Johnson v. State

WOODWARD, J. On May 21, 2013, appellant, Kimberly Johnson, hit Wayne Vendemia, causing him to fall down and strike his head on the road. Vendemia later died of his injuries. Appellant was subsequently convicted of involuntary manslaughter after a jury trial in the Circuit Court for Baltimore City. The court sentenced appellant to seven years’ incarceration.

Appellant presents three questions on appeal, which we have rephrased as follows: 1 ¹³³ 1. Did the trial court err or abuse its discretion by modifying the pattern jury instruction for second degree assault? 2. Did the trial court abuse its discretion in failing to instruct the jury concerning self defense? 3. Did the trial court err by giving the pattern jury instruction for involuntary manslaughter?

Answering all three questions in the negative, we shall affirm the judgment of the circuit court. FACTUAL BACKGROUND At approximately 8:15 PM on May 21, 2013, Baltimore City police officers responded to a call regarding an injured person on the 900 block of De Soto Road. According to witnesses, appellant struck Vendemia, which caused him to fall down in the road and strike his head. Appellant then left the scene.

Vendemia was taken to the hospital, where he died a few days later from his head injuries. On May 23, 2013, appellant was arrested and transported to the police station, where she agreed to be interviewed. Appellant gave a recorded statement in which she told police that she had been driving around on the evening of May 21, 2013, looking for Ray Dillon, with whom she had an on-again, off-again relationship. Appellant stated that upon seeing Vende-mia exit Dillon’s van, she ran towards the van and yelled at Vendemia, asking where he had come from.

Appellant described what happened next: ¹³⁴ I said Wayne um where the fuck did you just come from and of course I seen that he was all high and you know he was you know spitting when he was talking and he kept you know just saying um it’s a coincidence you didn’t see me and he spitting and I’m really funny about but not on purpose but he’s just spitting on me____And I’m angry anyway so I hit him in his face on that side of his face I hit him and the man fell and in the ground hit his head in the street. And the trucks and cars are going by and you know of course I’m mad and all but um I’m not going to see nobody get hit or killed or anything. (Emphasis added). Appellant stated that she pulled Vendemia up and over to the curb to keep him from being hit by cars driving on the street.

Appellant told police that she asked other people nearby for help, but that no one would help her. Appellant told police: I mean yes, I did wrong. I was angry, upset and you know and he when he was yelling at back me at it’s a coincidence and he started you know spitting on me lips. It was just—I am scared to death of germs....

And you know I don’t know what nobody’s got I don’t want be spit you know what I’m saying and I was mad anyway and I hit him one time and I believe if he wouldn’t have been so intoxicated he wouldn’t have even fell. Appellant also gave the police a note that she had written to Vendemia after being told that he was alive but “brain dead,” which said: Dear Wayne, I’m sorry for making you bust your head. Why did this happen. Please believe I am so sorry.

I don’t know what makes me crazy and I know you do drugs and when you were yelling at me you spit on me. I am scared of germs and disease. I am scared of everything but I hope you forgive me. I am so, so sorry Wayne.

Appellant was subsequently indicted for second degree murder. On January 28, 2014, trial began in the circuit court. Over the course of the trial, the State presented the testimony ¹³⁵ of, among others, three witnesses to the altercation between appellant and Vendemia. Bradley Baber testified that he and his girlfriend, Stacy Dillon, were driving on the 900 block of De Soto Road on May 21, 2013, when they saw appellant “dragging a guy off the street and just saying help” and “someone help me get this junkie out of the street.” Baber testified that he knew appellant as the girlfriend of Ray Dillon, who is Stacy Dillon’s father.

Baber testified that no one came to help appellant, and that he saw appellant drop Vendemia on the concrete “in between the street and the sidewalk,” which caused Vende-mia’s head to hit the concrete. Appellant then got into her van and drove away. Stacy Dillon testified that she and Baber were driving to her aunt’s house on De Soto Road on May 21, 2013. After she parked the car, Stacy saw appellant dragging Vendemia out of the street, then pulling her arms out from under Vendemia and letting his head hit the road.

