Argued: May 9, 2017
- IMPERFECT SELF-DEFENSE - MD. CODE (1991, 2013 Repl. Vol.),
§ 10-916 OF THE COURTS AND JUDICIAL PROCEEDINGS ARTICLE
("CJP") - BATTERED SPOUSE SYNDROME: A
criminal defendant accused of murdering her husband was
entitled to a jury instruction on imperfect self-defense when
she presented evidence that her husband physically abused her
throughout their 24-year marriage, that his abuse had
escalated in the weeks preceding his death, and that at the
time of his killing she lived in a constant state of fear.
Despite the fact that she hired a third-party to carry out
the homicide, the defendant presented sufficient evidence
that she actually believed she was in "imminent or
immediate" danger to receive a jury instruction on
imperfect self-defense. Accordingly, the trial court's
misstatement of the elements of imperfect self-defense in its
jury instruction did not constitute harmless error. We
reverse the defendant's convictions and remand for a new
TO COMMIT MURDER - IMPERFECT SELF-DEFENSE: To
convict the defendant of conspiracy to commit murder, the
jury must find that she had a malicious intent to kill with
premeditation and deliberation. Because imperfect
self-defense negates the element of malice, the trial
court's misstatement of the law in its imperfect
self-defense instruction also infected the jury's verdict
as to conspiracy to commit murder.
TO COMMIT MURDER - IMPERFECT SELF-DEFENSE: To be
found guilty of solicitation to commit murder, the defendant
must have induced a third-party to maliciously kill with
premeditation and deliberation. If the jury finds that the
defendant acted in imperfect self-defense, it should not find
that she solicited another to kill maliciously. Rather, she
solicited another to kill for her protection. Accordingly,
the erroneous jury instruction as to imperfect self-defense
also infected the defendant's solicitation convictions.
Court for Baltimore County Case No.: 03-K-10-001690
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
spouse syndrome is a form of posttraumatic stress disorder
that develops in victims of intimate partner violence.
Maryland law allows a woman on trial for harming her abuser
to present evidence explaining battered spouse syndrome and
its psychological effects regardless of whether she was the
first aggressor, used excessive force, or failed to retreat.
Md. Code (1991, 2013 Repl. Vol.), § 10-916(b) of the
Courts and Judicial Proceedings Article
("CJP"). This case asks us to analyze how
Maryland's battered spouse syndrome statute interacts
with the elements of imperfect self-defense. It presents the
question of whether a defendant who contracted with a
third-party to kill her abusive husband can present
sufficient evidence that she felt as though she was in
imminent danger to be entitled to an imperfect self-defense
AND LEGAL PROCEEDINGS
Karla Louise Porter met her husband, William Raymond Porter
("Ray"), in 1982. While they were dating, Ray began
exhibiting controlling behaviors. He called Porter at work
multiple times a day to make sure she was in her office. He
told her that she should spend all of her time maintaining
their household or helping him with various tasks. Porter
stopped spending time with her friends because Ray
"didn't allow it."
they were married in 1986, Ray began physically and verbally
abusing Porter. At trial, Porter testified to numerous
instances of violent abuse throughout their 24-year marriage,
including that her husband had: beaten her with a belt; hit
her with a wooden board; pushed her head into her
mother's headstone and told her that she "should be
with [her] dead mother"; stabbed a drill into her
stomach, leaving a large scar; hit her with a rake; smeared
dog excrement across her back; hit her with a toolbox; kicked
her in the side; shoved her head into leaking sewage; and
given her a black eye. She also testified that on multiple
occasions he had: told her that she was "worthless"
and "should die"; threatened to kill her; and
forced her to drink water until she urinated on herself.
Porter testified that she did not call the police or leave
Ray after any of these instances of abuse because she was
afraid he would retaliate. When asked why she did not move
out of their home, she testified, "I knew he would
follow me. I knew that there was no getting away."
testified that Ray's physical and verbal abuse escalated
in the year preceding his death. During this time, Ray
repeatedly expressed a desire to move to Florida. Porter
testified, "I felt if I went he was going to kill me
there in Florida. I had no family there, no children."
