Redcross v. State

THIEME, Judge. A jury in the Circuit Court for Baltimore City convicted William Redcross, Jr., of first degree murder and first degree assault. On appeal, he raises three issues for our consideration, all of which pertain to jury instructions: 1. Did the trial court give an erroneous instruction on the duty to retreat when the appellant asserted that he had acted in selfidefense? 2.

Was the trial court’s failure to instruct the jury on heat of passion manslaughter plain error? 8. Did the trial court give an erroneous instruction in response to a jury note requesting a definition of “mitigating circumstances?” A narrow, but very important, question regarding self-defense is raised in this case: Was it reversible error to fail to instruct ³²³ the jury on the appellant’s awareness of an avenue of retreat? We agree with the appellant that the trial court’s instruction regarding self-defense was deficient and will reverse the judgment of the trial court and remand for a new trial. We do not reach the subsequent issues raised by the appellant.

Factual Background The incident in question appears largely to have been the result of the appellant’s jealous rage at his former girlfriend, Charisse Clough. The appellant and Ms. Clough had been involved for some fourteen months before Ms. Clough initiated a break-up in late October of 1996. According to Ms. Clough, the appellant did not take well the news of her desire to end the relationship, and on 26 October 1996, when the appellant and Ms. Clough were at her house dividing property obtained during the relationship, Walter Spencer, the victim, telephoned Ms. Clough. While Ms. Clough was speaking to the victim, the appellant hollered to the victim to leave Ms. Clough alone and further threatened to kill him or “put him in Shock Trauma.” After the telephone conversation ended, the appellant again threatened the victim as well as Ms. Clough.

The following evening, Ms. Clough went to Ziggy’s Bar and Restaurant, accompanied by her sister, Sandy Wallett, Damien Smith, and the victim. Ms. Clough informed one of the bouncers at the bar that she had been having problems with the appellant, and she requested that the bouncer notify her if the appellant arrived at the bar. Some time later she was informed that the appellant was outside. 1 After approximately forty-five minutes, Ms. Clough and her friends left Ziggy’s and encountered the appellant outside of the bar. It is at this point that the testimony at trial diverged, describing two very different versions of what ensued.

Ms. Clough, her sister, Damien Smith, and bouncers Alexander Gaither and Ronnie Minter testified as to one version of events. According to them, when the group of four exited the ³²⁴ bar they encountered the appellant, who was yelling at the group. The four then walked over to Ms. Wallett’s vehicle and got inside. The appellant followed and, still yelling, kicked the car door and pulled out a knife, stating that he “was gonna send somebody to Shock Trauma tonight.” After the appellant waived the knife at Ms. Clough and argued with her, Damien Smith exited the vehicle.

He walked toward the appellant swinging a belt provided by Mr. Gaither in an apparent attempt to dislodge the knife from the appellant’s grasp as the appellant simultaneously approached Damien Smith. The victim, who had also exited the vehicle, approached the appellant from behind while the confrontation between the appellant and Damien Smith was taking place. It was then that the appellant turned and fatally struck the victim in the chest with the knife. After the stabbing, Mr. Minter struck the appéllant across the back with a bar stool as the appellant approached the owner of the bar with his knife.

When the owner pulled out a gun, the appellant discarded the knife and fled. The version of events relayed by the appellant at trial was quite different from that of the other witnesses. According to the appellant, when he first arrived at Ziggy’s he noticed Ms. Wallett’s vehicle. He admitted to carrying the knife with him as he exited his vehicle, but only because a previous phone conversation with the victim had placed him in fear for his life. 2 He became upset when he was denied entrance to the bar, but the appellant maintained that he did not want to cause any trouble.

As the appellant began to walk away he heard Ms. Wallett call to him. At that point, he saw Ms. Clough, accompanied by the victim, and he told the victim that he and Ms. Clough were still seeing each other and that if the victim was the same man that he had previously spoken to on the telephone he did not want any trouble. When the appellant and Ms. Clough began to argue, Mr. Gaither rushed ³²⁵ toward the appellant in a “threatening manner.” The appellant became angry and walked over to the vehicle occupied by Ms. Clough and her companions, striking the window and kicking the door. The appellant observed Damien Smith exit the vehicle, and the appellant attempted to retreat toward his own vehicle but was stopped by a blow to the back.

