In Re Julianna B.

MURPHY, C.J. In the Circuit Court for Montgomery County, Julianna B., appellant, was adjudicated a delinquent as a result of a finding ⁵⁴⁸ that she committed a second degree murder on September 23, 2005. She now presents three issues 1 that we must review: 1. Whether sufficient evidence of malice exists to sustain a second degree murder charge where the State produced decisive evidence of mitigation in its case-in-chief[.] 2. Whether the trial court misconstrued the law of impartial self-defense when it excluded the defense in a situation applicable to the facts of the instant case, to wit, use of deadly force in a non-deadly confrontation!)] 3.

Whether the trial court improperly shifted the burden of proof to the Respondent to prove perfect and imperfect self-defense, instead of requiring the State to negate these mental states once raised by the evidence!)] There is no merit in the argument that the State’s evidence was insufficient as a matter of law to establish that she committed a second degree murder. A rational trier of fact could reasonably conclude that, when she intentionally inflicted the fatal stab wound on the victim’s person, appellant did so with the intent to kill the victim and/or with “intent to injure the victim so severely that death would be the likely result even though the [respondent] did not intend that the victim should die.” Thornton v. State, 397 Md. 704, 741 , 919 A.2d 678 (2007). Appellant argues, in the alternative, that the circuit court erroneously applied the doctrine of “imperfect” self-defense. According to appellant, although the circuit court did address the issue of whether appellant had a subjective — but objectively unreasonable — belief that she was in danger of death or serious bodily injury when she stabbed the victim, the circuit court failed to address the issue of whether she had a subjec ⁵⁴⁹ tive — but objectively unreasonable — belief that the amount of force she used at that point in time was necessary under the circumstances.

In the words of appellant’s brief, “believing herself to be in danger of imminent bodily harm, ... [she] used deadly force during a non-deadly force mutual combat.” This argument is based upon the proposition that the defense of “imperfect” self-defense is applicable whenever the murder defendant had a “subjective belief’ that the force he or she used was necessary to prevent any degree of harm. For the reasons that follow, however, we reject that proposition. The Ruling of the Circuit Court After receiving evidence and considering argument of counsel, the circuit court delivered an on-the-record opinion that included the following findings and conclusions: Now that I have presided over this trial, my role is to evaluate all the evidence and apply the law of Maryland to my findings. On the night of September 23, 2005, [the victim] and her friends, and [respondent] and hers attended a football game between Sherwood and Blake [High Schools] for legitimate reasons, and there was no conclusive evidence that any member of either faction was planning to fight.

I don’t know what was said during the last moments before [the fight between respondent and the victim began], but whatever was said or wasn’t said, [the victim] walked towards [respondent] intending to fight. Maryland recognizes three types of second degree murder. The first type is second degree murder, which is the killing of another person with either the intent to kill or the intent to inflict serious bodily harm that death would be the likely result. It does not require premeditation or deliberation.

For the respondent to be [found] involved [under] this type of second degree murder, the State must have convinced this Court beyond a reasonable doubt that the re ⁵⁵⁰ spondent acted with the intention to inflict serious bodily harm; that death was a consequence of that harm. The State must have proved that the respondent committed this offense; that is, that [respondent] murdered [the victim] without any legal excuse or justification. ' To convict the respondent of the second type of second degree murder, which is called depraved heart murder, the State must have convinced this Court beyond a reasonable doubt that the conduct of the respondent, one, caused the death of [the victim]; two, created a very high degree of risk of the life of [the victim]; and, three, that the respondent, conscious of such risk, acted with extreme disregard of the life-endangering consequence. To convict the respondent of the third type of second degree called felony murder, the State must have convinced this Court beyond a reasonable doubt that the respondent committed a first degree assault and that death occurred during the perpetration of that assault. * * * Self-defense in Maryland is comprised of five elements. The respondent must have had reasonable grounds to believe herself in apparent imminent and immediate danger of death or serious bodily harm from her assailant or potential assailant.

The respondent must have, in fact, believed herself in danger. Three, the respondent claiming the right of self-defense must not have been the aggressor or provoked the conflict. Four, the force used must not have been excessive and unreasonable. That is, the force must not have been more force than the exigency demanded.

And, five, the respondent was required to retreat before using deadly force if she could do so safely. Maryland also recognizes imperfect self-defense. These elements are the same as perfect self-defense, except that actual subjective belief on the part of the accused that she ⁵⁵¹ was in apparent imminent danger of death or serious bodily harm from her assailant is not an objectively reasonable belief. If this Court finds [respondent] acted in perfect self-defense, [the victim]’s death would be justifiable or excusable, and I must acquit her.

If I find she acted in imperfect self-defense, I must find her guilty of manslaughter, voluntary. An aggressor is not entitled to the defense of self-defense. That is, if [respondent] initiated a deadly confrontation or escalated an existing confrontation to that level, she would not benefit from the shield of self-defense. .... The respondent does not necessarily forfeit her privilege of self-defense because she previously armed herself in anticipation of an attack.

However, the respondent has no right to arm herself. Furthermore, the respondent cannot arm herself if she is, in any sense, seeking an encounter. Let’s look at ... the respondent, for a moment. A very intelligent 15-year-old girl, honor roll since elementary school.

But, [respondent], you lied so much. You must have had trouble separating fact from fiction. You inexplicably go back to the scene after you undoubtedly disposed of the knife to support your arrested sister. Or, upon hearing that [the victim] was on death’s doorstep, because cell phone calls were made from your car, you figure that by going back and impersonating a harmless spectator, you might just go undetected or be able to say you stayed or returned to the scene.

