Questions Remain About Self-Defense Jury Questions

By Chris Mincher

There are very few dissents in the Appellate Court of Maryland: By my slapdash and amateurish count — which will have some built-in double-counting and so isn’t precisely accurate — out of 899 opinions of the court in 2023, there were only 7 dissents, meaning the panels disagree roughly 0.8 percent of the time. When one issue resurfaces in dissents twice within the same year, it’s worth taking note.

Byrd v. State, No. 1787, Sept. Term 2021 (App. Ct. Md. Jan. 23, 2023), last January contained some conflicting ink in regards to the “some evidence” standard to get a jury instruction relating to “imperfect self-defense,” an issue that was also in play recently in Hollins v. State, No. 2023, Sept. Term 2022 (App. Ct. Md. Dec. 14, 2023), albeit in regards to the alleged violent propensity of a witness. The case stems from a parking-lot fight between McDonald’s coworkers Isiah Hollins and Alexander Alvarenga that resulted in Mr. Hollins stabbing Mr. Alvarenga in the head six or seven times.

A History of Violence?

The two men had substantially different accounts of how this went down. According to Mr. Alvarenga, he was attacked by Mr. Hollins, who, after stabbing him with a large knife, ran off yelling, “I told you all I’m a killer!” Mr. Hollins, on the other hand, said Mr. Alvarenga was the aggressor who threatened to “put a knife” in him; when they took their dispute outside and Mr. Alvarenga began punching him, Mr. Hollins pulled out a retractable knife attached to brass knuckles (which I didn’t realize was a thing), stabbed Mr. Alvarenga in self-defense, and then ran off yelling that Mr. Alvarenga would be fired.

Mr. Hollins was charged with attempted first-degree murder and first-degree assault. Part of Mr. Hollins’ self-defense strategy was to elicit evidence that Mr. Alvarenga had gotten into several fights before and had committed two minor previous assaults (one for slapping a police car and the other for spitting on an officer). Keen to Mr. Hollins’ play, prosecutors put on this evidence first in their case, with Mr. Alvarenga’s explanation that the earlier fights had all happened when he was younger, suggesting he had outgrown that behavior.

Mr. Hollins also sought to make hay out of Mr. Alvarenga’s statement to police that they had fought “like men do,” prior comments that “everybody fights,” and testimony that he had previously told people he had trained as a boxer. There was also testimony from other coworkers that Mr. Alvarenga had generally been in an unfriendly mood that evening and had been the one to insist that they relocate their disagreement to the parking lot.

A Wounded Witness on the Stand

Mr. Hollins’ plan of demonstrating to the jury that Mr. Alvarenga had a tendency for fisticuffs was bolstered when Mr. Alvarenga showed up to court with two black eyes, severely swollen knuckles, scratches on his face, and small spots of internal bleeding under his skin — the result, Mr. Alvarenga said, of being attacked by his brother. Mr. Hollins wanted to probe the circumstances of Mr. Alvarenga’s banged-up appearance by asking whether he in fact had started the fight with his brother, but the court precluded it.

Mr. Hollins was also unsuccessful when he later sought a jury instruction on Mr. Alvarenga’s alleged propensity for violence. Something in his case must have worked, however, as the jury convicted him of only second-degree assault rather than attempted first-degree murder. Mr. Hollins appealed nonetheless, alleging that he was unconstitutionally denied his right to cross-examine Mr. Alvarenga about who started the fight that had caused his current injuries.

To the majority, the questions were — as taken from State v. Heath, 464 Md. 445, 458 (2019) — what topics the prosecution had “opened the door” to in their case, whether those topics were immaterial collateral issues, and, if not, how much the defense should be permitted to respond considering the resulting unfair prejudice, confusion of issues, misleading of the jury, undue delay, waste of time, or needless presentation of cumulative evidence. None of the answers to those questions went Mr. Hollins’ way.

Distractions, Detours, and Direction to the Jury

First, because the prosecutors didn’t go into why Mr. Alvarenga had visible physical injuries on the stand, the majority held that Mr. Hollins wasn’t entitled to confrontation on that issue. The majority also viewed Mr. Alvarenga’s current injuries as irrelevant to whether he had been the aggressor years earlier in his fight with Mr. Hollins. To the majority, the entire subject was a time-wasting “detour” that would have devolved into a distracting “trial within a trial.”

Having zipped the defense’s lips about Mr. Alvarenga’s brotherly altercation, the majority next turned to Mr. Hollins’ request for a jury instruction about Mr. Alvarenga’s propensity for violence. This was all about whether there was enough evidence to support such an instruction.

As recounted by the majority, requested instructions must be given for “every essential question or point of law” (citing Green v. State, 118 Md. App. 547, 562 (1998)) if “the evidence is sufficient to permit a jury to find its factual predicate.” That means there is a “minimum threshold of evidence necessary” before a party can get the desired instruction. Bazzle v. State, 426 Md. 541, 550 (2012). To the majority, the sum of the evidence about Mr. Alvarenga’s violent disposition — three or four past fights, two nonviolent second-degree assault convictions, his past statements about fighting, and testimony that Mr. Alvarenga challenged him to take their quarrel outside to the parking lot — didn’t meet that threshold.

