Jones v. Maryland

⁴¹² HARRELL, Judge. Donald Anthony Jones, Petitioner, was convicted by a jury in the Circuit Court for Prince George’s County of one count of second degree assault, Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 12A, and four counts of reckless endangerment, Maryland Code (1957, 1996 RepkVol., 1998 Supp.), Article 27, § 12A-2(a)(l). 1 On direct appeal, the Court of Special Appeals affirmed the judgments. Jones v. State, 125 Md.App. 168 , 724 A.2d 738 (1999).

We issued a writ of certiorari to determine whether the trial court erred by refusing to instruct the jury that self-defense applied to the reckless endangerment charges. 2 Jones v. State, 354 Md. 330 , 731 ⁴¹³ A.2d 439 (1999). We hold that common law self-defense is a viable defense to a charge of the statutory crime of reckless endangerment under § 12A-2(a)(l) and, consequently, we reverse the judgments of the Circuit Court and the Court of Special Appeals as to the reckless endangerment convictions. I. As our holding in this case turns on a purely legal analysis, we adopt, with slight modifications, the facts as stated by the Court of Special Appeals: “On [6 July 1997], Carmen Reavis met several of her friends for an afternoon of fun at Adventure World [now Six Flags], a water amusement park located in Prince George’s County. Among them were Tracy Barber, Gerald Goode, Walter Stokes, Reginald Davis, and William Brown.

The group collected inside the park at around 1:80 p.m. and spent the next several hours together. [Petitioner] and Rashad Friday, his friend, arrived at Adventure World at around 5:30 p.m. the same day. About ten minutes later, Friday spotted Reavis, whom he did not know, and, thinking she was attractive, approached her. “[Petitioner] testified in his own defense. He explained that Friday ‘reached over to touch [Reavis’] arm to get her attention so she could hear him.... ’ When Reavis did not respond, Friday ‘touched’ her arm again. This time, ‘[s]he responded immediately with cursing and fussing.’ Friday then ‘put his hands up and like okay, no problem.’ [Petitioner] turned away momentarily to speak with some friends who were standing nearby; when he looked back he saw that ‘approximately seven to nine guys [had] surrounded [Friday] in a confrontation.’ Among them were Goode, Stokes, Brown, and Davis. [Petitioner] approached the men and said to Friday, ‘[l]et’s walk.’ He and Friday then walked together toward the front gate, ‘where we had seen some safety, the only place I[had] seen security.’ The group followed.

At that point, [Petitioner] became scared. ⁴¹⁴ “[Petitioner] further testified that as he and Friday crossed over a narrow bridge, he looked to his right and saw three of the pursuers attack Friday. He watched Friday ‘go down’ as his attackers ‘stomp[ed] on him’ and kicked him in the head and chest. Immediately thereafter, someone grabbed [Petitioner] from behind, threw him into a railing and repeatedly hit his head against it. [Petitioner] remembered being accosted by three assailants: one who stood behind him and restrained his arms and two others who alternated striking him in the head and chest. [Petitioner] explained that, ‘[w]hen I got one of my arms released I reached in my right pocket, pulled out a knife, opened it up’ and ‘cut each of them until they let me go.’ “The State’s witnesses offered a very different version of events. Reavis testified that as she and her friends were walking toward the ‘Mind Eraser’ roller coaster, Friday grabbed her arm.

She did not want to speak with him, so she continued walking. Friday approached her again a few minutes later and this time reached over and touched her breast. When Goode learned what had happened, he confronted Friday and warned him to keep his hands to himself. According to Reavis, ‘it wasn’t like a crowd of people, you know, around or nothing.

It was just like basically us three, and it was a couple people around, but they was like a little distance back.’ Friday made disparaging remarks to Reavis and she found him to be belligerent, not apologetic. Reavis heard [Petitioner] ask Goode if he wanted to ‘take it outside,’ but Goode refused. About five minutes later, [Petitioner] and Friday suddenly attacked Goode on the bridge. Brown, Williams, and Davis got involved in the brawl to help Goode.

Reavis saw [Petitioner] ‘swinging his arms wildly.’ “Stokes testified that [Petitioner] had a knife and that during the brawl, [Petitioner] stabbed him in the leg. Brown testified that during the commotion, [Petitioner] was ‘swinging’ and then spun around and stabbed him. When the dust cleared, Stokes, Brown, Goode, and Davis had been wounded.” Jones, 125 Md.App. at 170-71 , 724 A.2d at 739 . ⁴¹⁵ The State charged Petitioner with one count each of attempted second degree murder, attempted voluntary manslaughter, first degree assault, second degree assault, and reckless endangerment for the injuries to Walter Stokes. The State also charged Petitioner with three counts of second degree assault and three counts of reckless endangerment for the injuries inflicted upon William Brown, Gerald Goode, and Reginald Davis.

