Thomas v. State

HOLLANDER, J. Levonne Thomas, appellant, was convicted by a jury in the Circuit Court for Baltimore City of second degree murder, as well as two counts of wearing or carrying a weapon openly with the intent, to injure. The court sentenced appellant to thirty years of imprisonment for the murder conviction and three years for each weapons count, concurrent to each other but consecutive to the murder sentence. Thereafter, appellant noted this appeal and poses three questions: ¹⁰³ I. Did the trial court err in not admitting questions involving evidence of a protective order against the victim?

II

Did the trial court err in refusing to instruct the jury on manslaughter?

III

Was appellant improperly convicted and sentenced for two counts of carrying a weapon openly with intent to injure? We answer the first two questions in the negative but the third question in the affirmative. Accordingly, we shall reverse appellant’s two convictions for wearing or carrying a weapon, but affirm the trial court’s judgment in all other respects. FACTUAL SUMMARY Sheila Hunter died of multiple blunt force injuries late on the night of July 21, 2000.

The State’s theory was that the killing was the result of an argument between the victim and appellant, her boyfriend. The State’s evidence consisted primarily of pictures of the crime scene, the testimony of various police officers and the medical examiner, and appellant’s statement to the police. Appellant and the victim lived together in a second floor, one room apartment in Baltimore City. They had known each other for ten years.

Shortly after midnight on July 22, 2000, in response to a 911 call, Baltimore City Police Officer Robert Peregoy knocked on appellant’s door. When appellant answered, he had blood on his hands, forearms, and pants. He told the officer, “We were just fighting.” Appellant took the officer to his apartment, which was in “total disarray”; blood was observed throughout the room. The officer found the victim at the foot of the bed, with her knees on the floor, “slumped over on the bed.” She had numerous bruises and wounds to her body, including a hole “almost dead center located in the back of her head.” Appellant told Officer Peregoy, “She fell and bumped her head at ¹⁰⁴ the table.” Other officers arrived and the police recovered several items from the apartment, including two hammers near the head of the bed, one of which had blood on it; two metallic poles, one of which had blood on it; handcuffs; a serrated cheese knife; and some broken glass.

Upon arrival of an ambulance at about 12:45 a.m., the victim was pronounced dead. While at the apartment, the medics attended to appellant’s injuries; they were largely “minor” and “superficial,” but he had a “deep” cut to his right hand that was wrapped in gauze. Officer Kelly Harrison transported appellant to the Homicide Division of the police station for questioning, arriving there at about 12:45 a.m. According to the officer, appellant said that “he didn’t know why ... he had to go downtown and then he stated that she hit her head on a table.” He added: “I wasn’t there.” Appellant also said, “We- were playing around and she fell and she hit her head.” Later, he said that the victim “was drunk.” At about 1:00 a.m., appellant was placed in an interview room at the police station.

Baltimore City Police Detective Vernon Parker, who had been at the scene, arrived at the station at about 4:00 a.m. He saw that appellant had scratches on his neck, fresh bruises on his back, cuts and abrasions to his arms and hands, and that his right hand was wrapped in a bloody gauze. Although Detective Parker detected alcohol on appellant’s breath, he “had no concern ... that [appellant’s] judgment was clouded ... where he wouldn’t understand what was going on.” Detective Parker testified that appellant provided background information and waived his Miranda 1 rights at around 4:30 a.m. Appellant proceeded to explain what happened.

At the conclusion of the interview, appellant also provided a taped statement regarding the circumstances of the victim’s death, which was admitted in evidence. ¹⁰⁵ According to Detective Parker, appellant said that during the evening he and the victim had been drinking in their apartment and they began to argue about “different things,” including “a bottle of wine that had been purchased for them to consume that evening.” The detective recounted that the argument “escalated.” Then, “Mr. Thomas stated that Ms. Hunter assaulted him, threw a hammer at him, and also came at him with the cheese knife.... ” Further, appellant said that, “during their struggles, she slipped, fell, and hit her head on the comer of the table. And then he indicated that he punched the victim in the face and in the back.” Appellant thought Ms. Hunter was “playing with him,” and said to her, “stop playing around.” Thereafter, appellant picked up Ms. Hunter and moved her to the bed. At that time, appellant saw “a gash in her head.” He also saw her stop breathing and, at that point, appellant went upstairs and told the tenant there to call the police. In addition, a review of the transcript of the taped statement indicates that appellant said the victim was “swinging” a knife at him in connection with the wine.

