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Porter v. State

Court of Special Appeals of Maryland

October 25, 2016


          Graeff, Kehoe, Friedman, JJ.


          KEHOE, J.

         After a six day jury trial in the Circuit Court for Baltimore County, Karla Louise Porter was convicted of first degree murder and related crimes. On appeal, she presents three issues, which we have reworded:

1. Was the trial court's jury instruction on imperfect self-defense erroneous as a matter of law?
2. Did the court err when it declined to voir dire the jury after receiving a jury note suggesting that the jurors were speculating about matters not presented at trial?
3. Did the court err in denying Ms. Porter's motion to suppress the inculpatory statement she made to the police?

         The State concedes that the trial court's instruction on imperfect self-defense was flawed. The State argues that the error was harmless because Ms. Porter was not entitled to the instruction in the first place. We believe that the State is correct. The trial court did not abuse its discretion when it declined to question the jurors individually about the contents of the note, nor did the court err when it denied Ms. Porter's motion to suppress her statement. We will affirm the convictions.


         Because Ms. Porter does not challenge the legal sufficiency of the State's case against her, our summary of the facts will focus on the evidence relevant to her contentions on appeal.

         The Principals

         During the early morning hours of March 1, 2010, William Raymond Porter was shot to death as he opened the Hess Gas Station that he owned and operated with his wife, Ms. Porter, in Baltimore County. Walter Bishop was the shooter. Bishop was a friend of Seamus Coyle, Ms. Porter's nephew. Coyle first introduced Bishop to Ms. Porter. Susan Datta, Ms. Porter's sister, Calvin Mowers, her brother, and Matthew Brown were also involved in the conspiracy to kill Mr. Porter.[1] Bishop, Mowers, Coyle, Datta, and Brown were all prosecuted for their involvement in Mr. Porter's murder.

         Evidence of Abusive Relationships

         Ms. Porter testified at trial. She stated that her parents were separated when she was about six or seven years old and that, for several years thereafter, she lived with her mother and her mother's boyfriend. The boyfriend regularly physically and verbally abused her mother in Ms. Porter's presence and once pushed Ms. Porter into a hot stove, causing severe burns. Her mother did nothing about the incident and Ms. Porter went to live with her father when she was nine years old.

         Ms. Porter testified that she met Mr. Porter in 1982 and that they married in 1986. Ms. Porter described controlling behavior on Mr. Porter's part from the outset of their relationship. She testified at length about numerous instances of physical, verbal, and psychological abuse, beginning early in their marriage and escalating, in severity and frequency, in the late 1990's and thereafter. For example, and this list is not all-inclusive, Ms. Porter testified that, during their marriage, her husband had: beaten her on her back and legs with a belt; on various occasions hit her with a rake, a board, his fists, and a tool box; stabbed her in the abdomen with a drill; pushed her head into a grave marker; smeared dog excrement on her; and threatened to kill her on several occasions, at least once while pointing a gun at her. Additionally, she testified that he repeatedly had made demeaning and derogatory statements to her about her appearance and her worth as a human being, and that he had harassed her at work, and forced her to stand at their kitchen sink and drink water until she urinated on herself.

         Not all of this testimony was uncontested. Ms. Porter identified eyewitnesses to several incidents of abuse who were called by the State in rebuttal and testified that the incidents had never occurred in their presence. Moreover, her testimony as to Mr. Porter's abuse differed in some significant ways from what she had told her mental health professionals prior to trial.[2] However, some of Ms. Porter's testimony was corroborated by the Porters' youngest child, Megan Porter. Megan testified that the environment in the family home was tense, and that Mr. Porter was regularly angry. She testified that her mother was submissive to her father's anger, and that Ms. Porter was frequently the target of Mr. Porter's frustrations. It was Megan's testimony that her father regularly yelled at her mother and called her demeaning and degrading names. Megan testified that, although she never saw her father strike her mother, she had seen her mother with bruises on her arms and legs, and at one point with a black eye.[3]

