Clear and Present Danger: An Abused Spouse Can Hire a Contract Killer and Argue Imperfect Self-Defense
When is a threat of mortal harm so imminent that a preemptive attack is justified or at least understandable? No, this is not a discussion of the nuclear threat posed by North Korea and the possibility of preemptive military action by the Trump administration.
Instead, this is a look at the recent decision of the Court of Appeals in Porter v. State, No. 88, Sept. Term, 2016 (Md. Aug. 7, 2017), a murder case involving battered spouse syndrome and imperfect self-defense. This is a very interesting case, made even more interesting by how the members of the Court split. We sometimes see appellate courts split along liberal versus conservative lines, or between Democratic appointees and Republican appointees. But here, the Court split along gender lines, with the four female judges forming the majority and the three male judges in dissent. And that split reflected diametrically opposed views of what constitutes a threat of imminent harm. To the majority, a threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat can constitute imminent harm.
Karla and Ray Porter’s relationship was troubled from the start. After they were married, Ray began physically and verbally abusing her. Among other abusive acts, he punched her, stabbed her with a drill, shoved her head in sewage, pointed a gun at her head, and while in Florida, he threatened to feed her to alligators. He repeatedly threatened to kill her. Karla eventually hired Walter Bishop to kill Ray. One morning, Karla told Ray that the alarm had gone off at the gas station they owned. Ray went to the station, where Bishop shot and killed him. About a week later, the police arrested Karla, who 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 violence. Slip Op. at 1-4.
At trial, Karla produced expert psychiatric testimony showing she suffered from major depressive disorder and post-traumatic stress disorder, and that she responded to Ray’s persistent abuse by engaging in what was described as “learned helplessness.” She repressed thoughts about the abuse and denied what was happening, all in the hope “things would settle down.” Id. at 4 (internal quotation marks omitted). The psychiatrist concluded that Karla was suffering from battered spouse syndrome. A clinical psychologist “testified at length about the effects of chronic abuse on an individual’s mental state,” explained that battered women often use “personal coping mechanisms, such as ‘trying to keep the peace,’” instead of “public mechanisms, such as going to the police,” and testified that the Porters’ relationship bore signs of one where an abused spouse faces life-threatening danger. Slip Op. at 4-5. Karla also presented lay witness testimony describing the abuse she sustained at Ray’s hands. Id. at 5.
The State argued that Karla was not entitled to a jury instruction on imperfect self-defense. But the State also urged the court to give an instruction that differed from the pattern jury instruction, if the court were inclined to give an instruction on the defense. The court gave the State’s proposed instruction, and the jury ultimately convicted Karla of all charges. Id. at 6-8. On appeal, she argued that the trial court gave an erroneous instruction on imperfect self-defense. But “[t]he 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).” Slip Op. at 9. That court affirmed the convictions and the Court of Appeals then granted certiorari. The dispositive issue ultimately came down to what constitutes an imminent threat, particularly in the context of a battered spouse?
Judge Sally Adkins wrote the majority opinion, which was joined by Chief Judge Mary Ellen Barbera, Judge Shirley Watts, and Judge Michelle Hotten. Judge Adkins explained that the Court had to examine the relationship between the elements of imperfect self-defense and battered spouse syndrome. Slip Op. at 10. Unlike perfect self-defense, which is a complete defense to a murder charge, a defendant’s successful assertion of imperfect self-defense reduces a murder charge to voluntary manslaughter. If a defendant shows she actually – albeit unreasonably – believed that she faced imminent or immediate danger of death or serious bodily harm, she has generated an issue of imperfect self-defense. Id. at 11-12. This is true even if she used more force than was reasonably required, so long as she actually believed that she needed to use that amount of force. Id. at 12. And while the successful assertion of perfect self-defense requires the defendant to show she pursued reasonable avenues to retreat or avoid danger before resorting to the use of deadly force (unless she was in her home when the threat arose), a defendant raising the issue of imperfect self-defense need only show she subjectively believed that retreat was not safe. It does not matter that the belief was unreasonable.
