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255.4 Self Defense, Partial Or Imperfect

    255.4.4 Specific Applications Of Imperfect Self Defense

    255.4.4.1 Imperfect Self Defense: Applicable To Defense Of Others
    255.4.4.2 Right To Instruction On Both Heat Of Passion/Hot Blood And Imperfect Self Defense
    255.4.4.3 Consideration Of Self Defense When Deciding The "Unreasonable Risk" Component Of Recklessness
    255.4.4.4 Imperfect Self Defense Applies To Unintentional Murder
    255.4.4.5 Imperfect Self Defense: Applicability To Assault With Intent To Murder
    255.4.4.6 Application Of Imperfect Self Defense To Attempted Murder
    255.4.4.7 Is Imperfect Self Defense Applicable To Reduce Mayhem To Assault Or Battery?
    255.4.4.8 Imperfect Self Defense: Applicability To Enhancements
    255.4.4.9 Imperfect Defense Of Habitation

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PRACTICE NOTE: "A perfect defense of others occurs when a defendant honestly and reasonably believes that the person defended was in imminent danger of death or serious bodily harm. The result is a not guilty verdict. [Citation.] On the other hand, if a defendant honestly, but unreasonably, believes that the person defended was in imminent danger of death or serious bodily harm and he honestly, but unreasonably, believes that the force used was necessary, then the defendant has an imperfect defense of others capable of reducing a murder charge to manslaughter. [Citation.]" (Dishman v. State (MD 1997) 702 A2d 949, 957; see also Faulkner v. State (MD 1984) 483 A2d 759, 762-69; State v. Perry (NC 1994) 450 SE2d 471, 477; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.3, comment [Homicide-First Degree Premeditated Murder, Second Degree Specific Intent Murder, And Voluntary Manslaughter (Imperfect Self-Defense)] (Micpel, 1999).)

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    See FORECITE National™ 255.3.2.5 [Defense Theory Of Accident Or Self Defense Does Not Preclude Instruction On Heat Of Passion/Hot Blood].

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RATIONALE: Self defense may be relevant to the determination of the wanton or utter disregard element of recklessness. Hence, it may be appropriate to instruct the jury on this point, especially when self defense is a theory of the defense.

POINTS AND AUTHORITIES: Even if self defense does not excuse or justify a crime based on recklessness (but see FORECITE National™ 253.4.2.8 [Self Defense Relevant To Recklessness]) self defense is relevant to the elements of unreasonable risk and utter disregard for human life. (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1017 [First Degree Intentional Homicide: Self Defense: Second Degree Intentional Homicide: First Degree Reckless Homicide: Second Degree Reckless Homicide], comment p. 15 (University of Wisconsin Law School, 2000).) Conduct does not create an unreasonable risk of harm to another if the conduct is undertaken as reasonable action in self defense. Recklessness and reasonable exercise of privilege cannot coexist. Thus, it is best to advise the jury to consider the privilege of self defense when considering the "unreasonable risk" component of recklessness." (Ibid.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    In attempting to decide if the defendant's conduct showed utter disregard for human life, consider all the factors relating to the conduct including, but not limited to, the following: what the defendant was doing; why [he] [she] was doing it; how dangerous the conduct was; how obvious the danger was; and whether the conduct showed any regard for human life. Also, consider any evidence that the defendant acted in self defense as to whether the defendant's conduct showed utter disregard for human life.

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1017 [First Degree Intentional Homicide: Self Defense: Second Degree Intentional Homicide: First Degree Reckless Homicide: Second Degree Reckless Homicide] (University of Wisconsin Law School, 2000).]

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RATIONALE: It would be illogical to allow imperfect self defense when the defendant intended to kill but not when the intent was to commit a dangerous act.

POINTS AND AUTHORITIES: Imperfect self defense may negate both express and implied malice. (People v. Blakeley (CA 2000) 23 C4th 82, 88-89 [96 CR2d 451]; In re Christian S. (CA 1994) 7 C4th 768, 780, fn 4 [30 CR2d 33]; see also generally State v. Powell (NJ 1980) 419 A2d 406, 411 ["...[A] trial judge must make the State's burden clear by instructing the jury that to find malice it must be convinced beyond a reasonable doubt that the accused did not kill in an exercise of imperfect self-defense ... unless there is no evidence of ... imperfect self-defense in the record"].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    A person, who unintentionally kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but [does not harbor malice aforethought] [is not guilty of murder].

[Source: FORECITE National™.]

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PRACTICE NOTE: Because the "mitigating effect of imperfect self defense is to negate malice [unlawful intent]," it "applies also to the felony of assault with intent to murder," which is reduced to simple assault and battery by imperfect self defense. (See Faulkner v. State (MD 1983) 458 A2d 81, 82-82; LaFave, & Scott, Substantive Criminal Law (West, 1986) § 7.11, fn. 5; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4.23, comment [Misconduct In Office (Malfeasance, Misfeasance, And Nonfeasance)] pg. 298 (Micpel, 1999)  However, imperfect self defense is not applicable to offenses for which the element of malice is different than the element which is applicable to murder. (LaFave & Scott, Substantive Criminal Law (West, 1986) §5.7(i) (1999 Supp.).) Hence, it has been held that imperfect self defense is not applicable to malicious wounding with intent to disable or assault. (State v. Abdalaziz (CT 1997) 696 A2d 1310, 1315-16; Richmond v. State (MD 1993) 623 A2d 630, 633-34; but see FORECITE National™ 77.11.3.5 [Mayhem: Imperfect Self Defense As Defense Theory].)

