Porter v. State

Kehoe, J. After a six day jury trial in the Circuit Court for Baltimore County, Karla Louise Porter was convicted of first degree murder and related crimes. On appeal, she presents three issues, which we have reworded: 1. Was the trial court’s jury instruction on imperfect self-defense erroneous as a matter of law? 2. Did the court err when it declined to voir dire the jury after receiving a jury note suggesting that the jurors were speculating about matters not presented at trial? 3.

Did the court err in denying Ms. Porter’s motion to suppress the inculpatory statement she made to the police? The State concedes that the trial court’s instruction on imperfect self-defense was flawed. The State argues that the error was harmless because Ms. Porter was not entitled to the instruction in the first place. We believe that the State is correct.

The trial court did not abuse its discretion when it declined to question the jurors individually about the contents ²⁹⁴ of the note, nor did the court err when it denied Ms. Porter’s motion to suppress her statement. We will affirm the convictions. Background Because Ms. Porter does not challenge the legal sufficiency of the State’s case against her, our summary of the facts will focus on the evidence relevant to her contentions on appeal. The Principals During the early morning hours of March 1, 2010, William Raymond Porter was shot to death as he opened the Hess Gas Station that he owned and operated with his wife, Ms. Porter, in Baltimore County.

Walter Bishop was the shooter. Bishop was a friend of Seamus Coyle, Ms. Porter’s nephew. Coyle first introduced Bishop to Ms. Porter. Susan Datta, Ms. Porter’s sister, Calvin Mowers, her brother, and Matthew Brown were also involved in the conspiracy to kill Mr. Porter. 1 Bishop, Mowers, Coyle, Datta, and Brown were all prosecuted for their involvement in Mr. Porter’s murder.

Evidence of Abusive Relationships Ms. Porter testified at trial. She stated that her parents were separated when she was about six or seven years old and that, for several years thereafter, she lived with her mother and her mother’s boyfriend. The boyfriend regularly physically and verbally abused her mother in Ms. Porter’s presence and once pushed Ms. Porter into a hot stove, causing severe bums. Her mother did nothing about the incident and Ms. Porter went to live with her father when she was nine years old.

Ms. Porter testified that she met Mr. Porter in 1982 and that they married in 1986. Ms. Porter described controlling behavior on Mr. Porter’s part from the outset of their relationship. She testified at length about numerous instances of ²⁹⁵ physical, verbal, and psychological abuse, beginning early in their marriage and escalating, in severity and frequency, in the late 1990’s and thereafter. For example, and this list is not all-inclusive, Ms. Porter testified that, during their marriage, her husband had: beaten her on her back and legs with a belt; on various occasions hit her with a rake, a board, his fists, and a tool box; stabbed her in the abdomen with a drill; pushed her head into a grave marker; smeared dog excrement on her; and threatened to kill her on several occasions, at least once while pointing a gun at her.

Additionally, she testified that he repeatedly had made demeaning and derogatory statements to her about her appearance and her worth as a human being, and that he had harassed her at work, and forced her to stand at their kitchen sink and drink water until she urinated on herself. Not all of this testimony was uncontested. Ms. Porter identified eyewitnesses to several incidents of abuse who were called by the State in rebuttal and testified that the incidents had never occurred in their presence. Moreover, her testimony as to Mr. Porter’s abuse differed in some significant ways from what she had told her mental health professionals prior to trial. 2 However, some of Ms. Porter’s testimony was corroborated by the Porters’ youngest child, Megan Porter.

Megan testified that the environment in the family home was tense, and that Mr. Porter was regularly angry. She testified that her mother was submissive to her father’s anger, and that Ms. Porter was frequently the target of Mr. Porter’s frustrations. It was Megan’s testimony that her father regularly yelled at her mother and called her demeaning and degrading names. Megan testified that, although she never saw her father strike her mother, she had seen her mother with bruises on her arms and legs, and at one point with a black eye. 3 ²⁹⁶ Ms. Porter testified to two instances of abuse in the “week or so” before Mr. Porter’s death.

The first arose out of Mr. Porter’s desire to move to Florida—a source of tension in the parties’ marriage, particularly in the year before Mr, Porter’s death. Mr. Porter held a gun to Ms. Porter’s head, and informed her that they would not be taking their children 4 or his parents to Florida, when they moved. And then turned his attention to her, stating: “Maybe I am not even going to take you. I should just kill you now.” In the second instance, Mr. Porter struck Ms. Porter across her back with a crutch because he did not find her degree of sympathy towards the fact that he was “bored” to be satisfactory.

Ms, Porter testified that from June 2009 through March 1, 2010, she was “terrified almost on a daily basis.” She testified that during the period of late 2009 through March 2010: I was in fear for my life. I knew it was getting to the point where Ray was getting out of control. I knew it was a matter of time before he killed me. [[Image here]] [TJhings were getting so bad, things were just out of control. I know it was crazy.

It was just a day-to-day—it wasn’t even day-to-day. It was minute-to-minute. Always walking on eggshells. I never could do anything on my own.

Something as simple as taking a shower. [[Image here]] It was getting so bad that I knew that Ray was going to kill me and I just wanted to kill him first. ²⁹⁷ Ms. Porter’s Earlier Attempts to Solicit Someone to Kill Mr. Porter In June 2009, that is, about nine months before Mr. Porter was murdered, Ms. Porter approached Daniel Blackwell, her daughter’s boyfriend at the time, about killing Mr. Porter. Although they differed as to some of the specifics, both Ms. Porter and Blackwell testified that she offered him money to kill Mr. Porter, that he, at least initially, expressed an interest in doing so, but that he never followed through. 5 Ms. Porter approached a second person—Tony Fails—in December 2009. Fails was a business associate of Mr. Porter’s. He testified that he had no intention of participating in the crime, but did not refuse Ms. Porter’s request.

Instead, he told Ms. Porter that he would make some calls and get back to her. Ms. Porter called Mr. Fails throughout January 2010—by her own testimony, she called Mr. Fails frequently, sometimes several times a day—to see if he had found someone who was willing to kill Mr. Porter. Mr. Fails never made any phone calls on Ms. Porter’s behalf. Ms. Porter stopped calling Fails towards the end of January 2010.

