Stevenson v. State

• Decision Date: 06 September 2005
• Docket Number: No. 730,730
• Parties: Kalilah Romika STEVENSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

882 A.2d 323

163 Md. App. 691

Kalilah Romika STEVENSON v. STATE of Maryland.

No. 730, September Term, 2004.

Court of Special Appeals of Maryland.

September 6, 2005.

Mark Colvin (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Panel: KRAUSER, SHARER and ROBERT L. KARWACKI (Retired, Specially Assigned), JJ.

KRAUSER, J.

Appellant, Kalilah Romika Stevenson, was convicted of first degree assault¹ by a jury in the Circuit Court for Wicomico County, after her request for a jury instruction "on hot blooded response to mutual combat" was denied. That ruling was erroneous, she claims, because it denied her what Maryland law should permit. Such an instruction, she points out, is allowed in murder cases to reduce that offense to manslaughter. Why then, she asks, should it not be permitted in first degree assault cases, to reduce that crime to second degree assault. To allow that instruction in murder but not assault cases creates, she suggests, a paradox: If the victim dies, the assailant may invoke this defense; if the victim lives, he may not. That, in turn, produces a disturbing sentencing incongruity: Because the maximum sentence for first degree assault is twenty-five years while the maximum penalty for voluntary manslaughter is only ten, an assailant, who can claim adequate provocation, faces a shorter maximum sentence under the law if he kills rather than injures. Thus the law provides a motive to murder.

Although we acknowledge that appellant's position is neither illogical nor unreasonable and that other states have legislatively approved adequate provocation as a mitigating circumstance in assault cases,² we cannot ignore the unwavering line of appellate decisions confining this mitigation defense to murder and its "shadow" offenses. Maryland, at least for now, confines consideration of mitigation in assault cases to the discretion of the court at sentencing. If any change is to be made, it must be done by the Court of Appeals or the legislature. We shall affirm the judgments of the circuit court, confident that we have not heard the last of this matter.

BACKGROUND

When the assault at issue occurred, appellant and the victim, Antonio Corbin, were married but living apart. Although their three-year-old daughter, Alize Corbin, lived with appellant, on the day of the stabbing she was visiting with her father. When, on that day, Alize became ill, her father and his girlfriend took Alize to the emergency room of a nearby hospital.

Learning that her husband and his girlfriend had taken Alize to the emergency room without first calling Alize's doctor, as appellant's medical insurance required, an angry and upset appellant went to the emergency room. When she arrived, she and her estranged husband began to argue. The argument spilled into the parking lot and eventually culminated, several hours later, in a violent confrontation between appellant and her husband at his mother's house. As her husband was leaving the house, appellant allegedly grabbed a butcher knife from the kitchen and stabbed him twice in the left arm. His wounds required 126 stitches and resulted in a loss of sensation in his left hand.

DISCUSSION

"In deciding whether a trial court was required to give a requested instruction, an appellate court `must determine whether the requested instruction constitutes a correct statement of the law; whether it is applicable under the facts and circumstances of this case; and whether it has been fairly covered in the instructions given.'" Ellison v. State, 104 Md. App. 655, 660, 657 A.2d 402 (1995) (quoting Mack v. State, 300 Md. 583, 592, 479 A.2d 1344 (1984)). The only question before us is whether the requested instruction was a legally correct statement of the law. It was not.

Hot blooded response to mutual combat can, in Maryland, reduce murder to manslaughter. This mitigating circumstance occurs "when persons enter into angry and unlawful combat with a mutual intent to fight and, as a result of the effect of the combat, the passion of one of the participants is suddenly elevated to the point where he resorts to the use of deadly force to kill the other solely because of an impulsive response to the passion and without time to consider the consequences of his actions." Sims v. State, 319 Md. 540, 552, 573 A.2d 1317 (1990). It falls, together with other forms of hot blooded response,³ within what has been dubbed the "hot blooded response to adequate provocation" rule, or the "Rule of Provocation." See McKay v. State, 90 Md.App. 204, 212-13, 600 A.2d 904 (1992)

.

