Faulkner v. State

¶1delivered the opinion of the Court. Lowe, J., dissents and files a dissenting opinion at page 122 infra.

¶2I

¶3From the turbulent waters of the criminal law of Maryland, roiled by the dictates of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (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, 28 Md. App. 640, 658, n. 4, 349 A.2d 300 (1975), aff'd, State v. Evans, 278 Md. 197, 362 A.2d 629 (1976), recognized it in Shuck v. State, 29 Md. App. 33, 40-45, 349 A.2d 378*115(1975), cert. denied, 278 Md. 733 (1976), mentioned it in Wentworth v. State, 29 Md. App. 110, 120-121, 349 A.2d 421 (1975), cert. denied, 278 Md. 735 (1976), and applied it in Law v. State, 29 Md. App. 457, 463-465, 349 A.2d 295 (1975), cert. denied, 278 Md. 726 (1976). The Court of Appeals of Maryland has not yet addressed the matter.

¶4In 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, at 658, n. 4, that it is "little more than an academic possibility.” But, as we discovered in Shuckand Wentworth, the impact of Mullaneyhas made the qualification viable and rendered it more than academic. There are indications that defense counsel are now invoking it, and the bench and prosecutors had best take heed.

¶5Homicide in "perfect” self-defense is either justifiable or excusable and when established the killer is not culpable.1Whitehead v. State, 9 Md. App. 7, 10, 262 A.2d 316 (1970). 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. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked.2

¶6*116The mitigating effect of imperfect self-defense is to negate malice. It therefore serves not only to reduce murder to manslaughter in the case of a felonious homicide but applies also to the felony of assault with intent to murder. It fatally erodes an assault with intent to murder charge. Since there is no crime of assault with intent to manslaughter, when malice is negated with respect to assault with intent to murder, the accused, if so charged, may be found guilty of simple assault and battery.3See Thomas v. State, 29 Md. App. 45, 51-52, 349 A.2d 384 (1975), cert. granted, 278 Md. 736 (1976), cert. dismissed, 279 Md. 604 (1977).

¶7It is now firmly established that the trial court’s instructions in a murder case must be in full accord with the dictates of Mullaney v. Wilbur. We said in Shuck, 29 Md. App. at 36, that Mullaney v. Wilbur, applies to an instruction on assault with intent to murder just as surely as it applies to an instruction dealing with the murder charge itself.

¶8We explained:

"Since a necessary element of assault with intent to murder is the malicious state of mind such as would constitute murder if the assault victim had died, an instruction on the elements of murder, on the relevant defenses to murder, and on the burdens with respect thereto was called for.” (emphasis added). Id.

¶9See Finnegan v. State, 33 Md. App. 251, 254, 364 A.2d 124, cert. denied, 279 Md. 682 (1976), cert. denied, 433 U.S. 912 (1977); Jacobs v. State, supra, at 512; Law v. State, supra, *117at 462-465; Blake v. State, 29 Md. App. 124, 126, 349 A.2d 429 (1975), cert. denied, 278 Md. 716 (1976). It follows that, when the evidence generates the issue of mitigation with respect to an assault with intent to murder charge, the trial court may, and upon request, shall, give an appropriate instruction to the jury. Md. Rule 757b; Lansdowne v. State, 287 Md. 232, 239, 412 A.2d 88 (1980).

¶10II

¶11Melvin Faulkner went on trial before a jury in the Criminal Court of Baltimore charged with assault with intent to murder Ricky Emanuel and related offenses.4 The charges stemmed from a brouhaha on a public street during which Faulkner shot Emanuel in the chest. As in Shuck, 29 Md. App. at 35, the factual versions of what occurred in the confused and angry medley varied significantly in terms of who was the aggressor at various stages of the fight, who entered into the fight mutually and wilfully and who was simply defending in an effort to extricate himself from a difficult situation. Faulkner admitted that he fired the shot that struck Emanuel, but from his testimony and other evidence it was fairly a jury question whether he acted without legal justification or excuse or in self-defense or under mitigating circumstances. The trial judge included in his charge both the doctrine of perfect self-defense and the rule of mutual combat. Faulkner was content with this as far as it went, but he wanted more. He requested an instruction on imperfect self-defense. The trial judge, without stating his reasons, but apparently believing that he had adequately covered all the applicable law, refused to add the requested instruction to his charge.

¶12We find as a matter of law that the evidence generated, in addition to the issues as to perfect self-defense and mutual combat, the issue of mitigation in the form of imperfect *118self-defense.5 Faulkner, under the law of Maryland as it now stands, was entitled to an instruction on imperfect self-defense. The matter was not fairly covered in the instructions actually given. Therefore, the judge committed reversible error in refusing to give the requested instruction. The judgment of conviction and sentence with respect to the charge of assault with intent to murder is reversed. The case is remanded for a new trial on that charge.6

¶13III.

