*1 MARYLAND v. STATE OF MELVIN FAULKNER Term, September 1982.] [No. 9, 1983.
Decided March *2 JJ., The cause argued before and Garrity, Lowe E. Judge Associate of the Court of Orth, Charles Jr., (retired), Appeals specially assigned.
Gary Offutt, S. Defender, Assistant Public with whom Murrell, Alan Defender, were H. Public A. Claudia Córtese, Defender, brief, Assigned Public on the for appellant. Cloutier, General, Attorney
Valerie V. Assistant Stephen Sachs, Attorney General, whom were H. William A. Swisher, Attorney State’s City, Baltimore and Brian Murphy, Assistant Attorney City, State’s for Baltimore brief, the for appellee. J., Lowe, J., opinion
Orth, delivered the Court. dissents and files dissenting opinion at 122 infra. page
From the
waters
turbulent
criminal
law of
Maryland,
Wilbur,
Mullaney
roiled
the dictates of
421
684,
(1975),
U.S.
95
1881
emerged
S.Ct.
an esoteric
self-defense,
qualification to the doctrine of
as the
known
"imperfect right of self-defense.” We noticed it in Evans v.
State,
640, 658,
4,
(1975), aff'd,
28 Md.
n.
A.2d
App.
349
300
Evans,
197, 362
(1976),
State v.
Md.
recognized
A.2d
40-45,
it in
Shuck v.
29 Md.
A.2d 378
(1975),
denied,
(1976),
it in
mentioned
cert.
110, 120-121,
A.2d 421
Wentworth v.
denied,
applied
cert.
cert. The Court of Md. 726 yet Maryland has not addressed matter. legal history,
In the of reference of the doctrine of frame origin, is of and scholars of the recent law have to it far advanced.” LaFave and yet referred as "not Scott, Evans, (1972), § We speculated Criminal Law n. it is more than an academic "little But, Wentworth, possibility.” as we Shuck and discovered viable Mullaney qualification has made impact of and rendered it more than academic. There are indications it, invoking are now bench and defense counsel prosecutors had best take heed. *3 "perfect” justifiable is either or
Homicide self-defense culpable.1 when excusable and established killer is not (1970). State, 7, 10, 316 App. Whitehead v. Md. requires only Perfect self-defense not that the killer necessary subjectively believed that his actions were for his safety but, objectively, that a reasonable man would so self-defense, however, Imperfect requires consider them. no subjective more part than a honest belief on the the killer that his necessary safety, though, actions were for his even objective man, they on an appraisal a reasonable would established, not be found to be so. If the killer remains culpable only and his actions are to extent that excused mitigation invoked.2 is 1. person feloniously assaulted, "Justifiable self-defense is where a is
being
himself,
necessarily
without fault
kills his assailant
to save
great
harm,
himself
bodily
from
or
felony attempted by
death
or from other
surprise.
force or
in a sudden
person
engaged
Excusable
is
self-defense where a
becomes
affray
combat,
or
affray
combat,
and in the course of
or
necessarily,
reasonably apparent necessity,
or under
adversary
kills his
to
great
save
bodily
retreating
himself from death or
harm after
as far as he
safety.
can with
The force used must not be
or
unreasonable
excessive.”
(1970).
State,
7, 10,
App.
Whitehead v.
9 Md.
malice. It serves therefore applies but in the case of a felonious homicide manslaughter fatally intent to murder. It felony of assault with also to the there charge. intent to murder Since erodes an assault with when manslaughter, intent to is no crime of assault with with intent respect to assault negated malice is accused, may murder, charged, guilty if be found so State, Md. v. simple battery. See Thomas assault and 51-52, 278 Md. granted, A.2d 384 cert. dismissed, cert. the trial court’s firmly It is now established in a murder case must be full accord with the instructions Shuck, said in Mullaney dictates of v. Wilbur. We Wilbur, Mullaney applies at v. just surely instruction on assault with intent to murder as charge with the murder applies dealing to an instruction itself. explained:
We intent necessary
"Since a element of assault with state of mind such as to murder is malicious murder if the assault victim had would constitute died, an instruction on the elements of on murder, and the burdens the relevant defenses to (emphasis called for.” thereto was added). Id. 251, 254, A.2d Finnegan
See
v.
denied,
denied,
cert.