She explained that on previous visits to Florida, Ray had
threatened to feed her to the alligators. In early 2010, Ray
picked up one of his handguns and began yelling about moving
to Florida. He told Porter that he did not want to take their
children or his parents with them when they moved. He pointed
his gun at her head and said, "Maybe I am not even going
to take you. I should just kill you now." At the end of
February 2010, Ray hit Porter across the back with a crutch
because he felt that she did not adequately sympathize with
the fact that he was bored. Porter testified that in the
weeks leading up to Ray's death she was "terrified
almost on a daily basis." She explained that
"things were getting so bad, things were just out of
control. . . . It was just day-to-day-it wasn't even
day-to-day. It was minute-to-minute. Always walking on
in mid-2009, Porter approached multiple people about killing
her husband. That summer, she gave her daughter's
boyfriend, Daniel Blackwell, $1, 000 to "take care
of" her husband. The week before Christmas, she asked
one of Ray's coworkers, Tony Fails, to kill him. When
asked why she solicited Fails to kill Ray, Porter testified,
"It was getting so bad that I knew that Ray was going to
kill me and I just wanted to kill him first." Neither
Blackwell nor Fails took any action against Ray. In January
2010, Porter asked an acquaintance, Paige Huemann, if she
knew where she could get some potassium cyanide to poison
Ray. Eventually, Porter's nephew, Seamus Coyle, put her
in touch with Walter Bishop, who agreed to kill her husband
in exchange for $400. As to her mental state on the day her
husband was shot, Porter testified, "In my mind, I knew
he was going to kill me at any point."
morning of Ray's death, March 1, 2010, Porter told him
that the alarm had gone off at the gas station that they
owned. Ray went to the station, and around 6:30 a.m., Bishop
came in and shot Ray twice. Immediately afterwards, Porter
called 911 and told the police that the gas station had been
robbed and that the thief had shot her husband. About a week
later, Porter was arrested for her role in Porter's
killing. She admitted to police that she had paid Bishop to
"beat [ ] up" her husband. Porter was charged with
first-degree murder, conspiracy to commit first-degree
murder, three counts of solicitation to commit first-degree
murder, and use of a handgun in the commission of a crime of
the trial, Porter presented two expert witnesses to testify
as to her mental state at the time of Ray's killing. Dr.
Neal Blumberg, a forensic psychiatrist, testified that he met
with Porter on five occasions while she was awaiting trial.
He explained that he administered a variety of psychological
tests and evaluations, and concluded to a reasonable degree
of medical certainty that Porter was suffering from major
depressive disorder and posttraumatic stress disorder. Dr.
Blumberg testified that Porter "described the
relationship with her husband as escalating in a very
negative direction, " but that "her coping style
was not to assert herself or go to the police." He
testified, "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 . . .
things would settle down . . . ." Due in part to this
response, which Dr. Blumberg referred to as "learned
helplessness, " he concluded to a reasonable degree of
medical certainty that Porter was suffering from battered
spouse syndrome as defined in CJP § 10-916.
Mary Ann Dutton, a clinical psychologist, also testified for
Porter. Dr. Dutton testified at length about the effects of
chronic abuse on an individual's mental state, including
describing common reasons women do not leave their abusers.
She explained that victims of intimate partner violence often
suffer from depression and hyperarousal, or "being on
the lookout all the time." Dr. Dutton testified that
battered woman syndrome can "augment" a woman's
perception of the danger that she faces-it can make it seem
more threatening. Battered women often utilize personal
coping mechanisms, such as "trying to keep the peace,
" Dr. Dutton explained, as opposed to public mechanisms,
such as going to the police. She testified that she met with
Porter twice and concluded to a reasonable degree of
psychological certainty that Porter "experienced
repeated abuse in the context of her marriage" and
suffered from psychological effects as a result. Dr. Dutton
also testified that she evaluated Porter's marriage using
an instrument developed at Johns Hopkins University to
identify relationships in which an abused spouse is in
life-threatening danger. She explained that a number of the
risk factors were present in the Porters' relationship,
including escalation in the severity of the abuse, frequent
use of alcohol, extensive jealousy, and death threats.
also presented lay witness testimony describing Ray's
abuse. Porter's childhood friend, Ray Naimaster,
testified that Porter was "standoffish" when he
came across her and her husband while they were shopping.