Petitioner’s jury trial commenced in the Circuit Court for Prince George’s County on 21 January 1998. Before the trial concluded on 23 January 1998, Petitioner’s trial counsel presented, in writing, to the trial judge his requested jury instructions. Among these instructions, Petitioner included the following regarding the reckless endangerment charges: If an individual is acting in defense of a crime of violence, he cannot be guilty of reckless endangerment. It is the State’s burden to prove beyond a reasonable doubt that the defendant was not acting in defense of a crime of violence.

If you are not so convinced, you must find the defendant not guilty of all counts charging reckless endangerment. To this, Petitioner’s trial counsel appended a supporting footnote which referenced Maryland Code (1957, 1996 RepLVol.), Article 27, § 12A-2(b)(4). Unfortunately, Petitioner’s statutory support referred to a superceded subsection of the reckless endangerment statute. Section 12A-2(b)(4), in the version cited by Petitioner and that was effective prior to 8 April 1997, provided that the prohibitions of the reckless endangerment statute generally did not apply to “an individual acting in defense of a crime of violence.” 3 The record does not reflect ⁴¹⁶ that Petitioner, the State, or the court acknowledged or were aware of the superceded status of the statutory provision cited by Petitioner in support of the requested instruction.

The trial judge did not give Petitioner’s relevant jury instruction. 4 The trial judge did instruct the jury that self-defense applied to all the charges against Petitioner, except the reckless endangerment counts. Following the judge’s delivery of the jury instructions, Petitioner’s trial counsel excepted to certain omissions from the instructions. Among the exceptions, his counsel asked the trial judge to instruct that self-defense applied to the reckless endangerment charges. Defense counsel stated, “if an individual is acting in defense of a crime of violence he cannot be guilty of reckless endangerment ...

I think the jury should know that, that it’s akin to self-defense.” Defense counsel again referred to Maryland Code (1957, 1996 RepLVol.), Article 27, § 12A-2(b)(4) in support of his oral request. 5 The trial judge overruled Petitioner’s exception. 6 ⁴¹⁷ As noted supra, the record does not reflect that either party or the judge was aware expressly that defense counsel was relying on a superceded version of § 12A-2(b), 7 as the basis of the request for the relevant jury instruction. The General Assembly amended § 12A-2, and specially subsection (b), with the new version taking effect on 8 April 1997, approximately three months before Petitioner’s altercation at Adventure World. In the amended version, § 12A-2(b) no longer provides a defense for individuals acting in defense of a crime of violence to a charge under § 12A-2(a)(l), which served as the basis of the reckless endangerment charges against Petitioner. The jury found Petitioner not guilty of attempted second degree murder, attempted voluntary manslaughter, and first degree assault.

It convicted Petitioner of second degree assault against Stokes and all four counts of reckless endangerment. At sentencing, the reckless endangerment conviction as to Stokes was merged into the related assault conviction. The trial court sentenced Petitioner to ten years in prison with all but four years suspended for the second degree assault conviction as to Stokes and three concurrent four-year sentences in prison for the remaining reckless endangerment convictions. The Court of Special Appeals affirmed the convictions.

Jones v. State, 125 Md.App. 168 , 724 A.2d 738 (1999). The intermediate appellate court determined that Petitioner’s requested jury instruction was based on a superseded statutory provision and that under the correct version of the statute, the ⁴¹⁸ self-defense provision which Petitioner relied upon (“defense of a crime of violence”) applied only to a § 12A-2(a)(2) charge (“recklessly discharges a firearm from a motor vehicle”). Because the court resolved that Petitioner’s jury instruction was based on an inaccurate statement of the law (as to the statute), it held that the trial judge properly refused to give the requested self-defense jury instruction as to the reckless endangerment counts premised on § 12A-2(a)(l)(general reckless endangerment conduct). Jones, 125 Md.App. at 177 , 724 A.2d at 742 .

The court did not address whether common law self-defense applied to the reckless endangerment charges.

