COSA Dissent Watch: Battered-Spouse Syndrome and Murder-For-Hire
The case: Porter v. State, Sept. Term 2013, No. 1916 (Oct. 25, 2016)
The questions: Does Md. Code, Cts. & Jud. Proc. (“CJP”) § 10-916 permit a defendant implicated in a murder-for-hire scheme to introduce evidence of battered-spouse syndrome? Did the evidence in the case establish that the defendant had a subjective belief of an apparent imminent or immediate danger of death or serious bodily harm?
The facts: Karla Porter alleged that her husband, William Raymond Porter, had abused her physically, verbally, and psychologically for decades. In June and December 2009, she offered two different people money to kill him; also in December, she asked someone else about obtaining potassium cyanide that she could use to commit the murder. In January 2010, she offered the job to a third person, Walter Bishop, with their agreement becoming finalized in February.
Meanwhile, according to Ms. Porter, the abuse continued. Near the end of the month, she said, Mr. Porter held a gun to her head and threatened to kill her, and, in another instance, struck her in the back with a crutch. On March 1, as she had planned with Bishop, she told Mr. Porter that a security alarm had gone off at a gas station that he owned. After he went to the station and she joined him there, Bishop entered and shot him to death.
At her trial, Ms. Porter alleged that she had sustained years of abuse by Mr. Porter and suffered from battered-spouse syndrome as described in CJP § 10-916, which states that:
Notwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offence, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the individual who is the victim of a crime for which the defendant has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind, or both, at the time of the commission of the alleged offense
- Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and
- Expert testimony of the Battered Spouse Syndrome.
She also contended that she was acting in imperfect-self-defense when she arranged for his killing. Two experts testified on her behalf regarding the syndrome.
The first expert opined that the abuse had made Ms. Porter “super sensitive to threats to her physical integrity and to perhaps overreact or over-perceive those threats, feeling that she has to act in self-defense when, in fact, there might not be an objective reason for that.” He also concluded that, in the year before the killing, she was “increasingly anxious and fearful for her life and safety,” and that, at the time of the murder, she was depressed and had post-traumatic stress disorder. The second expert opined that, during the Porters’ marriage, there was a “kind of building up [of] the level of the threat” that was “more intense, more frequent towards the end[.]” She concluded that “a sense of desperation” and “difficulty concentrating” would make Ms. Porter’s perception of danger “bigger.”
The circuit court instructed the jury that, for it to accept that Ms. Porter was acting in self-defense, it had to find that she had a “reasonable” belief that she was in immediate and imminent danger of death or serious bodily harm. She was convicted of murder. On appeal, she argued that the jury instruction misstated the law of imperfect self-defense and was reversible error
The majority (Kehoe, joined by Graeff): The majority found that the jury instruction regarding imperfect self-defense was deficient because a defendant’s belief of imminent danger need not be objectively reasonable. However, the error wouldn’t warrant relief unless Ms. Porter was entitled to the instruction in the first place. To get her contention of imperfect-self-defense to the jury, she had to produce evidence that she at least subjectively believed herself to be in apparent imminent or immediate danger of death or serious bodily harm. That’s what she had been using testimony about battered-spouse syndrome to support.
The majority set out to determine if such battered-spouse evidence is available when a defendant hires someone else to do the killing. The relevant out-of-jurisdiction cases the majority surveyed all held that, in a case of murder-for-hire, evidence of battered-person syndrome either isn’t admissible or, at least, can’t generate an instruction for imperfect-self-defense because it doesn’t establish that the defendant was in imminent danger at the time of the murder. The majority extrapolated from those cases that the belief of imminent danger must be present “at the time [the victim] was killed.” The majority then held that, although there was evidence that Ms. Porter believed herself to be in imminent danger at some time prior to the killing, “there was no evidence that she had such a belief on the morning of the murder.” As such, there wasn’t enough evidence to generate a jury instruction on imperfect-self-defense at all, so it didn’t really matter that the instruction actually given was erroneous.
After that fact-specific reasoning, however, the majority went one further, considering whether the she should have been allowed to put on battered-spouse evidence at all. That required the majority to look at State v. Peterson, 158 Md. App. 558 (2004), another battered-spouse case involving a “non-confrontational” killing (that is, not committed during a physical altercation). The majority understood the murder in Peterson to have been “triggered” by the husband’s setting fire near some of the couple’s animals, which he had brutalized before. Contrasting that with Ms. Porter’s planning of the murder during a nine-month period, the majority held that “participation in an elaborate conspiracy” for murder places a defendant “outside of the class of persons for whose protection the Battered Spouse Syndrome was enacted.” Ms. Porter therefore shouldn’t have even gotten the battered-spouse evidence in at all.