In the same month, Ms. Porter contacted Paige Huemann, who had lived with the Porters in 2007, about obtaining potassium cyanide so that she could poison Mr. Porter, Ms. Porter testified that Ms. Huemann did not provide her with any information as to obtaining poison. 6 Ms. Porter Recruits Bishop Ms. Porter testified that one of her nephews, Seamus ²⁹⁸ Coyle, 7 introduced her to Bishop during a meeting between herself and Coyle in a Walmart parking lot, in late January or early February 2010. Coyle had arranged to meet Ms. Porter because she had agreed to give Coyle money to make his mortgage payment. Bishop was seated in the passenger seat of the vehicle that Coyle was driving, and volunteered to kill Mr. Porter after listening to Ms. Porter describe Mr. Porter’s abuse of her. Coyle testified that at that point Bishop exited the vehicle, walked toward the rear, and had a conversation with Ms. Porter.

Coyle remained in the vehicle, but overheard something about $500, and it was his belief that telephone numbers were exchanged. At a subsequent meeting in February 2010, Ms. Porter and Bishop finalized their agreement that Bishop would kill Mr. Porter and Ms. Porter gave Bishop the handgun that he would use to commit the murder. The handgun had been given to Ms. Porter by Susan Datta, her sister. The Murder and the Police Investigation On the evening of February 28, 2010, the night before Mr. Porter was murdered, Ms. Porter and Bishop spoke by telephone and agreed that Bishop would arrive at the gas station in the early morning hours of March 1, 2010, and that he would shoot Mr. Porter before anybody else would be around.

At around 2:30 a.m. on March 1, Ms. Porter, using her cell phone, called her home telephone and told her husband that the alarm company had called and told her that the security alarm had gone off at the gas station. Mr. Porter then prepared himself for the day and proceeded to the gas station. (Mr. Porter usually arrived at the gas station between 4:00 and 4:15 in the morning.) After Mr. Porter left the house, Ms. Porter called her brother, Calvin Mowers, and arranged to have him drive Bishop to the gas station. Ms. Porter placed more than 50 calls ²⁹⁹ from her cell phone to Bishop and Mowers between 2:30 am and 7:00 am on March 1, 2010.

After leaving her home, Ms. Porter met Bishop, Mowers, and Matthew Brown at a McDonald’s, where she confirmed that Bishop would follow through with the murder. Ms. Porter then went to the Hess station. When she arrived, Mr. Porter was talking to a friend and she began taking inventory and performing other routine opening activities. At one point, Ms. Porter left the building, and when she reentered Bishop followed her through the side door.

Upon entering the station, Bishop ordered Ms. Porter and Mr. Porter to move toward the back room of the store. Bishop then removed the gun from his pocket and fired at Mr. Porter. The first shot hit Mr. Porter in the head and caused him to fall to the ground. Bishop proceeded to fire a second shot, hitting Mr. Porter in the face.

Mr. Porter subsequently died as a result of his injuries. Bishop fled after the shooting and Ms. Porter called 9-1-1. When the police arrived, and in the days immediately following the shooting, Ms. Porter described the shooter as a black male, approximately 6 feet tall and about 25 years of age, wearing a black hooded sweatshirt. (Bishop is white; Fails, on the other hand, is African-American.) Ms. Porter told the police that her husband had been shot in the course of an attempted robbery.

However, Ms. Porter’s story quickly fell apart. During the afternoon of March 1, Fails heard the description Ms. Porter provided to the police and became concerned that he might come under police suspicion. He went to a Baltimore County police station and reported that Ms. Porter had approached him about killing her husband in December 2009. Thereafter, Fails assisted the police in investigating the murder.

While wearing a recording device, Fails made multiple contacts with Ms. Porter, telling her that he was nervous that he would become a suspect and requesting money to flee. Ms. Porter ultimately offered Mr. Fails $700 not to tell the police of her involvement in her husband’s murder. ³⁰⁰ Ms. Porter was arrested on March 6, 2010, and subsequently interviewed by two detectives. Initially, she maintained that her husband was shot in the course of an attempted robbery. After learning that the detectives knew that she had been communicating with Bishop and Mowers throughout the early morning hours of March 1, she altered her version of events and stated that she had hired Bishop to beat her husband up for $400.

Ms. Porter’s Defense At trial, Ms. Porter’s defense was that, after sustaining years of abuse at the hands of her husband, she was suffering from battered spouse syndrome, and was acting in self-defense when she arranged for his murder. In addition to the testimony that we have previously summarized, the defense introduced two expert witnesses to support the theory that Ms. Porter was suffering from battered spouse syndrome: Neal Blumberg, M.D., a forensic psychiatrist, and Mary Ann Dut-ton, Ph. D., a clinical psychologist. After being accepted by the court as an expert witness in the discipline of forensic psychiatry, Dr. Blumberg testified about his evaluation of Ms. Porter.

Dr. Blumberg explained that, in evaluating a patient, he considers multiple sources of information in order to generate a reliable and accurate assessment. Dr. Blumberg testified that he: met with Ms. Porter five times, from 2011 to 2013; administered several psychological tests; reviewed information the police obtained, including Ms. Porter’s 9-1-1 call as well as the interviews the police conducted with other individuals as part of their investigation and Ms. Porter’s own statement to the police; conducted a forensic psychiatric examination, which involves a detailed family, medical, and legal history, as well as observations of the patient during the evaluation; and observed Ms. Porter’s in-court testimony, as well as that of her daughter, Megan Porter. As a result of his evaluation, Dr. Blumberg expressed the opinion that Ms. Porter was suffering from two different mental disorders, on or before March 1, 2010. The first was ³⁰¹ major depressive disorder, which Dr. Blumberg described as “severe.” Dr. Blumberg explained that “[a] major depressive disorder is a biological illness in which the individual experiences not only depressed mood, but also loss of interest in activities they may have previously enjoyed as well as having a variety of [vegetative] symptoms of depression.” Dr. Blumberg opined that Ms. Porter’s depressive disorder was “recurrent,” that is, she had experienced prior 'episodes of depression over time.

