State v. Marr

WILNER, Judge. Respondent, Nathaniel Marr, was convicted in the Circuit Court for Prince George’s County of the first degree premeditated murder of Arthur Carroll, the first degree assault of Jimmy Abass, and two counts of the use of a handgun in the commission of a crime of violence, for which he was given substantial consecutive sentences. The killing and the assault occurred on the evening of December 2, 1998, when Marr and a confederate, Curtis Alston, approached the rear of a waiting taxicab and opened fire on Carroll, who was about to enter the cab. Carroll was killed and Abass, the driver of the cab, was wounded.

That Marr shot Carroll and Abass was never in dispute. Abass, by all accounts, was an innocent bystander who was simply in the wrong place at the wrong time. The shooting of Carroll _ stemmed from an incident that occurred three days earlier, on November 29, when Carroll, Kevin Jackson, and Jerome Wright went to Marr’s home with the intent to rob him. Marr was not at home, but the three came upon Marr’s cousin, Ronald Muse, with whom Marr lived.

In the course of searching for drugs and money, one or more of the trio shot and killed Muse. Marr later went looking for Carroll and Jackson, allegedly to inquire about their involvement in the killing of Muse. On December 2, he caught up with Carroll; on December 4, he found Jackson, who was luckier than Carroll and managed to escape in a hail of gunfire. Marr was charged in both incidents.

His defense in both was self-defense. That defense, in this case, came through ⁴⁷¹ statements he gave to the police upon his arrest, as Marr did not testify. In his first statement, which was an oral one, he said nothing about self-defense. He told the officer that, believing that Carroll was responsible for his cousin’s death, he and Alston went to Carroll’s home, in a stolen van, “to talk to him about that,” that Marr was armed with a Mac 11 semiautomatic machine pistol, and that, when he saw Carroll come out of his home and approach a waiting cab, he fired; one of the shots, he acknowledged, went into the cab.

In an ensuing written statement, he claimed that he was both enraged and terrified when he learned about the earlier episode and that he went to see Carroll “to see what his feelings were and to see if things could be resolved, and if he would confess to the murder of my cousin.” He and Alston were armed, he said, “for our protection.” Just as they arrived, Carroll was about to enter a cab, and, apparently startled to see them, he “grabbed at his waist as if to draw a weapon.” In fear of their lives, he and Alston opened fire. In response to this evidence, which, in the Jackson case, was substantially similar, the trial court, in both cases, instructed the jury on the defenses of “perfect” and “imperfect” self-defense, using the language suggested in § 4:17.2 of the Maryland Criminal Pattern Jury Instructions, published by the Maryland State Bar Association. In both cases, Marr asked for two additional instructions, as follows: “In determining whether the defendant’s conduct was reasonable under the circumstances, you should judge his conduct by the facts as you believe they appeared to him. A belief which may be unreasonable to a calm mind may be actually and reasonably held under the circumstances as they appeared to the defendant at the time of the incident.” In both cases, the trial court refused to give the additional .instructions, and, in both cases, Marr appealed from the ensuing convictions, claiming, among other things, error in that refusal.

In this case, the Court of Special Appeals applied its ruling in Rajnic v. State, 106 Md.App. 286 , 664 A.2d 432 (1995) and, in an unreported opinion, held that the ⁴⁷² refusal did constitute reversible error. We granted the State’s petition for certiorari to determine whether the Court of Special Appeals erred in that judgment. In the second case, in a reported opinion filed five months later, the intermediate appellate court held the opposite — that the failure to give the additional instructions did not constitute reversible error. See Marr v. State, 134 Md.App. 152, 180-81, 184-87 , 759 A.2d 327, 342, 344-46 (2000).

Marr filed a petition for certiorari in that case, which we have held pending our decision in this case. We shall reverse the Court of Special Appeals in this case and, by separate order, deny Marr’s petition in the other case. DISCUSSION Maryland recognizes two varieties of self-defense — the traditional one, which we have sometimes termed “perfect” or “complete” self-defense, and a lesser form, sometimes called “imperfect” or “partial” self-defense. Although “perfect” self-defense is universally recognized in the United States, not all of our courts recognize the lesser variety as a separately defined defense, and there is no universal agreement on the precise elements of either variety.

We shall focus, as we must, on the current state of the Maryland law, but, as we consider some of our earlier cases and cases from other States, we need to take into account the overall context in which those cases were decided. We defined the defenses of “perfect” and “imperfect” self-defense, and the relationship between them, in State v. Faulkner, 301 Md. 482 , 483 A.2d 759 (1984) and Dykes v. State, 319 Md. 206 , 571 A.2d 1251 (1990). See also State v. Martin, 329 Md. 351, 357-58 , 619 A.2d 992, 995 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993); Jones v. State, 357 Md. 408, 422-23 , 745 A.2d 396, 403-04 (2000); and Roach v. State, 358 Md. 418, 429-32 , 749 A.2d 787, 793-94 (2000). We noted that “perfect” or traditional self-defense, is a complete defense to a charge of criminal homicide — murder or manslaughter — and, if credited by the trier of fact, results ⁴⁷³ in an acquittal.

The elements, or requirements, of that defense, as we enumerated them in Faulkner and Dykes , are: “(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.” Faulkner, 301 Md. at 485-86 , 483 A.2d at 761 ; Dykes, 319 Md. at 211 , 571 A.2d at 1254 . In Faulkner , we first adopted the concept of “imperfect” self-defense, as articulated in that case by the Court of Special Appeals. See Faulkner v. State, 54 Md.App. 113 , 458 A.2d 81 (1983). 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. As we said in Faulkner, quoting from the Court of Special Appeals opinion: “Perfect self-defense requires not only that the killer subjectively believed that his actions were necessary for his safety but, objectively, that a reasonable man would so consider them. Imperfect self-defense, however, requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so.” See State v. Faulkner, 301 Md. at 500 , 483 A.2d at 768 -69 (quoting Faulkner v. State, 54 Md.App. at 115 , 458 A.2d at 81 ⁴⁷⁴ (footnote omitted)). See also State v. Martin, supra, 329 Md. at 357-58, 619 A.2d at 995 .

