Wilson v. State

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). The primary focus of this opinion will be on the possibly mitigating influence of imperfect self-defense in criminal homicide cases. The mitigating defenses generally, even when successfully established, do not, of course, exculpate a defendant.

Far from it. Even the successful defendant (successful in this limited regard) will still be a convicted felon facing a possible prison sentence of ten years. In the case of criminal homicide, however, because of its graduated levels of punishment based on graduated degrees of moral or mental blameworthiness, the law will sometimes lower the level of blameworthiness from the murder to the manslaughter level because of certain extenuating circumstances. Cunningham v. State, 58 Md.App. 249, 253 , 473 A.2d 40 , cert, denied, 300 Md. 316 , 477 A.2d 1195 (1984) (“The various grades of felonious homicide are but efforts by the law to recognize, for purposes of assessing appropriate punishment, different levels of blameworthiness”); Glenn v. State, 68 Md.App. 379, 401 , 511 A.2d 1110 , cert, denied. 307 Md. 599 , 516 A.2d 569 (1986); Bryant v. State, 83 Md.App. 237, 244 , 574 A.2d 29 (1990). ⁶⁵⁴ As a secondary theme, we will also examine in some detail the mitigating defense of hot-blooded response to legally adequate provocation, frequently referred to simply as the Rule of Provocation.

The Maryland Reception of Imperfect Defenses As relatively arcane ameliorating influences, the imperfect defenses, as a group, have only recently been recognized in Maryland. Imperfect self-defense (along with the imperfect defense of others 1 and the imperfect defense of habitation) was first mentioned in Maryland case law by way of dicta in Evans v. State, 28 Md.App. 640 , 658 n. 4, 349 A.2d 300 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976). In Faulkner v. State, 54 Md.App. 113, 114-15 , 458 A.2d 81 (1983), aff'd, 301 Md. 482 , 483 A.2d 759 (1984), Judge Orth (former Chief Judge of this Court, then retired from the Court of Appeals, and specially assigned to this Court) recounted the Maryland reception of this very significant new addition to this State’s homicide law: From the turbulent waters of the criminal law of Maryland, roiled by the dictates of Mullaney v. Wilbur (1975), emerged an esoteric qualification to the doctrine of self-defense, known as the “imperfect right of self-defense.” We noticed it in Evans v. State, recognized it in Shuck v. State, mentioned it in Wentworth v. State [ 29 Md.App. 110 , 349 A.2d 421 (1975)], and applied it in Law v. State [ 29 Md.App. 457 , 349 A.2d 295 (1975)]. The Court of Appeals of Maryland has not yet addressed the matter.

In the frame of reference of legal history, the doctrine of imperfect self-defense is of recent origin, and scholars of the law have referred to it as “not yet far advanced.” LaFave and Scott, Criminal Law (1972), § 77. We speculated in Evans that it is “little more than an academic possibility.” But, as we discovered in Shuck and Wentworth , the impact of Mullaney has made the qualification viable and rendered ⁶⁵⁵ it more than academic. There are indications that defense counsel are now invoking it, and the bench and prosecutors had best take heed. (Emphasis supplied).

See also Moylan, Criminal Homicide Law (MICPEL, 2002), § 10.1, “The First Recognition of Imperfect Defenses in Maryland,” p. 192: As it undertook the systemic overhaul of homicide law necessitated by Mullaney v. Wilbur, the Court of Special Appeals, collectively and under the leadership of Chief Judge Charles E. Orth, made a deliberate policy decision. Rather than fragment into a dozen isolated pieces the analysis undergirding the widespread changes, that court deemed it advisable to place all of the analysis in the single central repository of Evans v. State. Recognizing that 90 percent of the Evans opinion would thereby be dicta, the court also decided to follow it up immediately with a series of other decisions that would apply the Evans analysis to various concrete circumstances. One day after Evans was issued, seven follow-up opinions were filed on Nov. 26.

With a day off for Thanksgiving, four more followed on Nov. 28. Informally, the entire package was known among the judges of the Court of Special Appeals as the “dirty dozen.” In any event, a large percentage of what was mere dicta on Tuesday was locked into a series of solid holdings by the close of business on Friday. It enhances understanding to appreciate that the Evans opinion does not stand alone but is rather the focal point for a galaxy of 12 intricately interwoven opinions, all decided within a 72-hour period. (Emphasis supplied).

