Bynes v. State

Moylan, J. This was a case of belligerent pillow talk run amok. After seven or eight years of presumptive tranquility, which produced two children, a garden variety domestic dispute between the appellant, Donovan Bynes, and the mother of his children, Ruth Chavez, spun hopelessly out of control. In the Circuit Court for Prince George's County, a jury, presided over by Judge Sean D. Wallace, convicted the appellant of an assault in the second degree on Ms. Chavez at their pre-marital apartment at 11246 Evans Trail on July 31, 2016. The couple had been living together, with their children, at that apartment since March or April of 2016.

They were engaged to be married. The appellant was sentenced to a term of imprisonment of ten years, with all but three years suspended. The Contentions 1. The appellant initially contends that Judge Wallace erroneously declined to instruct the jury on his claim of self-defense. 2.

The appellant secondly contends that Judge Wallace erroneously failed to declare a mistrial. Self-Defense At The Non-Deadly Level The caselaw is so bloated with claims of self-defense in the more dramatic context of homicide law or other cases involving deadly force that it has been largely overlooked that the common law defense of self-defense also enjoys an independent vitality at the non-homicidal and non-deadly level. As this Court first pointed out in Bryant v. State , 83 Md. App. 237 , 245, 574 A.2d 29 (1990) : 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. (Emphasis supplied).

See also Jones v. State , 357 Md. 408 , 424, 745 A.2d 396 (2000) ("Aside from its application to a charge of murder, Maryland appellate courts have applied common law self-defense to other assaultive crimes."); Bussie v. State , 115 Md. App. 324 , 345, 693 A.2d 49 (1997). In Jones v. State , 357 Md. at 422 , 745 A.2d 396 , Judge Harrell wrote for the Court of Appeals in laying out the elements of self-defense at the level not involving deadly force. (1) the defendant actually believed that he or she was in immediate or imminent danger of bodily harm; (2) the defendant's belief was reasonable; (3) the defendant must not have been the aggressor or provoked the conflict; and (4) the defendant used no more force than was reasonably necessary to defend himself or herself in light of the threatened or actual harm. This was a two-witness trial.

Ruth Chavez gave her version of the events of the evening of July 31, 2016. The appellant gave his version. The two versions differed dramatically. The jury obviously believed Ruth Chavez's version.

Because the appellant does not challenge the legal sufficiency of the evidence to support his conviction for assault, Ruth Chavez's version of the incident is of small consequence to us on this appeal. The issue of whether the evidence was enough to generate a jury instruction on self-defense depends, in the circumstances of this case, largely on the appellant's version of the critical events. Based on the appellant's testimony, which, in this case, portrayed the facts in the light most favorable to his claim of self-defense, we agree with Judge Wallace that the self-defense instruction was not "generated by the evidence in this case." The Onset Of A Quarrel Both parties agreed that their relationship had lasted for seven or eight years and that they had had two children together. They agreed that they had moved into the Evans Trail apartment in March or April of 2016 and that they were engaged to be married.

According to the appellant, the whole family had gone out to dinner together at the Olive Garden on the evening of July 31, 2016. On the way home, they stopped to pick up a bottle of wine. The appellant testified that he and Ms. Chavez "had been having a good day," but that, because of recent quarrels, he was seriously questioning the future of their relationship. The appellant further testified that, as he and Ms. Chavez lay down in bed for the night, she asked him to get the wine and to turn the lights out so that they could "have sex." He declined, telling her that he did not want to be sexually intimate with her anymore.

Understandably, she reacted angrily, accusing him of "cheating" on her and demanding to know with whom he had been cheating. According to the appellant, Ms. Chavez grabbed his phone and threw it at him, breaking it against the wall. He told her that that sort of behavior was why he no longer wanted to be with her. In any event, the phone did not hit the appellant and he never intimated that he was afraid of being hit by it as a projectile.

Up until the throwing of the phone, the two versions of events are not that far apart. According to Ms. Chavez, as the two prepared to go to bed for the night, she confided that she was pregnant with their third child. When he then told her that the child was not his and that she should be careful about whom she slept with, she became understandably upset. She stormed from the room but then returned to confront the appellant about what he had said to her.

The appellant, unresponsive, was on his phone. That further angered Ms. Chavez and she grabbed the phone and threw it against the wall. It will be noted that, as of this point, the appellant has not exerted any force or physically done anything that could qualify as a self-defensive action or maneuver. The Appellant Reacts The appellant testified that after Ms. Chavez threw the phone against the wall, she left the room and went to the children's room.

