Roach v. State

RAKER, Judge. Petitioner, Andre Ricardo Roach, was convicted by a jury of first degree murder and the use of a handgun in the commission of a crime of violence. The issue we must decide in this case is whether Petitioner was entitled to a voluntary manslaughter instruction based upon a theory of imperfect self-defense. We shall hold that he was so entitled. ⁴²² I. Donald Wayne Bnnn was shot and killed on February 16, 1997 in the parking lot of a liquor store located in Prince George’s County.

Bunn, and a friend of his named Reginald Bowen, went to the liquor store to buy some beer. As they were leaving the store, Petitioner and three of his friends were outside in a car. Petitioner and Bowen began arguing over a small debt that Petitioner claimed Bowen owed to him. The verbal argument escalated into a fist fight, with Bowen’s friend Bunn entering the fight to assist him, and Petitioner’s friends joining in to assist him.

Bowen left the melee and ran into the liquor store to get help. He told the security guard that Petitioner had a gun. During the altercation, Bunn was shot twice. He died as a result of his wounds.

The jury heard conflicting details about the shooting. The State introduced four written statements Petitioner gave to the police on April 24, 1997, the night he was arrested. In his first statement, Petitioner denied any knowledge of who shot Bunn. Petitioner said that Reginald Bowen, to whom he referred as “Reggie,” owed him $5.00, and that the fight started when Reggie hit him, knocked him down and pinned him to the ground.

Reggie let him go when they heard the gun shots from across the street. Petitioner denied having a gun. In his second statement, Petitioner wrote an apology to Bunn’s family. He said, “I am very sorry this had to happen but I was a juvenile at the time and I was scared just like anybody would of been.... ” In his third statement, Petitioner told the police that he and some friends went to the liquor store in a car.

While they were waiting in the parking lot, he and Reggie had some words over the $5.00 debt. Reggie tried to hit him and they began to fight. A friend of Petitioner’s jumped out of the car to help Petitioner. Then, Reggie’s friend (Bunn), joining the fight to aid Reggie, came straight to me and start[ed] beating [me] to the ground so I seen the gun on the ground and Reggie[’s] friend seen the gun so I thought that he was going to kill ⁴²³ me right there on the scene but I got the gun from him and we was fighting for the gun until somebody said the Police is in the store so he didn’t care if the Police was in the store so I hit him with the gun and he startled] going across the street me and him so we start fighting again and because of him been drunk he fell over the curb and tried to take the gun and I shot him but I didn’t want to because I thought he was going to tried to do something to me....

When I picked up the gun, Reggie’s friend grabbed me. Vito yelled “hit him!” He rushed me. I hit him with the gun. We kept struggling.

We both continued struggling. We were across the street (George Palmer Highway). He fell at the curb in the parking lot of the Belle Haven Apartments. He tried to get up.

I shot him. As to who owned the gun, initially Petitioner told the police that the gun belonged to his friend, Moe, and that Moe had dropped it during the fight. Later in the same statement he admitted that the gun was his. Petitioner’s fourth statement did not address the details surrounding the shooting.

Among other things, he described the person he shot and his disposition of the gun he used in the shooting. At trial, Petitioner testified that while he was parked at the liquor store with his friends, he got out of the car and was standing in the parking lot when he saw Bowen. They began to argue over an alleged $5.00 debt. Bowen struck the first blow.

Bunn, whom Petitioner described as “way bigger,” jumped atop Petitioner and wrestled him to the ground. Petitioner’s friend Perry jumped out of the car to assist Petitioner. Bowen and Perry began to fight, leaving Petitioner and Bunn fighting each other. Bunn had Petitioner on the ground, choking him, when a gun fell out of Bunn’s waistband.

Bunn went for the gun, releasing his hold on Petitioner, enabling Petitioner to get up and run across the street in an effort to get away. Bunn chased Petitioner and caught up with him on the other side of the street. Bunn grabbed him from behind, and as Petitioner attempted to grab the gun from Bunn’s hand, they fell over the curb. That is when the first shot was fired.

Petitioner’s hand was atop Bunn’s hand ⁴²⁴ that held the gun, and when Petitioner pulled back, Bunn lunged and the gun went off a second time. Petitioner testified that after the second shot, he picked up the gun and ran away, unsure whether Bunn had been hit. At the close of all of the evidence, Petitioner moved for judgment of acquittal. He argued to the trial court that the gun went off “accidentally, or whatever, and ... that might be an imperfect defense. ...

There has been no showing of malice.” (Emphasis added.) The trial judge denied the motion. The court and counsel for both parties then discussed proposed jury instructions: THE COURT: I have prepared instructions. I don’t believe that manslaughter is necessarily an option in this because this is either self-defense or it is murder. [DEF. ATT’Y]: If the jury does not believe that it was self-defense, if they believe that the weapon went off accidentally, and that—and/or that the defendant was defending himself, then I believe it does come into play with manslaughter, if they believe that there was absence, if they believe that he actually did the killing, then they would have a choice.

THE COURT: Would it be hot killing, killing in hot blood? In other words, in order for it to be manslaughter, there are certain things that must exist. And first and foremost, it must be a killing in a heat of passion.... It wasn’t a heat of passion.[ 1 ] It was simply him running away and being caught up with by the decedent in a struggle over a gun which went off. [DEF.

ATT’Y]: Well, then, if that is the case, then you have to give an accident, not only self-defense, but you also have to give an accident. THE COURT: I give self-defense because it is generated here. ⁴²⁵ After a discussion in chambers, which was neither recorded nor summarized for the record, the judge instructed the jury on first and second degree murder, but not on manslaughter, and on perfect self-defense, but not on imperfect self-defense. Defense counsel excepted to the court’s failure to instruct on manslaughter. The State excepted to those portions of the first and second degree murder instruction informing the jury that in order to convict, the State must prove that there were no mitigating circumstances.