When Naimaster asked her about it later, Porter told him that
Ray was jealous. Naimaster asked Porter if her husband was
abusing her, and he testified that she "got small"
and "[d]idn't say anything" in response.
Porter's pastor, Johnny Brewer, testified that Porter
told him that she was experiencing verbal abuse and that she
stopped regularly attending church about two years before her
husband's death. Gertrude Lorraine Briggs, the
Porters' co-worker and occasional housekeeper, testified
that she observed Ray "be rough" with Porter. She
explained that he would "cut her down and she would
start crying." Briggs testified that Ray's verbal
abuse worsened "towards the end when [Porter] said she
didn't want to go to Florida." When Briggs suggested
to Porter that she leave her husband, Porter told her that
Ray would find her.
Porters' daughter, Megan, also took the stand. She was 18
when her father was killed. She testified that her father
often called her mother "a lazy bitch or a fat
cunt" and told her "that she was worthless."
Megan had seen bruises on her mother's arms and legs, and
at one point Megan saw her with a black eye. From her
basement bedroom, Megan often overheard yelling and
"loud thump[s]" when her father was upset, but she
never saw him hit her mother.
conclusion of the trial, the State objected to any jury
instruction as to self-defense, but then proposed an
instruction on imperfect self-defense for the court to use if
it decided Porter was entitled to one. The State explained
that it added language to the pattern jury instruction on
imperfect self-defense because the instruction did not
include all of the required self-defense
elements. Porter objected to this change. She also
requested that the jury be instructed to consider imperfect
self-defense as applied to solicitation and conspiracy-not
court agreed that the pattern instruction on imperfect
self-defense "could be misleading, " and read the
State's proposed instruction:
If the Defendant actually believed that she was in immediate
and imminent danger of death or serious bodily harm, even
though a reasonable person would not have so believed, and
the Defendant used no more force than was reasonably
necessary to defend herself in light of the threatened or
actual force, and that retreat from the threat was unsafe,
and that she was not the aggressor, the Defendant's
actual, though unreasonable belief, is a partial self-defense
and the verdict should be guilty of voluntary manslaughter
rather than murder.
Porter's request regarding solicitation and conspiracy,
the court found that imperfect self-defense could apply to
those crimes. To address this, it told the jury,
"Self-defense is a complete defense to the
crimes charged in this case." (Emphasis
added.) The court also instructed the jury, "In
assessing the Defendant's claims of self-defense in this
case, you may, but are not required to, consider why and how
in light of any pattern of abuse that you find existed, the
Defendant may have honestly and perhaps reasonably perceived
an imminent threat of immediate danger."
deliberations, the jury submitted a number of questions to
the court, including: (1) "Can we see the language of
the battered spouse syndrome statute?"; (2)
"Clarify definitions of imminent and immediate";
(3) "Do we need all the elements of a crime to be
met?"; and (4) "Does mitigating circumstances have
to meet all elements of self-defense or partial self-defense
to apply?" The court declined to provide the language of
the battered spouse syndrome statute and instructed the
jurors to give the words "imminent" and
"immediate" "their common and ordinary
meaning." The court also reiterated that the "State
must prove each of the elements of the offense beyond a
reasonable doubt." As to self-defense, it explained that
"in order to convict the Defendant of murder, the State
must prove that self-defense does not apply in this case.
This means that you are required to find the Defendant not
guilty unless the State has persuaded you beyond a reasonable
doubt that at least one of the four factors of complete
self-defense was absent." In response to the last
question, the court re-read its original imperfect
jury found Porter guilty of first-degree murder, conspiracy
to commit first-degree murder, three counts of solicitation
to commit first-degree murder, and use of a handgun in
commission of a crime of violence. She was sentenced to life
plus 40 years in prison. Porter filed a motion for a new
trial, arguing that the jury was not properly instructed
"as to the definition of battered spouse syndrome and
how to consider this type of evidence in the context of
imperfect self[-]defense." The court denied the motion,
Court of Special Appeals held that Porter had not presented
sufficient evidence to be entitled to an imperfect
self-defense instruction, and thus any error in delivering
such an instruction was harmless. Porter v. State,
230 Md.App. 288, 327-28 (2016). The intermediate appellate
court explained, "There was certainly evidence from
which the jury could have found that [ ] Porter had felt
herself in imminent danger of death on occasions in the weeks
and months before [Ray's] death, but there was no
evidence that she had such a belief on the morning of the
murder." Id. at 327. Thus, the court reasoned,
"Porter never [ ] should have received an instruction on
self-defense, and cannot now complain that the court's
instruction was improper." Id. Porter appealed.
