Brown v. State

⁴⁴⁶ SALMON, Judge. On March 10, 2003, Shawn Brown shot Steven Salliey in the right shin. At the time of the shooting, Brown was seventeen- and-a-half-years old. As a consequence of this shooting, the State charged Brown with (1) attempt to commit murder in the first degree; (2) attempt to commit murder in the second degree; (3) assault in the first degree; (4) assault in the second degree; (5) reckless endangerment; and (6) wearing or carrying a dangerous weapon.

Brown, by counsel, filed a motion to transfer jurisdiction to the juvenile court. After a hearing, the motion to transfer was denied. On April 7, 2004, in the Circuit Court for Baltimore City, Brown was tried before a jury and acquitted of all charges except for assault in the first degree and assault in the second degree. For purposes of sentencing, the trial judge merged the second-degree assault into first-degree assault and imposed a sentence of twelve years in the Division of Correction with a recommendation that appellant be placed in the Patuxent Youth Program.

On appeal, Brown raises five questions, which we have reordered. 1. Did the trial court abuse its discretion by failing to make an individualized determination of Shawn Brown’s amenability to treatment when denying his motion to transfer the case to the juvenile court? 2. Did the trial court commit reversible error when it gave an assault instruction based on imperfect self-defense instead of the standard attempted voluntary manslaughter/imperfect self-defense instruction? 3. Did the trial court abuse its discretion by permitting the State to introduce prior consistent statements for the sole purpose of bolstering its key witnesses? 4.

Did the trial court lack subject matter jurisdiction to create a new form of assault by instructing the jurors to ⁴⁴⁷ convict of assault if they found that appellant acted in imperfect self-defense? 5. Did the trial court impose an illegal 12-year sentence by exceeding the 10-year cap for the crime of attempted voluntary manslaughter? A. At trial, the central issue presented to the jury was whether the shooting of Steven Salliey was done by appellant in self-defense. Salliey testified that on the night of March 10, 2003, he took his trash out to a can located in the alley between the 2600 blocks of Pierpont Avenue and Peugeot Street in Baltimore City.

After emptying his trash, Salliey noticed a group of his friends hanging out in the backyard of appellant’s residence. Salliey walked onto appellant’s back porch. Appellant told Salliey to get off the porch. Salliey responded, “Well, if you want to get me off your porch, you gotta put me off.” According to Salliey’s testimony, Brown went back into his house and re-emerged carrying a pellet gun.

Appellant again asked Salliey to leave the porch. Salliey refused, and appellant shot him in the bottom of his leg. Salliey said on direct examination that prior to the shooting his relationship with appellant had been friendly. But, on cross-examination, he admitted there had been a “beef’ between the two ever since one of Salliey’s friends broke appellant’s jaw.

Salliey also admitted on cross-examination that he previously had been a drug dealer. Salliey maintained, however, that he no longer sold drugs. He denied that he was carrying a gun on the night in question and said that he did not know that drug dealers ordinarily carried guns. The State also called Steven White, a friend of Salliey’s, as its second witness.

White’s testimony was consistent with Salliey’s insofar as both said that appellant shot Salliey in the shin, but White testified that at the time of the shooting Salliey was standing in the parking lot near appellant’s backyard and that he (White) was standing on Brown’s porch when ⁴⁴⁸ the shooting occurred. White testified that he believed that appellant shot Salliey because the latter was to blame for appellant’s having suffered a broken jaw in a fight -with one of Salliey’s friends. On cross-examination, White admitted that he had recently finished serving a term in a juvenile facility for first-degree assault upon one of appellant’s friends. The defense called appellant’s mother, Victoria Hampton, and his brother, Stefan Brown, as witnesses.

According to these witnesses, Salliey was a well-known drug dealer in the neighborhood. Prior to the night his brother shot Salliey, Stefan Brown had personally seen Salliey carrying guns and other weapons, and Ms. Hampton had called the police on numerous occasions to report Salliey’s illegal drug-sale activities that she had seen taking place in the alley behind her home. Appellant’s mother’s calls to the police were unavailing, however, because each time she called, appellant had left the premises by the time the police arrived. Ms. Hampton also testified that appellant lived in fear of Salliey and his friends “beating him up and running him up in the house.” Stefan Brown also testified that Salliey had been involved in an altercation with appellant prior to the night of the shooting.