         Ms. Porter testified to two instances of abuse in the "week or so" before Mr. Porter's death. The first arose out of Mr. Porter's desire to move to Florida-a source of tension in the parties' marriage, particularly in the year before Mr. Porter's death. Mr. Porter held a gun to Ms. Porter's head, and informed her that they would not be taking their children[4] or his parents to Florida, when they moved. And then turned his attention to her, stating: "Maybe I am not even going to take you. I should just kill you now." In the second instance, Mr. Porter struck Ms. Porter across her back with a crutch because he did not find her degree of sympathy towards the fact that he was "bored" to be satisfactory. Ms. Porter testified that from June 2009 through March 1, 2010, she was "terrified almost on a daily basis." She testified that during the period of late 2009 through March 2010:

I was in fear for my life. I knew it was getting to the point where Ray was getting out of control. I knew it was a matter of time before he killed me.
[T]hings were getting so bad, things were just out of control. I know it was crazy. It was just a day-to-day-it wasn't even day-to-day. It was minute-to-minute. Always walking on eggshells. I never could do anything on my own. Something as simple as taking a shower.
It was getting so bad that I knew that Ray was going to kill me and I just wanted to kill him first.

         Ms. Porter's Earlier Attempts to Solicit Someone to Kill Mr. Porter

         In June 2009, that is, about nine months before Mr. Porter was murdered, Ms. Porter approached Daniel Blackwell, her daughter's boyfriend at the time, about killing Mr. Porter. Although they differed as to some of the specifics, both Ms. Porter and Blackwell testified that she offered him money to kill Mr. Porter, that he, at least initially, expressed an interest in doing so, but that he never followed through.[5]

         Ms. Porter approached a second person-Tony Fails-in December 2009. Fails was a business associate of Mr. Porter's. He testified that he had no intention of participating in the crime, but did not refuse Ms. Porter's request. Instead, he told Ms. Porter that he would make some calls and get back to her. Ms. Porter called Mr. Fails throughout January 2010-by her own testimony, she called Mr. Fails frequently, sometimes several times a day-to see if he had found someone who was willing to kill Mr. Porter. Mr. Fails never made any phone calls on Ms. Porter's behalf. Ms. Porter stopped calling Fails towards the end of January 2010.

         In the same month, Ms. Porter contacted Paige Huemann, who had lived with the Porters in 2007, about obtaining potassium cyanide so that she could poison Mr. Porter. Ms. Porter testified that Ms. Huemann did not provide her with any information as to obtaining poison.[6]

         Ms. Porter Recruits Bishop

         Ms. Porter testified that one of her nephews, Seamus Coyle, [7] introduced her to Bishop during a meeting between herself and Coyle in a Walmart parking lot, in late January or early February 2010. Coyle had arranged to meet Ms. Porter because she had agreed to give Coyle money to make his mortgage payment. Bishop was seated in the passenger seat of the vehicle that Coyle was driving, and volunteered to kill Mr. Porter after listening to Ms. Porter describe Mr. Porter's abuse of her. Coyle testified that at that point Bishop exited the vehicle, walked toward the rear, and had a conversation with Ms. Porter. Coyle remained in the vehicle, but overheard something about $500, and it was his belief that telephone numbers were exchanged.

         At a subsequent meeting in February 2010, Ms. Porter and Bishop finalized their agreement that Bishop would kill Mr. Porter and Ms. Porter gave Bishop the handgun that he would use to commit the murder. The handgun had been given to Ms. Porter by Susan Datta, her sister.

         The Murder and the Police Investigation

         On the evening of February 28, 2010, the night before Mr. Porter was murdered, Ms. Porter and Bishop spoke by telephone and agreed that Bishop would arrive at the gas station in the early morning hours of March 1, 2010, and that he would shoot Mr. Porter before anybody else would be around. At around 2:30 a.m. on March 1, Ms. Porter, using her cell phone, called her home telephone and told her husband that the alarm company had called and told her that the security alarm had gone off at the gas station. Mr. Porter then prepared himself for the day and proceeded to the gas station. (Mr. Porter usually arrived at the gas station between 4:00 and 4:15 in the morning.)

