Graeff, Kehoe, Friedman, JJ.
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?
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.
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 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. Bishop, Mowers, Coyle, Datta, and Brown
were all prosecuted for their involvement in Mr. Porter's
of Abusive Relationships
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
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
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. 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.
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 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.
Porter's Earlier Attempts to Solicit Someone to Kill Mr.
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
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.
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.
Porter Recruits Bishop
Porter testified that one of her nephews, Seamus Coyle,
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.
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.
Murder and the Police Investigation
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
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
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.
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.
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
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.
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.
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,
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
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."
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. 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
[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.
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.
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."
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.
[Defense Counsel]: What about -- did you also review and take
into consideration the mental health diagnosis, PTSD and the
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
A. Yes, especially if one has a gun to your head.
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.
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.
The Imperfect Self-Defense Instruction
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).
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
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).
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
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
(2) The accused must have in fact believed himself in this
(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.
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)).
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
Battered Spouse Syndrome
Battered Spouse Syndrome Statute,  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.
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.
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."
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,  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.
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.
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.
Relationship Between Self-Defense and the Battered Spouse
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
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.
Court, however, made it clear that, if applied in contexts
outside of its "proper setting, " the Battered
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).
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. 
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 ...