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RATIONALE: There is no logical reason why imperfect self defense, if it applies to a completed homicide, should not also apply to attempted homicide.

POINTS AND AUTHORITIES: Imperfect self defense, if applicable to criminal homicide should also be applicable to its "shadow forms" such as attempted murder. (See Richmond v. State (MD 1993) 623 A2d 630, 634; see also Bussie v. State (MD 1997) 693 A2d 49, 59-60; State v. Seifert (WI 1990) 454 NW2d 346, 351 [because imperfect self-defense manslaughter is a crime requiring a showing of intent, there is a crime of attempted imperfect self-defense manslaughter].)

    See also FORECITE National™ 255.4.1.1 [Imperfect Self Defense: Defense Theory To Charge Of Murder].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.11, p. 272.

    A person, who attempts to kill another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, acts unlawfully, but does not harbor malice aforethought and is not guilty of attempted murder even though a reasonable person in the same situation and knowing the same facts would not have had the same belief. 

[See In re Christian S. (CA 1994) 7 C4th 768, 783 [30 CR2d 33]; People v. Aris (CA 1989) 215 CA3d 1178, 1187 [264 CR 167]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 5.17 [Actual But Unreasonable Belief In Necessity To Defend–Manslaughter] (West, 6th Ed. 1996).]

    Attempted manslaughter is a  lesser included offense of attempted murder.

    The crime is attempted manslaughter where the attempt to kill a human being was made in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.

    In order to prove the commission of the crime of attempted manslaughter, each of the following elements must be proved beyond a reasonable doubt:

    1.     That the defendant attempted to kill a human being, and

    2.     That the defendant did not attempt to kill in an honest but unreasonable belief that the attempt was necessary to defend [himself] [herself].

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.40 [Voluntary Manslaughter–Defined] (West, 6th Ed. 1996).]

    If the prosecution has proved beyond a reasonable doubt that the attempted killing was unlawful, but you have a reasonable doubt whether the crime is attempted murder or attempted manslaughter, you must give the defendant the benefit of such doubt and vote for attempted manslaughter rather than attempted murder.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.72 [Doubt Whether Murder Or Manslaughter] (West, 6th Ed. 1996).]

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PRACTICE NOTE: In People v. McKelvy (CA 1987) 194 CA3d 694, 701-07 [239 CR 782], the lead opinion of Kline, P.J. declared that an actual but unreasonable belief in the need for self defense negated the malice required for a conviction of mayhem, mitigating the crime to assault or battery. The opinion concluded that an imperfect self defense instruction (People v. Flannel (CA 1979) 25 C3d 668, 679, 683 [160 CR 84]) should be given sua sponte in mayhem cases where there was more than minimal evidence of self defense. (But see People v. Sekona (CA 1994) 27 CA4th 443, 452-53 [32 CR2d 606]; State v. Abdalaziz (CT 1997) 696 A2d 1310, 1316; Bussie v. State (MD 1997) 693 A2d 49, 59-60; Bryant v. State (MD 1990) 574 A2d 29, 32-33; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17.2, comment [Homicide-First Degree Premeditated Murder, Second Degree Specific Intent Murder, And Voluntary Manslaughter (Imperfect Self-Defense)] p. 232.1 (Micpel, 1999).)

    Logically, if complete self defense is a complete defense to a charge of maiming or mayhem (See FORECITE National™ 77.11.3.4 [Applicability Of Self Defense To Mayhem]) then partial or imperfect self defense should be a partial defense to maiming or mayhem.

See also FORECITE National™ 77.11.3.5 [Mayhem: Imperfect Self Defense As Defense Theory].

Mahler, "Limiting the Right to Imperfect Self defense" 53 MD L.Rev. 759, 769 (1994) [discussing the case of Richmond v. State which held that imperfect self defense is a mitigator peculiar to homicide and is not applicable to other offenses].

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PRACTICE NOTE: In People v. Goins (CA 1991) 228 CA3d 511, 516-18 [279 CR 42], the defendant was charged with assault with force likely to produce great bodily injury and with a great bodily injury sentencing enhancement. The jury rejected the defense of reasonable self defense. On appeal, the defendant argued that an instruction on unreasonable self defense should have been given with respect to the enhancement since it contained a specific intent element not present in the underlying assault charge. The court of appeal rejected this argument holding that the requisite specific intent would have been present regardless of unreasonable self defense.

    However, the court of appeal's analysis is incomplete because it fails to consider whether the specific intent required by the great bodily injury enhancement includes felonious (i.e., wrongful) intent. (See People v. Vogel (CA 1956) 46 C2d 798, 801, fn 2 [299 P2d 850].) For example, a person who takes property under a good faith claim of right has the specific intent required for theft (i.e., to permanently deprive the other of the property) but, because that specific intent is not criminal, there is no liability for the crime of theft. (See FORECITE National™ 252.5 [Claim Of Right].)

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PRACTICE NOTE: As in self defense and defense of others, there may be an imperfect defense of habitation. (See Law v. State (MD 1975) 349 A2d 295, 298-300; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:02, comment [Defense Of Habitation-Deadly Force] (Micpel, 1999).)