         After Mr. Porter left the house, Ms. Porter called her brother, Calvin Mowers, and arranged to have him drive Bishop to the gas station. Ms. Porter placed more than 50 calls from her cell phone to Bishop and Mowers between 2:30 am and 7:00 am on March 1, 2010. After leaving her home, Ms. Porter met Bishop, Mowers, and Matthew Brown at a McDonald's, where she confirmed that Bishop would follow through with the murder.

         Ms. Porter then went to the Hess station. When she arrived, Mr. Porter was talking to a friend and she began taking inventory and performing other routine opening activities. At one point, Ms. Porter left the building, and when she re-entered Bishop followed her through the side door. Upon entering the station, Bishop ordered Ms. Porter and Mr. Porter to move toward the back room of the store. Bishop then removed the gun from his pocket and fired at Mr. Porter. The first shot hit Mr. Porter in the head and caused him to fall to the ground. Bishop proceeded to fire a second shot, hitting Mr. Porter in the face. Mr. Porter subsequently died as a result of his injuries. Bishop fled after the shooting and Ms. Porter called 9-1-1. When the police arrived, and in the days immediately following the shooting, Ms. Porter described the shooter as a black male, approximately 6 feet tall and about 25 years of age, wearing a black hooded sweatshirt. (Bishop is white; Fails, on the other hand, is African-American.) Ms. Porter told the police that her husband had been shot in the course of an attempted robbery. However, Ms. Porter's story quickly fell apart.

         During the afternoon of March 1, Fails heard the description Ms. Porter provided to the police and became concerned that he might come under police suspicion. He went to a Baltimore County police station and reported that Ms. Porter had approached him about killing her husband in December 2009. Thereafter, Fails assisted the police in investigating the murder. While wearing a recording device, Fails made multiple contacts with Ms. Porter, telling her that he was nervous that he would become a suspect and requesting money to flee. Ms. Porter ultimately offered Mr. Fails $700 not to tell the police of her involvement in her husband's murder.

         Ms. Porter was arrested on March 6, 2010, and subsequently interviewed by two detectives. Initially, she maintained that her husband was shot in the course of an attempted robbery. After learning that the detectives knew that she had been communicating with Bishop and Mowers throughout the early morning hours of March 1, she altered her version of events and stated that she had hired Bishop to beat her husband up for $400.

         Ms. Porter's Defense

         At trial, Ms. Porter's defense was that, after sustaining years of abuse at the hands of her husband, she was suffering from battered spouse syndrome, and was acting in self-defense when she arranged for his murder. In addition to the testimony that we have previously summarized, the defense introduced two expert witnesses to support the theory that Ms. Porter was suffering from battered spouse syndrome: Neal Blumberg, M.D., a forensic psychiatrist, and Mary Ann Dutton, Ph. D., a clinical psychologist.

         After being accepted by the court as an expert witness in the discipline of forensic psychiatry, Dr. Blumberg testified about his evaluation of Ms. Porter. Dr. Blumberg explained that, in evaluating a patient, he considers multiple sources of information in order to generate a reliable and accurate assessment. Dr. Blumberg testified that he: met with Ms. Porter five times, from 2011 to 2013; administered several psychological tests; reviewed information the police obtained, including Ms. Porter's 9-1-1 call as well as the interviews the police conducted with other individuals as part of their investigation and Ms. Porter's own statement to the police; conducted a forensic psychiatric examination, which involves a detailed family, medical, and legal history, as well as observations of the patient during the evaluation; and observed Ms. Porter's in-court testimony, as well as that of her daughter, Megan Porter.