Stacy also testified that appellant called Vendemia a “fucking junkie.” When Stacy told appellant, “I think he’s really hurt,” appellant screamed “No, he’s not.” Stacy testified that she took Vendemia’s pulse and it was “racing.” Hugo Morales testified that he was mowing his front lawn when he observed the following: [MORALES]: I heard her say where’s my fucking old man at, excuse my language and [Vendemia] walked over to her and she asked him again and he said I don’t know and she started hitting him and [Vendemia] put his hands up trying to get away from her and she hit him pretty good and [Vendemia] put his hands up just to block the shots and she said I’m going to ask you again where is my old man at and [Vendemia] says I don’t know. She says don’t you fucking lie to me. I know you know where’s he’s at, you were just with him. Even though [appellant] didn’t mean to do it, but even though somebody else gassed her up and got her all pumped up and mad, she asked [Vendemia] again and at that time she connected a good ¹³⁶ blow and he fell down and hit his head on the concrete and— * * * [MORALES]: That’s when he hit the ground when he fell straight back. [PROSECUTOR]: What hit the ground? [MORALES]: His head. [PROSECUTOR]: And what did you see? [MORALES]: Him laying there and I told Jessie[ 2 ] to grab her and Jessie says I’m not getting near her and it just happened so quick and then she—well, [Vendemia] wouldn’t respond.

He was laying on the ground and [appellant] said, oh, he’s just fucking faking. He’s nodding and I said he’s not nodding. He’s out. She had a big gulp of soda and she said I’ll get his fucking ass up watch this.

Threw the whole big cup of coke, a big cup of soda in his face and he didn’t respond. So she kicked him and then spit on him. [PROSECUTOR]: Who kicked him? [MORALES]: [Appellant] did. Morales also testified that he had known Vendemia for about two years, that Vendemia weighed about 100 to 110 pounds, and that appellant outweighed Vendemia by about fifty pounds. Morales said that Vendemia was “purple” and that he believed Vendemia was dead or dying when he called 911.

Morales also stated that Vendemia had a bone disease and that he usually drank every day and was a drug user. Dr. Mary Ripple, the Deputy Chief Medical Examiner of Maryland, testified that Vendemia had a “pretty severe head injury,” and that the cause of his death was subarachnoid hemorrhage, or bleeding on the surface of his brain. According to Dr. Ripple, at the time Vendemia’s blood was drawn at 8:47 p.m. on May 21, 2013, he had a blood alcohol content of .059. Dr. Ripple also testified that she had a report that ¹³⁷ Vendemia had Kennedy’s disease, a genetic condition that weakens muscles and causes those afflicted to be more susceptible to injury.

Dr. Ripple stated that someone suffering from Kennedy’s disease would be “a little less able to react so that makes you a little more suspectible [sic] to injury,” but that she did not know the extent of the progression of Vendemia’s condition. Dr. Ripple indicated that she did not see any injury to the back of Vendemia’s head, but that the impact to both sides of his face indicated that he fell at least twice, or that he was punched on one side of his face and fell on the other. Detective Steven Matchett, a homicide detective with the Baltimore City Police Department, testified that, after obtaining an arrest warrant, he arrested appellant on May 23, 2013. Detective Matchett stated that appellant was read her Miranda rights and gave the aforementioned recorded statement to police.

The court admitted the CD containing appellant’s statement without objection from appellant, and the CD was played for the jury. At the close of the State’s case-in-chief, appellant moved for judgment of acquittal as to second degree murder. The State argued in response that there was sufficient evidence to support the charge of second degree murder under the theory of second degree depraved heart murder. The court granted the motion as to second degree murder, and the case proceeded on the lesser included offense of involuntary manslaughter.

Appellant testified in her own defense. The testimony was substantively similar to her recorded statement to the police. Appellant testified that Vendemia exited Ray Dillon’s van, that she confronted Vendemia aggressively using profanity, that Vendemia responded by “hollering and yelling at [her],” and that in doing so, he spit in her mouth. Appellant stated that she hit Vendemia one time with the back of her hand, that Vendemia stumbled and fell into the street, hitting his head, that she dragged Vendemia out of the street, and that she then left the scene in her van. ¹³⁸ Appellant testified further regarding her reaction when Vendemia spit on her: “I’m so scared of diseases and germs that—it just—all lands of emotions.