The role of the Court of Special Appeals in completely rewriting the homicide law of Maryland in 1975, in the wake of the Supreme Court’s Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 , was trail blazing. The recognition of the imperfect defenses was but a part of a more sweeping reappraisal of homicide law generally. The Court of Appeals joined in recognizing imperfect self-defense in its affirming ⁶⁵⁶ decision in State v. Faulkner, 301 Md. 482 , 483 A.2d 759 (1984). The Present Case The appellant, Antajuan Lawntee Wilson, was convicted by a Howard County jury, presided over by Judge Kiehard S. Bernhardt, of murder in the first degree and related offenses.

On appeal, he contends: 1. that Judge Bernhardt erroneously declined to give a requested jury instruction on the subject of imperfect self-defense; 2. that Judge Bernhardt erroneously declined to give a requested jury instruction on the subject of the defense of provocation; and 3. that Judge Bernhardt committed plain error by failing, sua sponte, to instruct the jury on the two mitigating defenses with respect to the crime of assault in the first degree. The Marquee Issue At approximately 11:00 A.M. on the morning of April 9, 2008, in an area known as Bryant Woods in Columbia, the appellant shot Brian Adams four times. Adams died of “multiple gunshot wounds.” The appellant was indisputably the homicidal agent. The only issue before us is whether the evidence generated at least the reasonable possibility that the appellant, because of extenuating circumstances, may have been guilty only of manslaughter rather than of murder.

We will now look first at imperfect self-defense as a possible set of extenuating circumstances. A Belligerent and Boorish Milieu By way of deep background (albeit only about ten minutes deep), the appellant relies heavily on the angry and belligerent atmosphere created when the appellant and Brian Adams first crossed each other’s path shortly before the fatal shooting. The appellant seeks to extenuate the killing because of, in ⁶⁵⁷ significant measure, the lingering effects of that toxic atmosphere. The homicide victim, Brian Adams, and his two “homeboys,” Bryant Keene and Brandon Mitchell, had been driving in Columbia when Adams’s car ran out of gas.

Pulling it over on Twin Rivers Road, they walked to a nearby Crown Station to purchase gas. Present at the station were Walter Richardson and his friend, Christopher Harvey. Also on the scene was the appellant, who lived with his grandmother nearby and who had just walked to the Crown Station to buy a pack of cigarettes. As Adams and his “homeboys” arrived, the appellant glanced at Adams.

Adams rudely retorted, “What the fuck is you looking at?” He demanded of the appellant whether he had a problem. The appellant replied, “No, it aint no problem.” The appellant testified that Bryant Keene then “looked like he wanted to fight.” The appellant further recounted that Keene threatened to “pluck” him, interpreting that to mean “shoot me or something.” Keene, at trial, acknowledged having said to the appellant, “We’ll fuck you up” and “Fuck, we could beat you up right now.” As the appellant began to walk away from the station, Keene took a step in pursuit but was stopped by Brandon Mitchell. Keene further testified that had Mitchell not held him back, he would have “popped” the appellant. That potentially explosive situation, however, ugly as it had become, was then defused as the appellant, according to Walter Richardson, stated, “I don’t want no beef,” took his cigarettes, and walked away.

Adams and the “homeboys,” for their part, filled a can with gasoline and walked down Twin Rivers Road toward their car. The appellant went in a different direction toward his grandmother’s house, which was several minutes away. Once Adams and his buddies drove away, the explosive potential would have totally dissipated. They were not from the neighborhood.