         As a result of his evaluation, Dr. Blumberg expressed the opinion that Ms. Porter was suffering from two different mental disorders, on or before March 1, 2010. The first was major depressive disorder, which Dr. Blumberg described as "severe." Dr. Blumberg explained that "[a] major depressive disorder is a biological illness in which the individual experiences not only depressed mood, but also loss of interest in activities they may have previously enjoyed as well as having a variety of [vegetative] symptoms of depression." Dr. Blumberg opined that Ms. Porter's depressive disorder was "recurrent, " that is, she had experienced prior episodes of depression over time. The second mental disorder Dr. Blumberg identified was posttraumatic stress disorder, which Dr. Blumberg explained, "is a disorder that develops in response to exposure to severe trauma, " and, as a result of which, "the person experiences significant distress, anxiety, [and] depression."

         Dr. Blumberg also provided the jury with the bases for his conclusions. He explained that "there [we]re certain things in [Ms.] Porter's background that made her . . . more vulnerable to developing both the problems with depression and PTSD." Dr. Blumberg began with Ms. Porter's childhood, noting that Ms. Porter was exposed to an abusive relationship between her mother and her mother's boyfriend, and that, as the youngest child in her family, she seemed to have developed an "impairment in her self-esteem." Dr. Blumberg's testimony then shifted to Ms. Porter's relationship with Mr. Porter. Dr. Blumberg explained that the relationship was initially positive, but that as time passed Mr. Porter became progressively more abusive. And, that Ms. Porter's response was to "view herself as worthless, [and] to do whatever she could to avoid making him angrier or upset with her." He noted that this further impaired Ms. Porter's self-esteem. Dr. Blumberg acknowledged that there were "good times" in the Porters' marriage but he explained that, during the periods in which Mr. Porter was particularly abusive, "[Ms. Porter] would experience periods of significant depression and anxiety." He explained further:

She became super sensitive to his moods. She described sort of walking on eggshells around him and her coping style was not to assert herself or go to the police and kind of -- or say I'm leaving, I'm getting out of here. Her response to that progressive abuse was to cover things over, to deny, to repress, to sort of avoid thinking about what was going on with the hopes that, you know, things would settle down and those good times that they had in the past would return.

         Finally, Dr. Blumberg addressed the escalation in violence in the year before Mr. Porter's death, and that it was his belief that, during that time, "she became increasingly anxious and fearful for her life and safety. She had become increasingly depressed. She had felt hopeless and helpless to extricate herself from the relationship."

         After identifying Ms. Porter's mental disorders, and explaining how he arrived at his diagnoses, Dr. Blumberg concluded that it was his "opinion to a reasonable degree of medical certainty that someone with [Ms.] Porter's psychological profile would meet the criteria for the battered spouse syndrome, " as defined in the battered spouse syndrome statute, codified at Md. Code Ann., § 10-916 of the Courts and Judicial Proceedings ("CJP") Article.[8] Dr. Blumberg proceeded to discuss battered spouse syndrome, in general, and the effects that it has on those who suffer from it. He stated:

