State v. Faulkner, No. 47

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; COLE; In addition, the court explained that the reasonableness of an individual's honest belief that he needs to repel imminent peril or bodily injury simply goes to the justification for the homicide. Moreover, the Flannel cour
Citation483 A.2d 759,301 Md. 482
Docket NumberNo. 47
PartiesSTATE of Maryland v. Melvin FAULKNER. ,

Page 482

301 Md. 482
483 A.2d 759
STATE of Maryland
No. 47, Sept. Term, 1983.
Court of Appeals of Maryland.
Nov. 21, 1984.

[483 A.2d 760]

Page 484

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

Gary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellee.


COLE, Judge.

The twin issues we shall decide in this case are whether Maryland recognizes the mitigation defense of "imperfect self defense" and, if so, whether that defense applies to the statutory offense of assault with intent to murder under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 12.

We set forth a shortened version of the facts that give rise to these issues. On September 15, 1981, the Emanuel brothers, Jimmy and Rickey, became embroiled in an argument with Melvin J. Faulkner, Jr. outside of a Baltimore City bar. This argument quickly escalated into a fight between [483 A.2d 761] Jimmy and Faulkner. Because Faulkner believed that Jimmy was armed with a knife, Faulkner produced a handgun and began firing. Faulkner, however, shot Rickey twice in the chest as Rickey tried to push his brother from the handgun's line of fire. The testimony reflects considerable conflict as to what led Faulkner to believe that Jimmy was armed with a knife, which participant was the aggressor at various stages of this imbroglio, who entered into the melee mutually and willfully, and who was simply acting in self defense.

Page 485

Faulkner was charged with assault with intent to murder and related offenses. At his trial in the Criminal Court of Baltimore (now Circuit Court for Baltimore City), the court instructed the jury as to the defenses of justification by way of self defense and mitigation by way of hot-blooded response to the provocation of mutual combat. The court, however, declined Faulkner's request that the jury also be instructed as to the defense of "imperfect self defense." The jury subsequently found Faulkner guilty of assault with intent to murder and related handgun offenses. In a divided decision, the Court of Special Appeals reversed, holding that the trial court erred in refusing to instruct the jury as to the defense of imperfect self defense. Faulkner v. State, 54 Md.App. 113, 458 A.2d 81 (1983). We granted the State's petition for a writ of certiorari to address the important issues presented.


Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874); Weighorst v. State, 7 Md. 442 (1855). Self defense operates as a complete defense to either murder or manslaughter. A successful self defense, therefore, results in the acquittal of the defendant. We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self defense in the following terms:

(1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant;

(2) The accused must have in fact believed himself in this danger;

(3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict; and

Page 486

(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.

See Tichnell v. State, 287 Md. 695, 718, 415 A.2d 830 (1980) (Tichnell I ) (quoting Guerriero v. State, 213 Md. 545, 549, 132 A.2d 466 (1957)); DeVaughn v. State, 232 Md. 447, 453, 194 A.2d 109 (1963), cert. denied, 376 U.S. 927, 84 S.Ct. 693, 11 L.Ed.2d 623 (1964); Bruce v. State, 218 Md. 87, 96-97, 145 A.2d 428 (1958) (discussing elements of self defense in a review of jury instructions given on the subject).

Imperfect self defense, by contrast, is not a complete defense. Its chief characteristic is that it 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.

There are other types of defenses that mitigate murder to manslaughter but do not fall under the umbrella of imperfect self defense. Commonly regarded as falling within this group are killings stemming from a heat of passion, such as (1) discovering a spouse in the act of sexual intercourse with another; (2) mutual combat; and (3) assault and battery. See Tripp v. State, 36 Md.App. 459, 374 A.2d 384 (1977); Bartram v. State, 33 Md.App. 115, 364 A.2d 1119 (1976); Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970). These acts, because they create passion in the defendant and are not the product of a free [483 A.2d 762] will, negate malice and thus mitigate a homicide to manslaughter.

Imperfect self defense, however, is different from either self defense or the commonly recognized mitigation defenses. Because the doctrine of imperfect self defense has been subjected to different interpretations and regarded by some courts and scholars as being a recent theory not far advanced, we believe a brief examination of its history and development will help clarify its nature and scope and point out the differences.

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The rudimentary principles of imperfect self defense appeared in a series of manslaughter statutes enacted in England between 1496 and 1547. See R. Moreland, The Law of Homicide 91 (1952). According to Professor Moreland, these statutes reflected a compromise between murder and complete exoneration in those instances where a defendant's conduct warranted neither a murder conviction nor an acquittal. Out of these statutes arose the mitigating defense of imperfect self defense, which was predicated upon a "fear of life." Imperfect self defense was applicable to a crime without passion so as to distinguish it from the mitigation defense founded upon heat of passion. However, because the defendant was at fault the law demanded that he bear some criminal responsibility for the homicide although he lacked the requisite mens rea for murder. Professor Moreland put it this way:

In each case [homicide arising from provocation (crime of passion) and one arising from a "fear of life" (crime without passion) ] the accused might well be held for murder or he might be excused because of the circumstances for committing the crime; but the law compromises, takes a middle ground, and holds him guilty of manslaughter. Thus, in the case of imperfect self defense, the law might refuse him the opportunity to plead self-defense because of his fault and hold him guilty of murder, or it might waive his fault and allow him to utilize the excuse of self-defense. Balancing the two, the law strikes a middle ground as a matter of policy and rather reasonably convicts him of voluntary manslaughter.

