Sydnor v. State

• Decision Date: 20 July 2001
• Docket Number: No. 83 Sept. Term, 2000.,83 Sept. Term, 2000.
• Citation: Sydnor v. State, 365 Md. 205, 776 A.2d 669 (Md. 2001)
• Parties: Roosevelt Preston SYDNOR v. STATE of Maryland.
• Court: Maryland Court of Appeals

776 A.2d 669

365 Md. 205

Roosevelt Preston SYDNOR v. STATE of Maryland.

No. .

Court of Appeals of Maryland.

July 20, 2001.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief) Baltimore, for petitioner. Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Attorney General of Maryland, on brief) Baltimore, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

WILNER, J.

On the evening of December 9, 1998, petitioner was sitting with some friends on the front steps of 907 North Chester Street, in Baltimore, when one Anthony Jackson approached and asked if petitioner had any "weed" to sell. When petitioner responded in the negative, Jackson, apparently eyeing a gold chain petitioner was wearing, pulled a gun and told him to "give it up." After hitting petitioner on the head with the gun and threatening to kill him, Jackson took $30 in cash from petitioner and was about to take the gold chain as well when petitioner, assisted by his friends, grabbed the gun and, after a struggle, was able to take it from Jackson. As Jackson then attempted to flee, petitioner fired five shots at him, hitting him four times—once in the front of his thigh, once in the forearm, and twice in his back. One of the back wounds was surrounded by stippling, indicating that the gun was fired from close range. Jackson collapsed and died in the street in front of 922 North Chester Street—40 to 50 yards from where the robbery occurred.¹ Immediately after shooting Jackson, petitioner, along with his friends, ran away.

Those basic facts were largely undisputed. What was in dispute was how, where, and why the shooting occurred. Those disputes were presented and resolved in the Circuit Court for Baltimore City, where a jury convicted petitioner of voluntary manslaughter and use of a handgun in the commission of a felony but acquitted him of first and second degree murder and carrying a handgun.

The State's theory was that, after wresting the gun away from Jackson, an enraged petitioner, intent only on revenge, chased and shot Jackson as he attempted to flee. That theory was supported by evidence that five bullet casings were found in the street near where Jackson collapsed, photographs depicting the four wounds suffered by him, and the testimony of Yvette Kiah, Yavonda Jones, and several police officers. Ms. Kiah, who lived at 922 North Chester Street, observed the struggle, heard one of the men say something like, "Well, if you have a gun you better use it," and, after turning away, heard people running followed by five or six gunshots. Ms. Jones said that, as she was leaving her house in the 800 block of North Chester Street, she observed the struggle and then saw petitioner take a gun away from Jackson. She said that Jackson "tried to run and he [petitioner] shot him in his back and then he ran in the opposite direction." Several police officers were in the vicinity at the time and, hearing the shots, responded to the scene. They saw petitioner, who was identified by witnesses as the shooter, running away, whereupon they gave chase and eventually apprehended him, still in possession of the gun. Although petitioner did not testify at trial, statements he made to the police following his arrest were admitted into evidence. Immediately upon his apprehension, he stated to Office Quintner, who was guarding him, "I shot [Jackson] because he was beating me with a gun and robbed me for $30 so I took the gun from him and shot him." At the police station, petitioner gave a formal, taped statement, in which he said that the struggle for the gun landed them both on the ground near the steps and that, after obtaining the gun, he "panicked" and "just shot at him, as soon as I got the gun from him." Petitioner added that he did not know whether Jackson had another gun, but that "I was already aggravated over the fact that he said he was going to kill me." In a later part of his statement, he said that Jackson acted like he was getting ready to "go back in his jacket," and "[s]o I panicked even more and just got to shooting." The shooting occurred, petitioner said, when Jackson was in the middle of the street, with petitioner about five feet from him.

The issue now before us arose in the context of the court's jury instructions. After instructing on the law of murder and manslaughter, the court explained the defense of self-defense raised by petitioner. In doing so, it told the jury, in pertinent part and without objection:

"In addition, before using deadly force, the defendant is required to make all reasonable efforts to retreat. Defendant does not have to retreat if the defendant was in his home or retreat was unsafe or the avenue of retreat was unknown to the defendant or the defendant was being robbed at the moment that the force was used or the defendant was lawfully arresting the victim."