granted certiorari to answer the following
Does the trial court's erroneous instruction on imperfect
self-defense constitute harmless error?
we answer no to this question, we reverse the decision of the
Court of Special Appeals and remand for a new trial.
argues that the trial court's misstatement of the law in
its imperfect self-defense jury instruction constitutes
reversible error-it was not harmless. "Harmless error
review is the standard of review most favorable to the
defendant short of an automatic reversal." Bellamy
v. State, 403 Md. 308, 333 (2008). When we have
determined that the trial court erred in a criminal case,
"reversal is required unless the error did not influence
the verdict." Id. at 332 (citation omitted).
"To say that an error did not contribute to the verdict
is . . . to find that error unimportant in relation to
everything else the jury considered on the issue in question,
as revealed by the record." Id. (citation
omitted). In other words, reversal is required unless we find
that the error was harmless. We have explained that an
"error is harmless only if it did not play any
role in the jury's verdict." Id.
(emphasis added) (citation omitted). The State carries the
burden of proving, beyond a reasonable doubt, that the error
meets this high standard. Dionas v. State, 436 Md.
97, 108 (2013) (citation omitted).
case requires us to analyze the relationship between the
elements of imperfect self-defense and Maryland's
battered spouse syndrome statute to determine: (1) whether
Porter was entitled to an instruction as to imperfect
self-defense; and (2) if so, whether the misstatement of law
within the instruction constitutes reversible error. We begin
with the background of these legal concepts.
Elements of Self-Defense
Maryland, we recognize two forms of self-defense: perfect and
imperfect. Perfect self-defense requires the following
(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.
State v. Smullen, 380 Md. 233, 252 (2004) (emphasis
in original) (citation omitted). To have acted in perfect
self-defense, the defendant must have both actually and
reasonably believed that he was in imminent or immediate
danger at the time he took defensive action. He is also
required to have used a reasonable amount of force against
his attacker. Additionally, when a defendant uses defensive,
deadly force outside of his home, he has a duty "to
retreat or avoid danger if such means were within his power
and consistent with his safety." Burch v.
State, 346 Md. 253, 283 (1997) (citation omitted).
Perfect self-defense is a complete defense to murder, and
thus, "if credited by the trier of fact, results in an
acquittal." Smullen, 380 Md. at 251.
self-defense, on the other hand, does not require the
defendant to demonstrate that he had reasonable grounds to
believe that he was in imminent danger. Rather, he must only
show that he actually believed that he was
in danger, even if that belief was unreasonable.
Smullen, 380 Md. at 252 (quoting State v.
Marr, 362 Md. 467, 473 (2001)). Additionally, to assert
imperfect self-defense, the defendant is not required to show
that he used a reasonable amount of force against his
attacker-only that he actually believed the
amount of force used was necessary. Id. Lastly, to
have acted in imperfect self-defense, a defendant must have
only "subjectively believe[d] that retreat was not
safe"-that belief need not be reasonable.
Burch, 346 Md. at 284. In State v.
Faulkner, 301 Md. 482 (1984), we explained the legal
theory supporting the imperfect self-defense doctrine. We
reasoned that a defendant's actual, though unreasonable,
belief that he is in imminent danger "negates the
presence of malice, a prerequisite to a finding of
murder." Id. at 500-01. But, we continued,
"the defendant is nevertheless to blame for the homicide
and should not be rewarded for his unreasonable
when a defendant accused of murder presents evidence of
self-defense, a proper instruction enables the jury to reach
one of three verdicts: (1) guilty of murder, if the jury
concludes that "the defendant did not have a subjective
belief that the use of deadly force was necessary;" (2)
not guilty, if the jury concludes "that the defendant
had a reasonable subjective belief;" and (3) guilty of
voluntary manslaughter, if the jury concludes "that the
defendant honestly believed that the use of force was
necessary but that this subjective belief was unreasonable
under the circumstances." Id. To prove that the
defendant is guilty of murder beyond a reasonable doubt, the
State carries the burden of showing that he did
not act in perfect or imperfect self-defense.