Where a defendant presents evidence that would support a finding of either perfect or imperfect self-defense, she is entitled to a jury instruction on each issue where evidence has been presented. To attain a guilty verdict on the murder charge, the State then must prove beyond a reasonable doubt that the defendant did not act in either perfect or imperfect self-defense. Id. at 12. If the jury finds the defendant acted in perfect self-defense, the verdict must be not guilty. If the jury finds that the defendant acted in imperfect self-defense, the verdict must be guilty of voluntary manslaughter. Id.
Against that background, the Court discussed battered spouse syndrome, how that syndrome interacts with imperfect self-defense, and the particular facts of the case. Battered spouse syndrome is a form of post-traumatic stress disorder, and refers to the psychological impact caused by experiencing repeated violence at the hands of an intimate partner. Id. at 13-14. The syndrome is comprised of a cycle of intimate partner violence accompanied by a development of “learned helplessness.” Id. at 14. (internal quotation marks omitted). The latter occurs when the victim learns that if she tries to reach out for help, or tries to leave the relationship, she will only suffer more severe violence. Thus, she learns that the most effective short-term solution is to grow even more subservient. Maryland has a statute defining the syndrome as “the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant,” and allowing a criminal defendant to offer evidence of the abuse, and expert testimony regarding the syndrome, even if “the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense.” Id. at 15 (internal quotations marks omitted) (quoting Md. Code Ann., Cts. & Jud. Proc. § 10-916 (a)(2) and (b)).
The State and the defense agreed on one thing – “the trial judge gave an erroneous jury instruction on imperfect self-defense.” Id. at 16. But the State argued that the error was harmless because Karla had not produced evidence generating an issue of imperfect self-defense. Specifically, the State argued that Karla failed to produce any evidence showing that she believed that she was in imminent or immediate danger of death or serious bodily harm at the time Ray was shot and killed. Karla, on the other hand, argued that she presented evidence showing “the threat of violence hung in the air at all times,” which she claimed satisfied the need to produce evidence of imminent or immediate danger. Id. at 18 (internal quotation marks omitted). The case therefore hinged on the meaning of imminent or immediate danger. Id. The judges in the majority agreed with Karla, while the dissenting judges sided with the State.
According to the majority, “[t]he requirement of imminence means that the time for defense is now. The defender cannot wait any longer.” Id. at 20 (internal quotation marks omitted) (citation omitted). Writing for the majority, Judge Adkins noted that “[o]ther jurisdictions have implicitly broadened the meaning of imminence by allowing a defendant to assert self-defense after she had killed her husband in a non-confrontational situation – when her husband was not presently attacking her.” Id. at 21 (emphasis added) (footnote omitted). The majority further noted that imperfect self-defense requires that the defendant fear “imminent” or “immediate” danger, and found that, unlike an immediate threat, “an imminent threat is not dependent on its temporal proximity to the defensive act.” Id. at 23.
Thus, while an immediate threat requires temporal proximity between the abusive act and the defensive reaction triggered by that abuse – i.e., the abusive spouse and the abused spouse are engaged in or have just been engaged in a confrontation – an imminent threat does not depend on temporal proximity and can exist in a non-confrontational scenario. The majority also thought that acknowledging that distinction furthers the intent behind Maryland’s battered spouse syndrome statute. That statute allows introduction of evidence showing the victim had abused the defendant even if the defendant “was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense.” Id. at 23 (quoting Md. Code Ann., Cts. & Jud. Proc. § 10-916(b)) (internal quotation marks omitted). The majority viewed that statute as permitting an abused spouse to argue imperfect self-defense even where the killing arose from a non-confrontational setting:
"If we were to hold that a battered spouse who kills in a non-confrontational setting is not entitled to a self-defense instruction, we would render all or some of the evidence admissible under the battered spouse syndrome statute irrelevant. Without a jury instruction as to self-defense, the admission of evidence regarding battered spouse syndrome and the victim’s abuse would be pointless."
Slip Op. at 24.