The second mental disorder Dr. Blumberg identified was posttraumatic stress disorder, which Dr. Blumberg explained, “is a disorder that develops in response to exposure to severe trauma,” and, as a result of which, “the person experiences significant distress, anxiety, [and] depression.” Dr. Blumberg also provided the jury with the bases for his conclusions. He explained that “there [we]re certain things in [Ms.] Porter’s background that made her ... more vulnerable to developing both the problems with depression and PTSD.” Dr. Blumberg began with Ms. Porter’s childhood, noting that Ms. Porter was exposed to an abusive relationship between her mother and her mother’s boyfriend, and that, as the youngest child in her family, she seemed to have developed an “impairment in her self-esteem.” Dr. Blumberg’s testimony then shifted to Ms. Porter’s relationship with Mr. Porter. Dr. Blumberg explained that the relationship was initially positive, but that as time passed Mr. Porter became progressively more abusive. And, that Ms. Porter’s response was to “view herself as worthless, [and] to do whatever she could to avoid making him angrier or upset with her.” He noted that this further impaired Ms. Porter’s self-esteem.

Dr. Blumberg acknowledged that there were “good times” in the Porters’ marriage but he explained that, during the periods in which Mr. Porter was particularly abusive, “[Ms. Porter] would experience periods of significant depression and anxiety.” He explained further: She became super sensitive to his moods. She described sort of walking on eggshells around him and her coping style was not to assert herself or go to the police and kind of—or say I’m leaving, I’m getting out of here. Her response to ³⁰² that progressive abuse was to cover things over, to deny, to repress, to sort of avoid thinking about what was going on with the hopes that, you know, things would settle down and those good times that they had in the past would return. Finally, Dr. Blumberg addressed the escalation in violence in the year before Mr. Porter’s death, and that it was his belief that, during that time, “she became increasingly anxious and fearful for her life and safety.

She had become increasingly depressed. She had felt hopeless and helpless to extricate herself from the relationship.” After identifying Ms. Porter’s mental disorders, and explaining how he arrived at his diagnoses, Dr. Blumberg concluded that it was his “opinion to a reasonable degree of medical certainty that someone with [Ms.] Porter’s psychological profile would meet the criteria for the battered spouse syndrome,” as defined in the battered spouse syndrome statute, codified at Md. Code Ann., § 10-916 of the Courts and Judicial Proceedings (“CJP”) Article. 8 Dr. Blumberg proeeed- ³⁰³ ed to discuss battered spouse syndrome, in general, and the effects that it has on those who suffer from it. He stated: Battered spouse syndrome ... [is] used to describe a reaction to recurrent spousal or partner abuse and the syndrome involves recurrent episodes in which there is an escalation of violence to the point where there is a particular violent episode followed by a cooling down period in which sometimes there are acts of contrition, but the situation calms down.... [B]attered spouse syndrome requires at least two of these cycles of an escalation of violence with an explosive outburst and then a cooling down period. As a result of the recurrent verbal and, in particular, physical abuse, the victim develops feelings of helplessness, hopelessness, which is referred to in the psychological literature as learned helplessness.

Over time as a. result of that abuse, the individual is feeling increasingly helpless or hopeless to rectify their situation. They often experience depression. They often experience severe anxiety. Those psychological conditions are in a sense paralyzing.

They prevent them from being able to actively assert themselves, whereas a normal person might say hey, I’m not going to take that anymore and get out of it .or call the police. As a result of the abuse, as a result of the depression and anxiety, women in particular or people with a battered spouse syndrome have difficulty and find it basically impossible to extricate themselves from the abusive relationship. [[Image here]] [T]he cases that generally involve violence to the abuser occur in the context of an escalation of the abuse. A belief that something is going to be more imminent in terms of harm, bodily harm or, in .fact, death. It’s often in that context that the abused spouse ultimately resorts to violence from her subjective point of view.

And I’m using the “she” ³⁰⁴ because [in] the vast majority of the cases the battered spouse is actually a woman. The wom[e]n ultimately be-liev[e] that the only way they can defend themselves, prevent themselves from further serious bodily harm or from death is to end the life of the abuser. [[Image here]] Well, by subjective, and what I’m talking about is Mrs. Porter’s point of view. Again, when somebody has experienced extensive verbal and or physical abuse, as a result of depression, as a result of the trauma that they have gone through, they may overreact to threats to their physical integrity. They may view the abusing spouse or others in their environment as being much more threatening than perhaps an objective viewer might see.

So when we talk about the subjective point of view, we are talking about some of the distortions that are likely to have occurred with Mrs. Porter. It’s not saying that the abuse she experienced was not real. I believe that it was, but it certainly could make her super sensitive to threats to her physical integrity and to perhaps overreact or overperceive those threats, feeling that she has to act in self-defense when, in fact, there might not be an objective reason for that. The court accepted Dr. Dutton as an expert in the psychological condition of victims of repeated physical and psychological abuse by a spouse.

She testified at length about domestic violence and the battered spouse syndrome, the psychological, emotional, and physical effects on the victim, myths associated with domestic violence and the battered spouse syndrome, strategies and coping mechanisms employed by victims, and the reasons—e.g., fear of the abuser, concern for children, economic worries—that can cause victims to stay in abusive relationships. Dr. Dutton identified factors in Ms. Porter’s history, e.g., that she was a neglected child, that she had had a child before entering into a relationship with Mr. Porter, that made her susceptible to the emotional dynamic that results in battered spouse syndrome. Dr. Dutton also expressed the opinion that, ³⁰⁵ after interviewing Ms. Porter, reviewing her medical records and statements to the police, and observing her in-court testimony, Ms. Porter “experienced repeated abuse in the context, of her marriage and that she was also experiencing and had experienced as a result of that, and other factors that contributed to it, consistent psychological effects related to it.” To support this conclusion, she pointed to a number of facts from Ms. Porter’s history, as well as her description of Mr. Porter, e.g., a neglected childhood, Mr. Porter’s controlling behavior, his threats to kill her, his sometimes pointing a handgun at her when making those threats, his jealousy, and his prior physical violence towards her and the “incredible extent of humiliation and degradation” that she underwent during her marriage. As a result, in Dr. Dutton’s view, there was a “kind of building up [of] the level of the threat ... more intense, more frequent towards the end compared to throughout the rest of the marriage.” Moreover, Dr. Dutton testified that “most women” who are the victims of domestic violence wish to “hide the level of abuse in their relationship.” The following colloquy summarizes Dr. Dutton’s conclusions: [Defense Counsel]: What about—did you also review and take into consideration the mental health diagnosis, PTSD and the severe depression?

