Simmons v. State, No. 51

• Court: Maryland Court of Appeals
• Writing for the Court: Submitted to MURPHY; COLE; Close
• Citation: 542 A.2d 1258,313 Md. 33
• Decision Date: 01 September 1986
• Docket Number: No. 51
• Parties: Henry Bradford SIMMONS a/k/a Abduell Qadir Nazzag v. STATE of Maryland. ,

Page 33

313 Md. 33 542 A.2d 1258 Henry Bradford SIMMONS a/k/a Abduell Qadir Nazzag
v.
STATE of Maryland. No. 51, Sept. Term, 1986. Court of Appeals of Maryland. June 28, 1988.

Page 35

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

[542 A.2d 1259] Submitted to MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH ^* and McAULIFFE, JJ., and SMITH (retired) Specially Assigned.

COLE, Judge.

Henry Simmons was convicted of second degree murder by a jury in the Circuit Court for Baltimore City. The Court of Special Appeals affirmed. Simmons v. State, 66 Md.App. 629, 505 A.2d 577 (1986). This Court subsequently granted Simmons's petition for a writ of certiorari in order to decide whether the trial court properly excluded expert testimony regarding Simmons's subjective belief that self-defense was necessary to avoid imminent death or serious bodily injury.

Simmons, accused of murder, raised the defense of imperfect self-defense. His particular contentions before us arise from the decision of the trial judge to exclude the testimony of a proposed expert defense witness, Dr. Ellen McDaniel, a psychiatrist. Prior to the selection of the jury, the State made a motion in limine that the testimony of Dr. McDaniel be excluded from the trial. At that time, the trial judge postponed ruling on the motion until the jury had been selected but prior to opening statements.

The motion was subsequently addressed while the jury recessed for lunch. The State argued that the proposed testimony should be excluded because the defendant had abandoned the defense of insanity, and thus, Dr. McDaniel's testimony was allegedly only relevant to diminished capacity

Page 36

which is not a viable defense under Maryland common law. Further, the State argued that the admission of any expert testimony regarding the nature of Simmons's subjective beliefs at the time of the alleged crime would impermissibly impinge on the jury's function.

In response, Simmons argued that the State had misconstrued the nature of Dr. McDaniel's testimony. Simmons emphasized that he was not offering Dr. McDaniel's testimony to support a diminished capacity defense. Rather, the testimony was offered to aid the jury in deciding whether Simmons acted with the requisite state of mind to establish the defense of imperfect self-defense. Thus, Simmons proffered that he would testify that at the time of the homicide he believed that use of force was necessary to prevent imminent death or serious bodily harm; Dr. McDaniel would then take the stand and testify that her examination of Simmons revealed that he did in fact have such a subjective belief. The trial judge ruled that he would not allow Dr. McDaniel to testify in this manner because the function of the jury would be usurped.

At this point, Simmons made a second proffer that Dr. McDaniel would only testify that Simmons's asserted subjective belief would be consistent with his psychiatric profile. The trial judge, however, reaffirmed his previous ruling, indicating that he would allow no one to testify as to what Simmons's thought processes were at the time of the homicide.

Following this ruling, the trial proceeded and Simmons never called Dr. McDaniel as a witness. Nor did he raise the issue of the admissibility of Dr. McDaniel's testimony during the trial. As a result, the State argues that the issue relating to the exclusion of Dr. McDaniel's testimony was not properly preserved for appeal. In particular, the State argues that the grant or denial of a motion in limine does not, of itself, constitute reversible error, and that the trial judge can only make a final ruling as to the admission or exclusion of evidence after the trial has begun.

Page 37

We address this issue before determining whether the trial judge properly excluded the testimony of Dr. McDaniel.

The Court of Special Appeals found that "Appellant proffered the testimony both in a motion in limine and after the jury was sworn," Simmons, 66 Md.App. at 631 n. 1, 505 A.2d at 577 n. 1, and accordingly concluded that the issue was preserved for [542 A.2d 1260] appeal. We agree that the issue is preserved for appellate review although our reasoning is somewhat different from that of the intermediate appellate court.

In Prout v. State, 311 Md. 348, 535 A.2d 445 (1988), this Court faced a similar procedural setting. ¹ The trial judge in that case, in response to a motion in limine, ruled that certain prior convictions would not be admissible for purposes of impeaching the credibility of the State's witness. In accord with the trial judge's instructions, defense counsel questioned the witness so as to avoid bringing the prior convictions to the attention of the jury. Defense counsel never reasserted the issue of the admissibility of the prior convictions after the ruling on the motion in limine.

