Faulkner v. State

• Decision Date: 09 March 1983
• Docket Number: No. 1006,1006
• Citation: 54 Md.App. 113,458 A.2d 81
• Parties: Melvin FAULKNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 113

54 Md.App. 113

458 A.2d 81

Melvin FAULKNER v. STATE of Maryland.

No. 1006.

Court of Special Appeals of Maryland.

March 9, 1983.

Gary S. Offutt, Asst. Public Defender, with whom were Alan H. Murrell, Public Defender of Maryland and Claudia A. Cortese, Assigned Public Defender, on brief, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Brian Murphy, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before LOWE and GARRITY, JJ., and CHARLES E. ORTH, Jr., Specially Assigned Judge.

CHARLES E. ORTH, Specially assigned Judge.

I

From 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, 44 L.Ed.2d 508 (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 (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.

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, 28 Md.App. at 658, n. 4, 349 A.2d 300, 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 it more than academic. There are indications that defense counsel are now invoking it, and the bench and prosecutors had best take heed.

Homicide in "perfect" self-defense is either justifiable or excusable and when established the killer is not culpable. ¹ Whitehead 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

The 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. ³ See 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).

It 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, 349 A.2d 378, 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. We 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.

See Finnegan v. State, 33 Md.App. 251, 254, 364 A.2d 124, cert. denied, 279 Md. 682 (1976), cert. denied, 433 U.S. 912, 97 S.Ct. 2983, 53 L.Ed.2d 1098 (1977); Jacobs v. State, supra, 32 Md.App. at 512, 363 A.2d 257; Law v. State, supra, 29 Md.App at 462-465, 349 A.2d 295; 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).

II

Melvin 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, 349 A.2d 378, 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.

We 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 self-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

III

The 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

IV

With 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.

Faulkner 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.

The 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 heighth, build, and what the Court considers 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...