Gainer v. State

• Decision Date: 11 October 1978
• Docket Number: No. 20,20
• Citation: 391 A.2d 856,40 Md.App. 382
• Parties: , 100 A.L.R.3d 522 Patton Fulton GAINER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 382

40 Md.App. 382

391 A.2d 856, 100 A.L.R.3d 522

Patton Fulton GAINER v. STATE of Maryland.

No. 20.

Court of Special Appeals of Maryland.

Oct. 11, 1978.

Michael R. Malloy, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Michael A. Anselmi, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Mark Cohen, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MORTON, MOORE and COUCH, JJ.

MOORE, Judge.

At a jury trial in the Criminal Court of Baltimore (Kaplan, J., presiding) appellant was convicted of murder in the second degree and was sentenced to a term of 22 years' imprisonment. On this appeal, he assigns error principally in the trial court's refusal to grant an instruction, under the "castle" doctrine, that there was no duty on his part to retreat because appellant was in his own home. A subsidiary assignment of error is that the State improperly requested appellant, during cross-examination, to identify the victim's mother who was present in the courtroom. For the reasons stated, we find reversible error in the court's failure to grant the requested instruction.

I

Shortly after 8:00 P.M., on March 3, 1977, appellant, then 16 years of age, shot and killed Kenneth Dorsey, his sister's fiance, age 19, with a rifle. That he did so was not denied. Instead, appellant claimed that he used the weapon in self-defense.

There was evidence before the jury, adduced by the State, tending to establish the following facts:

Appellant, his brother, four sisters, and two nephews resided with their mother in a house in Baltimore City. Kenneth Dorsey, the victim, was engaged to appellant's sister, Romaine, age 18, and resided with his mother two doors away. Appellant was a student at the Harbor Learning Center; Dorsey was employed at a local "Club" where there was a bar and a package dispensary.

Dorsey left his place of employment on March 3, 1977, shortly after 6:30 P.M., following a late afternoon birthday party for a fellow employee. About one hour later, he stopped at the Gainer residence to see Romaine where he found her and the appellant, her brother, quarreling. When Dorsey intervened on Romaine's behalf, a heated argument lasting over twenty minutes ensued between appellant and Dorsey. The latter than left the Gainer home but returned after another twenty minutes with a carton of beer.

Upon Dorsey's return, the argument between the two young men the subject matter of which could not be recalled by any of the witnesses resumed. Approximately ten minutes later, appellant went upstairs; he reappeared in a few moments bearing a .22 caliber semi-automatic rifle which he had obtained from the room of his brother Rommel. Dorsey was then standing near the front door of the residence and Romaine was nearby. Appellant descended the stairway, stopped about halfway down, raised the rifle and fired twice at Dorsey who fell to the floor. Romaine examined him, then rushed to the phone to summons an ambulance. Dorsey was pronounced dead at 10:30 P.M. at the hospital, after emergency surgery. The cause of death was a gunshot wound in the chest; he had also sustained a nonfatal gunshot wound of the left thigh.

After the shooting, appellant fled from the scene and disposed of the rifle. Later, in a telephone conversation with his mother, he was persuaded to surrender himself to the police. The police apprehended him at 2:40 A.M. on March 4th at his home pursuant to an arrest warrant.

Appellant was 5' 10 and weighed 140 pounds; the victim Dorsey was 5' 8 and weighed 126 pounds. There was no evidence that appellant had been drinking although the autopsy which was performed on Dorsey at approximately 10:30 P.M. disclosed that his blood alcohol level was .17. Medical testimony indicated that the alcohol level was decreased by the injection of intravenous fluids and blood. Notwithstanding testimony that Dorsey had been taking Valium while drinking, the autopsy failed to detect any signs of drugs.

The State's version of the case was presented through seven witnesses, including appellant's three sisters who were present at the time of the fatal shooting. In addition to Romaine, the State presented Gail, 16, and Wilvetta, 14, who had given a written statement to the police on the evening of the killing. A detective testified on cross-examination that after his arrest, appellant told the police that following the verbal altercation, Dorsey left the Gainer home and then returned; and that because appellant was apprehensive that Dorsey was armed, he became frightened and shot him. "He (appellant) said he shot the man because he thought the man had something behind his back," the detective testified.