Appellant told her, “Here stop dam why don’t you stop you already high already you gonna ... make a mistake.” He then gave her the bottle of wine and she put down the knife. Then, appellant grabbed the wine bottle. In response, the victim picked up a hammer and threw it at appellant, hitting him in the back. Ms. Hunter then threw some shoes at appellant, all of which “offended” him.

She also picked up the knife and started cutting appellant with it, on his left hand and thumb and over his eye. But, he said he “don’t feel it.... ” She also cut his right hand. Further, appellant claimed that while he was holding the bottle and bleeding, Ms. Hunter came toward him with a hammer. As she swung the hammer at appellant, he said Ms. Hunter slipped and fell and hit her head on the table.

Appellant then hit Ms. Hunter a lew times on her back, while she lay motionless on the floor, and told her to “stop playing.” Then, he picked her up and placed her on the bed. Dr. Steven Radentz, an assistant medical examiner, performed the autopsy of Ms. Hunter. He opined that the victim ¹⁰⁶ died of “[m]ultiple blunt force injuries,” and had suffered a “minimum of 12 impacts.” He stated that the victim suffered from a blunt force injury to her right lower back, which fractured her rib and lacerated her liver, and that the rib injury was not consistent with a fall. Rather, he said that the mark on the skin where the injury occurred was consistent with a blow from a hammer.

In addition, Dr. Radentz testified that the victim had a two-inch laceration at the back of her scalp, which was also consistent with a hammer blow. In his opinion, that injury could not have been caused by hitting a table. He also testified that Ms. Hunter had an abraded contusion on the right side of her scalp, several inches long, and contusions on her chest, which were consistent with a hammer blow. The medical examiner described several other abrasions and contusions on the left side of Ms. Hunter’s face, forehead, right shoulder, and left elbow.

In addition, she had puncture injuries to both breasts and the left thigh, which were consistent with the prongs of a knife, and abrasions to her back, consistent with the serrated edge of a knife. According to the medical examiner, the victim’s heart blood had an alcohol level of .17, while her peripheral blood had an alcohol level of .15 per cent. Ms. Hunter also tested positive as a cocaine user, but was not under the influence of cocaine at the time of her death. Appellant did not present a defense case.

We shall include additional facts in our discussion. DISCUSSION I. Appellant argues that the trial court erred in failing to admit evidence involving a protective order against the victim. He contends that it “clearly supported the inference that the victim was the aggressor.” We perceive no error by the trial court. ¹⁰⁷ During the cross-examination of Detective Parker, defense counsel asked the detective whether he had “run a criminal record check on [the victim].” The State objected and a bench conference ensued. At the conference, relying on Maryland Rule 5-404(b), appellant’s lawyer proffered that the victim had been “arrested for an assault against Levone Thomas ...” and that “there was a stay away order.” Upon further questioning, the defense attorney conceded that Ms. Hunter had not been convicted, and that there was only one stay away order, issued in 1998.

Defense counsel indicated that she did not plan to offer the order in the defense case, but argued that she should be permitted to cross-examine the detective about it, because “the character of the deceased is always in question when someone is charged with first-degree murder.” In addition, she claimed that “enough evidence has been generated that there was self-defense in this case.... ” In a lengthy discussion with defense counsel at the bench, the court carefully considered the defense argument. The following excerpts are relevant: THE COURT: I don’t understand the relevance of it. I don’t know that there’s a personality trait in the victim if there was one stay away order in 1998 involving these two people. There’s been no evidence.

I would like you to point it out to me right now because I’ve been listening very carefully. I have heard no evidence of self-defense. So you list it clear and distinctly, and I’m going to write down the words you use right now. Okay? [DEFENSE COUNSEL]: Yes, Your Honor.

When Mr. Thomas was taken down to Baltimore City police headquarters, he told the detectives that Sheila Hunter attacked him with a knife and a hammer. It’s in his statement. He also said when the detectives questioned him and they asked him, ‘Did you hit her?’ he says, ‘Yes, I hit her.’ Also, Your Honor, in the statement and through the pictures that were ¹⁰⁸ generated, it corroborates Mr. Levone Thomas’ statements to the police that he was cut because there were cuts on him. The court was not persuaded.

The following discussion is pertinent: THE COURT: There is nowhere that he has testified in his statement thus far that he had any concern whatsoever about his safety at any time. In fact, as I recall the rest of the statement, he’s claiming she fell off the bed or she fell and she hit her head on a table and that’s how she injured herself. There is nothing so far indicating in his defense that any action of his injured her. As I’ve listened carefully, the only evidence of injury to her so far in his statement has been she fell and hit her head and he thought she was playing a game and, therefore, while she was not moving or doing anything and, therefore, certainly not hitting him, he socked her trying, I assume, arouse her to see if she was playing a game, but there is absolutely no testimony from him in his statement that he injured her or attempted to injure her while she was in any way hitting him.