The dissent (Friedman): Judge Friedman saw his disagreement with the majority as threefold: what the standard is to get a self-defense instruction, what it means for harm to be imminent, and whether a self-defense instruction is available in a contract killing. On the first point, he notes that a jury instruction is given if the proponent generates “some evidence” to make it an issue, and that this can be satisfied by the testimony of the defendant alone. He took this to mean that if Ms. Porter “says that she was acting in self-defense, she gets a self-defense instruction.”
On his second point, Judge Friedman looked to State v. Smullen, 380 Md. 233, 273 (2004), for the procedure to use in admitting battered-spouse evidence: If a defendant produces evidence to establish a pattern of past abuse by the victim, it is admitted and further evidence of battered-person syndrome can be introduced to establish that the defendant subjectively perceived herself to be in imminent threat of immediate danger. If there is some evidence of that subjective perception, the imperfect-self-defense instruction is available. Following that procedure, and because there was evidence of a pattern of abuse, Judge Friedman would have allowed battered-spouse evidence to demonstrate a subjective belief by Ms. Porter that she was in imminent danger. As to whether such a belief was actually established at her trial, Judge Friedman admitted that the expert’s testimony “might have been clearer” but ultimately deemed it “sufficient.” He would have therefore held that it was reversible error to have not given a proper imperfect-self-defense instruction.
Unlike the majority, Judge Friedman declined to resolve whether the threat of danger was “imminent” or not. In his reading of Smullen, that battered-spouse syndrome might cause a defendant to “perceive the imminence of danger differently from someone who has not experienced this pattern of abuse” was good reason not to create bright-line rules about what “imminence” might mean in the self-defense context. That determination, he reasoned, is better left to expert testimony and resolution by fact-finders rather than appellate judges.
Judge Friedman didn’t place much stock in the majority’s per se refusal to permit battered-spouse evidence in contract killings (or, at least, “elaborate conspiracies” to kill). He argued that neither the text of CJP § 10-916 nor Smullen creates such a categorical exception. Given that battered-spouse syndrome is created by the statute, he would have required some sort of statutory basis for reading in a preclusion of use in contract-killing cases; mere reference to out-of-jurisdiction case-law wasn’t enough.
Notes: First, a note on Judge Friedman: Of the eight dissents to come out of the Court of Special Appeals in the six months that this feature has been tracking them, Judge Friedman has written half. So kudos to him for getting his thoughts out there, bringing attention to some interesting issues and cases, and, most importantly, giving me something to write about. Looking over the scoreboard, my hunch was that he had the better argument in State v. Johnson, not so much in the two lead paint cases, Davis v. Lewin Realty III and Murphy v. Ellison. So, does Porter even things out?
First, there’s probably more to it than Judge Friedman’s conclusion that, pursuant to the “some evidence” standard, if a defendant generally testifies that she acted in self-defense, she gets a self-defense instruction. That’s because whether the defense is available depends on the specific element of the defendant’s subjective belief of “imminent or immediate danger of death or serious bodily harm.” So a defendant’s proclamation that she acted in self-defense wouldn’t mean anything unless there was also “some evidence” of this subjective belief.
The obvious initial question is whether battered-spouse evidence is available in contract-killing cases at all. Judge Friedman is right that CJP § 10-916 and Smullen don’t have such an express prohibition. But there’s little debate — and he readily admits — that the flavor of Smullen and the on-point out-of-jurisdiction cases is one of deep skepticism about use of battered-spouse evidence by such defendants. The essence of those opinions is probably what drives the majority’s conclusion that participation in an “elaborate” murder conspiracy takes battered-spouse evidence off the table, even in the absence of any indication that CJP § 10-916 was intended to have that limitation.
Of course, the majority’s analysis doesn’t really explain why battered-spouse evidence shouldn’t be available in these cases. To the extent that conclusion is generated by the out-of-jurisdiction authorities, it’s clear that those decisions hinge on an objective determination of whether “at the time of the killing, [the defendants] were in immediate or imminent danger.” Yet the language of the applicable precedent in Maryland refers to the defendant’s subjective belief in “apparent imminent danger of death or serious bodily harm” — that is, a subjective belief in both the existence of the danger and the imminence of it.
