. Evans, 278 Md. 197, 208 , 362 A.2d 629 (1976): The burden of initially producing “some evidence” on the issue of mitigation or self- defense (or of relying upon evidence produced by the State) sufficient to give rise to a jury issue with respect to those defenses is properly cast upon the defendant. (Emphasis supplied.) That is the burden to produce a prima facie case as to each and every factor of the multi-factored self-defense paradigm.

There is obviously more to the multi- factored paradigm of self-defense than the first factor. Once the defendant has generated a genuine jury issue with respect to self-defense, however, the burden shifts to the State to disprove self-defense beyond a reasonable doubt. That means that the State needs to persuade the jury beyond a reasonable doubt that at least one of the four constituent elements of self-defense did not exist. To demolish one of the defendant’s necessary constituent elements, however, is, ipso facto, to demolish the entire defense.

Although the submission of the defense to the jury puts the State behind, the State does get to bat last. In this case, the testimony of the Son was treated as having generated a jury issue as to self-defense. The jury was accordingly instructed by being given Maryland Criminal Pattern Jury Instruction, Sect. 4:17.2. Before the jury the State did not utterly succeed in its demolition mission.

Had it done so and had the defense of self-defense thereby been 24 completely rejected, the Son’s verdict would have been one of guilty of murder in the second degree. It was not. On the other hand, neither did the State fail utterly in its attack on the elements of self-defense. Had it so failed and had the defense of self-defense survived completely unscathed, the Son would have been completely exonerated.

He was not. The intermediate verdict of guilty of manslaughter brings us to a relatively new, or at least newly recognized (45 years), set of intermediate defenses. A Dramatic Appellate Chapter: The Recognition of the Imperfect Defenses The imperfect defenses generally – imperfect self-defense, imperfect defense of others, imperfect defense of habitation, imperfect duress, and imperfect necessity – were a venerable but relatively arcane wrinkle of the early common law of criminal homicide. If a defendant genuinely believed that his use of force was necessary to defend his life or limb (or to serve another of the other four purposes), but his belief was deemed to be objectively unreasonable, he was still guilty of a felonious homicide.

For punishment purposes, however, his moral blameworthiness was extenuated downward, not completely but to a degree. In the language of the common law, his lack of “malice aforethought” mitigated or lessened his degree of blameworthiness. As we have noted, however, this was a relatively obscure and arcane wrinkle of English common law that arrived in the colony of Maryland as part of the unseen cargo of the Ark and the Dove in 1634. It is not surprising, therefore, that the Maryland courts were oblivious to its presence for almost the first 350 years of their existence.

In the figurative cargo holds of the Ark and the Dove, such arcane wrinkles as the imperfect defenses were not that visible. 25 Credit for first recognizing the very presence of those inherent wrinkles in our Maryland common law is due to the then newly created Court of Special Appeals in 1975. Stimulated by the Supreme Court decision in Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), the Court of Special Appeals undertook in Evans v. State, 28 Md. App. 640 , 349 A.2d 300 (1975), aff’d State v. Evans, 278 Md. 197 , 362 A.2d 629 (1976), to survey and reexamine the entire history of homicide law in Maryland and before that in England. At 28 Md. App. 658, n.4 , Evans recognized and briefly discussed the imperfect defenses as an inherent part of the Maryland common law even though they had never theretofore been expressly applied in a Maryland case. Over the course of the next nine years and in a series of no less than six cases, the Court of Special Appeals campaigned for the official recognition of the theretofore neglected imperfect defenses.