A [Dr. Dutton]: Yes, I did. Q: And could those types of diagnoses affect an individual who is repeatedly abused, their perception of their options for getting out or stopping the abuse? A.: In two ways. Two ways in particular, maybe even more, but the two I’m thinking of are the experience of the fear is greater because of it.

So someone who has symptoms of PTSD are likely to experience a subsequent event as even bigger because of that. The other thing is because of what trauma and PTSD do to our ability to think and reason and just process our range of options and being able to clearly think through, you know, what does it mean if I’m telling everybody I want him dead, what does that mean, why can’t I just, you know, try to ³⁰⁶ strategize some other way, there is just a sense of desperation as opposed to clear, calm, rational, logical thinking through. That’s what trauma does. There is this sense of desperate action and also difficulty concentrating is one of the key symptoms of PTSD.

It’s not just about concentrating. It’s about clearly—thinking clearly. Q. And the hyperarousal or the hypervigilance that you mentioned earlier, how does that have any effect on one’s perception of the danger that they are in? A. It would augment that perception.

Q. Augment it? Can you explain? A, It would even make it bigger. I mean, there is a sense of is there some realistic danger, but then whatever that is, it would likely make their perception of that danger even bigger because of it.

Q. Is it consistent with one who has been abused repeatedly that they would believe the threats that are being launched against them? A. Yes, especially if one has a gun to your head. Stephen Siebert, M.D., a psychiatrist, testified as an expert witness for the State. Dr. Siebert testified that he had interviewed Ms. Porter at the State’s request and concluded that she was suffering from a “mild depressive disorder” brought about by her lengthy pre-trial detention and stress related to the criminal charges pending against her.

He opined that “there is no objective evidence for a posttraumatic stress disorder before the criminal offense.” Dr. Siebert did not address whether Ms. Porter suffered from battered spouse syndrome. Shortly before the close of evidence, the trial court and counsel engaged in an extensive discussion of the appropriate jury instructions, which we will summarize in Part I of this opinion. The jury returned a verdict of guilty for murder in the first degree, use of a handgun in the commission of a crime of violence, conspiracy to commit murder in the first degree, and three counts of solicitation to commit murder. The trial court sentenced Ms. Porter to life without the possibility ³⁰⁷ of parole for murder, and merged the sentence for the related solicitation count with that sentence.

The court also sentenced Ms. Porter to a term of life for conspiracy to commit first degree murder to run concurrently with her other sentences, imposed consecutive sentences of twenty years for the two additional solicitation counts, as well as a twenty year concurrent sentence for use of a handgun in a crime of violence, for a total sentence of life plus forty years. This appeal followed. I. The Imperfect Self-Defense Instruction Pursuant to Md. Rule 4-325(e), “[a] court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” A trial court’s determination to give, or refuse to give, a requested jury instruction is reviewed for abuse of discretion. Arthur v. State, 420 Md. 512, 525 , 24 A.3d 667 (2011).

And, in reviewing a trial court’s decision to grant, or deny, a requested instruction, we consider “(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given.” Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922 (2011). With regard to the second factor—whether the instruction was “factually generated”—the Court of Appeals has been clear that the defendant must point to “‘some evidence’ sufficient to raise the jury issue.” Arthur, 420 Md. at 525 , 24 A.3d 667 . The Court has described the some evidence standard as “a fairly low hurdle for a defendant,” and has articulated the standard as follows: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says—“some,” as that word is understood in common, everyday usage.

It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or preponderance. The source of the evi ³⁰⁸ dence is immaterial; it may emanate solely from the defendant. Id. at 526 , 24 A.3d 667 (citation omitted). Ms. Porter contends that the trial court’s instruction to the jury misstated the law of imperfect self-defense in several ways.

Deciding whether she is correct and, if she is, whether the trial court’s error is a basis for reversal, requires that we consider the relationship between the law of perfect and imperfect self-defense and the battered spouse syndrome and how, and indeed, if, these principles apply in a case involving murder for hire. We will explore these topics in order to provide context to the parties’ appellate contentions. Self-Defense Maryland recognizes two forms of self-defense— perfect self-defense and imperfect self-defense. State v. Smullen, 380 Md. 233, 251 , 844 A.2d 429 (2004).

Perfect self-defense “operates as a complete defense to either murder or manslaughter[,]” and, where successful, results in acquittal of the defendant. State v. Faulkner, 301 Md. 482, 485 , 483 A.2d 759 (1984). The Court of Appeals has articulated the elements “necessary to justify a homicide ... on the basis of self defense” as follows: (1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant; (2) The accused must have in fact believed himself in this danger; (3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict; and (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. Id. at 485-86 , 483 A.2d 759 .

Imperfect self-defense, on the other hand, arises where the defendant’s “actual subjective belief ... that he/she ³⁰⁹ is in apparent imminent danger of death or serious bodily harm from the assailant, requiring the use of deadly force, is not an objectively reasonable belief.” State v. Marr, 362 Md. 467, 473 , 765 A.2d 645 (2001). Imperfect self-defense thus differs from perfect self-defense in two significant respects— to claim imperfect self-defense the defendant’s belief that (1) he/she was in “apparent imminent or immediate danger of death or serious bodily harm” and/or (2) “that the force employed [wa]s necessary to meet the danger” need not be objectively reasonable. Id. at 473-74 , 765 A.2d 645 . The Court of Appeals has expressly stated that “ ‘[i]n all other respects, the elements of the two doctrines are the same.’ ” Id. at 474 , 765 A.2d 645 (quoting Burch v. State, 346 Md. 253, 283 , 696 A.2d 443 (1997)).