We added in Burch v. State, 346 Md. 253, 283 , 696 A.2d 443, 458 , cert. denied, 522 U.S. 1001 , 118 S.Ct. 571 , 139 L.Ed.2d 410 (1997), that “the only substantive difference between the two doctrines, other than their consequences, is that, in perfect self-defense, the defendant’s belief that he was in immediate danger of death of [sic] serious bodily harm or that the force he used was necessary must be objectively reasonable. In all other respects, the elements of the two doctrines are the same.” Unlike its “perfect” cousin, “imperfect” self-defense, if credited, does not result in an acquittal, but merely serves to negate the element of malice required for a conviction of murder and thus reduces the offense to manslaughter. As we explained in Faulkner and repeated in Dykes , 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, absent malice, cannot be convicted of murder. Nonetheless, because the killing was committed without justification or excuse, the defendant is not entitled to full exoneration and would be guilty of voluntary manslaughter.

Faulkner, 301 Md. at 501 , 483 A.2d at 769 ; Dykes, 319 Md. at 213 , 571 A.2d at 1255 . See also Roach v. State, supra, 358 Md. at 430-31 , 749 A.2d at 793-94 . In adopting and defining the doctrine of “imperfect” self-defense in Faulkner, we noted that, despite its early antecedents in England, it was regarded by some as being “a recent theory not far advanced,” that it had not been universally adopted, and that, where it had been accepted, it had been “subjected to different interpretations.” Faulkner, 301 Md. at 486 , 483 A.2d at 762 . Some courts, we observed, applied the doctrine only where “perfect” self-defense would apply but for the fact that the defendant initiated the confrontation at the non-deadly level.

Other courts found “imperfect” self-defense applicable when the defendant committed the killing because ⁴⁷⁵ of an honest, though unreasonable belief of the imminence of death or serious bodily harm, and still others applied it when the defendant satisfied all other aspects of “perfect” self-defense but used unreasonable force in defending himself. We found the middle approach the most appropriate, declaring as persuasive the reasoning given in People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84 , 603 P.2d 1, 7 (1979): “[T]he state has no legitimate interest in obtaining a conviction of murder when, by virtue of defendant’s unreasonable belief, the jury entertains a reasonable doubt whether defendant harbored malice. Likewise, a defendant has no legitimate interest in complete exculpation when acting outside the range of reasonable behavior. The vice is the element of malice; in its absence the level of guilt must decline.” The definitional pronouncements from these cases, in a somewhat reordered sequence, have been carefully formulated into the pattern jury instruction, drafted by the Maryland State Bar Association’s Standing Committee on Pattern Jury Instructions, that was given in this case.

The jury was told that Marr should be acquitted, on a theory of self-defense, if the jury found that (1) he was not the aggressor or, if the initial aggressor, did not raise the fight to the deadly force level, (2) he “actually believed” that he was in immediate and imminent danger of death or serious bodily harm, (3) his belief “was reasonable,” and (4) he used no more force than was reasonably necessary. The court instructed further that, even if the jury was unable to find each of those four elements, it could find that Marr acted in “partial self-defense” if he “actually believed he was in immediate and imminent danger of death or serious bodily harm, even though a reasonable person would not have so believed,” and, if it found that to be the case, the crime would be manslaughter rather than murder. The two additional instructions requested by Marr were necessarily premised on the assumption that he actually believed that he was in imminent danger of death or serious bodily harm from Carroll and that the deadly force he em ⁴⁷⁶ ployed was a necessary response to that threat, and they sought to focus the jury’s attention on the reasonableness of those subjective beliefs. Those instructions thus related to the defense of “perfect,” rather than “imperfect,” self-defense.

They would have the jury determine the reasonableness of the defendant’s belief as to either of those elements by looking at things solely through his eyes and mind-state, regardless of how someone else, including the imaginary reasonable person, would have viewed the situation. Marr urges that this concept or standard is required in a self-defense analysis and that it was not fairly covered in the other instructions given by the court. As we indicated, the Court of Special Appeals, believing that the issue was controlled by its decision in Rajnic v. State, supra, 106 Md.App. 286 , 664 A.2d 432 , agreed with him. Rajnic involved a situation in which the defendant, cornered in his own bedroom, to which he had retreated, was being besieged by three larger men who were in the adjoining hallway threatening to beat him.

If earful of a violent confrontation, Rajnic had made ready a shotgun and a handgun, and, when the three men burst into his bedroom, he shot them. His defense was self-defense, and he complained on appeal about the rejection of a number of requested jury instructions, one of which was similar to the second instruction requested here — that in determining whether his conduct was reasonable, the jury should keep in mind that a belief which may be unreasonable to a calm mind may be actually and reasonably held under the circumstances as they appeared to the defendant at the time of the incident. Quoting from Winner v. State, 144 Md. 682, 686 , 125 A. 397, 398 (1924) and citing as additional authority a recommended jury instruction found in David Aaronson, Maryland Criminal Jury Instructions and Commentary § 5.14 (2d ed.1988), the Rajnic court held that “[ i]t is well-established that a defendant’s claim that self-defense was necessary ‘should be judged by the facts as they appeared to him, whatever they truly were.’ ” Rajnic, 106 Md.App. at 296 , 664 A.2d at 437 . That ⁴⁷⁷ statement, which first appears in a passage from 3 Bishop’s New Criminal