Krauser, C.J., Graeff, Berger, JJ.
Convicted, by a jury, sitting in the Circuit Court for Montgomery County, of involuntary manslaughter, Brenden Dashiell, appellant, noted this appeal, raising three issues. Re-ordered to facilitate review, they are:
I. Whether the circuit court erred in instructing the jury that self-defense is not a defense to affray;
II. Whether the circuit court erred in allowing the jury to consider affray as an unlawful underlying act for involuntary manslaughter because the State failed to show that the fight occurred in public or caused terror to the people; and
III. Whether the circuit court erred in refusing to instruct the jury that defense of property may be a defense to assault and affray.
Because the circuit court erred in instructing the jury that self-defense is not a defense to affray, we reverse and remand. We shall, however, briefly address the two remaining issues, as they are likely to arise again if there is a retrial of this case.
On Saturday, July 2, 2011, Justin Carter and his wife, Evelyn Carter, held a cookout on the back porch of their home in Gaithersburg, Maryland, to kick off the July 4th weekend. Among the guests were Susie Palencia, Mrs. Carter's sister. Ms. Palencia and appellant were, at that time, a couple and together the parents of two daughters. Sometime that evening, appellant called the Carters' home, looking for Ms. Palencia. Upon learning that the Carters were hosting a cookout and that Ms. Palencia and his daughters were there, appellant drove, on his moped, over to the Carters' home. At some point after appellant arrived, Ms. Palencia left the party, taking their two children with her, but appellant stayed behind.
The witnesses to the tragic occurrence that followed provided accounts of that incident, which, while consistent in some respects, varied as to others, reflecting perhaps the divided loyalties of the witnesses or the significant amounts of alcohol consumed by them at the cookout, a consumption in which both appellant and the victim, Justin Carter, were not reluctant participants.
Undisputed by all accounts, however, is that what began at the cookout as a "playful" wrestling match between appellant and Carter escalated into a fistfight; that, after that fight was broken up, it was revivified when Carter's wife tripped and fell, a fall that Carter attributed to appellant; and that, after that confrontation ended, it re-erupted when Carter, enraged over the refusal of appellant to shake his hand, kicked appellant's parked moped and walked towards him and took the first swing. Several punches later, Carter fell unconscious to the ground and died that night from blows he had received to his head.
The next day, appellant was arrested and was thereafter charged, in a single-count indictment, with involuntary manslaughter. In March 2012, he was tried by a jury in the Montgomery County circuit court and convicted of that offense. After receiving a "flat sentence" of five years' imprisonment, he noted this appeal.
We begin our review of the three issues before us by first defining an "affray." An "affray, " a common law offense, has been defined as "the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people." 2 Joel Prentiss Bishop, Bishop on Criminal Law § 1, at 1 (9th ed. 1923). Accord Hickman v. State, 193 Md.App. 238, 248 (2010).
The "public place" and "terror to the people" elements of affray are closely related. Indeed, evidence that a fight occurred in a "public place" may be sufficient to establish, ipso facto, that the fight resulted in "terror to the people." But the next question is, whether a fight in a public place, where the only witnesses to the fight are those participating in it, may constitute "terror to the public." Hickman, 193 Md.App. at 247-48 n.7.
To answer that question, we turn to Briscoe v. State, 3 Md.App. 462 (1968). Though not precisely on point, Briscoe provides a compelling analogy. In that case, the crime at issue was not "affray" but the common law offense of "riot, " which, in Briscoe, occurred on the grounds of a Maryland prison. As an affray, the crime of riot requires that the conduct in question poses a terror to others. Specifically, that offense is defined as "three or more persons 'unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others.'" Schlamp v. State, 390 Md. 724, 737 (2006) (quoting Cohen v. State, 173 Md. 216, 221 (1937)).
Pointing out that the State had "offered no direct evidence to show that any of the witnesses, inmates of the penitentiary, or residents of the City of Baltimore were placed in fear or terror as a result of the riot, " Briscoe claimed that the evidence did not support his conviction for that offense. We rejected that claim, observing that "there may be a riot, even though no person or persons are actually terrified, if the violent and turbulent execution of any unlawful act committed by a sufficient number of persons tends to alarm and terrify law-abiding citizens." Id. at 468-69. In Schlamp v. State, 390 Md. 724 (2006), the Court of Appeals cited Briscoe with approval, asserting that "it was not necessary to prove that any particular persons were placed in fear or terror, " and reversed Schlamp's conviction for "riot" because "there was no evidence of other tumultuous behavior that struck terror or was likely to strike terror in anyone." Id. at 736-37.
We reach the same conclusion as to an affray, as there is no rational basis for drawing a distinction between "riot" and "affray, " for purposes of establishing "terror to the people, " a point a leading treatise makes when it states that, to establish the "terror" element of affray, "[t]error need not actually exist among the people"; rather, "[i]n a legal sense, fighting in public is to the terror of the people." Lewis Hochheimer, The Law of Crimes and Criminal Procedure, ch. 36, § 243, at 281 (2d ed. 1904) (citing State v. Sumner, 36 S.C.L. (5 Strob.) 53 (S.C. Ct. App. 1850)). Hence, to establish an affray, the State need only show that the acts and surrounding circumstances were "likely to strike terror in anyone, " Schlamp, ...