Cunningham v. State

MOYLAN, Judge. The appellant, John Wesley Cunningham, Jr., was convicted by a Baltimore City jury, presided over by Judge Elsbeth ²⁵² Levy Bothe, of both second-degree murder and the use of a handgun in the commission of a crime of violence. Upon this appeal, he raises seven contentions: 1. That the trial judge erred in refusing to instruct the jury on the doctrine of imperfect self-defense; 2.

That the trial judge erroneously instructed the jury on the crime of manslaughter; 3. That the trial judge erroneously declined to instruct the jury that it could not convict on the uncorroborated testimony of an accomplice; 4. That the trial judge erroneously failed to suppress the appellant’s inculpatory statement; 5. That the trial judge erroneously disallowed evidence of the deceased’s reputation and prior relationship with the appellant; 6.

That the trial judge erroneously instructed the jury that it could not impose the death penalty; and 7. That the trial judge erroneously failed to instruct the jury as to the significance of the deceased’s prior acts. Imperfect Self-Defense The doctrine of imperfect self-defense is of recent origin, and scholars of the law have referred to it as “not yet far advanced.” W. LaFave and A. Scott, Criminal Law (1972), § 77. The growing recognition of this mitigating element in homicide law, a mitigation that when present will reduce murder to manslaughter, was well summarized for this Court by Judge Orth (sitting on special assignment) in Faulkner v. State, 54 Md.App. 113, 114-115 , 458 A.2d 81 (1983): “From the turbulent waters of the criminal law of Maryland, roiled by the dictates of Mullaney v. Wilbur, [ 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 ], . . . emerged an esoteric qualification to the doctrine of self-defense, known as the ‘imperfect right of self-defense.’ We noticed it in Evans v. State [ 28 Md.App. 640 , 349 A.2d 300 ], .. . recognized it in Shuck v. State, . . . mentioned it in ²⁵³ Wentworth v. State, . . . and applied it in Law v. State .. .. ” (Citations omitted).

We have noticed recently a trend on the part of the defense bar to invoke this esoteric doctrine with inappropriate and promiscuous frequency. A brief revisiting of the doctrine appears called for. The various grades of felonious homicide are but efforts by the law to recognize, for purposes of assessing appropriate punishment, different levels of blameworthiness. Professor Perkins was one of the first to analyze manslaughter as a “catch-all” concept embracing a wide and miscellaneous variety of felonious homicides that in terms of blameworthiness are “neither murder nor innocent.” After discussing the oldest and most common form of legally recognized mitigation — the Rule of Provocation— he went on at R. Perkins, Criminal Law (2d ed. 1969) 69-70, to discuss “Mitigation Other Than Provocation”: “Since manslaughter is a ‘catch-all’ concept, covering all homicides which are neither murder nor innocent, it logically includes some killings involving other types of mitigation, and such is the rule of the common law.

For example, if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder. ‘It is not always necessary to show that the killing was done in the heat of passion, to reduce the crime to manslaughter;’ said the Arkansas court, ‘for, where the killing was done because the slayer believes that he is in great danger, but the facts do not warrant such a belief, it may be murder or manslaughter according to the circumstances, even though there be no passion.’ To give another illustration, the intentional taking of human life to prevent crime may fall a little short of complete justification or excuse and still be without malice aforethought.” The salutary ameliorating purpose of this emerging body of doctrine is not to extenuate deliberately culpable behavior, but only to recognize certain errors in judgment as extenuating factors. With the exception of imperfect du ²⁵⁴ ress, which is a law unto itself, Wentworth v. State, 29 Md.App. 110 , 349 A.2d 421 (1975), the other varieties of imperfect defense all deal with subjectively honest, but objectively unreasonable, assessments of necessity in the closely related settings of imperfect self-defense, Faulkner v. State, supra; imperfect defense of others, Shuck v. State, 29 Md.App. 33 , 349 A.2d 378 (1975); and imperfect defense of habitation. Law v. State, 29 Md.App. 457 , 349 A.2d 295 (1975). This particular aspect of mens rea, however, is not all there is to these various mitigating defenses and this is the thing that the appellant here overlooks.

In a strained, if not indeed cynical, version of the facts most favorable to himself, the appellant stretches to assert some reason to believe, even unreasonably, that he feared for his life when he shot his victim. The appellant, resentful and angry over having had his Moped taken from him earlier in the day by the ultimate homicide victim, rallied his supporters over a period of several hours, armed himself with a loaded gun, gathered his courage at his grandmother’s house while testing the gun, and ultimately went looking for the victim. As he approached the victim, the appellant drew the gun from a bag and ordered a group of bystanders to move out of the way. Even the appellant’s best version of the facts only has the victim leaning on the Moped and “putting his hands by his pants.” From this the appellant allegedly concluded that the victim “was apparently grabbing for something.” The appellant stated that from this skimpy predicate, he was “afraid that he would be killed” and assumed that his victim had “a gun or something.” He now boldly asserts that his own testimony as to his own subjective belief is sufficient to establish, if not an objectively reasonable belief in the necessity to kill, then at least an unreasonable belief in that necessity.