One reason cited “to support limiting self-defense to threats of ‘imminent or immediate’ danger” is that “a non-imminent threat may never come to fruition.” Id. at 25 (citations omitted). But Karla “presented extensive evidence during her trial that the violence she feared would in fact come to fruition,” and “[m]oreover, battered spouse syndrome is defined, in part, by the repetition of the cycle of violence.” Id. at 26. These two observations led to a crucial component of the majority’s analysis: “In a cyclical, abusive relationship the threatened violence will come to fruition – it is often only a matter of when.” Id. at 27 (italicized emphasis added) (bold emphasis in original). As will be seen, this is a critical area of disagreement between the majority and the dissent. In the majority’s eyes, the abusive spouse will inevitably inflict death or serious bodily harm on the abused spouse. It is only a question of when. The dissenting judges, however, see the situation differently. To the dissent, the threat posed by the abusive spouse may in fact never come to fruition.
A second reason cited to restrict the use of self-defense to threats of imminent or immediate danger is the availability of “other ways to address a non-imminent threat besides responding with defensive force.” Id. at 25 (citations omitted). But in the view of the majority, someone who suffers from battered spouse syndrome does not see many avenues out of the constant threat hanging over her head. Indeed, courts “admit expert testimony as to battered spouse syndrome in part to thwart the assumption that if the relationship was truly abusive, the woman would have left or sought help from law enforcement.” Id. at 27 (footnote omitted). To a sufferer of battered spouse syndrome, simply leaving the abusive relationship, or going to law enforcement, does not seem viable.
The majority explained its conclusion:
"In allowing Porter to assert imperfect self-defense in this case, we do not stray from the purpose of the “imminent or immediate” danger requirement. Although our holding admittedly takes a step further than other courts have traveled, we decline to hold that a woman suffering from battered spouse syndrome must experience abuse within minutes or hours of her defensive action to be entitled to an instruction on imperfect self-defense. Doing so would ignore the reality of intimate partner violence."
Id. at 28.
But this was a contract killing. Karla hired a hit man to kill her husband. Should that matter? The majority didn’t think it did. The State argued that the “intricate planning that began several weeks before” the killing was inherently inconsistent with imperfect self-defense. Id. at 28. The majority disagreed. “Imperfect self-defense negates the element of malice, not premeditation. A woman claiming imperfect self-defense must present evidence that she feared imminent or immediate danger at the time of the killing – she does not have to show that she acted spontaneously.” Id. at 28 (citation omitted). While three other jurisdictions “have declined to allow a self-defense jury instruction when a woman hires a third party to kill her abusive partner,” the majority noted that only “one of those cases involved a battered spouse syndrome statute, and that statute only admitted evidence regarding the syndrome to support claims of perfect self-defense.” Id. at 29 (emphasis in original) (citations omitted). Plus, the majority saw “no principled reason to distinguish contract killings from other forms of non-confrontational action.” Id. at 30.
The dissent claimed that Karla’s planning negated any thought that she faced an imminent threat, but the majority saw the dissent’s position as perpetuating “a dangerous myth about intimate partner violence.” Id. The majority returned to the idea that an abused spouse sees no other way out of her predicament. “By holding Porter’s forethought against her, the Dissent takes the position that a woman who plans defensive action can never fear imminent harm. It suggests that a woman living in such constant fear would pursue other avenues of escape, such as calling the police.” Id. Yet statistical evidence and the expert testimony dispelled that notion. Id. The majority rejected any requirement that a contemporaneous threat must exist “at the time a woman takes defensive action for her to generate the issue of imperfect self-defense,” as that would blur “the concepts of perfect and imperfect self-defense.” Id. at 31. While it might be unreasonable to resort to deadly force in the absence of a contemporaneous threat, reasonableness is not an element of imperfect self-defense. The defendant need only show that she actually believed she was in imminent danger – her belief does not have to be reasonable. Id.
