Sydnor v. State

WILNER, J. On the evening of December 9, 1998, petitioner was sitting with some friends on the front steps of 907 North Chester Street, in Baltimore, when one Anthony Jackson approached and asked if petitioner had any “weed” to sell. When petitioner responded in the negative, Jackson, apparently eyeing a gold chain petitioner was wearing, pulled a gun and told him to “give it up.” After hitting petitioner on the head with the gun and threatening to kill him, Jackson took $80 in cash from petitioner and was about to take the gold chain as well when petitioner, assisted by his friends, grabbed the gun and, after a struggle, was able to take it from Jackson. As Jackson then attempted to flee, petitioner fired five shots at him, hitting him four times — once in the front of his thigh, once in the forearm, and twice in his back. One of the back wounds was surrounded by stippling, indicating that the gun was fired from close range.

Jackson collapsed and died in the street in front of 922 North Chester Street — 40 to 50 yards from where the robbery occurred. 1 Immediately after shooting Jackson, petitioner, along with his friends, ran away. ²⁰⁸ Those basic facts were largely undisputed. What was in dispute was how, where, and why the shooting occurred. Those disputes were presented and resolved in the Circuit Court for Baltimore City, where a jury convicted petitioner of voluntary manslaughter and use of a handgun in the commission of a felony but acquitted him of first and second degree murder and carrying a handgun. The State’s theory was that, after wresting the gun away from Jackson, an enraged petitioner, intent only on revenge, chased and shot Jackson as he attempted to flee.

That theory was supported by evidence that five bullet casings were found in the street near where Jackson collapsed, photographs depicting the four wounds suffered by him, and the testimony of Yvette Kiah, Yavonda Jones, and several police officers. Ms. Kiah, who lived at 922 North Chester Street, observed the struggle, heard one of the men say something like, ‘Well, if you have a gun you better use it,” and, after turning away, heard people running followed by five or six gunshots. Ms. Jones said that, as she was leaving her house in the 800 block of North Chester Street, she observed the struggle and then saw petitioner take a gun away from Jackson. She said that Jackson “tried to run and he [petitioner] shot him in his back and then he ran in the opposite direction.” Several police officers were in the vicinity at the time and, hearing the shots, responded to the scene.

They saw petitioner, who was identified by witnesses as the shooter, running away, whereupon they gave chase and eventually apprehended him, still in possession of the gun. Although petitioner did not testify at trial, statements he made to the police following his arrest were admitted into evidence. Immediately upon his apprehension, he stated to ²⁰⁹ Office Quintner, who was guarding him, “I shot [Jackson] because he was beating me with a gun and robbed me for $30 so I took the gun from him and shot him.” At the police station, petitioner gave a formal, taped statement, in which he said that the struggle for the gun landed them both on the ground near the steps and that, after obtaining the gun, he “panicked” and “just shot at him, as soon as I got the gun from him.” Petitioner added that he did not know whether Jackson had another gun, but that “I was already aggravated over the fact that he said he was going to kill me.” In a later part of his statement, he said that Jackson acted like he was getting ready to “go back in his jacket,” and “[s]o I panicked even more and just got to shooting.” The shooting occurred, petitioner said, when Jackson was in the middle of the street, with petitioner about five feet from him. The issue now before us arose in the context of the court’s jury instructions.

After instructing on the law of murder and manslaughter, the court explained the defense of self-defense raised by petitioner. In doing so, it told the jury, in pertinent part and without objection: “In addition, before using deadly force, the defendant is required to make all reasonable efforts to retreat. Defendant does not have to retreat if the defendant was in his home or retreat was unsafe or the avenue of retreat was unknown to the defendant or the defendant was being robbed at the moment that the force was used or the defendant was lawfully arresting the victim.” (Emphasis added). That portion of the instruction was taken nearly verbatim from the language recommended in § 5:07 of the Maryland Criminal Pattern Jury Instructions.

During deliberations, the jury asked for and received additional instructions on murder and voluntary manslaughter. In the course of those additional instructions, the court modified slightly what it previously said regarding self defense: “In addition, before using deadly force, the defendant is required to make all reasonable effort to retreat. The ²¹⁰ defendant does not have to retreat if the defendant was in his home or retreat was unsafe or if the avenue of retreat was unknown to the defendant or if at the moment that the shots were fired the defendant was being robbed, or the defendant was lawfully arresting the victim.” (Emphasis added). Noting the difference in language, defense counsel objected, stating that the change from “the defendant was being robbed at the moment that the force was used” to “at the moment that the shots were fired the defendant was being robbed” constituted “commentary.” No further explanation for the objection was given.