I just felt all kind of emotions, scared, you know. I went to my doctor’s and got a HIV test right after that. I mean, that’s how scared I am of all of that.” Appellant said that when she hit Vendemia, “I wasn’t thinking, I mean I wasn’t thinking nothing. It’s just— it was a reaction from the spit in my face.

You know, it went in my mouth. It went in my mouth.” Appellant agreed that Vendemia never struck her, and that Vendemia fell because she hit him. As previously stated, the jury convicted appellant of involuntary manslaughter. On March 10, 2014, the court sentenced appellant to seven years’ incarceration.

Appellant filed a timely notice of appeal. Additional facts will be set forth as necessary to our discussion of the questions presented in the instant appeal. DISCUSSION Standard of Review On review of a trial court’s ruling granting or denying a proposed jury instruction, “we consider whether the instruction was generated by the evidence, whether it was a correct statement of law, and whether it otherwise was fairly covered by the instructions actually given. We review the trial court’s decision not to grant a jury instruction under an abuse of discretion standard.” Gimble v. State, 198 Md.App. 610, 627 , 18 A.3d 955 (citations omitted), cert. denied, 421 Md. 193 , 25 A.3d 1026 (2011).

Involuntary Manslaughter and Jury Instruction on Second Degree Assault Involuntary manslaughter is a common law felony defined as an unintentional killing done without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. To this ¹³⁹ basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum, and as to the second and third classes of the offense, that the negligence be criminally culpable, i.e., that it be gross. State v. Gibson, 4 Md.App. 236, 242 , 242 A.2d 575 (1968) (footnote and citations omitted), aff'd, 254 Md. 399 , 254 A.2d 691 (1969). In the instant case, it is undisputed that the type of involuntary manslaughter at issue is the “unlawful act” involuntary manslaughter, and that the unlawful act is the battery form of second degree assault.

See Md. Code (2002, 2012 Repl. Vol.), § 3-203 of the Criminal Law (I) Article; Snyder v. State, 210 Md.App. 370, 382 , 63 A.3d 128 (noting that there are three types of second degree assault: intent to frighten, attempted battery, and battery), cert. denied, 432 Md. 470 , 69 A.3d 476 (2013). The Maryland pattern jury instruction for the battery form of second degree assault provides: Assault is causing offensive physical contact to another person. In order to convict the defendant of assault, the State must prove: (1) that the defendant caused [offensive physical contact with] [physical harm to] (name); (2) that the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) that the contact was [not consented to by (name)] [not legally justified].

Maryland Criminal Pattern Jury Instructions 4:01 (2d ed. 2012) (“MPJI-Cr”) (brackets and parentheses in original). During the court’s discussion of the above pattern jury instruction with counsel for the parties, the following colloquy occurred: [PROSECUTOR]: And then when we get to the 4.01 second degree assault battery instruction I believe that ¹⁴⁰ given the facts of this case that number three that contact was not legally justified that would be only if, A, she was charged with assault and, B, if this was a—there has been some legal defense put forth and right now there is nothing—the way I read the self-defense statute there’s nothing that would generate a self-defense instruction or a legal justification. Now, there might be some type of, you know, people might feel— THE COURT: I don’t disagree. I mean in the sense that—all right, [defense counsel], even if I gave that instruction what is—I mean I think the jury needs—what are you saying is the legal justification I guess? [DEFENSE COUNSEL]: That her response was that of a [sic] ordinary reasonable person in those circumstances.

THE COURT: Okay. Is there an instruction to that effect? I mean I don’t think a jury—I mean I don’t know. They certainly wouldn’t know from their own knowledge. [DEFENSE COUNSEL]: Are you going to say this jury can’t find that her action was reasonable?

THE COURT: Well, what I need to do is I need, if I was going to give this instruction, I need to have a definition of legal justification. That’s what I need. I don’t know if this jury knows what that term means in and of itself. If we define it for them and it’s appropriate, maybe I would give it but I think just saying it’s legally justified—I think there has to be some explanation of that if it’s going to be permitted.