On appeal the State argued that a ruling on a motion in limine is insufficient to preserve an issue for appellate review. Rather, the State suggested that the attorney seeking the admission of evidence must proffer the evidence at the point at which such evidence would ordinarily be offered at trial. We agreed that "[i]f the trial judge admits the questionable evidence, the party who made the motion ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review." Id. at 356, 535 A.2d at 449.

Page 38

We noted, however, that the circumstances may be different when the trial judge grants the motion and excludes the proffered evidence. In particular, we ruled that Prout did not have to renew his offer of the evidence during the trial because the trial judge had intended that his ruling granting the motion in limine be the final word on the matter. Id. at 358, 535 A.2d at 449-50. That the ruling on the motion was intended to be final was evident since the trial judge had directed defense counsel to avoid raising the issue during his cross-examination of the witness.

We believe that the trial judge in the case sub judice also intended that his ruling on the motion in limine be final as to the admissibility of the proposed expert testimony. Defense counsel advised the court on the record as to the substance of the proposed testimony and its relevance. The State neither requested nor did the court require that defense counsel further particularize the proffer or produce Dr. McDaniel so that her proposed testimony could be elicited in question and answer form. Rather, the trial court apparently misperceived the thrust of the proffer, as the defense had modified it during colloquy, and understood the proffer to be that Dr. McDaniel would testify that Simmons in fact honestly held a certain subjective belief. But the court was "not prepared to let her make that ultimate finding." The trial judge unconditionally ruled that he would not "let anybody tell this jury what this man's thought processes are."

To require defense counsel, under these circumstances, to make a more specific proffer or to offer the evidence again during the trial in order to preserve the issue for appellate review is unwarranted and would unduly interfere with the orderly progression of the trial. As we regard the trial judge's ruling on the motion in limine to have been a final ruling, we conclude that the issue is properly preserved for review.

We now direct our attention to whether the trial judge impermissibly excluded the psychiatric testimony offered

Page 39

by Simmons in support of his claim of imperfect self-defense. The intermediate appellate court affirmed the exclusion of this evidence on the grounds that "[t]he evidence appellant sought to introduce went to his capacity or diminished capacity to act in an objectively reasonable manner. This evidence is not admissible in Maryland [under Johnson v. State, 292 Md. 405, 439 A.2d 542 (1982) ]." Simmons, 66 Md.App. at 632-33, 505 A.2d at 578. We do not agree with the intermediate appellate court that the proffered testimony went to the [542 A.2d 1261] defendant's diminished capacity. To the contrary, defense counsel specifically advised the court that Simmons claimed imperfect self-defense and asserted that the evidence would substantiate Simmons's subjective beliefs. ² As we see it, the proffered testimony tended to prove an element of imperfect self-defense under State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984), and Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988). ³

The defense of imperfect self-defense was first recognized by this Court in State v. Faulkner, supra. In that case we held that "when evidence is presented showing the defendant's subjective belief that the use of force was necessary to prevent imminent death or serious bodily harm, the defendant is entitled to a proper instruction on imperfect self-defense." Id. at 500, 483 A.2d at 769. As is the case with self-defense, the defendant has the "burden of

Page 40

initially producing 'some evidence' on the issue of mitigation or self-defense ... sufficient to give rise to a jury issue.... Once the issue has been generated by the evidence, however, the State must carry the ultimate burden of persuasion beyond a reasonable doubt on that issue." State v. Evans, 278 Md. 197, 207-08, 362 A.2d 629, 635 (1976); see also Cunningham v. State, 58 Md.App. 249, 257, 473 A.2d 40, 44, cert. denied, 300 Md. 316, 477 A.2d 1195 (1984).

In a case where the defendant is charged with murder, the State has the burden of proving beyond a reasonable doubt that the defendant had the requisite malevolent state of mind in killing the victim, without justification, excuse, or mitigation. See State v. Ward, 284 Md. 189, 194, 396 A.2d 1041, 1045 (1978); Glenn v. State, 68 Md.App. 379, 398-405, 511 A.2d 1110, 1121-1124 (1986). Thus, when the defendant asserts...