“[T]o be entitled to a self-defense instruction, an accused has a duty to retreat or avoid danger if such means [are] within his power and consistent with his safety.”
How later courts described this case
- “[T]o be entitled to a self-defense instruction, an accused has a duty to retreat or avoid danger if such means [are] within his power and consistent with his safety.”
- “Penknives today are commonly considered to encompass any knife with the blade folding into the handle, some very large.”
Written by the judges who cited it.
The opinion
Concurring Opinion by
MURPHY, C.J.
While I agree that appellant’s “carrying” conviction should be reversed, having examined the knife that appellant used to inflict the fatal injuries, I write separately to request that the General Assembly revisit the “penknife exception” to C.L. § 4-101(c)(2).
While I recognize that, in light of Roary v. State, 385 Md. 217 , 867 A.2d 1095 (2005), the precise issue presented in the case at bar is unlikely to arise very often in the future, I also write separately to address two issues that will certainly arise again: (1) how an appellate court reviews the verdict announced at the conclusion of a bench trial, and (2) how the *737 (trial and appellate) court goes about resolving conflicting interpretations of the applicable law.
When the appellant argues that the evidence presented by the State during a bench trial was insufficient to convict the defendant, we must determine whether that evidence was sufficient as a matter of law to support each factual finding necessary to the entry of the verdict. In a theft case, for example, we could not affirm a conviction based upon evidence that was insufficient as a matter of law “to permit the trial court to find properly that the [defendant] was a participant [in the theft].” In re Appeal No. 504 September Term, 1974, 24 Md.App. 715, 724 , 332 A.2d 698 (1975).
When we are presented with the argument that the trial judge’s factual findings do not support the guilty verdict, we must first examine each factual finding upon which the verdict is based. In the case at bar, for example, we could not affirm a murder conviction if the trial judge had said, “I am not persuaded that the defendant intended to inflict serious bodily harm.”
We must then examine the relationship between each essential factual finding and the applicable law. In the case at bar, for example, we could not affirm a murder conviction if the trial judge had said, “Even though I am not persuaded that the defendant intended to kill the victim, and I am not persuaded that the defendant intended to inflict serious bodily harm, the fact is that the victim died as a result of the injuries inflicted by the defendant, so the defendant is guilty of second degree murder.”
In the case at bar, the evidence was sufficient to support the inference that appellant stabbed the victim in the groin with the intent to inflict serious bodily harm. The question is whether the circuit court actually made that essential finding of fact. To determine whether the factual findings announced by the trial judge support the verdict at issue, we must presume that the trial judge knows the law and applies the law correctly. In my opinion, nothing in the record of the case at bar rebuts that presumption. I am not persuaded that *738 the trial judge’s verdict was based upon an incorrect interpretation of the elements that must be proven in order to convict a defendant of second degree murder.
To resolve the issue of whether appellant’s murder conviction should be reversed on the ground that the trial judge did not find that appellant acted “with the intent to inflict such serious bodily harm that death would be the likely result,” it may be helpful to hypothesize a jury trial in which the jurors were presented with the very same evidence presented in the case at bar. Assume that, at the conclusion of the State’s case-in-chief, defense counsel moves for a judgment of acquittal on the ground that the State failed to present any evidence that death is a “likely result” of the defendant’s conduct. Should the trial judge grant this motion?
Assume that, during the jury instructions conference, defense counsel requests the following instruction:
The State must prove that, at the point in time when the defendant engaged in the conduct that caused the victim’s death, the defendant was aware of the fact that death would be the likely result.
Would the defendant be entitled to such an instruction?
Assume that the trial judge (1) in accordance with the MPJI-Cr instructions, instructed the jury that the State must prove “that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death would be the likely result,” and (2) has now received the following note from the jury:
We need additional instructions. (1) Please clarify the meaning of “likely.” (2) Does a murder conviction require a finding that, at the time the defendant stabbed the victim, the defendant realized that the victim was “likely” to die from the stab wound?
How should the trial judge respond to this note?
To answer these questions, the trial judge would no doubt examine the cases discussed in the majority opinion and in the dissenting opinion. Although none of those cases includes an *739 actual holding that squarely addresses any of the hypothetical questions, if I were the trial judge who was called upon to answer the questions, I would rely most heavily upon State v. Ward, 284 Md. 189 , 896 A.2d 1041 (1978), in which a unanimous Court of Appeals held that a defendant can be charged with and convicted of being an accessory before the fact of murder in the second degree. While explaining why there is “a rational basis” for this conclusion, the Ward Court stated:
So, if A shoots B in the leg with the intention of doing him serious bodily harm short of death but the injury thereby done to B results in the death of B, however contrary this may be to A’s intention, A is guilty of murder in the second degree.
Id. at 199, 396 A.2d 1041 . My decision to rely upon Ward, however, would not constitute a “disapproval” of Burch, Mitchell, or Sifrit.
Moreover, in relying upon Ward to resolve the issue presented in the case at bar, I would be “comforted by the realization that” this decision can be reviewed and corrected. Stevenson v. State, 289 Md. 167, 189 , 423 A.2d 558 (1980). In Stevenson , Judge Digges concluded his majority opinion by reaffirming the following proposition found in Anderson v. Baker, 23 Md. 531 (1865):
If we err in our conclusions, we congratulate ourselves there is a Supreme Court erected expressly for the final adjudication of such questions, where our judgment may be reviewed and corrected, and the rights of the citizen vindicated. To this we cheerfully defer confidant that none will more cordially concur in the result. [Anderson v. Baker, 23 Md. 531, 629 (1865).]
Stevenson, supra, 289 Md. at 189 , 423 A.2d 558 .
What the Court of Appeals stated in Anderson and in Stevenson applies with equal force to the judges of the Court of Special Appeals. When a judgment of this Court is corrected by the Court of Appeals, we are comforted by the fact that our judgment has been reviewed and corrected by the Su *740 preme Court of this State, and we cordially concur in the result.