During that altercation, one of Salliey’s associates broke appellant’s jaw "with a butt of a gun. According to Stefan Brown’s testimony, appellant was still recovering from the jaw injury at the time Salliey was shot. At the conclusion of the entire case, the trial judge modified Maryland Pattern Jury Instructions, Criminal (MPJI-Cr) No. 4:17.14, by telling the jurors that if they found that appellant had acted in imperfect self-defense then their verdict should be “guilty of assault, rather than attempted murder.” That modified instruction was not objected to by defense counsel. B. FIRST ISSUE PRESENTED Appellant argues that the court “abused its discretion by failing to make an individualized determination of Shawn ⁴⁴⁹ Brown’s amenability to treatment when denying his motion to transfer [his case] to juvenile court.” Pursuant to section 4-202 of the Criminal Procedure Article of the Maryland Code (2001 Repl.

Vol., 2003 Supp.), the judge was asked to make a determination as to whether there should be a waiver of jurisdiction by the circuit court in favor of a disposition in the juvenile court. In making such a determination, the court is required to consider the following factors: (1) Age of child; (2) Mental and physical condition of child; (3) The child’s amenability to treatment in any institution, facility, or program available to delinquents; (4) The nature of the alleged offense; and (5) The public safety. Id. Appellant admits that the judge who considered the issue of waiver took into consideration Factors 1, 2, 4, and 5.

Appellant contends, however, that the judge never made an “individualized assessment” of his amenability to treatment in a juvenile facility (Factor 3). At the waiver hearing, counsel for appellant argued that his client should be placed in the “Hickey Enhanced Program.” Although defense counsel agreed that the nature of the crime charged presented “a serious issue ... [regarding] public safety,” he nevertheless questioned whether the subject case was really one that warranted a charge of attempted first- or second-degree murder as opposed to “the lesser crime[s]” of either first-degree assault or second-degree assault. In regard to the issue of amenability to treatment, the motions judge said that, although appellant had no prior juvenile record and no history of treatment in the juvenile system, it was nevertheless difficult to predict whether he could be treated successfully in the juvenile system. The court observed that the juvenile justice system in Maryland is bereft of funds and sorely lacking in adequate facilities.

He then concluded his consideration of the amenability to treat ⁴⁵⁰ ment factor by saying, “I mean, if you got [sic] a specific program or specific person that would fit, that’s one thing.” Although he did not say so explicitly, we interpret the judge’s words as meaning that he felt that appellant had failed to demonstrate that the juvenile system had a specific program suited for his needs. The other four factors weighed against transfer, in the view of the motions judge. The court noted that appellant’s age was a strong factor against transfer because the defendant was “so close to being an adult.” In regard to appellant’s mental and physical condition, the court found that these factors also weighed against transfer because [t]his is not a frail child. This is a man of adult stature, height, weight, the way he carried himself.

There may be some emotional immaturity, but he’s not a fawn with his eyes caught in the headlights. He’s—by his mother’s own testimony, a combatant in a mutual affray that’s been going on for years. The court also felt that the nature of the offense weighed heavily against transfer to the juvenile court because the crime charged was a “serious shooting” and, in the court’s view, “the Juvenile Justice System is just not meant for ... [cases involving] serious gun play.” The judge also thought that the fifth factor, public safety, weighed heavily against transfer “because armed gunmen roaming around the city is not conducive to the education and thriving” of the children of Baltimore. We can find no merit in appellant’s argument that the circuit court judge who considered the transfer issue abused “his discretion by failing to make an individualized determination of ... [appellant’s] amenability to treatment.” Read in context, it is clear that the court was simply not persuaded that any “specific program” provided by the Department of Juvenile Services was likely to be a good fit for appellant.