The blood on your shirt telegraphed your involvement. Your pesky cut was observed, and your lies began to cascade like Victoria Falls. However, lying doesn’t make you guilty, [[respondent]]. Let’s analyze the fight. ⁵⁵² With respect to [the victim], I find that she was 5 feet, 5, and she weighed 225 pounds; that she was 15 years old; that she possessed no weapon at any time; that she only used her fists; that she threw the first punch; that she approached [respondent] as [respondent] stood still; that she pulled six hair extensions from [respondent’s head; that she was unaware that [respondent] had a knife; that she had one knife cut on each arm consistent with defensive wounds; and that she had three cuts on her abdomen.

She had a 3-1/2-inch stab wound to the left ventricle of her heart. The path was front to back and slightly downward. None of her friends possessed a weapon. She was twice [respondent’s weight and probably a lot slower than [respondent].

With respect to [respondent], I find that [respondent] was about 115 pounds; that she never ran for help to the police or adults. She didn’t ask to use a cell phone for help. She didn’t ask ... the only male in the group, for help. She didn’t run away.

She didn’t get in the Honda SUV and lock the doors or attempt to lock them. She probably engaged in verbal exchange with [the victim] or her group. At the September 9, 2005 post-game activities, they tell us that she was not shy, demure, or timid. She was sassy, confrontational, crude, and foul with the spitting into the car.

She was not afraid to pick a fight with another girl, even if she was five years older. This Court also finds that she armed herself in advance with a knife, a deadly weapon. When [the victim] approached, she stood still with clenched fist and a secreted knife. As I indicated, she didn’t retreat.

The Court also finds that she could have easily used the knife as a deterrent, displayed it verbally, and told [the victim] to get away and scream for help, “Get out of here. I got a knife.” During the fight, she cut [the victim] five times, once on each arm and three on the abdomen and a stab wound to her heart. [Respondent] did not seek protection ■ behind, [her sister] who had a bat.... ⁵⁵³ When [respondent] arrived at the SUV, she was armed and ready for battle. She had the knife, and [her sister] had a bat. There were many avenues of escape, avoidance, and deterrence.

Her current lie, that [one of her friends] placed an object in her back pocket, that [respondent] knew it was a knife without asking for one, seeing it, touching it, [the friend] saying anything is preposterous. [Respondent] and [the victim] squared off, and [the victim] punched first, and [respondent] followed suit. [The victim] got the better of her, and [respondent] pulled out her deadly dagger; [respondent] never falling; never being choked. Her lucid responses for hours and hours after-wards and her pristine face depicted in the photo by Crime Scene Specialist Clemens (phonetic sp.) gave testament to the State’s theory of a one-on-one fight. Once [respondent] pulled the knife, she slashed at [the victim] and made contact with her on six occasions, three cuts to [the victim]’s abdomen, one on each arm, which were consistent with defensive wounds, and a stab wound to the heart. .... [Respondent] said she didn’t know she stabbed [the victim]. As soon as [the victim] fell, [respondent] stopped fighting, and she immediately concealed the knife.

These actions belie her statement. Furthermore, the narrow wound to [the victim]’s left ventricle, which entered 3-1/2 inches, were straight in and straight out, which would indicate consciousness of penetration. The angle was front to rear and slightly downward. And based on their respective heights, it is clear to me that [respondent] was not slashing, was not stabbing up at [the victim], and that her motion was overhand. [Respondent’s action after the stabbing point directly to the intentional desire to seriously injure [the victim]. [Respondent] tried to get in the SUV to escape.

Foiled by the crowd, she proceeded to another vehicle. Her blood ⁵⁵⁴ dripped on several locations of the SUV, most notably on the doorhandle. Flight is evidence of consciousness of guilt, and she fled the scene and discarded the knife somewhere. [Respondent] never went over to the victim to render aid or say that she was only trying to get her off. She never went over and said, “Oh, my gosh!

I can’t believe this happened. Are you okay? I didn’t mean to go this far. I didn’t want you to die.

I didn’t want you to fall.” Never said that. Never approached that. Rather, she remorselessly said, “I cut my finger. I’m a sole survivor.

I stabbed that fat bitch.” No, [respondent], you were not in immediate danger of death or serious bodily injury. You never kicked [the victim] in the shins, screamed for help, or ever tried to cut her in her lower legs if your head was down, as you say. You escalated the fight by plunging that serrated blade into [the victimj’s heart with the intention to inflict serious bodily injury. I do not find that you acted in perfect self-defense or imperfect self-defense.

I, therefore, find, beyond a reasonable doubt, that you were involved in the second degree murder of [the victim] with the intent to inflict serious bodily harm, with a depraved heart, and by way of felony murder. None of the circuit court’s factual findings was clearly erroneous. Appellant’s “Imperfect Self-Defense” Argument Appellant argues that the circuit court’s verdict must be vacated because (in the words of appellant’s brief): [T]he trial court improperly construed Maryland law concerning partial self-defense and misapplied it to the facts of this case when it concluded that [respondent] was not entitled to its shield of mitigation. ⁵⁵⁵ A partial self-defense is essentially a mistake-of-fact defense where a person honestly, but mistakenly, believes him or herself to be in imminent danger of bodily harm and thus, unreasonably responds with deadly force.... However, in the mistaken view of the trial court,