The conflict had, for all intents and purposes, run its course — unless someone chose to reopen it. We will turn to the evidence of ensuing events as we take up our discussion of the appellant’s contentions. ⁶⁵⁸ Perfect Self-Defense With respect to criminal homicide (and several of its close shadow crimes), self-defense is a full and perfect defense if the evidence satisfies five requirements. Four of those requirements were well stated by Judge Cole in State v. Faulkner, 301 Md. at 485-86 , 483 A.2d 759 : We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self-defense in the following terms: (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. See also Dykes v. State, 319 Md. 206, 211 , 571 A.2d 1251 (1990); State v. Martin, 329 Md. 351, 357 , 619 A.2d 992 (1993); State v. Marr, 362 Md. 467, 473 , 765 A.2d 645 (2001); State v. Smullen, 380 Md. 233, 252 , 844 A.2d 429 (2004). 2 In what may be categorized as a fifth requirement or may, alternatively, be characterized simply as an interpretive gloss on the first or fourth requirement, there is also an inhibiting principle that has been denominated the “retreat rule.” The “retreat rule” was described in Bruce v. State, 218 Md. 87, 97 , 145 A.2d 428 (1958), as “the duty of the defendant to retreat or avoid danger if such means were within his ⁶⁵⁹ power and consistent with his safety.” In Gainer v. State, 40 Md.App. 382, 387 , 391 A.2d 856 , cert, denied, 284 Md. 743 (1978), Judge Moore stated the requirement: It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself.

See also Corbin v. State, 94 Md.App. 21, 25 , 614 A.2d 1329 (1992). 3 In this case, the appellant requested a jury instruction on perfect self-defense. The request was denied. The appellant has not appealed that denial. Imperfect Self-Defense Perfect self-defense demands, in three separate regards, not only that a defendant genuinely possess certain subjective beliefs about the exigency he is facing but also that those beliefs be objectively reasonable.

By contrast, imperfect self-defense, a defense that does not exculpate but only extenuates, demands only that the defendant actually possess those subjective beliefs even if those beliefs are not objectively reasonable. With respect to the first of those beliefs, Judge Orth in this Court’s Faulkner v. State, 54 Md.App. at 115 , 458 A.2d 81 , described the step downward from the perfect defense to the imperfect defense: 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 ⁶⁶⁰ be found to be so. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked.

(Emphasis supplied). In its State v. Faulkner, 301 Md. at 500-01 , 483 A.2d 759 , the Court of Appeals dealt with the various mental permutations that might produce various verdicts. (1) [I]f the jury concluded the defendant did not have a subjective belief that the use of deadly force was necessary, its verdict would be murder; (2) if the jury concluded that the defendant had a reasonable subjective belief, its verdict would be not guilty; and (3) if the jury concluded that the defendant honestly believed that the use of force was necessary but that this subjective belief was unreasonable under the circumstances, then its verdict would be guilty of voluntary manslaughter. The reason courts have reached the third conclusion is that the conduct of the defendant in these circumstances negates the presence of malice, a prerequisite to a finding of murder, but the defendant is nevertheless to blame for the homicide and should not be rewarded for his unreasonable conduct.

(Emphasis supplied). Perhaps the clearest statement of the difference between the defenses was made by Judge Wilner in Burch v. State, 346 Md. 253, 283 , 696 A.2d 443 (1997): Imperfect self-defense ... “stands in the shadow of perfect self-defense.” ... [T]he 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 [or] 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. (Emphasis supplied).

The requirement of a subjectively genuine belief also applies to the “duty to retreat” element of the defense. Burch v. State, 346 Md. at 283-84 , 696 A.2d 443 , referred to this aspect ⁶⁶¹ (whether counted as a fifth element or as a gloss on the other elements) of the law of self-defense. One of the elements of the defense of self-defense is “the duty of the defendant to retreat or avoid danger if such means were within his power and consistent with his safety.” ... Appellant was required by the law to retreat when confronted by Mr. Davis unless he could not safely do so.

Because this instruction dealt with imperfect self-defense, it was only necessary that appellant subjectively believe that retreat was not safe, and that is what the jury was told. (Emphasis supplied). State v. Marr, 362 Md. 467, 473 , 765 A.2d 645 (2001), explained how the “subjectively genuine albeit objectively unreasonable” distinction figures in no less than two of the standard elements of self-defense. 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. (Emphasis supplied). See also State v. Smullen, 380 Md. 233, 251-53 , 844 A.2d 429 (2004) (“A person laboring under the honest subjective belief that he/she was, indeed, in apparent imminent danger of death or serious bodily harm and that the force used was necessary to meet the danger cannot be found to have acted out of malice.”). The Burden of Production on the Appellant The critical appellate question is almost always, “Who has the burden of proof?” A defendant is only entitled to an instruction with respect to issues that have been generated by the evidence.