When he turned around he saw a man with a stool in his hand. The appellant also saw Damien Smith coming toward him and the victim behind him. Damien Smith then began to strike the appellant in the face with the belt. As the appellant further testified: And when it [the stool] hit me it like almost knocked me down.

Like I said, I thought I’d ran into a car that was coming up through there or something, and I glanced over my shoulder and all I could see was this guy standing there and he had a stool in his hand. And then I, it was like it happened so fast. I glanced back at Mr. Smith and he was like walking towards me, you know, cause I wasn’t two foot from the car, you know, we was just that close together. And then I glance over here.

It was just like a rhythm thing, because I was standing right by the car. The car is here, and this, it, somebody coming around this side of the car, which I later learned was Mr. Spencer. I could see Mr. Spencer and he had something black in his hand. I couldn’t see what it was because of the light in there....

Next thing I know, I glance, I look and he’s maybe like a foot from me. And I had my arm up like this, cause I was protecting my face from getting hit with the belt. And then next thing I know, just glancing. I just pivoted like, and went like that.

And I seen, I seen Mr. Spencer turn sideways and back up. The appellant further maintained that his turning around and stabbing the victim was “just like a reflex pivot” and his wielding the knife at the victim was “a defensive move just to try to back him off.” ³²⁶ The jury obviously chose to believe the testimony of Ms. Clough and her companions over that of the appellant. After he was convicted of first degree murder of the victim and first degree assault of Damien Smith, the trial court sentenced the appellant to life imprisonment plus twenty-five years consecutive. This timely appeal followed.

Standard of Review Maryland Rule 4-325(c) provides that a trial 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.” When the trial court does so instruct the jury, it has a duty “to provide an accurate and complete statement of the law.” Gainer v. State, 40 Md.App. 382, 392 , 391 A.2d 856 (1978) (emphasis supplied). We, as a reviewing court, must determine whether “the requested instruction was a correct statement of the law; whether it was applicable under the facts of the case; and whether it was fairly covered in the instructions actually given.” Gunning v. State, 347 Md. 332, 348 , 701 A.2d 374 (1997) (quoting Grandison v. State, 341 Md. 175, 211 , 670 A.2d 398 (1995), cert. denied, — U.S. —, 117 S.Ct. 581 , 136 L.Ed.2d 512 (1996)); Ellison v. State, 104 Md.App. 655, 660 , 657 A.2d 402 , cert. denied, 340 Md. 216 , 665 A.2d 1058 (1995); Sangster v. State, 70 Md.App. 456, 473 , 521 A.2d 811 (1987), aff'd, 312 Md. 560 , 541 A.2d 637 (1988). ' In making that determination, we view the instructions as a whole and not in isolation or out of context. Brooks v. State, 104 Md.App. 203, 213 , 655 A.2d 1311 , cert. denied, 339 Md. 641 , 664 A.2d 885 (1995). Instruction on Self-Defense At trial, the appellant maintained that he acted in self-defense when stabbing the victim.

Thus, in its instructions to the jury, the trial court included the following: Self-defense, as I’ve just told you, is a complete defense and you would be required to find the Defendant not guilty if all of the following five factors are present. First, the Defendant was not the aggressor or, although the Defen ³²⁷ dant was the initial aggressor, he did not raise the fight to the deadly force level; second, that the Defendant actually believed that he was in immediate and imminent danger of death or serious bodily harm; third, that the Defendant’s belief was reasonable; fourth, that the Defendant used no more force than was reasonably necessary to defend himself in light of the threatened or actual force and, fifth, that the Defendant had a duty, when defending himself outside of his home, to retreat or avoid danger if the means to do so were within his power and consistent with his safety. However, where peril is so imminent that he cannot retreat safely, he has a right to stand his ground and defend himself. (Emphasis supplied.) The appellant takes issue only with the italicized portion of the above instruction.

Specifically, he claims that this language in the instruction constituted reversible error because “it did not adequately instruct the jury on a crucial factor in this case, Appellant’s awareness of an avenue of safe retreat.” At trial, defense counsel excepted to the instruction given by the trial court and requested, citing the criminal pattern jury instructions, 3 that the jury specifically be instructed as to the appellant’s awareness of an avenue of retreat. The trial court, although noting defense counsel’s exception for the record, did not include the requested modification in its instructions to the jury. In order for an accused successfully to claim self-defense in the case of a homicide, the following elements must be present: (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; ³²⁸ (2) The accused must have in fact believed himself in this