The court responded that it “did the same thing in the original,” the reason being that “it could be confusing for the jury to view the robbery and the shooting as one incident when, in fact, it was also possible for them to view it as separate incidents.” At the appellate level, petitioner has greatly expanded his cryptic complaint that the supplemental instruction constituted “commentary.” Relying principally on Eighteenth Century English commentary, some Nineteenth Century cases, and cases involving the felony-murder rule, he urges that he had a right to stand his ground and use deadly force to resist the robbery without having to retreat and that that right continued during the period that Jackson was in flight. A robbery, he argues, continues until such time as the robber has made good his or her escape and reached a place of temporary safety, and the victim may continue to use deadly force to resist and recover the property taken until the robber has, in fact, made good the escape. In making this argument, he has never claimed that he was in or even near his home when the robbery occurred or that the shooting was part of any effort to arrest Jackson. The Court of Special Appeals, finding that the argument had been preserved for appellate review, rejected it, holding that “[w]hen a defendant seeks to escape criminal responsibility by claiming deadly force was employed to repel force, threat of force or intimidation employed by a robber, however, ²¹¹ proof that the force exerted by the accused was employed at a time other than when he was being robbed is the sine qua non of proof of excessive force.” Sydnor v. State, 133 Md.App. 173, 185 , 754 A.2d 1064, 1070 (2000).

That court continued that the use of deadly force “must be confined to repulsion of the robber at the moment that the robber exerts force or exhibits a threat of force” but that, “[o]nce the imminent threat of death or serious bodily harm dissipates, a lethal response is no longer warranted.” Id. at 187 , 754 A.2d at 1072 . Notwithstanding petitioner’s views to the contrary, we agree with that analysis and shall affirm. DISCUSSION The right to act in self-defense has been regarded as a natural right, taken all but for granted, but, as a legal defense to a charge of homicide, it was not part of early English common law. Although much of its development is of historical interest only, the theoretical underpinnings of that development still have some influence.

As noted by Joseph Beale, from the beginning of the jurisdiction of the king’s courts over crime to the reign of Edward I in the Thirteenth Century, homicide could be justified only when committed in execution of the king’s writ or, by custom, when apprehending an outlaw who resisted. Joseph H. Beale, Jr., Retreat from a Murderous Assault, 16 Harv. L.Rev. 567, 567-68 (1903). The privilege to use deadly force in self-defense developed from two strains of English law.

Blackstone, citing both Hawkins and Hale, observed that there were three kinds of homicide — justifiable, excusable, and felonious. William Blackstone, 4 Commentaries on the Laws of England 177 (1769). Justifiable homicide was one “owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame.” Id. at 178 . It was a homicide committed by the absolute command of the law, either for the advancement of public justice (as where a public officer kills in the execution of his or her office) or for the prevention of some atrocious crime which could not other ²¹² wise be avoided.

Id. at 179-80 . As to the latter, Blackstone noted, as an example, that “[i]f any person attempts a robbery or murder of another, or attempts to break open a house in the night time, (which extends also to an attempt to burn it,) and shall be killed in such attempt, the slayer shall be acquitted and discharged.” Id. at 180 . “This reaches,” he continued, “not to any crime unaccompanied with force, as picking of pockets; or to the breaking open of any house in the day time, unless it carries with it an attempt of robbery also.” Id. In the case of a justifiable homicide, Blackstone stated, the slayer was entirely without fault and was entitled to acquittal. No duty to retreat, in an effort to avoid the need to use deadly force, attended a justifiable homicide.

An excusable homicide, according to Blackstone, could be of two types — per infortunium, or misadventure, and se defendendo, or self-defense. The first was where one doing a lawful act, without any intention to harm, unfortunately killed another, as where the head of a hatchet being lawfully used by a person flew off and killed a bystander. The second type, he made clear, was distinguishable from the justifiable variety of homicide “calculated to hinder the perpetration of a capital crime” and concerned the case of a person protecting himself or herself “from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him.” Id. at 183-84 . In that situation, which the writers of the time called chance-medley, the right of natural defense did not include attacking the assailant, and, to excuse homicide by a plea of self-defense, “it must appear that the slayer had no other possible means of escaping from his assailant.” Id. at 184 .

Thus, “the law requires, that the person, who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant....” Id. at 184-85 . In earlier days, an excusable homicide did not justify an acquittal, because some, even if not complete, blame attached to the slayer. Upon conviction, the defendant would escape bodily punishment and was entitled to bail, but his goods were forfeit unless and until he was pardoned by the king. In time, ²¹³ the pardons became issued routinely by the chancellor, and, eventually, the defendant was simply acquitted, in the same manner as the perpetrator of a justifiable homicide.