Battered spouse syndrome … [is] used to describe a reaction to recurrent spousal or partner abuse and the syndrome involves recurrent episodes in which there is an escalation of violence to the point where there is a particular violent episode followed by a cooling down period in which sometimes there are acts of contrition, but the situation calms down. . . . [B]attered spouse syndrome requires at least two of these cycles of an escalation of violence with an explosive outburst and then a cooling down period. As a result of the recurrent verbal and, in particular, physical abuse, the victim develops feelings of helplessness, hopelessness, which is referred to in the psychological literature as learned helplessness. Over time as a result of that abuse, the individual is feeling increasingly helpless or hopeless to rectify their situation. They often experience depression. They often experience severe anxiety. Those psychological conditions are in a sense paralyzing. They prevent them from being able to actively assert themselves, whereas a normal person might say hey, I'm not going to take that anymore and get out of it or call the police. As a result of the abuse, as a result of the depression and anxiety, women in particular or people with a battered spouse syndrome have difficulty and find it basically impossible to extricate themselves from the abusive relationship.
[T]he cases that generally involve violence to the abuser occur in the context of an escalation of the abuse. A belief that something is going to be more imminent in terms of harm, bodily harm or, in fact, death. It's often in that context that the abused spouse ultimately resorts to violence from her subjective point of view. And I'm using the "she" because [in] the vast majority of the cases the battered spouse is actually a woman. The wom[e]n ultimately believ[e] that the only way they can defend themselves, prevent themselves from further serious bodily harm or from death is to end the life of the abuser.
Well, by subjective, and what I'm talking about is Mrs. Porter's point of view. Again, when somebody has experienced extensive verbal and or physical abuse, as a result of depression, as a result of the trauma that they have gone through, they may overreact to threats to their physical integrity. They may view the abusing spouse or others in their environment as being much more threatening than perhaps an objective viewer might see. So when we talk about the subjective point of view, we are talking about some of the distortions that are likely to have occurred with Mrs. Porter. It's not saying that the abuse she experienced was not real. I believe that it was, but it certainly could make her super sensitive to threats to her physical integrity and to perhaps overreact or overperceive those threats, feeling that she has to act in self-defense when, in fact, there might not be an objective reason for that.

         The court accepted Dr. Dutton as an expert in the psychological condition of victims of repeated physical and psychological abuse by a spouse. She testified at length about domestic violence and the battered spouse syndrome, the psychological, emotional, and physical effects on the victim, myths associated with domestic violence and the battered spouse syndrome, strategies and coping mechanisms employed by victims, and the reasons-e. g., fear of the abuser, concern for children, economic worries-that can cause victims to stay in abusive relationships.

         Dr. Dutton identified factors in Ms. Porter's history, e.g., that she was a neglected child, that she had had a child before entering into a relationship with Mr. Porter, that made her susceptible to the emotional dynamic that results in battered spouse syndrome. Dr. Dutton also expressed the opinion that, after interviewing Ms. Porter, reviewing her medical records and statements to the police, and observing her in-court testimony, Ms. Porter "experienced repeated abuse in the context of her marriage and that she was also experiencing and had experienced as a result of that, and other factors that contributed to it, consistent psychological effects related to it."

         To support this conclusion, she pointed to a number of facts from Ms. Porter's history, as well as her description of Mr. Porter, e.g., a neglected childhood, Mr. Porter's controlling behavior, his threats to kill her, his sometimes pointing a handgun at her when making those threats, his jealousy, and his prior physical violence towards her and the "incredible extent of humiliation and degradation" that she underwent during her marriage. As a result, in Dr. Dutton's view, there was a "kind of building up [of] the level of the threat . . . more intense, more frequent towards the end compared to throughout the rest of the marriage." Moreover, Dr. Dutton testified that "most women" who are the victims of domestic violence wish to "hide the level of abuse in their relationship." The following colloquy summarizes Dr. Dutton's conclusions:

[Defense Counsel]: What about -- did you also review and take into consideration the mental health diagnosis, PTSD and the severe depression?
A [Dr. Dutton]: Yes, I did.
Q: And could those types of diagnoses affect an individual who is repeatedly abused, their perception of their options for getting out or stopping the abuse?
A.: In two ways. Two ways in particular, maybe even more, but the two I'm thinking of are the experience of the fear is greater because of it. So someone who has symptoms of PTSD are likely to experience a subsequent event as even bigger because of that.
The other thing is because of what trauma and PTSD do to our ability to think and reason and just process our range of options and being able to clearly think through, you know, what does it mean if I'm telling everybody I want him dead, what does that mean, why can't I just, you know, try to strategize some other way, there is just a sense of desperation as opposed to clear, calm, rational, logical thinking through. That's what trauma does. There is this sense of desperate action and also difficulty concentrating is one of the key symptoms of PTSD. It's not just about concentrating. It's about clearly -- thinking clearly.
Q. And the hyperarousal or the hypervigilance that you mentioned earlier, how does that have any effect on one's perception of the danger that they are in?
A. It would augment that perception.
Q. Augment it? Can you explain?
A. It would even make it bigger. I mean, there is a sense of is there some realistic danger, but then whatever that is, it would likely make their perception of that danger even bigger because of it.
Q. Is it consistent with one who has been abused repeatedly that they would believe the threats that are being launched against them?
A. Yes, especially if one has a gun to your head.