(Emphasis added).

That portion of the instruction was taken nearly verbatim from the language recommended in § 5:07 of the Maryland Criminal Pattern Jury Instructions. During deliberations, the jury asked for and received additional instructions on murder and voluntary manslaughter. In the course of those additional instructions, the court modified slightly what it previously said regarding self defense:

"In addition, before using deadly force, the defendant is required to make all reasonable effort to retreat. The defendant does not have to retreat if the defendant was in his home or retreat was unsafe or if the avenue of retreat was unknown to the defendant or if at the moment that the shots were fired the defendant was being robbed, or the defendant was lawfully arresting the victim."

(Emphasis added).

Noting the difference in language, defense counsel objected, stating that the change from "the defendant was being robbed at the moment that the force was used" to "at the moment that the shots were fired the defendant was being robbed" constituted "commentary." No further explanation for the objection was given. The court responded that it "did the same thing in the original," the reason being that "it could be confusing for the jury to view the robbery and the shooting as one incident when, in fact, it was also possible for them to view it as separate incidents."

At the appellate level, petitioner has greatly expanded his cryptic complaint that the supplemental instruction constituted "commentary." Relying principally on Eighteenth Century English commentary, some Nineteenth Century cases, and cases involving the felony-murder rule, he urges that he had a right to stand his ground and use deadly force to resist the robbery without having to retreat and that that right continued during the period that Jackson was in flight. A robbery, he argues, continues until such time as the robber has made good his or her escape and reached a place of temporary safety, and the victim may continue to use deadly force to resist and recover the property taken until the robber has, in fact, made good the escape. In making this argument, he has never claimed that he was in or even near his home when the robbery occurred or that the shooting was part of any effort to arrest Jackson.

The Court of Special Appeals, finding that the argument had been preserved for appellate review, rejected it, holding that "[w]hen a defendant seeks to escape criminal responsibility by claiming deadly force was employed to repel force, threat of force or intimidation employed by a robber, however, proof that the force exerted by the accused was employed at a time other than when he was being robbed is the sine qua non of proof of excessive force." Sydnor v. State, 133 Md.App. 173, 185, 754 A.2d 1064, 1070 (2000). That court continued that the use of deadly force "must be confined to repulsion of the robber at the moment that the robber exerts force or exhibits a threat of force" but that, "[o]nce the imminent threat of death or serious bodily harm dissipates, a lethal response is no longer warranted." Id. at 187, 754 A.2d at 1072. Notwithstanding petitioner's views to the contrary, we agree with that analysis and shall affirm.

DISCUSSION

The right to act in self-defense has been regarded as a natural right, taken all but for granted, but, as a legal defense to a charge of homicide, it was not part of early English common law. Although much of its development is of historical interest only, the theoretical underpinnings of that development still have some influence. As noted by Joseph Beale, from the beginning of the jurisdiction of the king's courts over crime to the reign of Edward I in the Thirteenth Century, homicide could be justified only when committed in execution of the king's writ or, by custom, when apprehending an outlaw who resisted. Joseph H. Beale, Jr., Retreat from a Murderous Assault, 16 HARV. L.REV. 567, 567-68 (1903).

The privilege to use deadly force in self-defense developed from two strains of English law. Blackstone, citing both Hawkins and Hale, observed that there were three kinds of homicide—justifiable, excusable, and felonious. WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF ENGLAND 177 (1769). Justifiable homicide was one "owing to some unavoidable necessity, without any will, intention, or desire, and without any inadvertence or negligence, in the party killing, and therefore without any shadow of blame." Id. at 178. It was a homicide committed by the absolute command of the law, either for the advancement of public justice (as where a public officer kills in the execution of his or her office) or for the prevention of some atrocious crime which could not otherwise be avoided. Id. at 179-80. As to the latter, Blackstone noted, as an example, that "[i]f any person attempts a robbery or murder of another, or attempts to break open a house in the night time, (which extends also to an attempt to burn it,) and...