Banks v. State, No. 1368

CourtCourt of Special Appeals of Maryland
Writing for the CourtMOTZ
Citation608 A.2d 1249,92 Md.App. 422
Docket NumberNo. 1368
Decision Date01 September 1991
PartiesThelma Jean BANKS v. STATE of Maryland. ,

Page 422

92 Md.App. 422
608 A.2d 1249
Thelma Jean BANKS
v.
STATE of Maryland.
No. 1368, Sept. Term, 1991.
Court of Special Appeals of Maryland.
July 6, 1992.

[608 A.2d 1251]

Page 425

Victoria S. Lansburgh, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Page 426

Argued before MOYLAN, BISHOP and MOTZ, JJ.

MOTZ, Judge.

The central question presented by this case is whether statements made by a victim at various times prior to his death, of fear of his killer, were properly admitted into evidence to rebut evidence of battered spouse syndrome, self-defense, or hot blooded provocation. Because the victim's statements are hearsay and not admissible as exceptions to the hearsay rule, they should not have been admitted at trial. Accordingly, we must reverse the judgment of the Circuit Court for Baltimore City.

(i)

At "some time after 4:00 p.m." on August 14, 1990, the Baltimore City Police received a report of a burglary in progress at 1552 North Carey Street. Officer Benjamin Braxton responded to the scene, and found the front door of the house locked. After knocking and getting no response, Officer Braxton went around to the back of the house, and looked through the window. He saw appellant, Thelma Jean Banks, standing at a sink with dishes in it and washing a kitchen knife. Through the window, Officer Braxton asked appellant if she had called the police. Appellant told Braxton that she could not get the back door open and asked him to go to the front. He did so, and appellant told him that she could not get the front door open. She told him that everything was alright, however, and he left.

About five minutes later, according to the testimony of Mary Malachi, appellant's next-door neighbor, appellant came out to where Malachi was sitting on Malachi's front steps. She testified that appellant seemed to be in a "daze," and did not answer when Malachi spoke to her. After about five minutes, appellant said to Malachi, "Mary look--someone broke in and look what they did to Brother [nickname of the victim, James McDonald]." Malachi entered appellant's house and "saw [McDonald] sitting in the chair, and on the sofa, and he was slumped over." As

Page 427

Malachi left the house, fire and rescue equipment and the police arrived on the scene.

Officer Richard Carter arrived at the house at about 6:30 or 7:00 p.m. "[t]o investigate a cutting." According to Officer Carter, McDonald was lying on the living room sofa. Appellant told Carter that she had called the police because "someone had broke into the back of her house through the kitchen, and ... stabbed her boyfriend." Officer Carter testified that the back door was locked with a "slide bar" when he arrived and that there were no signs of forced entry. He further testified that he saw a "partially washed" knife in the sink "with blood still going down the drain." Detective Gerald Goldstein arrived at the house at 7:21 p.m. and found appellant sitting on the steps of the house next door; he took her into custody for questioning. Goldstein testified that appellant initially told him that "[s]he and the victim had just come into the house and they were going to go upstairs for sex, and while she was upstairs he was going downstairs to lock up the house and close the windows. And then she heard him yell--she used the word 'intruders.' He yelled to her, intruders, and she ran down the stairs and he had been stabbed in the chest, and she turned around to see two unknown intruders run [608 A.2d 1252] out the back door." Eventually, according to Goldstein, appellant "admitted that she stabbed him."

Appellant testified at trial that McDonald physically abused her when he drank, and that she was defending herself against an attack by him "with a sickle" when she stabbed him. She stated that she had no recollection of calling the police and reporting a burglary, and that she remembered very little after the stabbing occurred. Five witnesses corroborated appellant's testimony about prior abuse of her by McDonald. On the other hand, McDonald's mother and sister, as well as two police officers, who had been to the house separately on various occasions to investigate complaints of domestic violence, testified that McDonald had told them that he was afraid of appellant because she physically abused him. Virtually every witness

Page 428

for both sides testified that appellant and McDonald were heavy drinkers; they had been drinking together on the day of the stabbing. According to an autopsy report prepared by the medical examiner, McDonald had a blood alcohol level of .25% when he was stabbed. (For a person of McDonald's size to have a blood alcohol level of this degree, he would have to have consumed 11 or 12 ounces of an 80 proof beverage, i.e., 11 or 12 one-ounce shots of hard liquor, or 11 or 12 beers.)

