Law on Imperfect Self-Defense is Still… Imperfect
Back in November 2016, less than two weeks before I left the Appellate Blog for a long foray as a Governor’s Office lawyer, I wrote my final post about the Court of Special Appeals’ decision in Porter v. State and the panel’s struggles with imperfect self-defense. How odd, then, that in my return more than six years later, the first split Appellate Court decision I come across is… a panel applying Porter and struggling with imperfect self-defense. With that coincidence, I guess I’ll just pick up where I left off.
To set the stage — when proven, imperfect self-defense negates the element of malice, which drops a murder charge to voluntary manslaughter. At least in Maryland, it comes into play when the perpetrator was not the “aggressor” and had the subjective beliefs, no matter how unreasonable, that:
- a potential assailant posed an imminent or immediate danger of serious bodily harm;
- the amount of force used to respond was necessary; and
- retreat was not safe.
To generate a jury instruction on imperfect self-defense, a defendant need only produce “some evidence” of these subjective beliefs.
It was clear that the Court of Special Appeals judges considering Porter weren’t entirely comfortable with this low bar for arguing self-defense. In that case, the defendant had planned her husband’s murder for months and paid someone else to do it after he arrived at work — not exactly the typical scenario of “imminent or immediate danger of serious bodily harm.” There, the Court of Special Appeals declined to require a jury instruction, finding that the circumstances indicated Ms. Porter couldn’t have believed she was in danger at the time of the killing.
On certiorari — as discussed on this blog by now-Judge Brad McCullough — the Court of Appeals reversed, reaffirming that only “some evidence” of the defendant’s actual, subjectivebeliefs about danger, retreat, and response (which in this instance came from application of the “battered spouse syndrome” statute) is required for the jury to consider the question, even if the circumstances suggest it was unreasonable for the defendant to hold those beliefs. So, did Porter clear everything up on how imperfect self-defense works?
Apparently not, as demonstrated by Byrd v. State, No. 1787, Sept. Term 2021 (App. Ct. Md. Jan. 23, 2023). The case arises from Xavier Byrd’s murder of Gary Melvin, in what the State believed was a botched robbery and what the defense contended was a drug deal gone bad. Surveillance footage showed that, just before being shot, Mr. Melvin “appeared to lunge” at Mr. Byrd, “cocking his right arm back.”
The majority held that Mr. Byrd was entitled to an instruction about imperfect self-defense because of the “low threshold” of needing only “some evidence” — even circumstantial — of the defendant’s beliefs. It relied in part on the holding in the post-Porter case of Holt v. State that evidence of the defendant’s subjective intent can come from sources other than the defendant’s direct testimony, including “consideration of his acts, conduct and words.”
For the majority, then, there was sufficient evidence in Byrd for this “intensely fact-dependent inquiry” to meet that standard “given the totality of the circumstances”: Mr. Melvin was known to be a drug dealer, he was twice the age of Mr. Byrd, he had multiple drugs in his system at the time, there had been commotion and conversing in a “loud tone” before the shooting, and the video indicates he advanced on Mr. Byrd with a cocked arm.
Judge Beachley wasn’t convinced. In his dissent, he noted that — regardless of what could be gleaned from the video or what Mr. Byrd may have experienced at the time of the crime — there was no evidence at trial of Mr. Byrd’s mental state or what he subjectively believed about being in danger. Absent that evidence, it was “speculation” to reach conclusions about what Mr. Byrd might have believed based on the circumstances, and there was no basis for the instruction.
The difference between the majority and Judge Beachley seems to, again, turn on the degree to which objective reasonableness matters. I wrote in my 2016 post about Porter that, “despite the majority’s invoking the subjective standard, the objective analysis may be lurking in the shadows of the majority’s opinion.” The same might be said here.
Holt does hold that a defendant’s subjective beliefs can be proven circumstantially by acts, words, and conduct, but that would still have to be evidence of the defendant’s acts, words, and conduct in a way that demonstrates mental state. This could be, for example, crying, fleeing, yelling out “I’m scared,” hiding, and the like.
Looking at the “totality” of other circumstances — such as where the victim was, what the victim was doing, and how the victim appeared and was acting — seems to fall back into an objective analysis of what beliefs of the defendant would have been reasonable. In the Court of Special Appeals’ decision in Porter, those other circumstances (the victim was at work and not doing anything confrontational) suggested the defendant’s beliefs weren’t reasonable; in Byrd, the circumstances (the victim was on drugs and running at the defendant) could reasonably cause someone to fear bodily harm. In either case, though, that is an objective determination.
Perhaps an extreme hypothetical helps clarify the point. Let’s say that video and testimony established that Mr. Melvin pulled out a machine gun and a machete, screamed “I am definitely going to kill you right now,” and ran at Mr. Byrd at full sprint. But let’s say Mr. Byrd later testifies that he never really feared for his safety, felt he could have easily escaped if he wanted to, and didn’t think any force was necessary in response. Mr. Byrd wouldn’t get an instruction for imperfect self-defense.
Now take that same scenario, but there’s no evidence at trial at all about what Mr. Byrd believed or didn’t believe. There’s no discussion of Mr. Byrd’s mental state one way or another. There’s no evidence that Mr. Byrd screamed in fear, cowered, took cover, or reacted in any notable way. The majority’s opinion reads that, in such a situation, the circumstances of Mr. Melvin’s behavior alone would justify the instruction. But wouldn’t that necessarily be an objective conclusion?
In sum, the law on imperfect self-defense still seems unsettled. In deciding whether a jury instruction is warranted, perhaps there is appropriate interplay between an objective analysis of the circumstances surrounding a crime and evidence of the defendant’s subjective beliefs — but how that would work has yet to be clearly spelled out.
Editor-In-Chief Steve Klepper, whose firm represents Mr. Byrd, was not involved in this post.