Unless the State has gratuitously accomplished the job for him, that burden of generating an ⁶⁶² issue falls on the defendant. Although the due process clause protects a defendant from having imposed on him the ultimate burden of persuasion, there is no such protection with respect to the lesser and antecedent burden of production. As Judge McAuliffe pointed out for the Court of Appeals in Sims v. State, 319 Md. 540, 553 , 573 A.2d 1317 (1990): Although the ultimate burden of proving the absence of mitigation rests upon the State when that issue is properly in the case, the burden of initially producing “some evidence” on that issue (or of relying upon evidence produced by the State or adduced from witnesses called by the State) sufficient to give rise to a jury issue with respect to mitigation, is properly cast upon the defendant. Sims was singularly unsuccessful in placing before the jury evidence sufficient to fairly generate the issue of mitigation by hotblooded response to adequate provocation.

(Emphasis supplied). See also State v. Martin, 329 Md. 351, 358 , 619 A.2d 992 (1993); Simmons v. State, 313 Md. 33, 39-40 , 542 A.2d 1258 (1988). With respect to perfect self-defense, that burden would be one of producing a prima facie case with respect to each and every one of the four (or five) required elements of the defense. A failure to establish a prima facie case with respect to any one of the requirements would be fatal to the entire defense.

With respect to imperfect self-defense, the appellant enjoys a reduced burden of production with respect to two of the requirements but still faces the burden of establishing a prima facie case in all other regards. In Cunningham v. State, 58 Md.App. at 257 , 473 A.2d 40 , we held unequivocally that a reduced burden of production as to one or two elements of the defense does not by any means relieve a defendant of the full burden of production with respect to all other elements: In the present case, it is clear that the appellant did not meet his burden of production to generate a genuine jury issue as to imperfect self-defense. Even crediting his strained and implausible assertion as to his thought pro ⁶⁶³ cess was enough to generate an honest, though unreasonable, belief that he was in deadly peril, all of the testimony establishes unequivocally that the appellant was the aggressor and there was no shred of evidence to indicate otherwise. The very notion that, failing to establish a perfect component of a defense for purposes of total exculpation, the lesser establishment of that component in imperfect form may nonetheless argue for mitigation, is a notion that presupposes the establishment of all of the other elements that are necessary to comprise the defense.

If a defense requires proof of A, B, and C, proving half of C for mitigation rather than all of Cfor exculpation, still presupposes the proof of A and B. Absent proof of A and B, whatever happens to C, in whole or in part, is utterly immaterial. Although as a lesser defense, the partial proof of an element may still stand as a pale reflection of the fuller proof of that element, it can never forgive the total failure of proof as to other necessary elements. The appellant here would have his partial proof of one component of self-defense divert attention from his utter failure to produce even a prima facie case as to the other necessary element. (Emphasis supplied).

There is a diversionary danger here that must be scrupulously avoided. This is the psychological key to why this increasingly popular contention has appeared to be more perplexing than it should be. Fixating on the defensive element that fails of proof only partially, we tend subconsciously to overlook other defensive elements that fail of proof totally, which failures would, if noticed, be dispositive. Id.

(emphasis supplied). In terms of the appellant’s burden of production, each element of the defense of self-defense, perfect or imperfect, must be independently established. Although with this theory of mitigation (as, indeed, with all theories of mitigation, including the Rule of Provocation), the burden of production is unquestionably cast on the defense to generate a prima facie case in order to be entitled to a jury ⁶⁶⁴ instruction, this allocation of the burden by no means suggests that the source of the evidence must be the testimony of the defendant himself. It may, of course, be the defendant’s testimony, as it frequently is.

The prima facie case may also, however, be established, in whole or in part, by the testimony of other defense witnesses or by other evidence in the case. The source of the prima facie case, moreover, will sometimes be evidence brought out by witnesses for the State, developed on cross-examination or even gratuitously offered on direct examination. The possible sources for the defense’s prima facie case are open-ended. In discussing the establishment of a prima facie case of self-defense in Dykes v. State, 319 Md. 206, 217 , 571 A.2d 1251 (1990), Judge Orth explained: The source of the evidence is immaterial ...