Id. at 92.

In concert with the above, Professor Perkins recognized that manslaughter is a "catch-all" concept that encompasses a variety of homicides that are "neither murder nor innocent." R. Perkins, Criminal Law 69 (2d ed. 1969). In elaborating upon this proposition, Professor Perkins explained:

Since manslaughter is a "catch-all" concept, covering all homicides which are neither murder nor innocent, it

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logically includes some killings involving other types of mitigation, and such is the rule of the common law. For example, if one man kills another intentionally, under circumstances beyond the scope of innocent homicide, the facts may come so close to justification or excuse that the killing will be classed as voluntary manslaughter rather than murder. "It is not always necessary to show that the killing was done in the heat of passion, to reduce the crime to manslaughter;" said the Arkansas court, "for, where the killing was done because the slayer believes that he is in great danger, but the facts do not warrant such a belief, it may be murder or manslaughter according to the circumstances, even though there be no passion." To give another illustration, the intentional taking of human life to prevent crime may fall a little short of complete justification or excuse and still be without malice aforethought.

Id. at 69-70 (footnotes omitted).

The doctrine of imperfect self defense gained a foothold in the United States in the late 1800's. The "cornerstone" case for this defense is an 1882 decision by the Court of Criminal Appeals of Texas. Reed v. State, 11 Tex.Crim.App. 509 (1882). In discussing the doctrine the Reed court remarked:

It [self defense] may be divided into two general classes, to wit, perfect and imperfect right of self defense.... If, [483 A.2d 763] however, [the defendant] was in the wrong,--if he was himself violating or in the act of violating the law,--and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his

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own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense which but for such acts would never have been occasioned.

Id. at 517-18. Shortly after Reed, courts fashioned three variations of the doctrine.

First, some courts indicated that the...

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118 practice notes
  • Wallace-Bey v. State, No. 476 Sept. Term 2016
    • United States
    • Court of Special Appeals of Maryland
    • November 2, 2017
    ...under an " ‘honest but unreasonable belief standard[.]’ " Porter II, 455 Md. at 257, 166 A.3d 1044 (quoting State v. Faulkner, 301 Md. 482, 499, 483 A.2d 759 (1984) ). Imperfect self-defense "does not 234 Md.App. 532constitute a justification for the killing" ( Smullen, 380 Md. at 252, 844 ......
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    • December 11, 2003
    ...See Sydnor v. State, 365 Md. 205, 216, 776 A.2d 669 (2001); Roach v. State, 358 Md. 418, 429, 749 A.2d 787 (2000); State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); Cunningham v. State, 58 Md.App. 249, 254-56, 473 A.2d 40 (1984), cert. denied 300 Md. 316, 477 A.2d 1195 (1984). "An a......
  • State v. Adviento, No. SCWC–30171.
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    • February 10, 2014 ‘manslaughter’ rather than ‘murder’." Dumlao, 6 Haw.App. at 175 n. 2, 715 P.2d at 825 n. 2 (emphasis added). Cf. State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984) (distinguishing between self-defense, a "complete defense to either murder or manslaughter" that "results in the acquittal ......
  • Nicholson v. State, No. 862, Sept. Term, 2017
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    • November 5, 2018
    ...force than the exigency demanded.239 Md.App. 241 Holt v. State , 236 Md. App. 604, 622, 182 A.3d 322 (2018) (quoting State v. Faulkner , 301 Md. 482, 485-86, 483 A.2d 759 (1984) ). Imperfect self-defense, on the other hand, "requires no more than a subjective honest belief on the part of th......
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115 cases
  • Banks v. State, No. 1368
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...or "a subjectively honest but objectively unreasonable belief [by the killer] that he was in deadly peril," State v. Faulkner, 301 Md. 482, 506, 483 A.2d 759 (1984). The absence of mitigation is presumed, unless the defendant produces some evidence to make mitigation Page 440 an i......
  • Johnson v. State, No. 158, Sept. Term, 2014.
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    • Court of Special Appeals of Maryland
    • May 28, 2015
    ...however, serves only to mitigate the presence of malice and cannot absolve an individual of all criminal liability. See State v. Faulkner, 301 Md. 482, 486, 483 A.2d 759 (1984) (“These acts, because they create passion in the defendant and are 115 A.3d 679not the product of a free will, neg......
  • Bell v. State, No. 637
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    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...would support a voluntary manslaughter conviction. Dykes v. State, 319 Md. 206, 213, 571 A.2d 1251 (1990) (quoting State v. Faulkner, 301 Md. 482, 501, 483 A.2d 759 15 During the testimony of Posey and Shinners, the Meineke muffler shop appears as "Meinke." ...
  • Christian S., In re, No. S030310
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    ...majority of those states that have considered the doctrine of imperfect self-defense has approved the doctrine. (State v. Faulkner (1984) 301 Md. 482, 483 A.2d 759; see also People Guest (1986) 115 Ill.2d 72, 104 Ill.Dec. 698, 503 N.E.2d 255; Wood v. State (Okla.Crim.App.1971) 486 P.2d 750;......
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