So what is the legal justification? [PROSECUTOR]: I have 5-07 here self-defense instruction from the Maryland Pattern jury instruction and I can hand it up to Your Honor. I have a copy. THE COURT: I got it. [PROSECUTOR]: It’s 5-07. ¹⁴¹ THE COURT: Okay. I mean do you disagree, [defense counsel]?

Self-defense isn’t the legal justification here. [DEFENSE COUNSEL]: That is correct, Your Honor. THE COURT: Okay. So what is? You got to tell me what is—I think of legal justification as a generic term and inside that, for instance, self-defense or defense of another or something to that effect.

So what is the legal justification and give me that. That’s what I need to tell this jury. What is the legal justification for a defense of this charge? [DEFENSE COUNSEL]: The legal justification is that a person upon whom one has spit has the right to react whether it be to slap or come back the way she described it. THE COURT: Okay.

You’re saying what? Because this is such provocative [sic] that spitting in itself— [DEFENSE COUNSEL]: Yes. THE COURT: Again, that’s sort of—I get what you want to argue. I just want to know what legally—how do I define what you are asking me to do.

Defenses, defense of others, defense of (inaudible) duress, entrapment. I mean, I think there’s a—isn’t there—to reduce a charge I mean, provocation or something to that effect. [DEFENSE COUNSEL]: I looked at that one. That deals with the reduction of, or heat of hot blood. THE COURT: Okay.

So tell me—if you can show me some sort—I mean, if you show me a case that provocation is a defense to assault, I’m happy to use it but I don’t—I mean, do you have something like that [defense counsel]? I mean— [DEFENSE COUNSEL]: I do not, Your Honor. As I indicated when I came in, I was assuming we were under B, not C but that doesn’t excuse it. I have a brain chill.

(Emphasis added). The trial court then discussed several cases with counsel, including State v. Rich, 415 Md. 567 , 3 A.3d 1210 (2010), and ¹⁴² Christian v. State, 405 Md. 306 , 951 A.2d 832 (2008), in an attempt to determine if provocation was a legal defense to second degree assault. During the discussion, defense counsel said: “I suggest that the definition of legal justification in this case is whether or not the defendant’s conduct was that consistent with the actions of a reasonably prudent individual under the same circumstances.” The State disagreed, arguing that provocation is not a defense to involuntary manslaughter, and could only reduce first degree assault to second degree assault. Defense counsel agreed that he had found no case to support his argument, but continued to argue “that the defendant acted reasonably under the reasonable man concept.” The trial court decided not to give the legal justification part of the pattern jury instruction for the battery form of second degree assault.

The court instructed the jury, in relevant part: The defendant is charged with the crime of involuntary manslaughter. In order to convict the defendant of involuntary manslaughter, the State must prove, one, that the defendant committed an assault; two, that the defendant killed [ ] Vendemia and three, that the act resulting in the death of [ ] Vendemia occurred during the commission of the assault. So you understand what an assault is. An assault is causing offensive physical contact to another person.

So the State must prove then that the defendant caused offensive physical contact to [ ] Vendemia and that the contact was the result of an intentional or reckless act of the defendant and was not accidental, okay. (Emphasis added). After the court finished instructing the jury, appellant objected that the court did not give the third element of the pattern jury instruction, namely, that the contact was not legally justified. Contentions Appellant argues that the trial court erred by modifying the pattern jury instruction for second degree assault, ¹⁴³ because the court should have read the last part of the jury instruction, which would have allowed the jury to consider “the possible effect on liability if there was justification for [appellant’s] behavior.” Appellant contends that the court’s modification to the instruction “expressly prevented defense counsel from arguing that [appellant] should not be convicted because she had behaved reasonably, and thus was legally justified in flailing out at [ ] Vendemia when he spit on her.” According to appellant, the jury should have been instructed regarding reasonableness, because if the jury believed appellant’s testimony that she “acted reflexively” without thinking when she hit Vendemia, then the jury could have believed that appellant “did not intend to slap [ ] Vendemia, but rather was simply reacting to having her body invaded by the bodily fluids of a known drug and alcohol abuser.” 3 The State responds that the trial court did not err in declining to instruct the jury that in order to find the battery form of second degree assault, the State must prove that appellant’s conduct was “not legally justified,” because (1) “reasonableness” is not a recognized defense, and (2) the defense of provocation is inapplicable.