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. In Criminal Homicide Law, supra, § 9.4, p. 167, what was said with respect to the Rule of Provocation would apply with equal force to imperfect self-defense or to any theory of mitigation: There is no requirement that a defendant must take the stand and testify in order to generate a theory of mitigation based on provocation. Evidence of that may be produced by other defense witnesses or by State’s witnesses. As a practical matter, however, it is frequently only the defendant who can testify as to his own state of mind at the time of the killing.

As a practical matter, when dealing with the subjective state of mind of the defendant, he will be more often than not the best source of such information. Theoretically, however, such information could be produced from other sources. With respect to objectively measured elements, by contrast, the source of information can obviously be far more broad ranging. ⁶⁶⁵ The Indispensability of Non-Aggressor Status In analyzing one by one the elements necessary to generate a prima facie case of imperfect self-defense, the appropriate one with which to begin in this case, in keeping with the chronology of unfolding events, is the requirement that the defendant shall not have been the aggressor. This is an objectively measured element that is common to perfect self-defense and imperfect self-defense alike.

There is no watered-down version or partial satisfaction of this particular requirement. In Thornton v. State, 162 Md.App. 719 , 876 A.2d 142 (2005), Judge (now Chief Judge) Krauser wrote for this Court in affirming the decision of the trial judge not to instruct the jury on the issue of imperfect self-defense in a case in which the trial judge had ruled, inter alia, that the defendant “was the aggressor in the confrontation between [the victim] and himself.” 162 Md.App. at 733 , 876 A.2d 142 . We spelled out the pertinent element with respect to which the appellant had failed to produce a prima facie case: In Maryland, the elements for perfect self-defense are: (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; .... Id.

(emphasis supplied). After referring to two other elements of the defense with respect to which there is a difference between the perfect and imperfect versions, this Court made it clear that “[i]n all other respects, the elements of the two doctrines are the same.” 162 Md.App. at 734 , 876 A.2d 142 . Judge Krauser explained: An aggressor is not entitled to a self-defense instruction if he initiated a deadly confrontation or escalated an existing confrontation to that level. Id.

(emphasis supplied). With respect to the failure of the defendant to generate a genuine jury issue as to his non-aggressor status, our holding, 162 Md.App. at 734-35 , 876 A.2d 142 , was clear: The circuit court ... found that appellant was the aggressor. ... In rejecting appellant’s claim for imperfect self- ⁶⁶⁶ defense, the circuit court stated, among other things, that appellant acted with “malice” because appellant “was the one that ... stirred the pot and stood his ground when the challenge was accepted by the victim.” We need not rehash once more the facts surrounding the stabbing. Suffice it to say that when the victim approached, it was, as the trial court noted, at appellant’s invitation. ...

Consequently, the circuit court did not err in rejecting appellant’s imperfect self-defense claim, and thereafter convicting him of second degree murder. Having concluded that the circuit court could have reasonably found that appellant was an aggressor in the fight ... we need not address appellant’s other contentions concerning imperfect self-defense. (Emphasis supplied). State v. Martin, 329 Md. 351, 360 , 619 A.2d 992 (1993) (“[T]he defendant must also produce some evidence that he was not the aggressor.”); Lambert v. State, 70 Md.App. 83, 97 , 519 A.2d 1340 (1987) (“One who is the aggressor in an encounter ... is not entitled to invoke the imperfect self-defense doctrine, even though he honestly (but unreasonably) believed that he was required to use the level of force employed in order to defend himself.”); Cunningham v. State, 58 Md.App. at 256 , 473 A.2d 40 (“An aggressor, faced even with the reasonable belief in the necessity to kill, cannot have the defense of self-defense, for that requires ... freedom from fault in the inception of the difficulty.”).

With respect to the final lethal confrontation when the appellant put four bullets into Brian Adams, Judge Bernhardt ruled that the appellant was indisputably the aggressor who brought on that final confrontation. The earlier confrontation at the Crown Station had come to an end. The appellant had stated, “I don’t want no beef,” had taken his cigarettes, and had walked away toward his grandmother’s house. Brian Adams and his “homeboys” walked away in a different direction, down Twin River Road toward their stalled vehicle, which they were going to resupply with gasoline and then drive away.