This, he claims, entitled him to a jury instruction on the esoteric theory of “imperfect self-defense.” The appellant’s mistake is to look at a single element of the defense in a vacuum. Imperfect self-defense, of course, stands in the shadow of perfect self-defense. If the appel ²⁵⁵ lant’s belief, reasonable or unreasonable, in the necessity to kill to preserve his own life is but one of the elements as to which he has the burden of producing a prima facie case in order to generate a genuine jury question, even a reasonable belief in the necessity to kill, would, standing alone, avail him naught. LaFave and Scott, Criminal Law discusses another of the limitations on the self-defense doctrine, at 394-395: “It is generally said that one who is the aggressor in an encounter with another — i.e., one who brings about the difficulty with the other — may not avail himself of the defense of self-defense.

Ordinarily, this is certainly a correct statement, since the aggressor’s victim, defending himself against the aggressor, is using lawful, not unlawful, force; and the force defended against must be unlawful force, for self-defense.” The exemption from the foreclosing effect of being the aggressor is unavailing to the appellant here. It is first required that he be a nondeadly aggressor (the appellant here advanced with a loaded gun). It is additionally required that the aggressor be one “who in good faith effectively withdraws from any further encounter with his victim (and to make an effective withdrawal he must notify the victim, or at least take reasonable steps to notify him).” Id. at 395. (The appellant here made no effort to withdraw from the encounter he had brought on.) As an aspect of this last requirement, the law universally imposes upon the original aggressor the duty to seize upon any opportunity to retreat.

In discussing voluntary manslaughter generally and the “Imperfect Right of Self-Defense” specifically, LaFave and Scott, Criminal Law, at 583, makes it indisputably clear that the reasonableness of the killer’s belief is but one of the two elements that would be necessary to establish a perfect defense of self-defense: “In order for a killer to have a ‘perfect’ defense of self-defense to homicide, (1) he must be free from fault in bringing on the difficulty with his adversary; and (2) he ²⁵⁶ must reasonably believe (though he need not correctly believe) both (a) that his adversary will, unless forcibly prevented, immediately inflict upon him a fatal or serious bodily injury, and (b) that he must use deadly force upon the adversary to prevent him from inflicting such an injury. If one who is not the aggressor kills his adversary with these two actual and reasonable beliefs in his mind, his homicide is justified, and he is guilty of no crime — not murder, not manslaughter, but no crime.” (Emphasis supplied). An aggressor, faced even with the reasonable belief in the necessity to kill, “cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable.” Ibid. (Emphasis supplied).

It is clear that the discussion of imperfect self-defense in Faulkner v. State, supra, was in the context of the mental element of belief in the necessity to kill — a reasonable belief for total exculpation or an honest, albeit unreasonable, belief for mitigation: “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.” 54 Md.App. at 115 , 458 A.2d 81 . Similarly, Shuck v. State, supra, dealt with a situation where the companion, on whose behalf the defendant intervened, was “neither an aggressor nor a mutual combatant. He was under unprovoked attack from at least one and possibly two persons.

Under the circumstances, the appellant was entitled to intervene in defense of his friend.” 29 Md.App. at 41-42, 349 A.2d 378 . ²⁵⁷ In the present case, it is clear that the appellant did not meet his burden of production to generate a genuine jury issue as to imperfect self-defense. Even crediting his strained and implausible assertion as to his thought process as enough to generate an honest, though unreasonable, belief that he was in deadly peril, all of the testimony establishes unequivocally that the appellant was the aggressor and there was no shred of evidence to indicate otherwise. 1 The very notion that, failing to establish a perfect component of a defense for purposes of total exculpation, the lesser establishment of that component in imperfect form may nonetheless argue for mitigation, is a notion that presupposes the establishment of all of the other elements that are necessary to comprise the defense. If a defense requires proof of A, B, and C, proving half of C for mitigation rather than all of C for exculpation, still presupposes the proof of A and B. Absent proof of A and B, whatever happens to C, in whole or in part, is utterly immaterial. Although as a lesser defense, the partial proof of an element may still stand as a pale reflection of the fuller proof of that element, it can never forgive the total failure of proof as to other necessary elements.

The appellant here