Appellant's version of the details and circumstances of the homicide was presented through his own testimony and that of five other witnesses, including his mother and brother. According to appellant, the victim Dorsey was the owner of a .44 caliber Magnum, customarily left in his car, which on that evening was parked near Dorsey's house two doors away. Appellant further testified that after the argument, in which Dorsey was abusive of him, he became apprehensive and went upstairs to arm himself with his brother's rifle. He obtained the rifle from in back of his brother's bed and inserted two cartridges. On redirect, he quoted the victim as saying, "Come on down now. I've got something for you. I am going to kill you," and testified it was at that point that he obtained the rifle. Appellant admitted stopping halfway down the stairs and testified further that Dorsey was immediately below, near the first step, with his hands behind his back. Dorsey suddenly brought his hands forward and appellant, at that instant, squeezed the trigger, releasing the two cartridges in somewhat rapid succession. (According to the testimony of appellant's brother Rommel, the rifle was a semi-automatic which held about 20 bullets and it would continue to discharge by squeezing the trigger.)

Appellant's version of the facts was corroborated by the testimony of his friend, Preston Alderman, age 17, and another friend, Jackson Jones, age 19. The latter testified that he had seen the victim about 12 noon on the day of the shooting and he was at that time carrying a .44 automatic in a holster and also had a supply of Valium pills. The State offered a rebuttal witness, a supervisory employee at the victim's place of work, who testified in rebuttal of Jackson's testimony that Dorsey had been at the dispensary-bar all day and had remained after his 3:30 P.M. quitting time to attend her birthday party in the establishment. She also testified that she did not see him with a weapon that day and, indeed, "never saw him with a weapon at all."

The investigating police officers found no evidence that the victim was himself armed at the time he was shot.

II

The evidence, although conflicting, fairly generated the issue of self-defense for jury consideration. ¹ The trial court, pursuant to the requirement that, in a criminal case, an advisory instruction be given on every essential question or point of law supported by the evidence, included an instruction on self-defense. See, Bruce v. State, 218 Md. 87, 145 A.2d 428 (1958); Peterson v. State, 15 Md.App. 478, 498-99, 292 A.2d 714, 726 (1972); Maryland Rule 757. The instruction included the following statement pertaining to the duty to retreat:

"Ordinarily a person who is attacked is required to retreat if the means of doing so are within his power and consistent with his safety. If he fails to retreat or withdraw when he could safely do so, then the killing is not excusable. On the other hand, if the peril is imminent and he cannot safely retreat, he need not do so, but may stand his ground and defend himself." (Emphasis added.)

The court rejected appellant's requested instruction relating to immunity from the law of retreat, submitted by trial counsel, in the following form:

"Generally, one who is under attack may have a duty to retreat, where possible, however, when one is in his own home, there is no duty to retreat to escape the danger, but instead (he) may stand his ground and, if necessary to repel the attack, may kill the attacker. Law v. State, 21 Md.App. 13 (318 A.2d 859); Crawford v. State, 231 Md. 354 (190 A.2d 538)."

Appellant specifically excepted to the court's refusal so to instruct. This was also the principal basis for appellant's motion for a new trial and, on this appeal, it is the main challenge to the judgment below. In our view, "the rule of non-necessity of retreat in one's own home," Hedges v. State, 172 So.2d 824, 827 (Fla.1965), should also have been covered although not in the specific language proposed and the failure to do so was reversible error.

Preliminarily, a brief recapitulation of Maryland law on the subject of self-defense may serve to place in proper context the precise issue presented. The Court of Appeals ² has approved trial court instructions which have stated that:

1) The right to defend one's self is based upon necessity.

2) To justify or excuse the killing of another on that ground, the person claiming the right must not have been the aggressor or have provoked the conflict.

3) The circumstances must have been such as to afford reasonable grounds, in the mind of a person of ordinary reason, for the belief that the defendant was in such immediate danger of losing his own life or suffering serious bodily harm as to necessitate killing the deceased to save himself.

4) One not seeking a fight but reasonably apprehensive that he might be attacked, has a right to arm himself in anticipation of the assault.

5) One may not use greater force than is reasonably necessary to defend himself against attack or threat of attack by another.

6) It is the duty of the defendant to retreat or avoid danger if the means to do so are...