Moreover, unlike perfect self-defense, imperfect self-defense does not operate as a complete defense to criminal homicide. Faulkner, 301 Md. at 486 , 483 A.2d 759 . Rather, it negates the element of malice the State must prove to obtain a conviction for murder, and thus “mitigates murder to voluntary manslaughter.” Id. The Court of Appeals has explained that “a defendant who commits a homicide while honestly, though unreasonably, believing that he/she is threatened with death or serious harm and that deadly force was necessary does not act with malice, and ... cannot be convicted of murder.” Marr, 362 Md. at 474 , 765 A.2d 645 .

But, “because the killing was committed without justification or excuse, the defendant is not entitled to full exoneration and would be guilty of voluntary manslaughter.” Id. The Battered Spouse Syndrome Maryland’s Battered Spouse Syndrome Statute, 9 codified at Md. Code Ann. § 10-916 of the Courts and Judicial Proceedings (“CJP”) Article, permits the introduction of evidence that, at the time of the commission of certain crimes, the criminal defendant was suffering from battered spouse syndrome. State v. Peterson, 158 Md.App. 558, 586 , 857 A.2d 1132 (2004). The ³¹⁰ statute limits evidence of battered spouse syndrome to cases in which the criminal defendant is charged with first degree murder, second degree murder, manslaughter, or attempt to commit any of those crimes, and assault in the first degree.

CJP § 10—916(a)(3); Peterson, 158 Md.App. at 587 n.6, 857 A.2d 1132 . The statute defines “Battered Spouse Syndrome” as “the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the ‘Battered Woman’s Syndrome’.” CJP § 10-916(a)(2). And, with regard to the admissibility of evidence of battered spouse syndrome, § 10-916(b) provides: Notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offence, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of the crime for which the defendant has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind, or both, at the time of the commission of the alleged offense: (1) Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and (2) Expert testimony on the Battered Spouse Syndrome. This Court explained the significance of the enactment of Maryland’s Battered Spouse Syndrome Statute in Banks v. State, 92 Md.App. 422, 429-30 , 608 A.2d 1249 (1992) (citations omitted; emphasis added) as follows: Before § 10-916 was enacted, trial judges often excluded evidence of past abuse and the Battered Spouse Syndrome as irrelevant, since the common law of self-defense holds that in order to invoke the defense, the defendant must not have been the first aggressor, nor must she have used more force than was necessary to repel the attack.

The new statute permits admission of this evidence, “[n]otwithstand- ³¹¹ ing evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense.” The Court of Appeals addressed the battered spouse syndrome at length in State v. Smullen, 380 Md. 233, 253-56 , 844 A.2d 429 (2004). The battered spouse syndrome describes the psychological response of a person subject to a cyclical pattern of abuse, 10 physical and/or psychological, “that creates a hy-pervigilance on the part of the defendant and attunes the defendant to recognize a threat of imminent danger from conduct that would not appear imminently threatening to someone who had not been subjected to that repetitive cycle of violence.” Id. at 270-71 , 844 A.2d 429 . In Smullen , the Court of Appeals explained the vigilance a victim of this pattern of abuse develops toward the behavior of the abuser as follows: The battered woman learns to recognize the small signs that precede periods of escalated violence. She learns to distinguish subtle changes in tone of voice, facial expressions, and levels of danger.

She is in a position to know, perhaps with greater certainty than someone attacked by a stranger, that the batterer’s threat is real and will be acted upon. Id. at 255 , 844 A.2d 429 (quoting Bechtel v. State, 840 P.2d 1, 12 (Okla. Crim. 1992)). “[0]ver time, the cycle becomes more intense, more frequent, more violent, and often more lethal.” Id. at 254, 844 A.2d 429 . Evidence of battered spouse syndrome has been used to support claims of self-defense in cases where a victim of abuse ³¹² kills his or her abuser.

Id. at 256-57 , 844 A.2d 429 . As the Court explained in Smullen , “[i]t is the psychological response to that cycle of violence that helps explain why the defendant perceived a threat from objectively non-threatening conduct on the part of the victim and why, though apparently the aggressor, the defendant was actually responding to perceived aggression by the victim.” Id. at 271 , 844 A.2d 429 . Two hallmarks of the battered spouse syndrome, particularly relevant in the context of self-defense, are “[t]he abused victim’s ‘learned helplessness’ and heightened sensitivity to the abuser’s behavior.” State v. Peterson, 158 Md.App. 558, 589 , 857 A.2d 1132 (2004). “Learned helplessness” describes the aspect of the syndrome whereby, “after repeated abuse, women come to believe that they cannot control the situation and thus become passive and submissive.” Smullen, 380 Md. at 254 , 844 A.2d 429 . Learned helplessness thus “explains why the battered spouse does not leave the situation, or take some action against the abuser.” Peterson, 158 Md.App. at 589 , 857 A.2d 1132 . “Heightened sensitivity” captures the battered spouse’s sensitivity to the abuser’s behavior, that is, the victim’s ability to “sense the escalation in the frequency and intensity of the violence.” Smullen, 380 Md. at 255 , 844 A.2d 429 . “ ‘Heightened sensitivity’ explains why the battered spouse may interpret as threatening conduct by the abuser that would appear non-threatening to others.” Peterson, 158 Md.App. at 589 , 857 A.2d 1132 .

The Relationship Between Self-Defense and the Battered Spouse Syndrome The appellate courts of this State have addressed the interaction of the law of self-defense and the battered spouse syndrome statute on three previous occasions: State v. Smullen, State v. Peterson, and Banks v. State, 92 Md.App. 422 , 608 A.2d 1249 (1992). In all three cases, both the Court of Appeals and this Court have been clear that CJP § 10-916 does not create an independent defense to the enumerated homicide and assault crimes. Smullen, 380 Md. at 251 , 844 A.2d 429 ; Peterson, 158 Md.App. at 587 , 857 A.2d 1132 ; Banks, 92 ³¹³ Md.App. at 429, 608 A.2d 1249 . Instead, evidence of battered spouse syndrome enables the fact finder to undertake a more nuanced and comprehensive analysis of the state of mind elements of perfect and imperfect self-defense.

