Alexander v. State

• Citation: 52 Md.App. 171,447 A.2d 880
• Decision Date: 13 July 1982
• Docket Number: No. 1537,1537
• Parties: Ralph ALEXANDER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 171

52 Md.App. 171

447 A.2d 880

Ralph ALEXANDER v. STATE of Maryland.

No. 1537.

Court of Special Appeals of Maryland.

July 13, 1982.

Thomas J. Bollinger, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, William A Swisher, State's Atty. for Baltimore City and Gary Ticknor, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Submitted before MOYLAN, MOORE and LOWE, JJ.

-- a legal prologue--

LOWE, Judge.

In the decade that commenced with the assassination of President Kennedy, climaxed with the creation of this Court, and concluded with the marriage of Tiny Tim, violence proliferated, partly because police were constitutionally hobbled in controlling a rebellious reaction and partly because citizens were reluctant--or afraid--to become "involved" in deterring that violence. This reticence seemed to emanate less from fear of physical harm than from the potential consequences of a legal aftermath. Representative was the 1964 New York homicide of Catherine "Kitty" Genovese, who was viciously ravaged and repeatedly stabbed while onlookers turned their backs to avoid witnessing the butchery, and neighbors closed their doors and windows to shut out her screams of anguish until her suffering was finally ended by the murderer. Witnesses who were interviewed excused their indifference by noting that the law did not protect a protector from criminal assault charges if the one he aids was initially in the wrong, however misleading appearances may have been. See People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319 (1962). The onlookers hesitated to become involved in the fracas at their legal peril. Even if their hearts had been stout enough to enter the fray in defense of a stranger being violently assaulted, the fear of legal consequences chilled their better instincts.

At common law, the privilege of using force for crime prevention did not include authority for intervenors to protect third persons who were strangers to the intervenor. The privilege, even now in some jurisdictions, was limited to the protection of those closely related to, or associated with, the intervenor. See Guerriero v. State, 213 Md. 545, 132 A.2d 466 (1957). That restriction to family or close associates was imposed because the right evolved not from the right of self-defense, as most cases imply, but from the right to protect one's property. R. Perkins, Criminal Law (2nd ed. 1969) at 1018-1019. III W. Blackstone, Commentaries on the Law of England 3 (facsimile ed. 1979), described the right as only Blackstone could:

"In these cases, if the party himself, or any of these his relations, be forceably attacked on his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray."

Although it was merely a defense, an excuse for breach of the peace (or even homicide), Blackstone put great emphasis upon the natural source of this legal right. He felt that it

"is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society." Id. at 4.

Perhaps because the right to protect one's "property" (i.e., his household, which included wife, children, servants, etc.) carried the same limitations upon the degree of force employed as did self-defense, ¹ many, if not most, of the courts in this country addressed the issue from the view that no force could be justifiably employed unless the protected person may have justifiably defended himself. That generally was the law espoused by the leading New York case of Young, supra, where the court affirmed the conviction for assault of a defendant who, in good faith, intervened in a struggle between a plain clothes police officer and a person whose arrest the police officer was attempting to effect.

The Maryland Court of Appeals has never directly addressed the issue, but inclined with the majority by strong dicta in 1957. In Guerriero v. State, supra at 549, 132 A.2d 466, the Court acknowledged, if somewhat grudgingly, that:

"A third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used."

The care with which the Court chose to refrain from espousing any law beyond the narrow confines of the facts of that case is emphasized by the next sentence, in which the court hesitated to concede that a brother was a sufficiently close relative to warrant a right to that defense.

"The cases differ as to whether, and under what circumstances, one may so defend a brother in danger but we assume, without deciding, that he may, since the State concedes the point."

Early in this Court's judicial life, it carefully adhered to that narrow and restricted espousal of the right to aid third persons, limiting the beneficiaries of such right to relatives or close associates of the intervenor, but more significantly for our present purposes, by restricting the right to

"such a manner that he [the victim] could properly have defended himself by the use of force ...." Tipton v. State, 1 Md.App. 556, 560, 232 A.2d 289 (1967).

Although the reciprocal right limitation was not clearly or definitively expressed in either Guerriero or Tipton, both cases showed Maryland leaning toward the New York view that one goes to the aid of another at his peril, and his protection from criminal charges depends not on what appears to him when he intervenes, but rather upon the rights of the person whom he has succored. As Perkins, supra, points out,

"it has been common but quite unfortunate to say that the defender 'stands in the shoes' of the one defended with exactly the same privilege or lack of privilege as possessed by the latter." Id. at 1020.

Perkins finds fault with that theory because it forces a Good Samaritan to gamble not only his health but his freedom and reputation, and overlooks the likelihood that the intervenor might have acted entirely without mens rea, and perhaps even with the highest sense of duty. It deals with such a defender as the willing participant in a brawl; whereas, from his standpoint (with the facts as they reasonably appear to him), he may be seeking to defend an innocent victim from a felonious assault.

Perkins' preferred position better fulfills our contemporary social needs by merging the encouragement of crime prevention with the privilege of defending others. It was approved instinctively by this Court in Gray v. State, 6 Md.App. 677, 685-686, 253 A.2d 395 (1969), without mentioning Guerriero, Tipton or even Young. Gray's failure to address those older cases or the common law cases might have been justified because Maryland abrogated its common law status in that regard in 1965 by broadly extending the right to intervene to aid an apparent victim of a violent assault. Md.Ann.Code (1982 Repl.Vol.), Art. 27, § 12A, provided that:

"Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person's defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself." (Emphasis added).

But in Gray we didn't mention the statute either.

Gray dealt with a son who killed his father, allegedly to protect his mother. That relationship had no need to look beyond the common law; however, we held that an "acting on appearances" instruction was properly denied, but only because the issue had already been fully instructed. The request was cumulative, we said, because the court had instructed that in order to qualify or excuse the killing, the defendant had to have believed at the time that a person close to him (his mother) was in danger of losing her life or suffering serious bodily harm, and that the circumstances were such as "to warrant reasonable grounds for such belief in a mind of ordinary reason." Id. at 685, 253 A.2d 395. The trial judge supplemented the instruction by adding that the test was not what the jury thought a reasonable man would believe,

but rather what the defendant, as a reasonable man, believed, to be taken into consideration." Id. at 685-686, 253 A.2d 395.

Clearly acknowledging the legal propriety of the instruction, Judge Morton said for this Court that:

"Under the circumstances, we are of the opinion that the jury was fairly apprised of the law relating to a homicide committed in defense of a close relative and, accordingly, find no prejudicial error by the trial court in refusing to grant the instruction as submitted." Id. at 686, 253 A.2d 395.

While this holding clearly indicated a first impression in Maryland on the question of an accused's state of mind, we cannot say that it expressed the legislative intent of Art. 27, § 12A--because, as noted, the statute was not mentioned in the opinion. Indeed, the only direct reference to that statute which we are able to find in any reported opinion appears in Pope v. State, 284 Md. 309, 325, 396 A.2d 1054 (1979), where Judge Orth acknowledged the Act as one of two "Good Samaritan" statutes ² enacted by the General Assembly and described its purpose as intending to "afford protection to one who assists another in certain circumstances." That is not only its obvious raison d'etre, but no other reason for its being is conceivable.

When House Bill 139 (which became § 12A) was sponsored in 1965, it arose in the wake of the Genovese and other similar causes celebres publicizing the legal dangers of "involvement." As indicated by Pope, the Act was clearly intended to encourage and to afford...