         Stephen Siebert, M.D., a psychiatrist, testified as an expert witness for the State. Dr. Siebert testified that he had interviewed Ms. Porter at the State's request and concluded that she was suffering from a "mild depressive disorder" brought about by her lengthy pre-trial detention and stress related to the criminal charges pending against her. He opined that "there is no objective evidence for a posttraumatic stress disorder before the criminal offense." Dr. Siebert did not address whether Ms. Porter suffered from battered spouse syndrome.

         Shortly before the close of evidence, the trial court and counsel engaged in an extensive discussion of the appropriate jury instructions, which we will summarize in Part I of this opinion. The jury returned a verdict of guilty for murder in the first degree, use of a handgun in the commission of a crime of violence, conspiracy to commit murder in the first degree, and three counts of solicitation to commit murder. The trial court sentenced Ms. Porter to life without the possibility of parole for murder, and merged the sentence for the related solicitation count with that sentence. The court also sentenced Ms. Porter to a term of life for conspiracy to commit first degree murder to run concurrently with her other sentences, imposed consecutive sentences of twenty years for the two additional solicitation counts, as well as a twenty year concurrent sentence for use of a handgun in a crime of violence, for a total sentence of life plus forty years.

         This appeal followed.

         I. The Imperfect Self-Defense Instruction

         Pursuant to Md. Rule 4-325(c), "[a] court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." A trial court's determination to give, or refuse to give, a requested jury instruction is reviewed for abuse of discretion. Arthur v. State, 420 Md. 512, 525 (2011). And, in reviewing a trial court's decision to grant, or deny, a requested instruction, we consider "(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given." Stabb v. State, 423 Md. 454, 465 (2011).

         With regard to the second factor-whether the instruction was "factually generated"-the Court of Appeals has been clear that the defendant must point to "'some evidence' sufficient to raise the jury issue." Arthur, 420 Md. at 525. The Court has described the some evidence standard as "a fairly low hurdle for a defendant, " and has articulated the standard as follows:

Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says -"some, " as that word is understood in common, everyday usage. It need not rise to the level of "beyond reasonable doubt" or "clear and convincing" or preponderance. The source of the evidence is immaterial; it may emanate solely from the defendant.

Id. at 526 (citation omitted).

         Ms. Porter contends that the trial court's instruction to the jury misstated the law of imperfect self-defense in several ways. Deciding whether she is correct and, if she is, whether the trial court's error is a basis for reversal, requires that we consider the relationship between the law of perfect and imperfect self-defense and the battered spouse syndrome and how, and indeed, if, these principles apply in a case involving murder for hire. We will explore these topics in order to provide context to the parties' appellate contentions.


         Maryland recognizes two forms of self-defense--perfect self-defense and imperfect self-defense. State v. Smullen, 380 Md. 233, 251 (2004). Perfect self-defense "operates as a complete defense to either murder or manslaughter[, ]" and, where successful, results in acquittal of the defendant. State v. Faulkner, 301 Md. 482, 485 (1984). The Court of Appeals has articulated the elements "necessary to justify a homicide . . . on the basis of self defense" as follows:

(1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant;
(2) The accused must have in fact believed himself in this danger;
(3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict; and
(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.

Id. at 485-86.

         Imperfect self-defense, on the other hand, arises where the defendant's "actual subjective belief . . . that he/she is in apparent imminent danger of death or serious bodily harm from the assailant, requiring the use of deadly force, is not an objectively reasonable belief." State v. Marr, 362 Md. 467, 473 (2001). Imperfect self-defense thus differs from perfect self-defense in two significant respects-to claim imperfect self-defense the defendant's belief that (1) he/she was in "apparent imminent or immediate danger of death or serious bodily harm" and/or (2) "that the force employed [wa]s necessary to meet the danger" need not be objectively reasonable. Id. at 473-74. The Court of Appeals has expressly stated that "'[i]n all other respects, the elements of the two doctrines are the same.'" Id. at 474 (quoting Burch v. State, 364 Md. 253, 283 (1997)).