The majority concluded that Karla had “presented ‘some evidence’ that she actually believed that she was in imminent danger at the time Walter Bishop killed her husband.” Id. at 32. Karla “testified as to her mental state on the morning of Ray’s death,” explaining that she “knew he was going to kill [her] at any point.” Id. The majority noted that a jury will have to decide whether to believe her and accept her claim. Id. As for the solicitation charge, the focus was on the time she solicited the various candidates for killing Ray. “If the jury finds that Porter feared imminent danger at the time she solicited Daniel Blackwell, Tony Fails, or Walter Bishop to commit murder, she cannot be deemed to have solicited them to kill with malice. Rather, she solicited them to kill for her protection.” Id. at 35. Consequently, she was entitled to a new trial.
The three dissenting judges saw things far differently. Judge Clayton Greene, Jr. authored the dissenting opinion, which was joined by Judge Robert McDonald and Judge Joseph Getty. The dissent began:
"The Majority Opinion expands the doctrine of self-defense beyond the limits of immediacy and necessity in concluding that a criminal defendant who was charged with the crimes of solicitation, conspiracy, and first degree premeditated murder after arranging for a third party to kill her husband was entitled to a jury instruction on imperfect self-defense. Even if a battered spouse has a subjective belief that death or serious bodily harm at the hands of her abuser is inevitable, a murder planned weeks or months in advance can at most be considered a response to generalized threat or expected future threat, but not a response to an imminent or immediate threat. In other words, even if the battered spouse syndrome can show that the spouse has a generalized fear, the syndrome cannot substitute for the requirement of an imminent or immediate threat for imperfect self-defense."
Slip Op. at 1. In the dissent’s view, even where an abused spouse actually believes that the abusive spouse will inevitably kill her, that subjective belief does not transform a generalized fear into an imminent threat.
To the dissenting judges, an imminent threat requires contemporaneous danger. Id. at 3-4. They rejected the majority’s approach, and thought that “evidence as to the battered spouse syndrome cannot be used to show that a battered spouse felt that he or she was under an imminent or immediate threat of death or serious bodily harm at all times.” Id. at 4. They feared that, under the majority opinion, “a jury could find that imperfect self-defense applies not because the defendant acted out of an excusable belief that her actions were necessary to protect herself, but simply because the jury sympathizes with the defendant’s history of receiving abuse at the hands of the man she killed.” Id. at 5. In the opinion of the dissent, “[t]hat is not and cannot be the law.” Id.
The dissenting judges also thought that “the result of the Majority opinion contravenes the intent of our Legislature when it enacted” section 10-916. Id. That section gives trial courts discretion to admit evidence of sustained physical and psychological abuse and expert testimony concerning battered spouse syndrome. “The bill, in fact, underwent substantive changes to guarantee that the statute was permissive and discretionary.” Id. at 6. The dissenting judges cited “other evidence that the Legislature did not intend for the statute to apply in all spousal murders,” including correspondence from the House of Ruth assuring that the proposed legislation was not a “license to kill” and that battered spouse syndrome could be used to invoke imperfect self-defense only where the defendant believed she was in imminent danger when she committed the offense. Id. at 7.
The dissent thought that Karla failed to present sufficient evidence to generate an issue of imperfect self-defense. She “did not testify that at the particular time of the shooting at the gas station she had a specific fear of death or serious bodily harm.” Id. Consequently, “there was a crucial evidentiary gap as to the state of mind element for imperfect self-defense, namely, that she subjectively felt herself under imminent or immediate threat of death or serious bodily harm.” Id. For the dissent, evidence of Ray’s threating or abusive behavior “days or weeks before the killing,” and Karla’s “subjective belief that she faced a general or looming threat,” did not generate an issue of imperfect self-defense. Id. at 8.