When she subsequently reentered the room, she slapped him across the face, leaving a scratch on his face from the corner of his eye to the bottom of this nose. Even to that point, the appellant has not acknowledged the use of any force against Ms. Chavez. His reaction was simply to order her to leave the house. [DEFENSE COUNSEL]: Let's move forward in time a little bit. You said this slap happened.

What happened next? [WITNESS]: When she slapped me, I told her you got to get the fuck out of my house now. I'm not going to keep doing this bullshit. Get the fuck out. She was in her underwear and shirt.

She wasn't trying to leave. She said no, this is my house, too. Tell me who she is. That has nothing to do with you.

Cheating on you. Get the fuck out. She's out the room near the bathroom, going towards the kitchen. She's taking her sweet time talking shit.

I don't have to get out this is my house, too. Tell me who the fuck she is. We're still between the bathroom and the kids' room. I go to the room, grab some pants and shoes.

I go to the front door and throw it outside. [DEFENSE COUNSEL]: Whose pants and shoes? [WITNESS]: Her pants and shoes. [DEFENSE COUNSEL]: Not yours? [WITNESS]: Right. As I'm walking to the front door with her stuff, she's already following me. (Emphasis supplied). Self-Defense Has A Critical Subjective Component To that point, there had been no physical use of force by the appellant against Ms. Chavez to which the defense of self-defense could possibly apply, at least as far as testified to by the appellant himself.

Regardless of which party produces the evidence, the evidence must show some use of force against the victim. There is a thing, a quiddity, that must be the subject of the justification. Ordinarily, the party requesting the instruction would himself produce the evidence to generate the issue. That party could, however, rely on the opposing party to produce some or all of that generating evidence for him.

Someone, however, must produce evidence that the appellant used some force against his victim. We cannot prove the justification for "something" unless we have that "something" that needs to be justified. What is the evidence that the appellant did "something" to Ms. Chavez? With respect to the appellant's use of force against Ms. Chavez, the force that appellant claims was exerted in self-defense, might Ms. Chavez's testimony itself help generate that element of the total incident?

To what extent might Ms. Chavez's testimony fill that gap as to the underlying assault itself? The answer is that it could supply that necessary component of the self-defense scenario, the physical assault itself. She did, to be sure, testify that he hit her twice in the face with his fist. In this case, her testimony could have supplied the physical component of a self-defense scenario, to wit, the corpus delicti of the assault itself.

Evidence of a single component of self-defense, however, would not be enough, in and of itself, to generate a jury instruction on self-defense. A self-defense trial scenario requires more than physical action, action that could be depicted by a silent movie. There is an indispensable mental component as well as the required physical component. The testimony of the ostensible assault victim could, even as a functioning camera might, establish, for the benefit of one claiming self-defense, the antecedent facts that Buster Keaton was first punched and then furiously counterpunched.

The testimony of the opposing party, however, could not establish, for Buster Keaton, Keaton's "actual belief that he was in imminent danger of being punched" as the motivation for his counterpunching. That is, generally speaking, something that he, and he alone, must do for himself. We need some evidence of what the defendant was thinking. Something subjective rather than merely objective.

Whatever the silent movies might portend, a counterpunch is not self-defense per se . As of that moment in the appellant's trial narrative, there had been no suggestion that self-defense was even an issue in the case. The appellant had not testified to the use of any force that would require justification, a necessary antecedent to the justification itself. Appellant's Response To Being Slapped As we turn our attention to the mental components of self-defense, we note that self-defense is one of a variety of possible responsive actions: retaliation, submission, flight, self-defense.

The critical question in this case is that of how did this appellant respond to being slapped in the face. There is no suggestion that he struck back in self-defense. There is every indication that the appellant's reaction to having been slapped was retaliatory-to order Ms. Chavez to get out of the house and, when she declined to leave voluntarily, to push her and her belongings out physically. The initial reaction to the slap was purely verbal and it was retaliatory.

The appellant ordered Ms. Chavez to get out of the house. [WITNESS]: When she slapped me, I told her you got to get the fuck out of my house now. I'm not going to keep doing this bullshit. Get the fuck out. (Emphasis supplied).

Ms. Chavez responded that she would not leave. The exchange, albeit very heated, remained exclusively verbal. The appellant testified: She said no, this is my house, too. .... She's out the room near the bathroom, going towards the kitchen.

She's taking her sweet time talking shit. I don't have to get out this is my house, too. (Emphasis supplied). In the course of this angry exchange, the appellant and Ms. Chavez were not exchanging blows.