Shuck v. State, 29 Md. App. 33, 40-45 , 349 A.2d 378 (1975), cert. denied, 278 Md. 733 (1976) (imperfect defense of others); Wentworth v. State, 29 Md. App. 110, 120-21 , 349 A.2d 421 (1975), cert. denied, 278 Md. 735 (1976) (imperfect duress); Law v. State, 29 Md. App. 457, 463-65 , 349 A.2d 295 (1975), cert. denied, 278 Md. 726 (1976) (imperfect defense of habitation). See also Cunningham v. State, 58 Md. App. 249, 253-54 , 473 A.2d 40 , cert. denied, 300 Md. 316 , 477 A.2d 1195 (1984) (imperfect self-defense). When Faulkner v. State, 54 Md. App. 113 , 458 A.2d 81 (1983) was before the Court of Special Appeals, Judge Orth (specially assigned, former Chief Judge of this Court, later Judge of the Court of Appeals) re-confirmed this Court’s recognition of the imperfect 26 defenses but noted, 54 Md. App. at 115 , that the Court of Appeals had not yet addressed the matter. In our Faulkner, Judge Orth wrote: Perfect self-defense requires not only that the killer subjectively believed that his actions were necessary for his safety but, objectively, that a reasonable man would so consider them.

Imperfect self-defense, however, requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked. (Emphasis supplied.) 54 Md. App. at 115 . In affirming the decision and the opinion of this Court, the Court of Appeals in its State v. Faulkner, 301 Md. 482 , 483 A.2d 759 (1984) fully accepted the notion of imperfect self-defense.

In a thorough historic review, it fully acknowledged the antecedent efforts by this Court in recognizing the long neglected wrinkles of the common law of criminal homicide. Faulkner then expounded imperfect self-defense, 301 Md. at 500-01 ; laying out its full paradigm: A proper instruction when such evidence is present would enable the jury to reach one of several verdicts: (1) if the jury concluded the defendant did not have a subjective belief that the use of deadly force was necessary, its verdict would be murder; (2) if the jury concluded that the defendant had a reasonable subjective belief, its verdict would be not guilty; and (3) if the jury concluded that the defendant honestly believed that the use of force was necessary but that this subjective belief was unreasonable under the circumstances, then its verdict would be guilty of voluntary manslaughter. The reason courts have reached the third conclusion is that the conduct of the defendant in these circumstances negates the presence of malice, a prerequisite to a finding of murder, but the defendant is nevertheless to blame for the homicide and should not be rewarded for his unreasonable conduct. (Emphasis supplied.) See also Moylan, Criminal Homicide Law, (2002), Chapter Ten, “The Imperfect Defenses,” pp. 191-93 (Maryland State Bar Association, MICPEL) 27 In Dykes v. State, 319 Md. 206 , 571 A.2d 1251 (1990), the Court of Appeals reaffirmed State v. Faulkner and then elaborated on one of its most important procedural problems, that of what a defendant must do to generate a jury issue on self-defense (perfect or imperfect).

Dykes explained: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says – “some,” as that word is understood in common, everyday usage. It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or “preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary.

If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden. Then the baton is passed to the State. It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self-defense. (Emphasis supplied.) 319 Md. at 216-17 .

That threshold question of whether the issue has been generated is one for the trial judge as a matter of law: The threshold determination whether the evidence was sufficient to generate the doctrine of self-defense was a question of law for the judge. 319 Md. at 221 . (Emphasis supplied.) Imperfect Self-Defense Of the four conditions that constitute the paradigm of perfect self-defense, two of them require a reasonable belief on the part of the defendant. The defendant must have a reasonable belief that he was in imminent danger of death or serious bodily harm. The defendant must also have a reasonable belief that the force he employed was necessary to meet the danger.

If the defendant actually possessed each of these beliefs subjectively but the jury believed that such belief in either case was unreasonable, that would constitute a 28 case of imperfect self-defense. In State v. Marr, 362 Md. 467, 474 , 765 A.2d 645 (2001), Judge Wilner explained: Unlike its “perfect” cousin, “imperfect” self-defense, if credited, does not result in an acquittal, but merely serves to negate the element of malice required for a conviction of murder and thus reduces the offense to manslaughter. As we explained in Faulkner and repeated in Dykes, a defendant who commits a homicide while honestly, though unreasonably, believing that he/she is threatened with death or serious harm and that deadly force was necessary does not act with malice, and, absent malice, cannot be convicted of murder. Nonetheless, because the killing was committed without justification or excuse, the defendant is not entitled to full exoneration