The most significant aspect of the case for the dissent, however, was that it involved a contract killing. Indeed, in footnote 2, Judge Greene said: “I limit my opinion to the subset of non-confrontational killings in which the battered spouse has hired someone to kill her alleged abuser; thus, I do not speculate as to the use of the battered spouse syndrome in other non-confrontational settings.” Id. at 8. Judge Greene cited and discussed several cases from other jurisdictions where self-defense instructions were rejected in contract killings because there was no threat of imminent harm. In those cases, as in Karla’s killing of Ray, the defendant had planned the killing well in advance of the actual slaying. The dissent acknowledged the possibility that the defendant initially believed that she had no choice but to kill her spouse. “But, as the planning period stretches into days, weeks, or even months, it would be strange that any defendant who was still in full possession of her faculties could possibly believe, even subjectively, that all her advance planning was to protect herself from an imminent or immediate threat.” Id. at 11. In the dissent’s view, a defendant in those circumstances would be acting either in response to the prior incidents or in fear that the abuser might harm her at some “unspecified time in the future. Id.
According to the dissent, the majority opinion took “an unprecedented pivot in the area of imperfect self-defense by relaxing the requirement of an imminent and immediate threat for a battered spouse.” Id. at 13. Moreover, “a defendant who hires a third party to murder her spouse, even if she is suffering from battered spouse syndrome, should not be entitled to a perfect or imperfect self-defense instruction. This is so because a contract killing by its nature is more consistent with an act of retaliation for past abuse.” Id. at 13. The dissenting judges did not think Karla was entitled to an instruction on imperfect self-defense, and as a result, the circuit court’s erroneous instruction was harmless error. Id.
In short, the majority and dissenting opinions reflected radically different views about how an abusive spouse’s past conduct can affect the subjective beliefs of the abused spouse and shape the latter’s perception of what might constitute a threat of imminent harm. For the dissent, the past abuse helps explain why the sufferer of battered spouse syndrome might subjectively, yet unreasonably, view her abusive spouse’s contemporaneous conduct as presenting a threat of imminent harm. The majority adopts a far broader view. For the majority, the past abuse can create a situation where the abused spouse subjectively, yet unreasonably, concludes that a deadly attack is inevitable and thus there exists – at all times – a threat of imminent harm. I’ll leave it to each reader to conclude which view reflects the better understanding of a threat of “imminent” harm.
 On November 22, 2016, Chris Micher posted a piece on this blog, discussing the majority and dissenting opinions in the Court of Special Appeals, correctly surmising that the Court of Appeals would ultimately take the case. The gender divide in the Court of Appeals did not exist in the intermediate court. Judge Christopher Kehoe wrote the opinion for the panel, rejecting Karla’s argument, and he was joined by Judge Kathryn Graeff. The dissenting member of the panel was Judge Daniel Friedman.
 As the Court explained, perfect self-defense involves the following elements:
"(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 accuser 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."
Slip Op. at 11 (emphasis in original) (citation omitted).
 The trial court erroneously told the jury that Karla acted in imperfect self-defense only if she “used no more force than was reasonably necessary to defend herself” and “if retreat from the threat was unsafe.” Slip Op. at 16 (internal quotation marks omitted). But imperfect self-defense requires only that the defendant subjectively believed that the level of force she used was necessary and that retreat was not safe.
 The cases cited by the majority, however, largely involved relatively short intervals of time between specific acts of abuse by the victim and the defendant’s act of violence. For example, in State v. Gallegos, 719 P.2d 1268 (N.M. App. 1986), the defendant’s husband raped her, threatened to kill her, and hit their son with a belt. “That evening, after her husband called her into the bedroom, the defendant shot him with a rifle and then stabbed him in the neck multiple times.” Slip Op. at 21 (emphasis added) (citation omitted). Similarly, in State v. Allery, 682 P.2d 312 (Wash. 1984), the defendant’s husband, while lying on the couch, told her he was “going to have to kill” her. Slip Op. at 22 (internal quotation marks omitted) (citation omitted). After the defendant “went into the bedroom and tried unsuccessfully to escape through the window,” she thought she heard her husband obtaining a knife from the kitchen. Id. (internal quotation marks omitted) (citation omitted). So she loaded a shotgun and shot him dead while he was still lying on the couch. Id.
This article originally appeared in the Maryland Appellate Blog.
Brad McCullough represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings. For more information, contact him at 301-657-0734 or firstname.lastname@example.org.