         Moreover, unlike perfect self-defense, imperfect self-defense does not operate as a complete defense to criminal homicide. Faulkner, 301 Md. at 486. Rather, it negates the element of malice the State must prove to obtain a conviction for murder, and thus "mitigates murder to voluntary manslaughter." Id. The Court of Appeals has explained that "a defendant who commits a homicide while honestly, though unreasonably, believing that he/she is threatened with death or serious harm and that deadly force was necessary does not act with malice, and . . . cannot be convicted of murder." Marr, 362 Md. at 474. But, "because the killing was committed without justification or excuse, the defendant is not entitled to full exoneration and would be guilty of voluntary manslaughter." Id.

         The Battered Spouse Syndrome

         Maryland's Battered Spouse Syndrome Statute, [9] codified at Md. Code Ann. § 10-916 of the Courts and Judicial Proceedings ("CJP") Article, permits the introduction of evidence that, at the time of the commission of certain crimes, the criminal defendant was suffering from battered spouse syndrome. State v. Peterson, 158 Md.App. 558, 586 (2004). The statute limits evidence of battered spouse syndrome to cases in which the criminal defendant is charged with first degree murder, second degree murder, manslaughter, or attempt to commit any of those crimes, and assault in the first degree. CJP § 10-916(a)(3); Peterson, 158 Md.App. at 587 n.6.

         The statute defines "Battered Spouse Syndrome" as "the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the 'Battered Woman's Syndrome'." CJP § 10-916(a)(2). And, with regard to the admissibility of evidence of battered spouse syndrome, §10-916(b) provides:

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 the 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:
(1) 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
(2) Expert testimony on the Battered Spouse Syndrome.

         This Court explained the significance of the enactment of Maryland's Battered Spouse Syndrome Statute in Banks v. State, 92 Md.App. 422, 429-30 (1992) (citations omitted; emphasis added) as follows:

Before § 10-916 was enacted, trial judges often excluded evidence of past abuse and the Battered Spouse Syndrome as irrelevant, since the common law of self-defense holds that in order to invoke the defense, the defendant must not have been the first aggressor, nor must she have used more force than was necessary to repel the attack. The new statute permits admission of this evidence, "[n]otwithstanding evidence that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense."

         The Court of Appeals addressed the battered spouse syndrome at length in Smullen v. State, 380 Md. 233, 253-56 (2004). The battered spouse syndrome describes the psychological response of a person subject to a cyclical pattern of abuse, [10] physical and/or psychological, "that creates a hypervigilance on the part of the defendant and attunes the defendant to recognize a threat of imminent danger from conduct that would not appear imminently threatening to someone who had not been subjected to that repetitive cycle of violence." Id. at 270-71. In Smullen, the Court of Appeals explained the vigilance a victim of this pattern of abuse develops toward the behavior of the abuser as follows:

The battered woman learns to recognize the small signs that precede periods of escalated violence. She learns to distinguish subtle changes in tone of voice, facial expressions, and levels of danger. She is in a position to know, perhaps with greater certainty than someone attacked by a stranger, that the batterer's threat is real and will be acted upon.

Id. at 255 (quoting Bechtel v. State, 840 P.2d 1, 12 (Okla. Crim. 1992)). "[O]ver time, the cycle becomes more intense, more frequent, more violent, and often more lethal." Id. at 254.

         Evidence of battered spouse syndrome has been used to support claims of self-defense in cases where a victim of abuse kills his or her abuser. Id. at 256-57. As the Court explained in Smullen, "[i]t is the psychological response to that cycle of violence that helps explain why the defendant perceived a threat from objectively non-threatening conduct on the part of the victim and why, though apparently the aggressor, the defendant was actually responding to perceived aggression by the victim." Id. at 271.