The majority first dismissed the last point about who started it, saying this was “based wholly on Hollins’ uncorroborated testimony” (which seems a little unclear, because the opinion earlier states that a defense witness testified that Mr. Alvarenga had asked Mr. Hollins “if he [was] ready to go outside”). Such “generalized conduct” such as Mr. Alvarenga saying “everybody fights” also didn’t move the needle, and Mr. Alvarenga’s previous fights happened years before. The convictions — for slapping a car and spitting — technically were assaults, but not acts that are probative of a violent disposition. The majority also noted that Mr. Hollins didn’t know any of this history at the time the fight happened. It all felt short of triggering the requested instruction.

Propensity Was Probative

That reasoning swayed only two of the three panelists, as Judge Raker dissented. The first issue was whether Mr. Hollins could cross-examine Mr. Alvarenga about the circumstances of the fight that had led to him sitting on the stand looking worse for the wear. As reasoned by Judge Raker, the prosecution had — by affirmatively walking through Mr. Alvarenga’s past incidents and eliciting his testimony that they occurred when he was younger — “opened the door” to the issue of whether Mr. Alvarenga’s past fights were, as she put it, “a thing of the past.”

Evidence that he had initiated a fight just before coming to trial was therefore probative, and asking about it wasn’t any more of a “detour” than the one the State had already taken through Mr. Alvarenga’s history of fighting. (Moreover, she noted, if the line of questioning had threatened to become too confusing or distracting, the court had the discretion to cut it off.) She deemed the restriction of the cross-examination to be an abuse of discretion.

The second issue was the jury instruction, which all came down to the “some evidence” standard. Judge Raker was, admittedly, in agreement with the majority that the evidence about Mr. Alvarenga’s propensity for violence was underwhelming — but there was still “some” evidence of it. Neither the majority’s misgivings about the strength of the evidence nor what Mr. Hollins knew of Mr. Alvarenga’s background at the time changed the fact that there was “some evidence” of a violent character trait. Therefore, she concluded, the low threshold for an instruction was met and refusing to give it was an error. The issue of self-defense was central to the case, and by convicting on a drastically reduced charge the jury must have thought there was something to it, so the error wasn’t harmless, either.

On The Other Side of the Open Door

I’m with Judge Raker on the first point. There’s no dispute that the State “opened the door” to something; the question is what exactly it opened the door to. Describing what is on the other side of the door is also necessary for figuring out what would be an impermissible collateral issue. The majority decides that “the door was open, but only as far as incidents about which Alvarenga testified. … Proportionality required only that the circuit court allow Hollins to cross-examine Alvarenga regarding the incidents that he testified about; namely, his prior convictions and altercations that occurred years before.”

That seems unfair. Why should the State get to cherry-pick incidents that minimize the conduct — trivial incidents that occurred years ago — to portray the witness as reformed from negligible bad behavior, but the defense can’t ask about other incidents that might paint a different picture? Why should the State, simply by being the first mover on the issue, get to unilaterally define its scope?

To make the point – suppose that, instead of getting into a tussle with his brother, Mr. Alvarenga had just the previous day attacked a crowd of people with a crowbar in a fit of rage. Would that be deemed off-limits because the State declined to bring it up? It doesn’t seem right that the State could spend trial time diminishing Mr. Alvarenga’s culpability for small matters that occurred long ago, while egregious and violent conduct he had just committed gets ignored.

I would think that, when the State decided to get into the witness’ history of fights, it opened the door to the witness’ history of fights, whenever they occurred. Because whatever altercation had just occurred prior to trial was a part of that history of fighting, it wasn’t collateral, and the defense should have been allowed a question or two to probe what happened.

Further, despite this focus on what the State “opened the door” to, I wonder whether — just as a practical matter — the “door was open” to the topic simply by the witness’ appearance itself. I can’t imagine, seeing a witness who looks recently beaten up, a jury wouldn’t wonder and speculate what that was all about. At what point is the witness’ appearance an issue simply because the jury can see it for themselves?

Some Evidence or Sufficient Evidence

The second point of contention is whether there should have been a jury instruction about the witness’ propensity for violence. Here, the discussions in the majority and dissenting opinions conspicuously cite different standards. The majority, citing Bazzle, 426 Md. at 550, writes that the Court must determine whether the requesting party produced the “minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.” The dissent, citing Allen v. State, 157 Md. App. 177, 184 (2004), writes that a jury instruction only requires “some evidence giving rise to a jury issue on defense.”

A “prima facie” standard and a “some evidence” standard aren’t necessarily the same. There could be “some evidence” that’s too slight and unconvincing to make a prima facie case. There are competing values at play with either — a “prima facie” standard calls upon the court to weed out frivolous or ancillary defenses that just confuse and distract the jury, while a “some evidence” standard gives defendants a full and fair shot to make whatever case they can, no matter how weak, without court interference.

So, which is it? As the result in Hollins indicates, my hunch is that courts don’t uniformly believe defendants should be able to get an instruction for every extraneous and scattershot matter they can find a scrap of evidence for. But if “some evidence” is too low, is a “prima facie” standard too high? Should the standard be in between? I’m not even sure how that would be described to be reasonably useful to courts and practitioners, but the disagreement on the Hollins panel suggests some sort of clarification could be warranted.

Isabelle Raquin, whose firm represents Mr. Hollins, was not involved in this post.