Smullen, 380 Md. at 250-51 , 844 A.2d 429 ; Peterson, 158 Md.App. at 587 , 857 A.2d 1132 ; Banks, 92 Md.App. at 429 , 608 A.2d 1249 . 11 In Smullen , the Court of Appeals explained the interaction between the state of mind element and evidence of battered spouse syndrome as follows (emphasis in original): [Battered spouse syndrome] ...., where applicable, merely requires a more careful and sophisticated look at the notion of imminent threat and what constitutes ‘aggression,’ of understanding that certain conduct that might not be regarded as imminently dangerous by the public at large can cause someone who has been repeatedly subjected to and hurt by that conduct before to honestly, even if unreasonably, regard it as imminently threatening. If, with that subjective belief, the defendant acts aggressively in defense, the defendant may be able to show that, even though the first apparent aggressor, he/she was responding in self-defense to an honestly perceived imminent threat of death or serious bodily harm. The syndrome, when applied in a proper setting, can thus, depending on the circumstances, support both the subjective honesty of the defendant’s perception of imminent harm and the objective reasonableness of such a perception. 380 Md. at 250-51 , 844 A.2d 429 . The Court, however, made it clear that, if applied in contexts outside of its “proper setting,” the Battered Spouse Syndrome: ³¹⁴ then does become detached from the recognized defense of self-defense and assumes the status of a separate, independent defense to murder, manslaughter, maiming, or assault that we do not believe was intended by the Legislature in enacting § 10-916 and that we are not prepared to accept as part of our common law.

Id. at 251, 844 A.2d 429 (emphasis in original). The Jury Instruction Throughout her trial, Ms. Porter sought to establish that she was suffering from battered spouse syndrome and was acting in self-defense when she arranged for her husband’s murder. Accordingly, Ms. Porter requested that the court instruct the jury on the battered spouse syndrome and to give the jury the Maryland Criminal Pattern Jury Instruction on perfect and imperfect self-defense. 12 ³¹⁵ The State objected to the court instructing the jury on self-defense, arguing that “self-defense ha[d] not been adequately raised.” Nonetheless, on the assumption that the court was going to instruct on self-defense, the State presented the court with an instruction it had crafted to clarify the elements the jury must find in considering imperfect self-defense. The State took issue with the following sentence in Maryland Criminal Pattern Jury Instruction 4:17-2(C) Voluntary Manslaughter (Perfect/Imperfect Self-Defense); “[If the defendant actually believed that [he] [she] was in immediate and imminent danger of death or serious bodily harm, even though a reasonable person would not have so believed, the defendant’s actual, though unreasonable, belief is a partial self-defense and the verdict should be guilty of voluntary manslaughter rather than murder.]” The State’s concern was that the pattern instruction was misleading because the language suggests that the jury need only find that the defendant actually felt “they were in immi ³¹⁶ nent and immediate danger of death or serious bodily harm,” but makes no mention of the other elements necessary for a finding of self-defense.

The State thus offered a revised imperfect self-defense instruction to include all of the elements required for a finding of imperfect self-defense. Ms. Porter objected to this instruction. She argued that the Battered Spouse Syndrome Statute, CJP § 10-916, eliminated some of the elements of self-defense in cases involving battered spouse syndrome, and that the pattern jury instruction reflected that. Accordingly, she argued that to add elements of perfect self-defense to the imperfect self-defense provision of the voluntary manslaughter instruction would conflict with CJP § 10— 916.

In pertinent part, the court instructed the jury on self-defense as follows (the significant deviation from the pattern instruction is italicized): Self-defense is a complete defense to the crimes charged in this case and you are required to find the Defendant not guilty if all of the following four factors are present. First, that the Defendant was not the aggressor. Second, that the Defendant actually believed that she was in immediate and imminent danger of death or serious bodily harm. Third, that the Defendant’s belief was reasonable.

And fourth, that the Defendant used no more force than was reasonably necessary to defend herself in light of the threatened or actual force. In order to convict the Defendant of murder, the State must prove that self-defense does not apply in this case. This means that you are required to find the Defendant not guilty unless the State has persuaded you beyond a reasonable doubt that at least one of the four factors of a complete self-defense was absent. Even if you find that the Defendant did not act in complete self-defense, the Defendant may still have acted in partial self-defense.

If the Defendant actually believed that she was in immediate danger of death or serious bodily harm, even though a reasonable person would not have so believed, and the Defendant used no more force than was reasonably necessary to defend herself in light of ³¹⁷ the threatened or actual force, and that retreat from the threat was unsafe, and that she was not the aggressor, the Defendant’s actual, though unreasonable belief, is a partial self-defense and the verdict should be guilty of voluntary manslaughter rather than murder. In order to convict the Defendant of murder, the State must prove that the Defendant did not act in complete self-defense or partial self-defense. If the Defendant did act in complete self-defense, the verdict must be not guilty. If the Defendant did not act in complete self-defense, but did act in partial self-defense, the verdict must be guilty of voluntary manslaughter, not guilty of murder.

In assessing the Defendant’s claims of self-defense in this case, you may, but are not required to, consider why and how in light of any pattern of abuse that you find existed, the Defendant may have honestly and perhaps reasonably perceived an imminent threat of immediate danger. Appellate Contentions In her brief, Ms. Porter contends that the trial court erred in departing from the pattern jury instruction on imperfect self-defense and in providing an “overly-limited battered spouse syndrome instruction.” Ms. Porter raises three arguments in support of this contention. First, Ms. Porter asserts in her brief that, pursuant to CJP § 10-916(b), self-defense is available to a battered spouse, despite the fact that “some of the traditional hallmarks of self-defense are absent.” Ms. Porter contends that because the court departed from the pattern instruction, the jury was not able to consider the evidence of battered spouse syndrome and could not find that she was acting in imperfect self-defense. Second, Ms. Porter argues that the court’s instruction on battered spouse syndrome compounded the error because the instruction limited the jury’s consideration of the evidence of battered spouse syndrome to the imminence of the threat, and thus “precluded the jury from considering the effect of [the] abuse on Ms. Porter’s perception of who was the aggressor, the plausibility of retreat, and what constituted necessary force.” Third, Ms. ³¹⁸ Porter contends that the instruction rendered the evidence she presented in her defense meaningless.