The appellant, in the meantime, had gained the safe haven of his grandmother’s house. The earlier troubles ⁶⁶⁷ were over. But for the appellant’s sense of wounded pride or threatened manhood, those troubles would have faded into forgettable insignificance. That was not to be.

Hastily changing clothes (the purpose for which was never quite clear), the appellant wasted no time in getting back on the street to renew the encounter with Adams and the “homeboys.” A few extra minutes at home would have allowed Adams and company to have cleared the area, presumably forever since it was not their neighborhood. In going out again immediately, the appellant clearly anticipated meeting the group again because he first called his cousin, Chris, to serve as his “backup.” The need for a “backup” implies a likely confrontation. The appellant, indeed, explained that his need for a “backup” was because he had been “kind of intimidated” by the encounter at the Crown Station. When his cousin did not answer the phone, the appellant went to the kitchen and, as an alternative, took a steak knife “for backup.” He explained that the steak knife would not have been necessary if his cousin had been available for “backup.” The appellant was unquestionably arming himself for trouble as he deliberately chose to go in harm’s way.

In his testimony, he explained why he approached Adams and his “homeboys”: Q. You went right to those three guys? A. Yes, ma’am. Q. ‘Cause you wanted to confront them? A. Yes, ma’am.

As Judge Kenney noted in Marquardt v. State, 164 Md.App. 95, 141 , 882 A.2d 900 (2005): We acknowledge that the privilege of self-defense is not necessarily forfeited by arming one’s self in anticipation of an attack, but that right is qualified by the proviso that the right only extends to “one who [was] not in any sense seeking an encounter.’’ ⁶⁶⁸ (Emphasis supplied). See also Perry v. State, 234 Md. 48, 52 , 197 A.2d 833 (1964); Marr v. State, 134 Md.App. 152, 183 , 759 A.2d 327 (2000). His haste in getting back on the street and his felt need for “backup” make it impossible for the appellant to pretend that he was “not in any sense seeking an encounter.” In his trial testimony, the appellant testified that, as he returned to the scene of the earlier confrontation, he “thought I would see 'em again.” He acknowledged that he could have avoided the encounter but explained that that was not his style: I wasn’t thinking about avoiding it. Honestly, because, what I’m saying, I felt like I gotta be in this area and I’m going to see them again, know what I’m saying.

And I’m not the type that run, you know what I mean, so I just figured whatever was gonna happen it might as well happen now. (Emphasis supplied). Que sera, sera. The appellant then spotted Adams and his two companions down Twin Rivers Road and moved in that direction.

When they, in turn, spotted him, they “threw their hands up,” which the appellant interpreted to mean that they wanted to fight. They, however, did not approach him. He, fully aware that they wanted to fight, approached them. As the approach ended, the appellant and Adams were staring each other down, face to face and only several feet apart.

The appellant testified that he was, at that point, “ready to fight.” With absolutely everything the appellant said and did pointing indisputably in one windward direction, he cannot now claim the protection of the lee shore by claiming that his initiation of the renewed encounter was not with the intention “to start something” but was only with the counter “intention to squash it.” It may take only slight evidence to generate a jury issue, but slight evidence must still be somewhat more than preposterous. A nonbeliever might declare, “The earth is flat” or Joseph Goebbels might declare, “The 1939 invasion of Poland was for the purpose of preserving the peace,” but every inane statement does not ipso facto satisfy the burden of ⁶⁶⁹ production. Simply to assert that the moon is made of green cheese does not generate a genuine jury issue in that regard. The image of the armed and advancing appellant as a peacemaker is in the same category. 4 One other observation is important.

Although the appellant’s arming himself with a deadly weapon could well give rise to the conclusion that he was an aggressor at the deadly level from the outset, such a conclusion is not indispensable to our analysis. Even if the degree of the appellant’s aggression escalated from the non-deadly level to the deadly level while en route to the fatal encounter, what matters is that it was at the deadly level as of the time he closed the final gap and stood toe-to-toe with Adams. Each had a discernible bulge in his pants pocket. Each had a hand on his pocket, ready to draw.