See Edward H. East, 1 Pleas of the Crown at 220 (1806). Foster attributes the change to the statute of 24 Henry 8, c. 5. Michael Foster, Crown Cases at 275 (3d ed. 1809). To that practical extent, the two forms of defense — justifiable and excusable homicide — merged; they did not merge, however, with respect to the duty to retreat in an effort to avoid the need for deadly force.

That issue, initially germane only with respect to what formerly was an excusable homicide, remained a focal point of debate and, to some extent, remains so today. The views expressed by Blackstone are consistent with those stated by East, Hawkins, Hale, and Foster. See East, supra, 219-22; William Hawkins, 1 Pleas of the Crown 79-88 (John Curwood ed., 8th ed. 1824); Matthew Hale, 1 History of the Pleas of the Crown 478-92 (1847); Foster, supra, 273-78. Thus, Foster wrote: “In the case of justifiable self-defence the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoureth by violence or surprize to commit a known felony upon either.

In these cases he is not obliged to retreat, but may pursue his adversary till he findeth himself out of danger, and if in a conflict between them he happeneth to kill, such killing is justifiable.” Foster, supra, at 273 (emphasis added). On the other hand: “He therefore who, in the case of mutual conflict, would excuse himself upon the foot of self-defence must shew, that before a mortal stroke given he had declined any farther combat and retreated as far as he could with safety; and also that he killed his adversary through mere necessity, and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalties of manslaughter.” Id. at 277. As Wharton noted, when these two rules were construed with relation to each other, the duty of an assaulted person to ²¹⁴ retreat seemed to depend on whether killing the assailant under the circumstances would be justifiable or merely excusable.

If the former, there was no duty to retreat; if the latter, there was. Francis Wharton, The Law of Homicide, § 291 (Frank H. Bowlby ed., 3d ed.1907). Beale took issue with that approach. Though acknowledging that the line between the authority to stand one’s ground and the duty to retreat to avoid the necessity of killing was consistent with the distinction in the old law between justifiable and excusable homicides — between homicides committed in execution of the law and those committed in private defense—Beale asserted that Foster failed, in the case of an excusable homicide, to distinguish between the function of retreat as a means of avoiding the need to kill, and its function to avoid responsibility for the combat, and that, in effect, he blurred the distinctions between justifiable and excusable homicides.

Beale, supra, at 575-76. Noting a split of authority in the United States on whether, generally, a person under attack by another may stand his ground and resist with deadly force or must retreat if retreat is possible, Beale took as the prevailing rule that “there is no need of retreat, but the assailed may kill the assailant if it is otherwise necessary to save his own life,” that “if retreat would not (so far as the assailant can see) diminish the danger, he may defend himself on the spot,” and that “if one is assailed in his own dwelling-house, which is his castle, he is not obliged to withdraw therefrom and leave himself in that respect defenseless.” Id. at 579. He urged, however, that no killing that is not necessary can be justified, that it is not necessary to kill in self-defense when the person under attack can defend himself/herself by withdrawing, and that “[t]he only property which the law permits him to protect by killing a wrongdoer is his dwelling-house, and that only when its protection is necessary to the safety of his person.” Id. at 580-81. Perkins and Boyce, writing in 1982, favored Foster’s view, rather than that of Beale.

They regarded the majority American view to be that a blameless person who is the subject of a ²¹⁵ “murderous assault” may stand his or her ground and use deadly force if reasonably necessary to save himself/herself. They acknowledged, however, that a substantial minority of jurisdictions had adopted the view that even an innocent victim of a murderous assault must elect an obviously safe retreat, if available, rather than resort to deadly force, unless (1) the victim is in his/her home at the time, (2) the assailant is one he/she is lawfully attempting to arrest, or (3) the assailant is a robber. See Rollin Perkins and Ronald Boyce, Criminal Law 1119-37 (3d ed.1982). See also Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand.

L.Rev. 845, 882-83 (1984) (noting the split of authority on whether deadly force may be used without safe retreat but asserting that “[bjecause a successful retreat prevents harm to both aggressors and defenders, a duty to retreat before the use of deadly force seems to be a desirable limitation on the privilege of self-defense”). The initial distinctions, trumpeted in some of the early commentary and applied in some 19th Century cases, have, indeed, become blurred, and the law now, governed in many States by statute, seems inclined to limit one’s ability to use deadly force to the situation where such force is