The State argues that “reasonableness” does not absolve a defendant of criminal liability; rather, the criminal code prohibits conduct that is presumptively unreasonable and thus is subject to criminal sanction. Moreover, the State argues, a provocation defense is inapplicable to the instant case, because provocation may only mitigate the presence of malice; it cannot eliminate all responsibility for an otherwise criminal act. Because second degree assault is a general intent offense that does not require ¹⁴⁴ malice, the State concludes that whether appellant was provoked has no effect on her criminal liability. Analysis The Maryland pattern jury instruction for second degree assault provides in its entirety: MPJI-Cr 4:01 SECOND DEGREE ASSAULT The defendant is charged with the crime of assault.

A INTENT TO FRIGHTEN Assault is intentionally frightening another person with the threat of immediate [offensive physical contact] [physical harm]. In order to convict the defendant of assault, the State must prove: (1) that the defendant committed an act with the intent to place (name) in fear of immediate [offensive physical contact] [physical harm]; (2) that the defendant had the apparent ability, at that time, to bring about [offensive physical contact] [physical harm]; and (3) that (name) reasonably feared immediate [offensive physical contact] [physical harm]; [and] [(4) that the defendant’s actions were not legally justified.] B ATTEMPTED BATTERY Assault is an attempt to cause [offensive physical contact] [physical harm]. In order to convict the defendant of assault, the State must prove: (1) that the defendant actually tried to cause immediate [offensive physical contact with] [physical harm to] (name); (2) that the defendant intended to bring about [offensive physical contact] [physical harm]; and ¹⁴⁵ (3) that the defendant’s actions were not consented to by (name) [or not legally justified], (notes on use) C BATTERY Assault is causing offensive physical contact to another person. In order to convict the defendant of assault, the State must prove: (1) that the defendant caused [offensive physical contact with] [physical harm to] (name); (2) that the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) that the contact was [not consented to by (name)] [not legally justified].

Notes on Use Use this instruction if the defendant is charged with second degree assault, under Md.Code Ann., Crim. Law I § 3-203 (2012). Use version “A” when the only theory of assault is an intent to frighten type of assault. Use (4) only if the evidence generates justification, e.g., self-defense, and give the instruction for that justification.

Use version “B” when the only theory of assault is an attempted battery type of assault. Out of an abundance of caution, use (3) unless it is clear that there is neither justification nor consent. Use version “C” when the only theory of assault is a battery. Out of an abundance of caution, use (3) unless it is clear that there is neither justification nor consent.

Although version “B” and version “C” may both be applicable, it is unlikely that both version “A” and version “B” are applicable or that both version “A” and version “C” are applicable. MPJI-Cr 4:01 (emphasis added) (brackets and parentheses in original). The commentary instructs the trial court to use the third part of the subject instruction “unless it is clear that there is neither justification nor consent.” In the instant case, there was neither. There has been no issue raised by appellant regarding consent, and, as the State correctly argues, there is ¹⁴⁶ no legal justification, because appellant’s asserted reasonable behavior is not a recognized defense to second degree assault.

The law recognizes certain defenses as legal justification for criminal acts: self defense, defense of others, duress, etc. See, e.g., Lee v. State, 193 Md.App. 45, 58 , 996 A.2d 425 (“Defense of others, like self-defense, is a justification or mitigation defense.”), cert. denied, 415 Md. 339 , 1 A.3d 468 (2010); Wentworth v. State, 29 Md.App. 110, 117 , 349 A.2d 421 (1975) (“[D]uress, coercion or compulsion is ordinarily a valid defense to a charge of crime.”), cert. denied, 278 Md. 735 (1976) . For a claim of “reasonableness” to be relevant to a determination of criminal liability, that “reasonableness” must be rooted in one or more of the defenses recognized by the law as applicable to the offense at issue. See, e.g., Christian, 405 Md. at 323-27 , 951 A.2d 832 (discussing the applicability of reasonable behavior with regard to a claim of perfect and