Bryant v. State

MOYLAN, Judge. The appellant, Curtis Ray Bryant, was convicted by a Prince George’s County jury of 1) attempted murder in the first degree, 2) statutory maiming, 3) assault with intent to disable, and 4) assault and battery. He received a sentence of thirty years for the attempted murder and a consecutive sentence of ten years for the statutory maiming. The assault with intent to disable and the assault and battery convictions were merged into that for statutory maiming.

Upon this appeal, the appellant raises the following four contentions: 1. That the trial judge erroneously refused to instruct the jury that considerations of perfect self-defense, of imperfect self-defense, and of intoxication bear upon the statutory maiming and the assault with intent to disable charges as surely as they bear upon the attempted murder charge; 2. That the court erroneously permitted the State to enter a nolle pros on the charge of assault with intent to murder; 3. That the court erroneously admitted inflammatory photographs; and 4.

That the court erroneously failed to give the appellant credit for pretrial time served. The Facts The evidence revealed an unusually vicious and savage attack. The victim, Wallace Upshaw, and the appellant were homosexual lovers who had known each other for five years. At the time of this assault on January 29, 1989, the appellant was renting a room in Upshaw’s house.

The two men had been sexually intimate three days before this assault occurred. ²⁴⁰ Between 2 A.M. and 5 A.M. on the morning of January 29, the appellant and Upshaw together drank a quart or more of gin. Several other persons, including Upshaw’s other roommate, were present smoking crack cocaine. Someone in the group was in possession of “love boat,” a mixture of marijuana and PCP. Upshaw testified that he did not use any drugs that morning, although he had previously been a user of crack, of PCP, and of “love boat.” The appellant testified that he smoked both “love boat” and crack that morning.

At approximately 5 A.M., Upshaw and the appellant left Upshaw’s home to go to the District of Columbia. According to Upshaw, the trip was to have breakfast and meet some friends. According to the appellant, the two of them left on an expedition to buy more crack cocaine. At one point, the two of them sat down by a cemetery and waited for a bus. - Upshaw claimed that the appellant suddenly pulled a knife and threatened that he would murder him.

Upshaw told the appellant that he was “all drunked up” and “acting all high.” The appellant lunged at Upshaw with the knife, cutting Upshaw’s hands and head. The appellant chased Upshaw and continued to strike at him with the knife. As Upshaw ran toward a creek and a wooded area of the cemetery, the appellant caught him and stabbed him in the back. Upshaw fell to the ground.

The appellant announced that he was a murderer who intended to murder Upshaw. He continued to stab Upshaw about the head until Upshaw rolled into the creek. The appellant then cut off part of one of Upshaw’s ears, “plucked” one eye out, stabbed Upshaw’s other eye, and slashed his neck. He held Upshaw’s head underwater while he stabbed him in the head and back.

After stabbing him over forty times, the appellant rolled him over into .a face-up position. Upshaw “played possum,” pretending to be unconscious, if not dead. The appellant kicked him in the side and walked away. ²⁴¹ The appellant’s version of the incident was that, as the two of them were on their way to buy crack cocaine, Upshaw suddenly grabbed him and kissed him, which shocked the appellant. Upshaw then pulled out a knife.

The appellant pushed him away and ran into the graveyard. According to this version, it was Upshaw who was chasing the appellant with the knife. The appellant claimed that he was afraid that Upshaw would kill him. He testified that when he fell to the ground, Upshaw jumped on him and began choking him.

The appellant defended himself with his own knife. The caretaker of the cemetery testified that during the early morning hours of January 29, he heard someone calling for help. It was the appellant, who was walking slowly and carrying a bloody knife. The appellant mumbled something to the effect that, “they would not fuck with him or fuck him.” The caretaker ran into his house and the appellant left.

The caretaker called the police. He then went outside, where he found Upshaw lying on the ground. Denise Prather, who lived near the cemetery, described the appellant’s coming to her house and asking to use the telephone to call his mother. His clothes were covered with blood.

After leaving her house, he was arrested outside. The Defenses of Intoxication, Self-Defense and Imperfect Self-Defense The appellant, by his own testimony, generated genuine jury issues with respect to 1) self-defense; 2) a fortiori, imperfect self-defense; and 3) intoxication in a degree destroying his capacity to form a specific intent. Although his requests were less than models of precision in terms of the charges they were intended to cover, the appellant adequately communicated that he wanted jury instructions covering these three separate theories of exculpation and/or mitigation. In instructing the jury on the crime of attempted murder in its various degrees, the trial judge gave a full and ²⁴² complete instruction on both self-defense and imperfect self-defense.

Those instructions, however, clearly were given within the sole context of the attempt charge. It was only after the discussion of attempt law had been completed that the court went on to define, briefly and separately, the crimes of statutory maiming, assault with intent to disable, and assault and battery. At the very end of the instructions, the trial judge took up for the first time the question of intoxication. It is clear from the instruction itself that it was directed exclusively to the distinction between attempted murder in the first degree and attempted murder in the second degree.

There is no reference to its possible applicability to any of the other charges in the case specifically or to the existence of a specific intent generally: “Now, you’ve heard talk in this case of the use of intoxicating drugs and alcohol. Voluntary intoxication may be a defense to first-degree murder. It is not a defense to second-degree murder because that charge does not require premeditation and deliberation. If the Defendant was so intoxicated at the time of the homicide that he was unable to have acted deliberately or with premeditation, then he cannot be guilty of first-degree murder, although he could be guilty of second-degree murder.