Thus, the court did give “individualized” consideration to Factor 3. ⁴⁵¹ In light of the evidence presented, the judge’s conclusion in regard to the amenability to treatment factor is unsurprising. No documentation or reports from the Department of Juvenile Services were introduced into evidence supporting counsel’s suggestion that his client would be a good candidate for the “Hickey Enhanced Program.” This is important because “the burden of demonstrating that the waiver requested should be granted is carried by the party initiating it, i.e., the juvenile.” In re Ricky R., 43 Md.App. 645, 648 , 406 A.2d 690 (1979) (citing Kennedy v. State, 21 Md.App. 234, 240 , 319 A.2d 850 (1974)). For the foregoing reasons, we reject appellant’s contention that “[t]he circuit court abused its discretion by giving only a passing nod to the ‘reverse waiver’ criteria and failing to consider the likelihood of Shawn Brown’s amenability, as an individual, to rehabilitation in the juvenile system.” C. SECOND ISSUE PRESENTED At the close of the evidentiary phase of the trial, defense counsel requested, and the court agreed to give, an instruction as to self-defense and imperfect self-defense. The Model Pattern Jury Instruction (MPJI) CR No. 4:17.14C reads as follows: C ATTEMPTED VOLUNTARY MANSLAUGHTER (IMPERFECT SELF-DEFENSE) Attempted voluntary manslaughter is a substantial step, beyond mere preparation, toward the intentional taking of a life, which would be attempted murder, but is not attempted murder because the defendant acted in partial self-defense.

Partial self-defense does not result in a verdict of not guilty, but rather reduces the level of guilt from attempted murder to attempted manslaughter. ⁴⁵² You have heard evidence that the defendant attempted to kill (victim) in self-defense. You must decide whether this is a complete defense, a partial defense, or no defense in this case. In order to convict the defendant of attempted murder, the State must prove that the defendant did not act in either complete self-defense or partial self-defense. If the defendant did act in complete self-defense, the verdict must be not guilty.

If the defendant did not act in complete self-defense, but did act in partial self-defense, the verdict should be guilty of attempted voluntary manslaughter and not guilty of attempted murder. Self-defense is a complete defense, and you are required to find the defendant not guilty, if all of the following four factors are present: (1) the defendant was not the aggressor [although the defendant was the initial aggressor, [he] [she] did not raise the fight to the deadly force itself]; (2) the defendant actually believed that [he] [she] was in immediate and imminent danger of death or serious bodily harm; (3) the defendant’s belief was reasonable; and (4) the defendant used no more force than was reasonably necessary to defend [himself] [herself] in light of the threatened or actual force. In order to convict the defendant of attempted murder, the State must prove that self-defense does not apply in this case. This means that you are required to find the defendant not guilty, unless the State had persuaded you, beyond a reasonable doubt, that at least one of the four factors of complete self-defense was absent.

Even if you find that the defendant did not act in complete self-defense, the defendant may still have acted in partial self-defense. [If the defendant actually believed that [he] [she] was in immediate and imminent danger of death or serious bodily harm, even though a reasonable person ⁴⁵³ would not have so believed, the defendant’s actual, though unreasonable, belief is a partial self-defense and the verdict should be guilty of attempted voluntary manslaughter rather than attempted murder.] ... (Emphasis added.) When the trial judge instructed the jury, he did not give an instruction as to attempted manslaughter. However, he did read the last paragraph of the above instruction, except that he changed the last seven words, which we have underscored. The court changed the sentence to read: “If the defendant actually believed that he was in immediate and imminent danger of death or serious bodily injury, even though a reasonable person would not have so believed, the defendant’s actual, though unreasonable belief is a partial self-defense, and the verdict should be guilty of assault, rather than attempted murder.” (Emphasis added.) As noted, there was no objection by defense counsel at trial to the aforementioned change in MCJI-Cr No. 4:17.14C, even though the trial judge explained to counsel that he had “substituted assault [in the pattern jury instruction] because [the Maryland General Assembly] didn’t create the lesser-included offense of attempted manslaughter.... ” During deliberations, the jury asked for a clarification as to whether “complete or incomplete defense criteria apply to all six counts [and whether] ... all three criteria 1 [of complete self-defense] have to [be met] for complete self-defense in any one count?” The court decided to orally re-instruct the jury, after stating that simply transcribing the pattern jury instructions “would be insufficient because it would be necessary to edit Pattern Jury Instruction 4:17.14 because the pattern ⁴⁵⁴ instruction spoke to a reduction of the crime down to attempted manslaughter,” and in this case, the State did not charge that offense.

