Richmond v. State, 138
| Decision Date | 01 September 1991 |
| Docket Number | No. 138,138 |
| Citation | 330 Md. 223,623 A.2d 630 |
| Parties | Lamont Lee RICHMOND a/k/a Lambert Lee Bonds v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Gary S. Offutt, Asst. Public Defender (Stephen E. Harris, Public Defender, Nancy S. Forster, Asst. Public Defender, all on brief), Baltimore, for petitioner/cross respondent.
Sarah E. Page, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent/cross petitioner.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
Opinion by McAULIFFE, Judge.
As a result of an altercation with Thomas Winston, the defendant was charged in the Circuit Court for Prince George's County with assault with intent to murder, assault with intent to maim, assault with intent to disable, malicious wounding with intent to disable, assault and battery, and carrying a dangerous weapon openly with the intent to injure. At the conclusion of the State's case, the trial judge granted the defendant's motion for judgment of acquittal on the charges of assault with intent to murder and assault with intent to maim.
At the conclusion of all the evidence, the defendant excepted to the refusal of the court to instruct the jury on the issue of imperfect self-defense, contending that a finding of imperfect self-defense would mitigate the remaining aggravated assault charges to "assault and battery." The jury found the defendant not guilty of the weapons charge and of assault with intent to disable, but guilty of malicious wounding with intent to disable and of battery. The Court of Special Appeals affirmed the judgment of the trial court and we granted certiorari to consider the defendant's contention that the trial court erred in not instructing the jury concerning imperfect self-defense. 1
The defendant argues that the principles of imperfect self-defense apply to every crime that requires proof of malice without regard to whether a criminal homicide is involved. He points to State v. Faulkner, 301 Md. 482, 485-86, 483 A.2d 759 (1984), where we said:
[T]he difference between murder and manslaughter is the presence or absence of malice.
* * * * * *
[Imperfect self-defense] operates to negate malice, an element the State must prove to establish murder. As a result, the successful invocation of this doctrine does not completely exonerate the defendant, but mitigates murder to voluntary manslaughter.
Thus, the defendant reasons, anything that "negates malice" must mitigate an offense requiring proof of malice to a lesser offense.
The State counters with a two-pronged argument. First, it says, "malice" as an element of the crime of murder differs from "malice" with respect to other crimes, and imperfect self-defense negates only that species of malice applicable to murder. Second, the State argues, the concept of mitigation has universally and historically been limited to offenses involving criminal homicide, or the "shadow" or inchoate forms of those offenses. 2 We agree with the State's position, and with each of the interrelated prongs of its argument.
In State v. Faulkner, supra, 301 Md. at 486, 483 A.2d 759, this Court explained that the doctrine of imperfect self-defense, like that of hot-blooded response to adequate provocation, does not serve to exonerate a defendant "but mitigates murder to voluntary manslaughter." We went on to hold that:
Logically, because the statutory offense [assault with intent to murder] is defined in terms of murder, all the defenses available in a murder prosecution are applicable in an assault with intent to murder prosecution.
Id. at 504, 483 A.2d 759. Thus, the Court held, the mitigation defense of imperfect self-defense applies to the statutory crime of assault with intent to murder. Recently, we characterized this latter holding as being perhaps "a generous expansion of the law of self-defense...." Watkins v. State, 328 Md. 95, 106 n. 3, 613 A.2d 379 (1992).
We also said in Watkins that "[t]his Court has never held that imperfect self-defense applies to the offense[ ] ... of ... unlawful shooting with intent to disable...." Id. The defendant in the instant case was convicted of unlawful wounding with the intent to disable, a variation of the offense of unlawful shooting with the intent to disable. These two forms of assault with intent to maim, disfigure, or disable arise from a single statute, Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 386. That statute provides as follows:
If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony and, upon conviction are subject to imprisonment for not more than 15 years.
With the exception of a change in the maximum permitted sentence, and certain minor amendments not here relevant, this statute exists today in the form in which it was enacted by Chapter 99 of the Laws of 1853. See Hammond v. State, 322 Md. 451, 453, 588 A.2d 345 (1991). The statute sets forth alternative types of assaults and alternative states of mind, as follows:
Types of Assaults
1. Unlawfully shoot at any person.
2. Unlawfully, and maliciously attempt to discharge any kind of loaded arms at any person.
3. Unlawfully and maliciously stab, cut or wound any person.
4. Assault or beat any person. 3
A. With intent to maim, disfigure or disable such person.
B. With intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained.
There seems never to have been any doubt that the fourth type of assault, "assault or beat any person," had to be combined with one of the two alternative states of mind (A or B) to constitute an offense under the statute. Early on, however, a question arose as to whether the first three types of assault listed in the statute were self-standing offenses not requiring proof of any specific intent.
In State v. Elborn, 27 Md. 483 (1867), the defendant was indicted in one count under the statute for an assault "by unlawfully shooting at a certain John W. Downes" (type of assault # 1) and in a separate count, for assault "by attempting maliciously and unlawfully to discharge a loaded pistol at Downes" (type of assault # 2), without any allegation that the defendant harbored specific intent A or B. The trial judge sustained the defendant's demurrer to the two counts, and the case reached this Court on a Writ of Error. Our predecessors sustained the granting of the demurrer, holding that
the two counts in this indictment are defective in not averring in the language of the Act, that the shooting was done with intent to maim, disfigure or disable Downes....
Id. at 489-90. Accordingly, it is clear that a crime charged under § 386 is a specific intent crime, and although a number of alternative elements are available, one of the alternative states of mind must be alleged together with one of the alternative types of assault in order to allege a crime.
Even if the defendant's argument concerning crimes involving malice would have some validity if the crime charged in this case were "unlawfully and maliciously wounding" the victim, it is clear that this is not the offense proscribed by the statute. The crime here involved is "unlawfully and maliciously wounding with intent to disable." The grand jury charged that the defendant "did unlawfully, feloniously and maliciously wound Thomas Monroe Winston, with the intent to disable said Thomas Monroe Winston...." This offense is virtually identical, for the purposes with which we are here concerned, with the offense of "unlawful shooting with intent to disable," which this Court held in Watkins was not an offense to which the defense of imperfect self-defense would apply. Watkins, 328 Md. at 106, 613 A.2d 379. The addition of the word "malicious" has little, if any, significance in the description of these specific intent crimes.
Moreover, imperfect self-defense would not apply even if the offense charged were "unlawful and malicious shooting," and the concept of malice was conceivably of greater importance. Malice, as this Court has pointed out, is a chameleonic term, taking on different meanings according to the context in which it is used. In the context of murder cases, this Court has said that malice means the presence of the required malevolent state of mind coupled with the absence of legally adequate justification, excuse, or circumstances of mitigation. Ross v. State, 308 Md. 337, 340 n. 1, 519 A.2d 735 (1987). When correctly defined in criminal cases not involving murder, malice does not involve proof of the absence of mitigation. Simply put, mitigation that will reduce one offense to another is a concept peculiar to criminal homicide cases.
This concept of mitigation, i.e., the presence of circumstances sufficient to mitigate murder to manslaughter, developed in England at a time when murder was not divided into degrees and all murder was punishable by death. Recognizing that not all murders were equal in culpability, and that under some circumstances justice required that the perpetrator suffer a lesser stigma and sanction, the concept of mitigation was developed and the catchall of manslaughter was used as an appropriate repository for mitigated offenses.
Why is it that there exists such a crime as voluntary manslaughter to aid one who kills when provoked into a passion, yet there is no crime like, say, voluntary theft or...
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