At trial, appellant's defense was, in her words, "an amalgam of self-defense, hot-blooded response to provocation, and battered spouse syndrome." She was convicted by a jury in the Circuit Court for Baltimore City of second degree murder and sentenced to a term of 20 years imprisonment. Appellant appeals her conviction, raising the following contentions:

1. The court below erred in allowing the state to adduce improper evidence of statements made by the deceased to various persons at various times before his death;

2. The court below erred in its instructions to the jury;

3. The court below erred in allowing the state to make an improper closing argument; and

4. The court below erred in conditioning the length of sentence on whether appellant agreed that she was 56 years old instead of 46 years old.

(ii)

Confusion as to the meaning and application of the new Maryland statute dealing with the "battered spouse syndrome" appears to have permeated this case. That statute, Md.Cts. & Jud.Proc.Code Ann. § 10-916 (1991 supp.), which became effective on June 1, 1991, permits a trial court, in the trial of a defendant charged with certain violent crimes, including murder and manslaughter, to admit "evidence of repeated physical and psychological abuse of the defendant" perpetrated by the victim of the crime, and "[e]xpert

Page 429

testimony of the Battered Spouse Syndrome," where the defendant claims that he or she was the victim of such abuse, and as a result was suffering from the Battered Spouse Syndrome at the time of the alleged crime. "Battered Spouse Syndrome" is defined in the statute as "the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the 'Battered Woman's Syndrome.' " § 10-916(a)(2).

As Judith Wolfer, Legal Director of the House of Ruth, explained at the hearings on the bill before the House Judiciary Committee:

The cyclical nature of an intimate battering relationship enables a battered spouse to become expert at recognizing the warning signs of an impending assault from her partner--signs frequently imperceptible to outsiders. For some victims, the sign may be "that look in his eye"; for others, it is the advent of heavy drinking, or heightened irrational jealousy. Most battered spouses are physically and emotionally incapable of defending themselves during a battering incident. Consequently, when the warning sign occurs during a series of escalating batterings, the battered spouse frequently[608 A.2d 1253] acts to protect herself or her children during a pause in the violence.

Section 10-916 does not, as appellant, the State, and the trial judge all seem to believe, create a new defense to murder. Rather, evidence of the Battered Spouse Syndrome is offered in support of the state of mind element of perfect or imperfect self-defense, i.e., it is offered to prove the honesty and reasonableness of the defendant's belief that he or she was in imminent danger at the time of the offense. Testimony of Judith A. Wolfer, Legal Director of the House of Ruth, Hearings on House Bill 49 before the House Judiciary Committee (February 27, 1991).

Before § 10-916 was enacted, trial judges often excluded evidence of past abuse and the Battered Spouse Syndrome as irrelevant, since the common law of self-defense holds

Page 430

that in order to invoke the defense, the defendant must not have been the first aggressor, nor must she have used more force than was necessary to repel the attack. Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466 (1957); Lambert v. State, 70 Md.App. 83, 96 n. 1, 97, 519 A.2d 1340 (1987); Cunningham v. State, 58 Md.App. 249, 256, 473 A.2d 40 (1984) (citing W. LaFave & A. Scott, Criminal Law § 77 at 583 (1972)); Whitehead v. State, 9 Md.App. 7, 10, 262 A.2d 316 (1970); Ware v. State, 3 Md.App. 62, 65, 237 A.2d 526 (1968); Tipton v. State, 1 Md.App. 556, 560, 232 A.2d 289, cert. denied, 247 Md. 742 (1967). The new statute permits admission of this evidence, "[n]otwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense." Md.Cts. & Jud.Proc.Code Ann. § 10-916.

With these principles in mind, we turn to the issues presented in the case at hand.