A person can be drinking or taking drugs and can even be intoxicated* but still have the necessary mental facilities to act deliberately and with premeditation. In order to convict the Defendant of first-degree murder the State must prove beyond a reasonable doubt that the degree of intoxication did not prevent the Defendant from acting deliberately or with premeditation, so you have to consider the evidence that you’ve heard concerning intoxication and determine whether or not the State has proven beyond a reasonable doubt that the actions of the Defendant in attempting to murder the victim were premeditated or not and you may consider that intoxication in determining whether the State had proven that ²⁴³ beyond a reasonable doubt, but that’s the only thing you can consider, the voluntary intoxication with respect to premeditation necessary to make second-degree murder first-degree murder.” When counsel approached the bench following the conclusion of the jury instructions, defense counsel made it clear that he wanted the jury to be informed that the defense of self-defense and the defense of intoxication went to the crimes of statutory maiming and assault with intent to disable as well as to attempted murder. The court declined to give a supplemental instruction. The Continuing Viability of Merged Convictions As we consider the appellant’s contention that certain instructions given with respect to the attempted murder charge should have been given with respect to the companion charges as well, our focus is not limited to the conviction for statutory maiming for which the appellant received a separate and consecutive sentence of ten years.

He was also convicted of assault with intent to disable and of assault and battery. Although those convictions were merged into the conviction for statutory maiming, they are not forever obliterated. The reason for their merger is to protect the appellant from multiple punishment for “the same offense.” As long as the total package is vulnerable to appellate or other post-conviction review and to the possibility of remand and retrial, those merged convictions are, however, simply in a state of suspended animation. If, as shall happen in this case, the statutory mayhem were remanded for retrial, they would reemerge as viable lesser included charges.

If for some reason, such as the failure of proof of an essential element, a reconviction did not follow on the major charge, those reemerged charges themselves could serve as the basis for conviction and sentence. Because of their residual potential for continuing vitality, therefore, we focus our attention upon them as well. ²⁴⁴ Imperfect Self-Defense Limited to Actual or Inchoate Homicide Criminal homicide is extremely unusual in its proliferation of levels or degrees of blameworthiness. Except for its reflected influence on its inchoate, shadow crimes of assault with intent to murder, attempted murder, and conspiracy to murder, it alone has an extenuated or mitigated form (voluntary manslaughter) for purposes of lowering the maximum punishment. 1 Voluntary manslaughter is something other than the mere absence of aggravating factors that would raise the level of guilt to murder in either the first or second degree. It is predicated upon the affirmative presence of some extenuating fact that will operate to mitigate the level of guilt and, therefore, the punishment.

One of the extenuating factors that gives rise to the crime of voluntary manslaughter is that of imperfect self-defense. For purposes of this discussion, it is not necessary to go into its substantive ramifications. It is enough to note 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 the attempted murder in this case. The origins and the purpose of imperfect self-defense have been thoroughly reviewed and well summarized in Judge Cole’s excellent opinion for the Court of Appeals in State v. Faulkner, 301 Md. 482 , 483 A.2d 759 (1984).

See also Shuck v. State, 29 Md.App. 33, 40-44 , 349 A.2d 378 (1975); Law v. State, 29 Md.App. 457, 462-465 , 349 A.2d 295 (1975). ²⁴⁵ Maryland is fully in line with the recognized academic authorities. Imperfect self-defense is an aspect of homicide law and nothing more. Outside of homicide law, the concept doesn’t exist. The total discussion of imperfect self-defense in W. LaFave & A. Scott, Criminal Law § 5.7 (2d ed. 1986), at 463, consists of the following: “We have noted that one who uses force against another with an honest but unreasonable belief that he must use force to defend himself from an imminent attack by his adversary is not, in most jurisdictions, justified in his use of force, for proper self-defense requires that the belief in the necessity for the force he uses be reasonable.

Although in many jurisdictions such a person is guilty of murder when he uses deadly force in such circumstances, some courts and legislatures have taken the more humane view that, while he is not innocent of crime, he is nevertheless not guilty of murder; rather, he is guilty of the in-between crime of manslaughter.” (Footnotes omitted) (Emphasis supplied). With respect to all other crimes, the defendant is either guilty or not guilty. He either acted in self-defense or he did not. There is no “in between.” Under the circumstances, the judge was correct in declining to give an instruction on the subject of imperfect self-defense with respect to the charges of statutory maiming, assault with intent to disable, and assault and battery.

Self-Defense Applicable to Assault Crimes Generally An instruction with respect to true self-defense, however, should have been given. Although discussions of self-defense in the context of homicide cases understandably have dominated the field, the simple and frequently neglected larger truth is that the defense of self-defense applies to assaultive crimes generally. There is no question but that self-defense was generated in the present case. The substantive subtleties of self-defense are not an issue here. ²⁴⁶ The defense being applicable to common law assault and battery generally, it is by necessary implication applicable to the various forms of aggravated assault.

Assault with intent to disable, under Md. Ann.Code art. 27, § 386 (1987), is obviously such an aggravated assault. LaFave & Scott, supra § 5.7, at 454-455, discusses this general applicability of the defense: “It is only just that one who is unlawfully attacked by another, and who has no opportunity to resort to the law for his defense, should be able to take reasonable steps to defend himself from physical harm. When the steps he takes are reasonable, he has a complete defense to such crimes against the person as murder and manslaughter, attempted murder, assault and battery and the aggravated forms of assault and battery. His intentional infliction of (or, if he misses, his attempt to inflict) physical harm upon the other, or his threat to inflict such harm, is said to be justified when he acts in proper self-defense, so that he is not guilty of any crime.” (Footnote omitted) (Emphasis supplied).

Statutory maiming, under Article 27, § 385, (or, for that matter, common law mayhem) is also an aggravated assault’. An exculpation with respect to an underlying assault, by necessary