The court agreed with the State, and re-instructed the jury on first and second degree murder, this time omitting any reference to mitigating circumstances. Defense counsel objected. As mentioned earlier, the jury convicted Petitioner of first degree murder and the use of a handgun in the commission of a crime of violence. The court sentenced him to life imprisonment on the murder count and twenty years consecutive on the handgun count.

Petitioner noted a timely appeal to the Court of Special Appeals. That court affirmed in an unreported opinion, reasoning that the trial court correctly refused to instruct the jury on manslaughter by way of imperfect self-defense because there was no evidence tending to establish this defense. In explaining the appropriateness of the trial court’s refusal, the intermediate appellate court stated, “[Petitioner] could ... not have believed that he was using a level of force necessary to defend himself by shooting the victim, because, as he testified, he did not know the victim had been shot.” 2 We granted certiorari to review whether the trial ⁴²⁶ court erred in refusing to give tfye jury an instruction on manslaughter based on a theory of imperfect self-defense.

II

Petitioner contends that the trial court erred in refusing to propound an instruction to the jury on voluntary manslaughter. In particular, he maintains that because the evidence generated the issue of imperfect self-defense, he was entitled to an instruction on manslaughter under such a theory, which if believed by the jury would have mitigated the murder charge to manslaughter. The State concedes that the defense presented sufficient evidence to generate an instruction on perfect self-defense. 3 The State argues, however, that Petitioner presented insufficient evidence to generate the issue of imperfect self- ⁴²⁷ defense. The State contends, first, that the record is devoid of any indication that Petitioner believed he needed to use force, much less deadly force, to defend himself and, second, that Petitioner was the aggressor.

The rules of trial procedure addressing instructions to the jury, as promulgated by this Court, provide, in pertinent part, as follows: The 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. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. Maryland Rule 4-325(c).

It is clear that the trial judge is required to “give a requested instruction which correctly states the applicable law and which has not been fairly covered in instructions.” Lansdowne v. State, 287 Md. 232, 239 , 412 ⁴²⁸ A.2d 88, 91 (1980). Whether an instruction must be given depends upon whether there is any evidence in the case that supports the instruction. See, e.g., Binnie v. State, 321 Md. 572, 582 , 583 A.2d 1037, 1041 (1991) (restating that “it is incumbent upon the court, ... when requested in a criminal case, to give an ... instruction on every essential question or point of law supported by evidence.” (quoting Smith v. State, 302 Md. 175, 179 , 486 A.2d 196, 198 (1985) (in turn quoting Bruce v. State, 218 Md. 87, 97 , 145 A.2d 428, 433 (1958)))). Whether the evidence is sufficient to generate the desired instruction in the first instance is a question of law for the judge.

See Dykes v. State, 319 Md. 206, 221 , 571 A.2d 1251, 1259 (1990). “The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.” Dishman v. State, 352 Md. 279, 292 , 721 A.2d 699, 705 (1998). In Dykes , we discussed the “some evidence” test in the context of the trial court’s refusal to give an instruction on imperfect self-defense. We noted: 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 evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self-defense, the defendant has met his burden. Then the baton is passed to the State.

It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self-defense. Dykes, 319 Md. at 216-17 , 571 A.2d at 1257 . A trial court has broad discretion in determining which instructions to give the jury and, again, need give a ⁴²⁹ requested instruction only where the issue has been generated by the evidence adduced at trial. See State v. Martin, 329 Md. 351, 356 , 619 A.2d 992, 994 (1993).

The trial judge is not required to instruct on a lesser included offense unless there is evidence presented at trial that would give the jury a rational basis to conclude that the defendant was guilty of the lesser offense, but not guilty of the greater offense. See State v. Bowers, 349 Md. 710, 722 , 709 A.2d 1255, 1260 (1998). Finally, it is well settled that an indictment charging common-law murder may sustain a conviction for first degree murder, second degree murder or manslaughter. See, e.g., Hardy v. State, 301 Md. 124, 138 , 482 A.2d 474, 482 (1984).

The question in the present case then becomes whether there was some evidence that would have entitled Petitioner to a manslaughter instruction. Under the indictment charging Petitioner with first degree premeditated murder, the jury had four choices. It could have acquitted Petitioner of all charges; or it could have convicted him of murder in the first degree, murder in the second degree, or manslaughter. Petitioner was convicted of murder in the first degree.

A killing is justifiable or excusable if committed in self-defense. Perfect self-defense is a complete defense and results in the acquittal of the defendant. See State v. Faulkner, 301 Md. 482, 485 , 483 A.2d 759, 761 (1984). In Faulkner we reiterated what elements are required “to justify a homicide, other than felony murder, on the basis of self defense.” Id., 483 A.2d at 761 .

Judge Cole, writing for the Court, stated them in the following terms: (1) The accused must have had reasonable grounds to believe himself [or herself] in apparent imminent or immediate danger of death or serious bodily harm from his [or her] assailant or potential assailant; (2) The accused must have in fact believed himself [or herself] in this danger; (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and ⁴³⁰ (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 at 761 . See also Jones v. State, 357 Md. 408, 422 , 745 A.2d 396, 403 (2000). We then considered the scenario where a defendant, not the aggressor, held an actual and honest belief that he or she was in apparent imminent or immediate danger of death or serious bodily harm from an assailant or potential assailant, and yet that belief was unreasonable.

Under such circumstances, we recognized Maryland law to include the doctrine of imperfect self-defense. See Faulkner, 301 Md. at 499-500 , 483 A.2d at 768-69 . 4 The chief characteristic of imperfect