(iii)

Appellant argues that the trial court erred in permitting the State to present evidence of statements made by McDonald to others at various points during his relationship with appellant, claiming that these statements are irrelevant and inadmissible hearsay. The State asserts that these statements were properly admitted to rebut defense counsel's opening statement that appellant would rely on the "battered spouse syndrome in defense of the murder charge."

The challenged statements can be briefly summarized as follows. McDonald's mother,...

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33 practice notes
  • Wallace-Bey v. State, No. 476 Sept. Term 2016
    • United States
    • Court of Special Appeals of Maryland
    • November 2, 2017
    ...of the defendant's belief that he or she was in imminent danger at 234 Md.App. 533the time of the offense." Banks v. State, 92 Md.App. 422, 429, 608 A.2d 1249 (1992).Before the enactment of CJP § 10–916 in 1991, trial judges often treated evidence of battered spouse syndrome as irrelevant. ......
  • Gutierrez v. State , No. 98
    • United States
    • Court of Appeals of Maryland
    • November 29, 2011
    ...or based on, the denial of the necessary elements of the crime, however, the evidence has been ruled inadmissible. See Banks v. State, 92 Md.App. 422, 434, n. 2, 608 A.2d 1249, 1255, n. 2 (1992) (citing Commonwealth v. DelValle, 351 Mass. 489, 221 N.E.2d 922, 924 (1966)) (testimony of threa......
  • Porter v. State, No. 1916, Sept. Term, 2013
    • United States
    • Court of Special Appeals of Maryland
    • October 25, 2016
    ...A.3d 14This Court explained the significance of the enactment of Maryland's Battered Spouse Syndrome Statute in Banks v. State , 92 Md.App. 422, 429–30, 608 A.2d 1249 (1992) (citations omitted; emphasis added) as follows:Before § 10–916 was enacted, trial judges often excluded evidence of p......
  • Diaz v. State, No. 199
    • United States
    • Court of Special Appeals of Maryland
    • November 2, 1999
    ...is properly presented by the evidence, it is the State's burden to prove its absence beyond a reasonable doubt."); Banks v. State, 92 Md.App. 422, 439-40, 608 A.2d 1249, 1258 (1992) ("Absence of mitigation is presumed, unless the defendant produces some evidence to make mitigation an issue ......
  • Request a trial to view additional results
32 cases
  • Diaz v. State, No. 199
    • United States
    • Court of Special Appeals of Maryland
    • November 2, 1999
    ...is properly presented by the evidence, it is the State's burden to prove its absence beyond a reasonable doubt."); Banks v. State, 92 Md.App. 422, 439-40, 608 A.2d 1249, 1258 (1992) ("Absence of mitigation is presumed, unless the defendant produces some evidence to make mitigation......
  • Gutierrez v. State , No. 98
    • United States
    • Court of Appeals of Maryland
    • November 29, 2011
    ...or based on, the denial of the necessary elements of the crime, however, the evidence has been ruled inadmissible. See Banks v. State, 92 Md.App. 422, 434, n. 2, 608 A.2d 1249, 1255, n. 2 (1992) (citing Commonwealth v. DelValle, 351 Mass. 489, 221 N.E.2d 922, 924 (1966)) (testimony of threa......
  • Bey v. State, No. 1046
    • United States
    • Court of Special Appeals of Maryland
    • September 26, 2001
    ...1, 540 A.2d 1151; Hook, 315 Md. at 29 n. 6, 553 A.2d 233; Brown v. State, 90 Md.App. 220, 225-31, 600 A.2d 1126 (1992); Banks v. State, 92 Md.App. 422, 442-43, 608 A.2d 1249 It was sufficient, therefore, for the jury to understand that voluntary intoxication was no defense to second degree ......
  • Wallace-Bey v. State, No. 476 Sept. Term 2016
    • United States
    • Court of Special Appeals of Maryland
    • November 2, 2017
    ...of the defendant's belief that he or she was in imminent danger at 234 Md.App. 533the time of the offense." Banks v. State, 92 Md.App. 422, 429, 608 A.2d 1249 (1992).Before the enactment of CJP § 10–916 in 1991, trial judges often treated evidence of battered spouse syndrome as irrelev......
  • Request a trial to view additional results

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