         Two hallmarks of the battered spouse syndrome, particularly relevant in the context of self-defense, are "[t]he abused victim's 'learned helplessness' and heightened sensitivity to the abuser's behavior." State v. Peterson, 158 Md.App. 558, 589 (2004). "Learned helplessness" describes the aspect of the syndrome whereby, "after repeated abuse, women come to believe that they cannot control the situation and thus become passive and submissive." Smullen, 380 Md. at 254. Learned helplessness thus "explains why the battered spouse does not leave the situation, or take some action against the abuser." Peterson, 158 Md.App. at 589. "Heightened sensitivity" captures the battered spouse's sensitivity to the abuser's behavior, that is, the victim's ability to "sense the escalation in the frequency and intensity of the violence." Smullen, 380 Md. at 255. "'Heightened sensitivity' explains why the battered spouse may interpret as threatening conduct by the abuser that would appear non-threatening to others." Peterson, 158 Md.App. at 589.

         The Relationship Between Self-Defense and the Battered Spouse Syndrome

         The appellate courts of this State have addressed the interaction of the law of self-defense and the battered spouse syndrome statute on three previous occasions: State v. Smullen, State v. Peterson, and Banks v. State, 92 Md.App. 422 (1992). In all three cases, both the Court of Appeals and this Court have been clear that CJP § 10-916 does not create an independent defense to the enumerated homicide and assault crimes. Smullen, 380 Md. at 251; Peterson, 158 Md.App. at 587; Banks, 92 Md.App. at 429. Instead, evidence of battered spouse syndrome enables the fact finder to undertake a more nuanced and comprehensive analysis of the state of mind elements of perfect and imperfect self-defense. Smullen, 380 Md. at 250-51; Peterson, 158 Md.App. at 587; Banks, 92 Md.App. at 429.[11]

         In Smullen, the Court of Appeals explained the interaction between the state of mind element and evidence of battered spouse syndrome as follows (emphasis in original):

[Battered spouse syndrome] . . ., where applicable, merely requires a more careful and sophisticated look at the notion of imminent threat and what constitutes 'aggression, ' of understanding that certain conduct that might not be regarded as imminently dangerous by the public at large can cause someone who has been repeatedly subjected to and hurt by that conduct before to honestly, even if unreasonably, regard it as imminently threatening. If, with that subjective belief, the defendant acts aggressively in defense, the defendant may be able to show that, even though the first apparent aggressor, he/she was responding in self-defense to an honestly perceived imminent threat of death or serious bodily harm. The syndrome, when applied in a proper setting, can thus, depending on the circumstances, support both the subjective honesty of the defendant's perception of imminent harm and the objective reasonableness of such a perception.

380 Md. at 250-51.

         The Court, however, made it clear that, if applied in contexts outside of its "proper setting, " the Battered Spouse Syndrome:

then does become detached from the recognized defense of self-defense and assumes the status of a separate, independent defense to murder, manslaughter, maiming, or assault that we do not believe was intended by the Legislature in enacting § 10-916 and that we are not prepared to accept as part of our common law.

Id. at 251 (emphasis in original).

         The Jury Instruction

         Throughout her trial, Ms. Porter sought to establish that she was suffering from battered spouse syndrome and was acting in self-defense when she arranged for her husband's murder. Accordingly, Ms. Porter requested that the court instruct the jury on the battered spouse syndrome and to give the jury the Maryland Criminal Pattern Jury Instruction on perfect and imperfect self-defense. [12]

         The State objected to the court instructing the jury on self-defense, arguing that "self-defense ha[d] not been adequately raised." Nonetheless, on the assumption that the court was going to instruct on self-defense, the State presented the court with an instruction it had crafted to clarify the elements the jury must find in considering imperfect self-defense. The State took issue with the following sentence in ...

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