The court then re-instructed the jury and explained how imperfect self-defense applied to attempted murder. In that re-instruction, the court once again told the jury to find the defendant “guilty of assault” if they found he acted in imperfect self-defense. The court later modified that instruction by saying that if the jury found that the defendant acted in an imperfect self-defense, the jury should find appellant guilty of “either first-degree assault or second-degree assault or both.” No exceptions were interposed as to these re-instructions. As already mentioned, the jury convicted Brown of first- and second-degree assault, but acquitted him of all other charges.

Appellant now contends that when the trial judge amended the pattern jury instruction, in the manner described above, he was guilty of plain error. According to appellant, plain error should be recognized in this case because the error produced a “reasonable likelihood” of having affected the jury verdict. See Danna v. State, 91 Md.App. 443 , 605 A.2d 150 (1992) (reviewing unpreserved instructional error when the trial judge failed to tell the jury that their verdict must be unanimous). The State contends that the trial judge did not err in amending the pattern jury instruction as to perfect and imperfect self-defense, but the only reason the State advances in support of its position is phrased as follows: Brown’s present argument that the court erred by telling the jurors that, if they found that Brown acted in self-defense, then the verdict should be guilty of first or second degree assault is without merit.

Where, as here, there was no consummated murder, the crime of manslaughter was not an available verdict. This Court has held that a conviction for first degree assault would merge into a conviction for attempted first degree murder for sentencing purposes. Jenkins v. State, 146 Md.App. 83, 133-35 , 806 A.2d 682 (2002) (merger is not under the required elements test because each crime has different elements, but under the ⁴⁵⁵ rule of lenity because both crimes arose out of the same act of firing a handgun at the victim). Under the circumstances of this case, in which Brown requested instructions on imperfect and perfect self-defense and the court complied with his request, Brown has failed to establish error.

(Reference to appellant’s brief omitted.) We do not agree with the State’s argument. It is true, of course, that, where there is no consummated murder, the crime of manslaughter is not an available verdict. But this does not mean that when, as here, the defendant is charged with attempted first- and second-degree murder, that attempted manslaughter is not an available verdict. In Hardy v. State, 301 Md. 124, 139-40 , 482 A.2d 474 (1984), the Court said: If the evidence satisfies the factfinder by proof beyond a reasonable doubt that the conduct of the defendant falls within the prescribed conduct in the state labeled as first degree murder that did not result in death of the victim, then the crime of attempted murder in the first degree has been established.

If the evidence of criminal culpability is something less, the crime proved may be attempted murder in the second degree or attempted voluntary manslaughter. We emphasize that the basic characteristic of an attempt is that it adjusts according to the proof established at trial. (Emphasis added.) In Hardy, supra, 301 Md. at 139 , 482 A.2d 474 , the Court also said: “The crime of attempt, in a literal sense, is an adjunct crime—it cannot exist by itself but only in connection with another crime. Although it remains a common law crime, Lightfoot v. State, ... [ 278 Md. 231, 237 , 360 A.2d 426 (1976)], attempt is applicable to any existing crime, statutory or common law.” Imperfect self-defense is a mitigating factor but is limited in its application to criminal homicide “and its shadow forms, such as ... attempted murder.... ” See also Richmond v. State, 330 Md. 223, 233 , 623 A.2d 630 (1993) (quoting Bryant v. State, 83 Md.App. 237, 244 , 574 A.2d 29 ⁴⁵⁶ (1990)).

Imperfect self-defense does not apply, however, to first-degree assault or second-degree assault. Id. We agree with the appellant that the trial judge erred in altering the wording of the pattern jury instruction and telling the jurors that if they found that the defendant acted in imperfect self-defense he would be guilty of either first- or second-degree assault. The pattern jury instruction correctly set forth the Maryland law and should have been given.

This does not necessarily mean, however, that we should recognize plain error. Appellant argues that, if the jury had been instructed correctly then it might have found defendant guilty of attempted manslaughter because the jurors might well have believed that appellant had acted in