The State concedes that the court erred in instructing the jury on imperfect self-defense. In its brief, the State identifies two incorrect statements of law in the court’s instruction: first, to claim imperfect self-defense the defendant’s use of force must have been reasonable, and second, that “the jury should apply an objective, rather than subjective, test to determine whether retreat from the threat was unsafe.” Nonetheless, the State contends that Ms. Porter was not entitled to an instruction on imperfect self-defense, and thus that her conviction should be affirmed. In its brief, the State makes several arguments in support of its position that the instruction, although incorrect, was not prejudicial to Ms. Porter. First, the State contends that Ms. Porter failed to identify “some evidence” as to each element required to make a claim of self-defense, and thus the instruction was not generated.

Second, the State argues that the battered spouse syndrome statute does not create an independent defense to murder, but, rather, enables the jury to conduct a more sophisticated analysis of the elements of self-defense, particularly the defendant’s state of mind and status as the aggressor. In the State’s view, however, the statute does not “confer non-aggressor status upon a battered spouse who hires a third party to kill her partner.” Finally, the State contends that the doctrine of self-defense, even self-defense in battered spouse syndrome cases, should not be extended to cases involving murder for hire. Relatedly, the State asserts that even if we do extend imperfect self-defense to murder for hire, Ms. Porter was not entitled to an instruction on imperfect self-defense because she failed to point to “some evidence” that “at the time and place of the crime, she actually believed that she was in immediate and imminent danger of death or serious bodily harm” and that “although she appeared to be the aggressor, she in fact was not.” 13 ³¹⁹ Analysis As we recounted above, the State has identified two errors of law in the imperfect self-defense instruction provided to the jury. According to the State, the instruction “required the jury to reject [appellant’s] self-defense claim if [appellant] used more force than was reasonably necessary to defend herself in light of the threatened or actual force, and if retreat from the threat was not unsafe.” We are not bound by the State’s concession.

See, e.g., Greenstreet v. State, 392 Md. 652, 667 , 898 A.2d 961 (2006) (“[A] party may not concede a point of law to the exclusion of appellate review, as necessary and proper to decide the case.”); Crown Oil & Wax v. Glen Construction, 320 Md. 546, 567 , 578 A.2d 1184 (1990). Nonetheless, we agree with the State. In order to successfully invoke the defense of imperfect self-defense, a defendant need not demonstrate that he used objectively reasonable force. See State v. Marr, 362 Md. 467, 473 , 765 A.2d 645 (2001) (“The prospect of ‘imperfect’ self-defense arises when the actual, subjective belief on the part of the accused that he/she is in apparent imminent danger of death or serious bodily harm from the assailant, requiring the use of deadly force, is not an objectively reasonable belief.

What may be unreasonable is the perception of imminent danger or the belief that the force employed is necessary to meet the danger, or both.”). To the extent that the court’s instruction suggested that the jury should apply an objectively reasonable standard to decide whether Ms. Porter could safely retreat, the instruction was also erroneous. It is the defendant’s “actual, subjective belief ... that he/she [wa]s in apparent imminent danger of death or serious bodily harm from the assailant,” that is relevant. Id.

That the instruction was erro ³²⁰ neous is not, according to the State, the end of the matter. We now turn to the State’s harmless error argument. Except in cases of structural error, see, e.g., State v. Waine, 444 Md. 692, 705 , 122 A.3d 294 (2015), an error in a jury instruction is not grounds for reversal if the error is “harmless.” Nottingham v. State, 227 Md.App. 592, 610 , 135 A.3d 541 (2016). In Robinson v. State, the Court of Appeals explained: When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and a reversal is mandated.

Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of— whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict. In performing a harmless error analysis, we are not to find facts or weigh evidence. Instead, what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury to determine. Once it has been determined that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury’s verdict.

The reviewing court must exclude that possibility beyond a reasonable doubt. To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record. The harmless error rule has been and should be carefully circumscribed. Harmless error review is the standard of review most favorable to the defendant short of an automatic reversal. 436 Md. 560, 563 , 84 A.3d 69 (2014) (quotation marks, citations and ellipses omitted).

The State argues that the instructional errors were harmless because the concept of self-defense—whether perfect ³²¹ or imperfect and regardless of whether the defendant asserts that he or she suffered from battered spouse syndrome— should not have been presented to the jury through the court’s instructions because Mr. Porter was not killed by Ms. Porter but by a hired assassin who was present at the gas station on the fatal morning solely through a conspiracy orchestrated by her. Therefore, according to the State, any error in the self-defense instruction is harmless. The State relies on Evans v. State, 28 Md.App. 640, 669 , 349 A.2d 300 (1975) (“Erroneous instructions on non-issues are self-evidently immaterial.”). As Judge Moylan explained for this Court in Evans , When a defendant has ... no right even to take an issue before the jury, any instruction on such an issue (erroneous or not) is more than he is entitled to.

When any consideration of an issue by the fact finder (court or jury) would properly be totally foreclosed, the defendant cannot complain that the issue was submitted under an unduly heavy burden upon him, since he has, even in that event, received more than he deserved. Id. at 668 , 349 A.2d 300 . 14 Whether an instruction on self-defense is generated in a case involving battered spouse syndrome, where the battered spouse contracts for the murder of the abusive spouse, is an issue of first impression in Maryland. The only two Maryland cases that address the interaction of self-defense and battered spouse syndrome are State v. Smullen and State v. Peterson. We will look to the reasoning of the Court of Appeals and this Court for guidance in resolving the one before us. ³²² In Smullen , the defendant, a teenager, “crept up behind [his father],” Warren, as he sat on the living room sofa, and repeatedly stabbed him with a butcher’s knife. 380 Md. at 240 , 844 A.2d 429 .