Barbs, to be sure, but not blows. They were moving back and forth, between different rooms of the apartment. The appellant went into one of the rooms to grab some of Ms. Chavez's pants and shoes in order to throw them out the door of the apartment. The appellant testified: We're still between the bathroom and the kids' room.

I go to the room, grab some pants and shoes. I go to the front door and throw it outside. .... As I'm walking to the front door with her stuff, she's already following me. It was only as the appellant and Ms. Chavez were then standing at the front door, with him throwing her pants and shoes into the hallway and with her standing there in her underwear, that the appellant, by his own admission, laid hands on her for the first time, " She's still talking shit, so I grabbed her.

" (Emphasis supplied). This was the appellant's first acknowledgement of touching Ms. Chavez. He further explained what "grabbing her" consisted of: [DEFENSE COUNSEL]: How did you grab her? [WITNESS]: I grabbed her by her arms. [DEFENSE COUNSEL]: With your hands? [WITNESS]: Yes. I didn't bear hug her or anything.

I told you get the fuck out. She's holding the door. I opened it and was able to get her out. (Emphasis supplied).

Most significantly, the appellant, on cross-examination, was asked to explain precisely what his motivation was for grabbing Ms. Chavez's arms and pushing her out the door. In no sense was his motivation self-defensive. It was in every sense retaliatory. There was no suggestion of anything but retaliation. [DEFENSE COUNSEL]: Why would you do that? [WITNESS]: One, I had just gotten back in the house from being kicked out for getting a job that she didn't like. .... [WITNESS]: Two, because she slapped me.

You can't do that. You can't slap me and expect to still be here with me after everything we've been through. That's not fair. I didn't know she was pregnant until I read the statement.

I didn't know anything about Ms. Chavez being pregnant until I read the police report. I didn't know she had a kid in her stomach. She never told me anything like that. We got two kids of our own.

We were on the verge to do a lot of great stuff. For her to stand here and say she told me she was pregnant with my child, that's not fair at all. I didn't know nothing about that. (Emphasis supplied).

There is no inkling here of self-defense. The appellant was not afraid; he was offended. The Evidence Did Not Generate The Issue A legal issue is an appropriate subject for a jury instruction if the evidence in the case has generated such an issue. In a criminal case in which a defendant is relying upon a claim of self-defense, a defendant is entitled to have the jury instructed on the law of self-defense if, but only if, the trial evidence has fairly generated self-defense as an issue.

As Chief Judge Krauser explained for this Court in Dashiell v. State , 214 Md. App. 684 , 696, 78 A.3d 916 (2013) : "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." In State v. Faulkner , 301 Md. 482 , 500, 483 A.2d 759 (1984), the Court of Appeals emphatically held: [W]hen evidence is presented showing the defendant's subjective belief that the use of force was necessary to prevent imminent death or serious bodily harm, the defendant is entitled to a proper instruction on imperfect self-defense. (Emphasis supplied; footnote omitted). See also Simmons v. State , 313 Md. 33 , 39-40, 542 A.2d 1258 (1988) ; Dykes v. State , 319 Md. 206 , 215, 571 A.2d 1251 (1990) ; Dishman v. State , 352 Md. 279 , 292-93, 721 A.2d 699 (1998) ; Bazzle v. State , 426 Md. 541 , 550, 45 A.3d 166 (2012). The element of self-defense that concerns us on this contention is the first of self-defense's absolute requirements, the prerequisite that THE DEFENDANT ACTUALLY BELIEVED THAT HE WAS IN IMMEDIATE OR IMMINENT DANGER OF BODILY HARM.

The evidence, moreover, must be generated not simply with respect to self-defense generally, but with respect to each of its constituent components specifically. In Marquardt v. State , 164 Md. App. 95 , 131, 882 A.2d 900 , cert. denied , 390 Md. 91 , 887 A.2d 656 (2005), Judge Kenney wrote for this Court: There must be "some evidence," to support each element of the defense's legal theory before the requested instruction is warranted. (Emphasis supplied). See also Cantine v. State , 160 Md. App. 391 , 410-11, 864 A.2d 226 (2004), cert. denied , 386 Md. 181 , 872 A.2d 46 (2005) ; Holt v. State , 236 Md. App. 604 , 182 A.3d 322 (2018).

The Best Source Of Exculpatory Evidence Was Silent No suggestion of self-defense ever reared its head in the course of the trial of this case. The most likely source of the appellant's "actual belief that he was in immediate or