¶14The refusal of the judge to charge the jury with regard to imperfect self-defense also contaminates the judgment on the use of a handgun in the commission of a felony or a crime of violence. To render a verdict of guilty of that offense, the trier of fact must determine, as to the corpus delicti, that a felony or a crime of violence was committed and that a handgun was used in its commission. The deficiency in the instruction here was pertinent to the first element. As we have seen, if imperfect self-defense is duly established, it fatally erodes an assault with intent to murder charge, mitigating it to simple assault and battery, neither a felony nor a crime of violence. Therefore, if Faulkner could prove to the satisfaction of the jury that he assaulted Emanuel in imperfect self-defense, he could not be guilty of the use of a handgun in the commission of a felony or crime of violence. It follows that Faulkner was entitled to the requested instruction not only with respect to the assault with intent to murder charge, but also with respect to the use of a handgun charge. The judgment as to the use of a handgun in the commission of a crime of violence is reversed. The case is remanded for a new trial on that charge.7

¶15*119IV.

¶16With respect to the judgment entered on the conviction of carrying a handgun, proof of the corpus delicti and Faulkner’s criminal agency as to that offense was not dependent upon the establishment of his guilt of assault with intent to murder. It was clear from the evidence that Faulkner had on his person a .22 caliber revolver, and he admitted that he fired the bullet which struck Emanuel. The judgment entered upon the conviction of carrying a handgun may stand despite our reversal of the judgments as to assault with intent to murder and the use of a handgun.

¶17Faulkner presents two contentions which relate to the handgun charges. He filed a pretrial motion to suppress the admission in evidence of the handgun seized from his person the day after the shooting. After a plenary hearing the court below denied the motion. Faulkner alleges error.

¶18The court gave its reasons for the ruling:

"All right, the resolution of this issue, of course, is as to whether the stop and the seizure of the weapon in this case is proper. The Court is bound by the standards set forth in Terry vs. Ohio. I think counsel will agree on that. Under Terry a police officer must be able to point to specific and articulable facts which taken together were rational inferences from the facts reasonably to warrant the intrusion.

Now the facts of this case are what? One, there was a shooting that had taken place the day before; that the shooting involved a black male of a particular height, build, and what the Court *120considers very significant, wearing a black leather jacket.

This incident happened in the middle of September and what the officer testified to is that it was a rather warm day; it was not a cool day where normally a person wears a jacket. At least that’s the inference I would draw from his testimony. The officer had this information, saw this defendant, and he testified that he particularly stood out because of this black jacket, this description. He knew the area where the defendant was, was a high crime area. He also would be justified in believing that if the person was involved in a shooting the day before, there was a strong probability that he might be armed; that in attempting to question this particular person those factors became important to him, and it would seem to me, based on all the facts he had before him, that he was justified in making a limited search, at least of his outer clothing, at least for his own protection. And that’s all he did in this case, according to his testimony.

And what he did, he felt this metal object and, which is, in his expertise and experience, led him to believe that it was a revolver or pistol, a weapon of some sort, and in which, indeed, after he took this weapon or whatever object from his waistband, it turned out to be a .22 caliber revolver, which was loaded.

Under all the circumstances in this case, the Court feels that his actions were permissible under Terry vs. Ohio, and I will therefore deny your motion.”

¶19We agree. The court’s compendium of the facts is in accord with the evidence. Upon our independent constitutional appraisal of the entire record, we believe that, in the circumstances, the officer, suspecting criminal activity, had authority to make the limited intrusion on Faulkner’s personal security based on less than probable cause. The *121"frisk” for weapons was a justifiable response to the officer’s reasonable belief that he was dealing with a possibly armed and dangerous suspect. We think the denial of the motion to suppress was in accord with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), as explicated by Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921 (1972), United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574 (1975) and Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981) and as applied in Watkins v. State, 288 Md. 597, 420 A.2d 270 (1980). We hold that the denial of the motion to suppress was not erroneous.

¶20Faulkner also made a pre-trial motion in limine to suppress any evidence regarding the seizure of the .22 caliber handgun and the admission of the weapon on the ground that "[t]his clearly constitutes evidence of another crime, wholly independent of the crime for which he was charged.” He contends that the trial judge erred in denying the motion. We see no error. There was evidence that Faulkner shot the victim with a .22 caliber handgun and that a .22 caliber bullet was removed from the victim’s chest.8 The weapon and its presence on Faulkner’s person a day after the shooting was "substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” Ross v. State, 276 Md. 664, 669, 350 A.2d 680 (1976), quoting C. McCormick, Evidence, § 190 (2d ed. 1972). We hold that the denial of the motion in limine was not erroneous.

¶21Judgment on assault with intent to murder (fírst count of C.I. 28134336) reversed and case remanded for a new trial thereon.

¶22Judgment on using a handgun in the commission of a crime of violence (third count of C.I. 28134336) reversed and case remanded for a new trial thereon.

¶23*122Judgment on wearing, carrying and transporting a handgun (fírst count of CJ. 28134337) affirmed.

¶24Costs to be paid two-thirds by the Mayor and City Council of Baltimore and one-third by appellant.