To invoke that rule:

(1) [t]here must have been adequate provocation;

(2) [t]he killing must have been in the heat of passion;

(3) [i]t must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; [and]

(4) [t]here must have been a causal connection between the provocation, the passion, and the fatal act.

Sims, 319 Md. at 551, 573 A.2d 1317 (emphasis added and citation omitted).

The very definition of this rule, interwoven, as it is, with repeated references to homicide, limits its application to murder. To be applicable, it expressly requires that the killing occurred in the heat of passion, that the killing followed the provocation, and that the fatal act was causally linked to the provocation and the passion.

The narrow scope of this mitigation defense has been confirmed by the Court of Appeals: "Although widely accepted as a mitigating circumstance in murder cases," hot blooded response to adequate provocation "has not ordinarily been used to reduce the grade or degree of any crime other than murder." Richmond v. State, 330 Md. 223, 232, 623 A.2d 630 (1993).

The only exception to this limitation are cases involving what Judge Moylan called, in Bryant v. State, the "inchoate, shadow crimes" of criminal homicide, that is, crimes such as "assault with intent to murder, attempted murder, and conspiracy to murder." 83 Md.App. 237, 244, 574 A.2d 29 (1990). But, as we shall see, first degree assault does not fall within the shadow cast by murder, as these crimes do.

Although there are no cases in Maryland that expressly address the applicability of the "hot blooded response" mitigator to first degree assault, that is not true of another offense mitigator — "imperfect self-defense." Since both imperfect self-defense and hot blooded response operate to negate the malice necessary to prove murder, they are, for at least this purpose, doctrinal analogues. Consequently, the rationale for either extending the doctrine of imperfect self-defense or declining to do so in non-murder cases provides compelling authority for reaching the same result where hot blooded response to adequate provocation has been invoked. In other words, the scope of their application is, in this instance, co-extensive.

The first such case is State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984). There, the Court of Appeals addressed the question whether imperfect self-defense was applicable to assault with intent to murder, the statutory predecessor of first degree assault. Given that assault with intent to murder is defined "as an assault upon the victim coupled with an intent to murder, which can be shown that the crime would have been murder if the victim had died[,]" id. at 504, 483 A.2d 759, it logically follows, the Court stated, that because that offense "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. It therefore declared that imperfect self-defense reduces assault with intent to murder "to, at most, simple assault," as Maryland does not recognize "assault with intent to commit voluntary manslaughter." Id.

Six years later, in Bryant, 83 Md.App. at 239, 574 A.2d 29, this Court held that imperfect self-defense is not applicable to the crimes of statutory maiming and assault with intent to disable, explaining:

Criminal homicide is extremely unusual in its proliferation of levels or degrees of blameworthiness. Except for its reflected influence on its inchoate, shadow crimes of assault with intent to murder, attempted murder, and conspiracy to murder, it alone has an extenuated or mitigated form (voluntary manslaughter) for purposes of lowering the maximum punishment.

Voluntary manslaughter is something other than the mere absence of aggravating factors that would raise the level of guilt to murder in either the first or second degree. It is predicated upon the affirmative presence of some extenuating fact that will operate to mitigate the level of guilt and, therefore, the punishment. One of the extenuating factors that gives rise to the crime of voluntary manslaughter is that of imperfect self-defense.

Id. at 244, 574 A.2d 29. We then declared that "imperfect self-defense as a mitigating factor (as, indeed, the very phenomenon of mitigation generally) is limited to criminal homicide and its shadow forms . . ." id., adding "[w]ith respect to all other crimes, the defendant is either guilty or not guilty.... There is no `in between.'" Id. at 245, 574 A.2d 29.

Two years after that, the Court of Appeals expressed its agreement with that principle in Watkins v. State, 328 Md. 95, 613 A.2d 379 (1992). In that case, Watkins was charged with multiple counts of unlawful shooting with intent to disable, use of a handgun in the commission of a crime of violence, and battery. Id. at 97, 613 A.2d 379. In affirming his convictions for those offenses, the Court rejected, among other things, Watkins's suggestion that he had "at least generated a question of `imperfect' self-defense." Id. at 106, 613 A.2d 379. In so doing, it observed that "the defense of imperfect self-defense does not apply to and is not available to mitigate any...