II

Before we turn to the substantive issue for which certiorari was granted, we put to rest the State’s renewed non-preservation argument. The State asserts in its brief that, at trial, Petitioner failed to request adequately a self-defense instruction in connection with the reckless endangerment charges. The State points to a trial record excerpt wherein Petitioner’s trial counsel, at one point, seemingly acknowledged, during exceptions to the instructions as given, that “self defense applies to all the counts with the exception of reckless endangerment.” It also highlights Petitioner’s proposed jury instruction that was premised expressly on a superceded version of the reckless endangerment statute. Relying on Maryland Rule 4-325(e), 8 the State contends that due to Petitioner’s express acknowledgment that self-defense did not apply to reckless endangerment and his erroneous reliance on a super-ceded statutory provision, he failed to preserve for appellate review the issue of whether common law self-defense is applicable to a charge of reckless endangerment. ⁴¹⁹ We decline to entertain the State’s non-preservation contention further.

The State’s analysis is a reiteration of the issue and argument advanced in its conditional cross-petition for writ of certiorari which, as previously stated, we denied. Under our certiorari process, this Court will only consider matters on appeal raised in a petition for writ of certiorari that we have granted. See Walston v. Sun Cab Co., 267 Md. 559, 568 , 298 A.2d 391, 397 (1973). The certiorari process serves an important function in Maryland’s system of jurisprudence.

It allows this Court to select and review cases that we deem to be “desirable and in the public interest.” Maryland Code (1974,1998 Repl.Vol.), Cts. and Jud. Proc. § 12-305; See also Walston, 267 Md. at 565 , 298 A.2d at 395 . In exercising this broad discretion, we limit the issues that we elect to review by denying petitions for certiorari in whole or in part, so that we may deal directly with the issues selected. See Streater v. State, 352 Md. 800, 802-03, n. 1 , 724 A.2d 111, 127, n. 1 (1999).

When this Court denies review of an issue in a petition for certiorari or a conditional cross-petition, a party ordinarily is foreclosed from rearguing that issue before us. See Streater, 352 Md. at 805-06, n. 4 , 724 A.2d at 127, n. 4; Dempsey v. State, 277 Md. 134, 143 , 355 A.2d 455, 459 (1976); Walston, 267 Md. at 565 , 298 A.2d at 395 . In Dempsey , we explained the effect of an order from this Court limiting certiorari, by stating: [w]here this Court’s order granting certiorari limits the issues to be considered, no additional questions will ordinarily be dealt with even if such additional questions were raised in the petition or in a cross-petition. Dempsey, 277 Md. at 143 , 355 A.2d at 459 (citations omitted).

Recently in Streater v. State, 352 Md. 800 , 724 A.2d 111 (1999), we dealt with an analogous situation to the present case. In Streater , the trial court admitted in evidence a protective order which contained factual findings by a district court judge regarding prior criminal acts committed by the petitioner, Streater. Streater’s counsel objected generally to the admission of the protective order, but failed to raise a specific objection to the admission of the evidence of prior ⁴²⁰ criminal acts. Despite Streater’s apparent failure to preserve the specific evidentiary issue for which appellate review was sought subsequently, we rejected a waiver argument previously presented in the Respondent State’s denied conditional cross-petition for writ of certiorari and renewed in its brief.

We explained that “[g]iven our denial of that petition for certiorari, we must assume that Petitioner’s objection was properly preserved ... the dissent’s protestations are more properly directed at our denial of certiorari on the preservation issue ... [r]ais-ing contentions concerning an issue on which we expressly denied certiorari risks undermining our certiorari process.” Id. at 805-06, n. 4 , 724 A.2d at 128, n. 4. In the case at hand, the State’s waiver/non-preservation argument was settled when we denied certiorari on that question. We shall not undermine the appellate review process by digressing from our chosen course. Id.

III

As we explained, the Court of Special Appeals affirmed Petitioner’s convictions. The court’s holding focused on its interpretation of the proper version of § 12A-2. The court reasoned that: As the language of § 12A-2(b)(2)(ii) makes plain, an individual who is acting in defense of a crime of violence and who engages in the conduct specified in § 12A-2(a)(2), i.e., ‘recklessly discharging] a firearm from a motor vehicle ...’ is not committing the crime of reckless endangerment. That exception is narrowly written, however, and does not apply to the more general conduct set forth in § 12A-2(a)(2)[sic], i.e., ‘recklessly engaging] in conduct that creates a substantial risk of death or serious physical injury to another person ...’ In this case, appellant was charged with reckless endangerment under § 12A-2(a)(l).

The jury instruction that he requested would have been a correct statement of the law if he had been charged with recklessly discharging a firearm ⁴²¹ from a motor vehicle under § 12A-2(a)(2). It was not a correct statement of the law under the circumstances of this case, however, and the trial court properly refused to grant it. Jones, 125 Md.App. at 177 , 724 A.2d at 742 . We agree with the Court’s conclusion to the extent that it resolves the question of whether Petitioner was entitled to a self-defense jury instruction based on § 12A(b)(2)(ii). 9 This, however, does not end our inquiry.