Each challenged the other with, “What do you have in your pocket?” Each knew full well that the answer was a deadly weapon of some sort. As the appellant took the final ⁶⁷⁰ steps to bring on this encounter, the encounter was indisputably at the deadly level. Judge Bernhardt found that, among the reasons the appellant did not qualify for an instruction on imperfect self-defense, the appellant was unquestionably the aggressor who brought on the lethal encounter. Mr. Wilson’s response to that was to go home and at that moment he was very deliberative, he thought through what he intended to do.

First he called for his cousin for backup, which suggests to me that Mr. Wilson was looking to take care of business immediately, because you can’t walk around with your cousin for the rest of your life. And that’s true because Mr. Wilson said he’s not the kind to run, he’s gonna take care of it. He put on — he changed his clothes, he changed his clothes for, quite frankly, competing reasons, one was to, maybe, not be identified by the three boys, but the other was not to be identified by other persons, should he be involved in an altercation. So, again, he was thinking beyond personal safety, he was thinking at that point [of] lack of detection.

And he armed himself with a knife as backup, since he couldn’t find his cousin and then, according to his testimony, he proceeded to want to walk towards Oakland Mills. And he left, clearly, very shortly— left his home, clearly, very shortly after he arrived. He certainly didn’t wait to give the three a chance to vacate the area. So he was certainly, aware of the probability or possibility at least, that he would see these boys again, which is why he armed himself.

When he saw the boys there was, according to the testimony, a gesturing by Bryan Adams, a raising of the hands in the air. ... [I]t was his view that the raising of the hands was an invitation to fight and he crossed a road to go towards Mr. Adams. (Emphasis supplied). We cannot say that that ruling was legally incorrect. ⁶⁷¹ Objectively Reasonable Apprehension Of Harm to Life or Limb Whether the circumstances, objectively measured as of the moment the appellant fired the fatal shots, would have generated an apprehension in the so-called “reasonable man” that he was in immediate danger of death or serious bodily harm is beside the point. Judge Bernhardt did not believe that the circumstances were enough to generate any such reasonable apprehension, and that is why he declined to instruct the jury on perfect self-defense.

Coincidentally, we fully agree with him. It is, however, a superfluous element on the distinct subject of imperfect self-defense. To qualify for the defense of imperfect self-defense, a defendant need only have entertained a genuine subjective apprehension that he was faced with an immediate threat of death or serious bodily harm. Even if such an apprehension would have been unreasonable but the defendant nonetheless subjectively felt it, the mitigating defense of imperfect self-defense would still be available.

Even if, moreover, the circumstances were such that the fear of death or serious bodily harm would have been eminently reasonable but the defendant himself did not subjectively feel such an apprehension, the defendant would not be entitled to the defense of imperfect self-defense. Thus, for perfect self-defense, the apprehension must be both objectively reasonable and subjectively actually present. A subjectively genuine apprehension is a sine qua non of both perfect and imperfect self-defense. Subjectively Genuine Apprehension Of Harm to Life or Limb Judge Bernhardt ruled that the appellant had not satisfied his burden of production on the issue of a genuine fear on his part that, as of the moment he pulled the trigger, he was in immediate danger of death or serious bodily injury.

It was the appellant who followed Adams and his friends as they walked toward their car. It was the appellant who, after concluding that the three were ready and willing to fight, ⁶⁷² deliberately closed the distance between them. It was the appellant who walked up until he and Adams stood mano-a-mano a few feet apart in a classic Western face-down. The two “homeboys” were standing several feet back.

Adams had his hand on the gun in his pocket. The appellant had his hand on the knife in his pocket. Adams asked the appellant what he had in his pocket. The appellant asked Adams what he had in his pocket.

The appellant testified that they went “back and forth” like that. Adams then pulled out his gun, looked at the appellant, and “smiled.” The appellant, remarkably, “grabbed” for the gun and wrenched it away from Adams. The scene then froze as the appellant stood there holding the gun on Adams. The appellant testified that the homeboys “stood off’ a few feet behind Adams “kind of scared, like they didn’t know what was up.” In terms of the duration of the then critical moment of decision, the appellant testified that, after grabbing the gun from Adams, he held it in his hand and paused, explaining that “it wasn’t a whole minute, but I did wait ” before deciding to pull the trigger and shoot Adams.