We find as a matter of law generated, evidence addition to the issues perfect as to mutual combat, the issue of mitigation the form of using Faulkner was convicted of assault with intent handgun to carrying handgun. in a crime violence and He was sentenced imprisonment years a term of of 10 on the assault with intent to murder years year conviction and to concurrent terms five on the and one handgun convictions, respectively. *5 Faulkner, Maryland of it under the law as now self-defense.5 stands, an on imperfect was entitled to instruction fairly matter was not covered in the self-defense. The Therefore, actually given. judge the instructions committed give error in to the instruction. refusing requested reversible to respect The of conviction and sentence with the judgment to murder reversed. The charge of assault with intent is case on that charge.6 remanded a new trial is
III. to charge jury regard to the with judge The of the refusal the judgment contaminates on imperfect self-defense also felony in of a or a crime use the commission handgun the of a offense, a of of that the guilty To render verdict of violence. delicti, determine, a corpus as to the that trier of fact must committed and that a felony or a crime of violence was deficiency in the handgun in commission. The was used its element. As we pertinent to the first instruction here was established, it duly is seen, if self-defense imperfect have charge, intent to murder fatally an assault with erodes felony battery, to neither a mitigating simple assault Therefore, prove if Faulkner could to a crime of nor violence. Emanuel jury he assaulted the satisfaction of self-defense, use of a guilty not be of the he could imperfect felony a crime violence. of or of handgun in commission requested to the that Faulkner was entitled It follows with intent to only respect instruction not with to assault handgun to of the use a charge, respect murder but also with use of as to the charge. judgment The case is is reversed. of a crime of violence commission charge.7 for new trial on remanded generate to It is which are sufficient difficult to envision circumstances by way perfect which do justification the issue or excuse of way generate mitigation by imperfect self-defense. not also the issue of Generally, to the to instruction with if a defendant is entitled an former, respect to the latter. be to he will entitled an instruction judgment light of assault 6. In of our reversal on the offense trial contention that the court intent to erred we do not reach Faulkner’s refusing intent give requested to transferred to instruction as relating to that offense. exception give 7. The failure instruction IV.
With to the judgment entered on the conviction of carrying handgun, proof corpus a of the delicti and agency Faulkner’s criminal as to that offense was not dependent upon guilt the establishment of his of assault with intent to murder. It clear from was the evidence that revolver, Faulkner person had on his a .22 caliber and he admitted that he fired the bullet which struck Emanuel. The judgment entered upon carrying the conviction of a handgun may despite stand our judgments reversal of the as to assault with intent to murder and the use of handgun. a presents
Faulkner two which contentions relate to the handgun charges. He filed a pretrial suppress motion to admission in handgun evidence of the seized from his person day shooting. after the After a plenary hearing the court below denied the motion. Faulkner alleges error. gave court its ruling: reasons for the
"All right, the issue, course, resolution of this is as to whether stop and the seizure of the weapon in this case is proper. The Court by is bound the standards set Terry forth in vs. Ohio. I think counsel will agree on that. Under Terry police a officer must be able to point to specific and articulable facts which together taken were rational inferences from the reasonably facts warrant the intrusion.
Now the facts of this
One,
case are what?
there
was a shooting that had taken place
day before;
that
the shooting involved a black male of a
particular
height, build, and what
the Court
general
self-defense was a
requested
exception
one: "1 take
to the fact that our
instruction on
given.” Although
self-defense was not
a
request
written
be
for instructions was submitted to the court and ordered to
filled,
it is not included in the record before us.
We note
that Ford v.
This incident that it testified to is the officer and what September day where it was not a cool day; a rather warm was At least that’s the jacket. normally a wears person testimony. The his draw from inference would defendant, information, this saw had this officer stood out particularly he that and he testified He description. this jacket, of this black because was, high awas the defendant knew the area where believing justified He also would be crime area. day shooting in a involved if the person that might he before, strong probability there was armed; question attempting be *7 important factors became those particular person me, on all the facts him, seem to based and it would making in him, justified he was before he had search, clothing, his outer at least of a limited all he did in And that’s protection. his own least for testimony. case, according to his this and, object did, he felt this metal what he And him to is, experience, led expertise in his and which weapon pistol, revolver or that it was a believe indeed, which, after he took sort, and in some waistband, from his object weapon or whatever revolver, which was to be a .22 caliber turned out loaded. case, in this all the circumstances
Under permissible under his actions were Court feels that deny your Ohio, I will therefore Terry vs. motion.” is in accord of the facts compendium The court’s agree.