Petitioner contends that he is entitled to a self-defense instruction under the common law. In support of this alternate theory Petitioner posits that Maryland Code (1957, 1996 RepLVol.), Article 27 § 12A-3 recognizes his right to assert common law self-defense as a defense to the statutory reckless endangerment charges under § 12A-2(a)(l). Section 12A-3, entitled “Defenses,” states: A person charged with an offense under this subheading [“Assault,” which includes reckless endangerment] is entitled to assert any judicially recognized defense. Therefore, Petitioner reasons that he should be permitted to assert self-defense as “a judicially recognized defense.” We agree.

A. To completely review Petitioner’s argument we begin with an examination of the common law doctrine of self-defense in Maryland. When facts are adduced establishing perfect self-defense to a charge of criminal homicide or as ⁴²² sault, the defendant’s actions are said to be justifiable or excusable and the direct result is the acquittal of the defendant. See Dykes v. State, 319 Md. 206, 210-11 , 571 A.2d 1251, 1254 (1990); State v. Faulkner, 301 Md. 482, 485 , 483 A.2d 759, 764 (1984). See also Tichnell v. State, 287 Md. 695, 718 , 415 A.2d 830, 842 (1980).

Complete, or perfect, self-defense requires that: (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. See State v. Martin, 329 Md. 351, 357 , 619 A.2d 992, 995 (1993); Dykes, 319 Md. at 211 , 571 A.2d at 1254 ; Faulkner, 301 Md. at 485-86 , 483 A.2d at 764 ; Tichnell v. State, 287 Md. at 718 , 415 A.2d at 842 (1980); Guerriero v. State, 213 Md. 545, 549 , 132 A.2d 466, 467 (1957). The vast majority of our appellate opinions developing the law of self-defense have been in the context of the proper application of perfect and imperfect self-defense in murder cases. Imperfect self-defense differs from perfect self-defense in its effect in that the establishment of imperfect self-defense does not result in an acquittal.

Martin, 329 Md. at 358 , 619 A.2d at 996 . If established, imperfect self-defense negates the element of malice in a charge of murder and the defendant may be convicted of the lesser crime of voluntary manslaughter. Faulkner, 301 Md. at 500 , 483 A.2d at 769 . Imperfect self-defense results when a fact-finder concludes that a defendant committed criminal homicide in an honest, but unreasonable belief that he or she was threatened with death or serious bodily harm.

Id. The doctrine of imperfect self-defense applies only to “criminal homicide and its shadow forms, such as attempted murder.” Richmond v. State, 330 Md. 223, 233 , 623 A.2d 630, 634-35 (1993) (citations omitted). ⁴²³ It has no applicability to other assaultive crimes. Bryant v. State, 83 Md.App. 237, 245 , 574 A.2d 29, 33 (1990). While the complexities of perfect and imperfect self-defense are not at issue in this case, these cases are instructional.

In Corbin v. State, 94 Md.App. 21 , 614 A.2d 1329 (1992), the Court of Special Appeals dealt with the question of whether a defendant was entitled to perfect and imperfect self-defense instructions in a group attack context. In Corbin , the defendant stabbed the victim during a dispute inside of a car. After the initial attack ended, another person intervened and initiated a second confrontation with the defendant. The defendant testified that the victim joined in the second confrontation and that during the second attack the defendant stabbed the victim for a second time.

The victim died from the second stab wound. The trial court denied the defendant’s request for a self-defense instruction because it found that both incidents constituted one continuing affray and that the defendant was the initial aggressor in the incident. Corbin, 94 Md.App. at 26-27 , 614 A.2d at 1332 . The defendant was convicted of second-degree murder.

The court reversed the murder conviction. The court held that when a defendant offers some evidence to show that the second attack was an independent confrontation in which the defendant was not the aggressor, the defendant was entitled to jury instructions regarding the law of perfect and imperfect self-defense. Id. at 31-32 , 614 A.2d at 1333 . In reaching its conclusion the court stated: ‘[W]here several persons are acting together aggressively toward another, and, because of their acts or the acts of either of them, it reasonably appears to him that his life is in danger, or he is in danger of great bodily harm, he may slay any of such persons or all of them, if it reasonably appears to him to be necessary so to do to protect himself from death or great bodily harm.

And when a person is called upon to act under such circumstances, he is not bound to decide as to which one of the persons made