At trial, Smullen pursued perfect and imperfect self-defense. Id. at 244 , 844 A.2d 429 . He sought to support his claim of self-defense with evidence that his father had been physically abusive and that he suffered from battered child syndrome. Id. at 238, 244-47 , 844 A.2d 429 .

The trial court excluded the testimony concerning the alleged physical abuse, on the ground that “there was no factual predicate for a self-defense argument,” and the testimony regarding Smullen’s psychological profile, on the ground that CJP § 10-916’s provision for “co-habitants” did not include children. Id. at 244-47, 844 A.2d 429 . On appeal, the Court of Appeals first held “that the battered spouse syndrome, as recognized in § 10-916, applies as well to battered children.” Id. at 268, 844 A.2d 429 . 15 However, the Court concluded that “there was no evidentiary basis” to apply the battered child syndrome in Smullen’s case. Id. at 274 , 844 A.2d 429 . 16 Id. at 271 , 844 A.2d 429 .

In reaching these conclusions, the Court undertook a comprehensive analysis of the law of self-defense and battered spouse syndrome, and how the two operate together. Among its observations, the Court noted that the cases in which evidence of battered spouse syndrome has been introduced to support a claim of self-defense are generally categorized as being “confrontational” or “non-confrontational.” Id. ³²³ at 257, 844 A.2d 429 . As the names suggest, “confrontational” cases are those in which “the killing occurs when the defendant uses deadly force in response to a contemporaneous physical attack,” and “non-confrontational” cases are those in which “the defendant kills her partner while he is sleeping or is otherwise distracted or incapacitated.” Id. The Court explained that, in general, introduction of battered spouse syndrome evidence “proved less difficult” in confrontational cases because the reasonableness of the defendant’s belief that she was “in imminent threat of death or serious bodily harm” was not at issue.

Id. at 257-58 , 844 A.2d 429 . In non-confrontational cases, however, courts have been more hesitant to admit syndrome evidence because the subjective reasonableness element of self-defense is directly at issue where, at the moment of the -killing, “the [victim] was not ... directly confronting [the defendant] and may ... even have been sleeping or completely passive at the time.” Id. at 258 , 844 A.2d 429 . The Court also noted that there is, at least arguably, a “third category—that of contract killing.” In such cases, “ ‘courts have unanimously refused to permit instructions to the jury on self-defense claims[.]’” 380 Md. at 274 n.5, 844 A.2d 429 (quoting John W. Roberts, Between the Heat of Passion and Cold Blood: Battered Woman’s Syndrome as an Excuse for Self-Defense in Non-Confrontational Homicides, 27 Law & Psychol. Rev. 135, 144 (2003)).

This Court addressed battered spouse syndrome and self-defense in the non-confrontational setting in State v. Peterson, a post-conviction relief case. 17 Peterson shot and killed her husband “as he was sitting in a chair in their living room, watching television.” 158 Md.App. 558, 565 , 857 A.2d 1132 (2004). There was evidence that Peterson had been the victim of severe psychological and physical abuse throughout her twenty-six and a-half-year marriage. Id. at 567-68 , 857 A.2d 1132 . ³²⁴ The issue before us was whether the post-conviction court erred in granting the petition on the grounds of ineffective assistance of counsel, where counsel “either failed to investigate battered spouse syndrome or abandoned evidence of the syndrome in putting on a defense.” Id. at 564 , 857 A.2d 1132 . In affirming the judgment of the post-conviction court, we explained that it was apparent that trial counsel did not understand that, in light of the facts, the “defense of imperfect self-defense only could be presented to the jury upon the introduction of evidence of battered spouse syndrome.

Id. at 597 , 857 A.2d 1132 , And, thus, “[w]hen trial counsel failed to introduce the evidence, the defense was kept from the jury, in a ruling that was legally correct.” Id. We concluded that imperfect self-defense may be generated in a non-confrontation case, stating: If trial counsel had introduced factual and expert opinion evidence of battered spouse syndrome, which was available and which he knew or should have known was available, the defense of imperfect self-defense would have been generated, and would have been presented to the jury to decide. It is reasonably probable that, if that defense had been decided by the jury, the result of the proceeding would have been different. Id.

This brings us back to the current appeal. Read together, Smullen and Peterson instruct that, with a proper evidentiary basis, the battered spouse syndrome is relevant to the state of mind elements for self-defense and imperfect self-defense in certain types of confrontational and non-confrontational homicides. However, these cases, as well as Banks v. State, make it clear that the Battered Spouse Syndrome Statute does not establish a new defense but rather permits “a more careful and sophisticated look” at the state of mind elements of self-defense: “[t]he syndrome, when applied in a proper setting, can thus... support both the subjective honesty of the defendant’s perception of imminent harm and the objective reasonableness of such a perception.” Smullen, 380 Md. at 250-51 , 844 A.2d 429 (emphasis added). Neither Smullen nor Peterson ³²⁵ addressed murder for hire.

However, courts from other jurisdictions have done so. Murder for hire cases fall into two categories: cases in which courts permit evidence of the battered spouse syndrome, but refuse to give an instruction on self-defense; and second, cases in which courts refuse to admit evidence of the battered spouse syndrome. We shall address each in turn. Where the courts have concluded that defendants, who contracted for the murder of their spouses, were not entitled to an instruction on self-defense, they have reasoned that the defendants failed to present evidence that, at the time of the killing, there were in immediate or imminent danger.

People v. Yaklich, 833 P.2d 758, 763 (Colo. App. 1991); State v. Leaphart, 673 S.W.2d 870, 873 (Tenn. Crim. App. 1983).

The facts in Yaklich are analogous to those in the case before us. Yaklich’s husband was shot and killed in the driveway to his home, while the defendant was asleep inside the house. Id. at 759 . “After her