To the contrary, his statement is she fell and hit her head on the table and he thought she was playing, I think is what he said or something to that effect, and therefore, he hit her. Where is the statement? Is it in evidence? In any event, the bottom line is there is no testimony in the statement he gave to the police that he swung at her or that he injured her to cause her injuries, in the first instance, and even if — other than socking her those two times after she fell and apparently, he’s claiming, hurt herself and by that time, in his testimony, she was already not moving at all.

So how could he be in fear of his safety or life? So where is the self-defense? His position is he didn’t cause the injures; she fell. ¹⁰⁹ [DEFENSE COUNSEL]: Well, Your Honor, his statement to the police ... when they asked him, ‘Did you hit her?’ he said, T hit her.’ It had not been established if the hit was during, after. It’s evident from the statement that when she cut him, to me that he hit her back, according to the statement, Your Honor.

THE COURT: I have the statement. Well, even if I were to look at the statement, but even if I were to accept what you just said, that in and of itself hasn’t generated any self defense because there’s nothing to indicate from his point of view that any injuries he caused her were done in fear of his life or safety. [DEFENSE COUNSEL]: But, Your Honor, it doesn’t have to ... [S]elf-defense could be generated in the prosecution’s case, Your Honor. THE COURT: I’m not saying that, but even if you generated it in the prosecution’s case, you have to have some evidence from which reasonable people — that the jury— could find that the actions he took were done because of either reasonable, if it ivas perfect self-defense, fear for his life or safety, or unreasonable fear for his life or safety, if it was imperfect self-defense; and based on what you’ve just said, there is just no testimony in the statement he gave to the police that he hit her because he was afraid for his safety or life. You just said it yourself.

He’s got to generate something and so far he hasn’t generated it.... I don’t see where he’s put anything that would warrant getting in a 1998 stay away order. I’m not even sure an order could show a personality trait in and of itself in the victim and we’re talking about a homicide that occurred in July of 2000. We have no idea what happened before or after that one incident in 1998.

I don’t think it’s enough to show a trait. So I’m sustaining the State’s objection. (Emphasis added). The conduct of the trial “must of necessity rest largely in the control and discretion of the presiding judge,” ¹¹⁰ and an appellate court should not interfere with that judgment unless there has been error or clear abuse of discretion.

See Wilhelm v. State, 272 Md. 404, 413, 326 A.2d 707 (1974); Simpson v. State, 121 Md.App. 263, 283 , 708 A.2d 1126 (1998). Consistent with the trial court’s authority concerning the conduct of trial, “the scope of examination of witnesses at trial is a matter left largely to the discretion of the trial judge and no error will be recognized unless there is clear abuse of discretion.” Oken v. State, 327 Md. 628, 669 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); see Martin v. State, 364 Md. 692, 698 , 775 A.2d 385 (2001); Conyers v. State, 354 Md. 132, 176 , 729 A.2d 910 , cert. denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231 (1998); Blair v. State, 130 Md.App. 571, 592-93 , 747 A.2d 702 (2000). To be sure, “a cross-examiner must be given wide latitude in attempting to establish a witness’ bias or motivation to testify falsely.” Merzbacher v. State, 346 Md. 391, 413 , 697 A.2d 432 (1997); see Martin, 364 Md. at 698 , 775 A.2d 385 . Nevertheless, a “balancing test” must be employed by the trial judge, so that “questioning [is] not ... allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder’s confusion.” Smallwood v. State, 320 Md. 300, 307-308 , 577 A.2d 356 (1990). “As the decision to limit cross-examination ordinarily falls within the sound discretion of the trial court, our sole function on appellate review is to determine whether the trial judge imposed limitations upon cross-examination that inhibited the ability of the defendant to receive a fan- trial.” Merzbacher, 346 Md. at 413 , 697 A.2d 432 ; see Churchfield v. State, 137 Md.App. 668, 682-84 , 769 A.2d 313 (2001).