Dykes v. State, 319 Md. 206, 217 (1990).
under one in four women in the United States will experience
severe physical violence at the hands of an intimate partner
during their lifetimes. Nat'l Ctr. for Injury Prevention
& Control, Ctrs. for Disease Control & Prevention,
The National Intimate Partner and Sexual Violence Survey:
2010 Summary Report 2 (2011),
[https://perma.cc/ W76G-BE3G]. The vast majority of intimate
partner violence-82 percent-is committed against women.
Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ
244697, Nonfatal Domestic Violence, 2003-2012, at 6 (2014),
[https://perma.cc/5MEB-LS9M]. Out of all female homicide
victims, about 40 percent are killed by an intimate partner.
Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ
236018, Homicide Trends in the United States, 1980-2008, at
18 (2011), https://www.bjs.gov/content/pub/pdf/htus8008.pdf
psychological impact of repeated intimate partner violence is
referred to as battered spouse syndrome. Lenore E.A. Walker,
Battered Women Syndrome and Self-Defense, 6 Notre
Dame J.L. Ethics & Pub. Pol'y 321, 327 (1992).
Battered spouse syndrome was first recognized by Dr. Lenore
Walker, an academic and clinical psychologist. See
Lenore E. Walker, The Battered Woman (1979); Lenore
E. Walker, The Battered Woman Syndrome (1984). She
has explained that the syndrome is a form of posttraumatic
stress disorder, and, accordingly, women in abusive
relationships "respond to the repeated abuse in a manner
similar to others who have been repeatedly exposed to
different kinds of trauma." Walker,
Self-Defense, supra, at 326. They often
experience cognitive confusion, high anxiety, and depression.
Id. at 327-28.
spouse syndrome is characterized by two main phenomena: a
cycle of intimate partner violence and the development of
"learned helplessness." Id. at 330. In her
study of abusive relationships, Dr. Walker discovered three
phases in the "cycle of violence": (1) "the
period of tension-building"; (2) "the acute
battering incident"; and (3) "the period of
loving-contrition or absence of tension." Id.
(emphasis omitted). She explained that in cases where the
abuse "has reached dangerous proportions, " the
third phase "is not readily visible, and although there
is some lessening of the tension, the woman never feels out
of danger." Id. The second phenomena, learned
helplessness, occurs when "the victim learns that when
she attempts to defend herself-by reaching out to others or
trying to leave-that she will be the victim of more severe
violence." Smullen, 380 Md. at 254 (quoting
Erin Masson, Admissibility of Expert or Opinion Evidence
of Battered-Woman Syndrome on Issue of Self-Defense, 58
A.L.R. 5th 749, 762-63 (1998)). In response, she determines
"that the most effective short-term method of reducing
incidents of violence is to be more subservient."
woman uses physical force to defend against her abuser,
expert witness testimony explaining the effects of battered
spouse syndrome can be crucial to a successful self-defense
claim. In Smullen, the Court explained why such
testimony is relevant to an assertion of self-defense. This
testimony "offers an explanation of why the defendant,
having been previously subjected to abuse, simply did not
leave the home or take some other action against her
abuser." Id. at 254-55. It also helps explain
to the jury "why, though apparently the
aggressor, the defendant was actually responding to a
perceived aggression by the victim." Id. at 271
(emphasis in original). In an abusive relationship, we
explained, "the victim becomes able to sense the
escalation in the frequency and intensity of the violence and
thus becomes more sensitive to the abuser's
behavior." Id. at 255. Thus, we continued, 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. (citation omitted). She is able 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.
1991, the General Assembly enacted a statute defining
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." CJP § 10-916(a)(2); 1991 Md. Laws ch.
337. The statute allows a defendant who suffered from
battered spouse syndrome at the time of the offense to offer
evidence of the abuse and expert testimony on the syndrome
"[n]otwithstanding evidence that the defendant was the
first aggressor, used excessive force, or failed to retreat
at the time of the alleged offense." Id. §
10-916(b). According to the Senate Judicial Proceedings
Committee Floor Report, the intent of the statute was to
"clarify that the court has discretion to admit evidence
of repeated physical and ...