(Emphasis supplied). On redirect examination, the appellant described that frozen moment in time as “no more than maybe, like, 15 seconds.” As Judge (now Chief Judge) Bell made clear in State v. Martin, 329 Md. 351, 364 , 619 A.2d 992 (1993), the critical issue is that of what the appellant “subjectively believed or felt when he fired the fatal shot.” (Emphasis supplied). In Sims v. State, 319 Md. at 553, 573 A.2d 1317 , Judge McAuliffe also pointed to the precise moment when the state of mind of the gunman is of critical significance, “[TJhere is not a shred of evidence showing the state of mind of the defendant at the moment of the shooting.” (Emphasis supplied). The appellant testified as to what was going through his head during that critical moment of decision.

He testified that he “was scared, I was mad, you know what I’m saying, I felt challenged, you know what I’m saying. I had a lot of emotion running through my head at that time.” (Emphasis supplied). The appellant claimed that Adams twice challenged him to shoot the gun. In response, the appellant “pointed it ⁶⁷³ to him.

I point it to him, you know what I mean, I was kind of shaking, you know what I’m saying. He was just, like, you got it now, shoot.” The appellant then shot Adams four times. After the second shot, Adams fell to the ground. The appellant then shot him two additional times as he lay on the ground.

When asked why he shot Adams four times, the appellant explained that he “was just caught in the moment.” The words were not those of someone desperately trying to save his own life. Honestly, my finger was just on the trigger, you know what I’m saying. Like, I can’t really explain, like, what was going through my mind, ‘cause like I said, it wasn’t no thought in it, you know what I mean. It was just, like, just go, you know what I mean, I can’t really explain it.

(Emphasis supplied). When asked specifically what “emotion” he was feeling, the appellant replied, “anger, really anger. I was scared, 5 1 was angry, all the same emotions I had when he pulled it on me.” To meet the burden of production with respect to the apprehension of imminent death or serious bodily harm, a mere turbulent mish-mash of emotions will not suffice. In Lambert v. State, 70 Md.App. 83, 98 , 519 A.2d 1340 (1987), Judge Bloom explained for this Court: He did not state he felt it necessary to stab the victim to defend himself.

The evidence leads to the conclusion that appellant subjectively experienced various emotions during the fight, but fear was not one of them. Moreover, appellant’s repeated assertions that his mind was a “blank” ⁶⁷⁴ during the incident are inconsistent with and belie a fearful state of mind. (Emphasis supplied). In his earlier statement to the police, which was taped and played for the jury, the appellant had also described the critical moment as he held the gun on Adams: I pulled it at him.

He was like, shoot. I stood there for a minute, man. He like, shoot. Okay, shoot.

So I shot. Shot four time. Dropped the pistol. I took out.

Got out of Dodge. My intentions, my, wasn’t on killing this man. I’m no killer. I’m not no murderer.

That’s not my [style]. That’s not how I get down. I done been in a couple fights. I done been out there in the streets for a minute.

And, and I, and I done did what I done did. But that wasn’t my intentions. Really. I aint even want to fight.

And I’m saying it all happened so fast, man. Me trying to boost myself up, like, man, forget it, man. Aint nothing, aint nothing, aint nothing. Know what I’m saying?

And it just happened real fast, man. And his dudes, you know what I’m saying? His, they kept talking slick, man. Like that was, like they was bears or something.

You know what I’m saying? I tried to tell them, I’m, I aint from around here man. You know what I’m saying? (Emphasis supplied).

In declining to instruct the jury on imperfect self-defense, Judge Bernhardt pointed out that the appellant, who bore the burden of production, never testified that at the critical moment of decision, as he was holding a gun on the unarmed Adams and was in complete control of the scene, he was acting out of fear of imminent death or serious bodily harm. And according to his testimony he put his hand in his pocket where the knife was. And Mr. Adams, according to him, had his hands in his pockets, so they both were looking at each other with their hands in their pockets. And there’s a lot of thinking going on here, a lot of decision making going on here, none of which smacks nor is there any evidence that there’s fear of death or imminent bodily harm ⁶⁷⁵ coming, so that’s [him] protecting himself.

In fact, he’s going towards the source of the fear of death and imminent bodily harm, if that’s what was present at this point---- [WJhen Mr. Adams is looking at one of his friends the Defendant disarms