Although trial courts may impose “ ‘reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant[,]’ ... limitation of cross-examination should not occur ... until after ¹¹¹ the defendant has reached his ‘ “constitutionally required threshold level of inquiry.” ’ ” Merzbacher, 346 Md. at 413 , 697 A.2d 432 (alterations in original) (internal citations omitted). Under Md. Rule 5-104(a), “[preliminary questions concerning ... the admissibility of evidence shall be determined by the court.... ” Generally, evidence is relevant and admissible if it tends either to establish or disprove issues in the case. Snyder v. State, 361 Md. 580, 591 , 762 A.2d 125 (2000); Conyers, 354 Md. at 176 , 729 A.2d 910 ; Rosenberg v. State, 129 Md.App. 221, 252 , 741 A.2d 533 (1999), cert. denied, 358 Md. 382 , 749 A.2d 173 (2000). Maryland Rule 5-401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See also Johnson v. State, 332 Md. 456 , 472 n. 7, 632 A.2d 152 (1993) (“Evidence is relevant (and/or material) when it has a tendency to prove a proposition at issue in the case”).

Although Rule 5-402 provides that relevant evidence is generally admissible, the determination of relevancy is a matter left to the sound discretion of the trial court, and the court’s rulings “may be reversed upon clear showing of an abuse of discretion.” Martin, 364 Md. at 705 , 775 A.2d 385 ; see Dupree v. State, 352 Md. 314, 324 , 722 A.2d 52 (1998); Williams v. State, 342 Md. 724, 737 , 679 A.2d 1106 (1996) (stating that “[a] trial judge’s determination on relevance will not be reversed absent an abuse of discretion.”); Ebb v. State, 341 Md. 578, 587 , 671 A.2d 974 , cert. denied, 519 U.S. 832 , 117 S.Ct. 102 , 136 L.Ed.2d 56 (1996); White v. State, 324 Md. 626, 637 , 598 A.2d 187 (1991). Thus, trial courts “retain wide latitude in determining what evidence is material and relevant.” Merzbacher, 346 Md. at 413 , 697 A.2d 432 ; see Corbett v. State, 130 Md.App. 408, 426-27 , 746 A.2d 954 , cert. denied, 359 Md. 31 , 753 A.2d 3 (2000). Indeed, such rulings are “quintessentially within the wide discretion of the trial judge.” ¹¹² Best v. State, 79 Md.App. 241, 259 , 556 A.2d 701 , cert. denied, 317 Md. 70 , 562 A.2d 718 (1989). With these principles in mind, we turn to explore appellant’s contentions.

In Streater v. State, 352 Md. 800 , 724 A.2d 111 (1999), the Court said that, in a harassment and stalking prosecution, evidence that the victim had obtained a prior protective order against the defendant was relevant as to the “warning element” for harassment and the defendant’s “course of conduct” for stalking. Id. at 812-13 , 724 A.2d 111 . Nor was “the protective order itself, i.e., without the factual findings contained therein, ... unduly prejudicial since it does no more than establish that [the defendant] had been warned not to contact or harass [the victim.]” Id. at 813 , 724 A.2d 111 . Nevertheless, because the entire protective order was admitted, which contained hearsay and factual determinations regarding other crimes that “were never assessed for their admissibility under Md. Rule 5-404(b),” id. at 823 , 724 A.2d 111 , the Court reversed the conviction.

Here, defense counsel said she did not intend to introduce the protective order. Instead, she merely wanted to establish its existence. Yet she did not actually proffer that it was Thomas who obtained the order or that it involved the victim. We are guided by Thomas v. State, 301 Md. 294, 306-07 , 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985).

There, the Court said that the character of the victim is admissible to corroborate evidence that the victim was the initial aggressor, but “the proponent must first establish an evidentiary foundation tending to prove that the defendant acted in self-defense.” We agree with the trial court that appellant failed in this regard. We explain. In State v. Marr, 362 Md. 467 , 765 A.2d 645 (2001), the Court reiterated that Maryland “recognizes two varieties of self-defense — the traditional one, which [it has] sometimes termed ‘perfect’ or ‘complete’ self-defense, and a lesser form, sometimes called ‘imperfect’ or ‘partial’ self-defense.” Id. at 472 , 765 A.2d 645 . See also Roach v. State, 358 Md. 418 , 429- ¹¹³ 32, 749 A.2d 787 (2000); Jones v. State, 357 Md. 408, 421-23 , 745 A.2d 396 (2000); State v. Martin, 329 Md. 351, 357-58 , 619 A.2d 992 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993); Dykes v. State, 319 Md. 206, 210-12 , 571 A.2d 1251 (1990); State v. Faulkner, 301 Md. 482, 485-87 , 483 A.2d 759 (1984).

Perfect or traditional self-defense is a complete defense to a charge of criminal homicide “and, if credited by the trier of fact, results in an acquittal.” Marr, 362 Md. at 472-73 , 765 A.2d 645 . The elements of that defense 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)