The majority’s decision does purport to respect the subjective standard: “[T]he factual predicate at issue is whether, at the time Mr. Porter was killed, Ms. Porter honestly, albeit subjectively, believed that she was in imminent, that is to say, immediate, danger of death or serious bodily harm.” Fair enough, but the following discussion of why Ms. Porter can’t use the statute suggests differently. To the majority, battered-spouse evidence is, pursuant to Peterson, available to a defendant whose killing was “triggered” by the victim’s having, “a short time earlier,” set fire close to animals. (Side note: It’s dubious that this fact picked out of the Peterson opinion really was a factor in that analysis, given that subjecting animals to fire wouldn’t have caused the defendant death or serious bodily harm, but okay.) The majority then concludes that, “in contrast,” a defendant such as Ms. Porter who plans the killing for months can’t rely on such evidence.
The main difference between those scenarios is whether there is an objectively “imminent” threat: yes for imperiling the welfare of animals shortly before the killing, no when someone plans for months. But can it really be said that a person couldn’t subjectively (even if unreasonably) believe herself to be imminent danger even if she plans the murder for some time? Consider a person who lived with the constant and ever-present belief that her spouse could kill her at any moment. That person might hold this subjective belief throughout the conspiracy to have her spouse killed, through and including the exact time the hit-man does the deed. Such a subjective belief might also carry more weight when, as in this case, the defendant is physically present when the victim is killed. (That is, as opposed to situations in which the defendant is not present at the murder scene and it would have been impossible for the victim to have contemporaneously put the defendant in “imminent or immediate” danger of harm — at least, as that term is understood by the majority.)
Is such a subjective belief of harm unlikely? Perhaps, and presumably hard to convince a jury of (particularly in those cases in which the defendant wasn’t even with the victim at the time of the killing). But there doesn’t appear to be anything in CJP § 10-916 that would foreclose the use of battered-spouse evidence in such circumstances. And whether or not an unreasonable (even wildly unreasonable) subjective belief was genuinely held or not seems like a decision for the fact-finder to make. So despite the majority’s invoking the subjective standard, the objective analysis may be lurking in the shadows of the majority’s opinion.
Taking a different route, and following the procedure in Smullen, Judge Friedman would have allowed the battered-spouse evidence, and, if it demonstrated a possible subjective belief of Ms. Porter that she was in imminent threat of immediate danger, would have required a proper imperfect-self-defense instruction to the jury. In this approach, the battered-spouse evidence is used to show the defendant’s subjective belief in both the danger and the immediacy of it. That the killing happened as a murder-for-hire scheme might make that subjective belief more improbable, but doesn’t really alter the analytical method.
Note, however, that, although the majority eventually decided that Ms. Porter couldn’t use the battered-spouse evidence at all, it also held that the evidence that was admitted didn’t establish that she had a belief of imminent danger of death at the time of the killing. And it’s true that the expert testimony as recounted in the opinion — discussing Ms. Porter’s anxiety, fear, depression, despair, sensitivity to threats, and perception of danger — doesn’t precisely say when she had those fears and perceptions, or, more specifically, that she had those fears and perceptions at the time of the murder. What exactly Judge Friedman would have required from the expert testimony to generate the instruction isn’t totally spelled out, but it’s safe to say that a much more general opinion regarding the defendant’s mindset would do.
Summing this all up, the majority’s categorical exclusion of conspiracy-to-kill cases from the battered-spouse syndrome statute doesn’t really comport with either its text or the subjective standards established by Maryland case-law. And the analytical approach used by Judge Friedman does seem to better correspond to the process laid out in Smullen. On the other hand, putting all that aside, the expert testimony on behalf of Ms. Porter didn’t seem to accomplish what was necessary to generate the instruction. That may feel like a nitpick-y way to resolve the case — clearly Judge Friedman thought so when he deemed the general testimony sufficient for that purpose — but it’s certainly a valid one.
Certiorari prospects: Given that the opinion relies on out-of-jurisdiction authority to carve out a statutory exception that isn’t spelled out in the text — all things that the Court of Appeals typically like to have a say on — I’m almost as confident in certiorari as George Zimmer was that you would like your suit from Men’s Wearhouse.
[Editor’s note: Blog editor-in-chief Steve Klepper had no role in the review, editing, or posting of this piece.]