We
constitutional
Upon
independent
our
the evidence.
with
that,
record,
in the
we believe
of the entire
appraisal
had
activity,
circumstances,
officer,
criminal
suspecting
intrusion on Faulkner’s
the limited
authority to make
cause. The
probable
than
security
on less
personal
based
weapons
justifiable
"frisk” for
response
was
to the officer’s
dealing
reasonable belief that he was
a possibly
armed
dangerous suspect.
We think the denial of the motion to
Ohio,
1,
in
suppress
Terry
was
accord with
v.
392 U.S.
explicated
Williams,
S.Ct. 1868
by Adams v.
143,
U.S.
S.Ct.
States
United
v.
(1975)
873,
Brignoni-Ponce, 422 U.S.
was erroneous. a pre-trial Faulkner also made motion in limine to any suppress regarding evidence the seizure of the .22 caliber on weapon the admission ground clearly "[t]his constitutes evidence of another crime, wholly independent of the he crime which charged.” He contends that the trial judge erred denying the motion. We see no error. There was evidence that Faulkner shot the victim a .22 caliber handgun and that a .22 caliber bullet was removed from the victim’s chest.8 weapon presence and its person Faulkner’s day after the shooting was "substantially relevant for some purpose other probability than to show a that he committed the crime on trial because he is a man of criminal character.” Ross A.2d quoting (2d 1972). McCormick, Evidence, § C. ed. We hold that denial motion limine was not erroneous. Judgment on assault with intent to *8 (fírst
murder count of C.I. 28134336) reversed and case remanded for a new trial thereon. Judgment on using handgun in
the commission of a crime of (third violence count of C.I. 28134336) reversed and case remanded for a new thereon. trial 8. The by condition of the bullet was it such that could not be determined weapon ballistics examination if it was fired from seized. wearing, carrying Judgment (fírst transporting 28134337) count of CJ. affirmed. by be paid Costs to two-thirds Mayor City Council by Baltimore one-third appellant.
Lowe,' dissenting: J. society have heretofore saddled dispute
I cannot that we yet possibility” providing another "academic one more an out in Shuck v. pressure pointed valve for accused. As quoting n. 4 of Evans v. imperfect predicated upon extenuating is "esoteric concept ” however, advanced;’ circumstances, yet 'not far by the dicta of Shuck footnote of Evans "advanced” by application in again which in turn was "advanced” Law where we that it is a said defense, singular exculpation. In that mitigation not we discovered academic esoteria application newly of the and that would "negate effect was to malice” noted its manslaughter.” be murder to might "reduce what otherwise beyond specified application I its its agree cannot to extend that we importantly, am now convinced purpose; but more Shuck, back from the limited course we set should off Law, supra, supra. advanced very the not far "perfect” this now
For Court extenuating esoteric predicated upon possibility academic malice in mitigation of from an circumstances with intent to exculpation of assault murder to an absolute statutory implication crime an engrafts upon that which we ago, decades knowledge Legislature in the and have thinking in our only now admixed ourselves have To extent enough jell. yet long "set” not damage we-have the resultant may alleviate Legislature semantically correcting assault upon that crime imposed to kill. This assault with intent with intent to murder to *9 desultory effect of an negate would statutory upon obviously crime which was contemplated. or even never intended But I question general further philosophy of permitting mitigating even a predicated defense upon the subjective "belief’ a killer despite the admitted unreasonableness such a is left no belief. There standard by which the violent can except conduct be measured standard peculiar to the killer himself. I must confess that silently I sat in Shuck possibility where the academic something became more than academic. But I cannot perpetuate my sin of silence when the significance practical of an academically reasonable concept addressed conceptually applied practically, but not upon ultimate application exposes the impracticality stark of such application. The criminal as law an instrument of societal control cannot solely allow violence be excused upon whims of the perpetrator. His conduct must be measured against some societal norm of reasonableness.
Embarrassing as it
my
beguilement
is to confess
former
any
would stifle
further advance of this
concept
esoteric
return it to the scholars who conceived it. I am encouraged
that the Court of Appeals has
permit
part
refused
ofthe
guilt determining
legally
calculus a
sane defendant even to
introduce evidence
perplexed
of his
state of mind as a
diminution of
responsibility
his violent conduct. Johnson
v.
same
I respectfully dissent.