Five months ago, I wrote about Porter v. State, 455 Md. 220 (2017), where a deeply divided Court of Appeals, in a 4-3 decision, held that a battered spouse may rely on the imperfect self-defense to stave off a first-degree murder charge, even in the absence of a contemporaneous threat to the defendant/battered spouse.

In the view of the majority, the threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat from the decedent can constitute a threat of imminent harm for purposes of either self-defense or imperfect self-defense.

Two months after the Porter opinion was rendered, the Court of Special Appeals decided Wallace-Bey v. State, 234 Md. App. 501 (2017), which was the first post-Porter reported appellate decision in Maryland to address battered spouse syndrome and imperfect self-defense. The Court, however, was not called on to assess the imminence of the threat to the defendant. Instead, the Court was faced with what it described as “the absurd position that the prosecution persuaded the trial court to adopt,” id. at 544, i.e., that any word emanating from the decedent’s mouth in the moments leading to when the defendant shot him to death – as well as any other words he uttered during the parties’ tortured and often violent relationship – constituted inadmissible hearsay. According to an exhaustive and biting opinion from Judge Kevin Arthur – an opinion which also serves as a comprehensive primer on the law of hearsay – the circuit court’s rulings were clearly wrong and just as clearly not harmless error. Judge Arthur’s opinion serves as a cautionary tale to trial lawyers – be careful espousing overly aggressive, and ultimately erroneous, legal positions, because what you might end up “winning” is reversible error. Or be careful what ruling you ask for, because you might just get it and might just have to live with the repercussions.

Editor’s note: The testimony of the Wallace-Bey trial, as detailed in the opinion by the Court of Special Appeals, contains graphic content that is now quoted or summarized below.

In the early morning hours of October 24, 2007, Tania Wallace-Bey shot and killed her boyfriend, Julius Whaley. She was convicted of first-degree murder and the use of a handgun in the commission of a crime of violence. That conviction was affirmed on appeal, but later vacated in a post-conviction proceeding, as her trial counsel “had rendered ineffective assistance [of counsel] by failing to investigate battered spouse syndrome.” 234 Md. App. at 512.

She was tried again in a six-day jury trial, where the prosecution “theorized that Wallace-Bey had killed Whaley as the first part of a murder-suicide plan,” claiming that “she shot him while he was asleep, and that her subsequent suicide attempt failed.” Id. at 513. On the other hand, Wallace-Bey contended that she “shot Whaley to defend herself just after he had forcibly raped her,” and that “she was suffering from the effects of repeated abuse from Whaley.” Id.

At the second trial, the State showed that, at around 5:15 p.m. on October 24, police and paramedics responded to a 911 call from Wallace-Bey, in which she said she had shot her boyfriend after he had raped her. When police and arrived at Whaley’s apartment, they found Whaley lying dead in a pool of blood, with a single gunshot wound to the chest. Wallace-Bey testified that she shot him early that morning and then “pulled the hammer back on the gun to shoot herself, but put it down.” 523. She said she later “left to buy sleeping pills and alcohol, ingested them, and fell asleep.” Id. After she woke up, she called 911.

The State produced evidence supporting its theory that Wallace-Bey killed Whaley as part of an aborted murder-suicide plan, including notes she had written to her family and Whaley’s family. Wallace-Bey, on the other hand, produced evidence of her lengthy, on again and off-again, romantic relationship with Whaley – a relationship marked by a history of violence and emotional and psychological abuse. She testified that about year and a half before she shot and killed Whaley, he had held her down and forcibly penetrated her, and he had later sexually assaulted her in a hotel room. Later, when they were living together, he blamed her for his missing a flight, forced her to sleep on the living room floor, and then woke her by kicking her in the side and back and demanding that she drive him to the airport. She obeyed his order. Fearful that he was going to kill her, she eventually fled and went to live with her mother in Philadelphia, but he convinced her to return. She testified about other instances of physical, sexual, and emotional abuse, as well as her attempts at suicide. Id. at 517, 519-22.

In late summer or early fall 2007, she decided to commit suicide, and she began making preparations, including disposing of her personal property. On October 21, she left Philadelphia and went to visit Whaley. On October 23, they went to bed, and early the next morning, Whaley woke her up, seeking to have sex with her. She declined, explaining “that he was ‘swimming in pussy’ and that he did not need to have sex with her.” Id. at 523. He responded violently, grabbing her, pulling down her underwear, and holding her ankles and arms over her head. He then “‘forcefully penetrated’ her.” Id. Fearful that he would rape her again, she grabbed her gun from her travel bag – a gun that Whaley had encouraged her to obtain and carry for protection – and fired the shot that killed him. Id. 522, 523.

At trial, the State was determined to prevent the jury from hearing about anything that Whaley had ever said to Wallace-Bey. Before trial began, the circuit court granted the State’s motion in limine, excluding, “‘as hearsay,’ ‘any statements that [the] defendant would say that the victim in this matter said to her.’” Id. at 518. During defense counsel’s opening statement, the court sustained several objections, and it appeared “that the court sustained objections to comments about anything that Whaley said to Wallace-Bey during their relationship, but overruled objections to comments about what Whaley did to her.” Id. at 513. (emphasis in original). And when Wallace-Bey testified “about the abuse allegedly perpetrated by Whaley, the court sustained objections and granted motions to strike whenever Wallace-Bey testified about things Whaley allegedly said to her during their relationship.” Id. at 524. Eventually “defense counsel began to narrow the scope of questions whenever the response might involve words spoken by Whaley,” and when the prosecutor cross-examined Wallace-Bey, she was so “conditioned to avoid mentioning any words spoken to her by Whaley,” she “often gave vague responses.” Id. at 524, 525-26.

At one point, Wallace-Bey testified about an incident where Whaley had sex with another woman in the apartment he shared with Wallace-Bey, while Wallace-Bey was also in the apartment. After having sex with that woman, he assaulted Wallace-Bey, who testified about that violent act: “He put me in a headlock and slowly took me down to the floor. When we got down to the floor he said. . . .” Id. at 524 (internal quotation marks omitted). The State objected, “and Wallace-Bey promptly apologized before the court ruled on the objection.” Id. When she testified that Whaley ordered her to “get naked” during an incident where he tried to have sex with her, the court granted a motion to strike her testimony. When she testified “that Whaley held her and told her ‘you are not leaving’ in order to keep her in the house that night,” the court again granted the state’s motion to strike. Id. at 525. The court even precluded her from testifying about threats of a sexual nature that Whaley made to her the night she shot him.

The court sustained another objection during Wallace-Bey’s testimony about being raped on the morning of the shooting. She testified that, after Whaley pulled her hair and removed her underwear, “[h]e said ‘you need to learn to take the dick.’” The prosecutor objected and moved to strike the testimony. Defense counsel pointed out that the State had already put the same words into evidence during its case-in-chief. Nevertheless, the court sustained the objection.

Id. at 525 (footnote omitted).

In addition to persuading the trial court to restrict the testimony that Wallace-Bey was permitted to give, the prosecution also succeeded in limiting testimony from the defense’s expert witness. The defense called “Dr. Patricia McGraw, a clinical and forensic psychologist, to testify for the defense as an expert in forensic psychology.” Id. at 526 (footnote omitted). Dr. McGraw opined “that Wallace-Bey suffered from ‘battered spouse syndrome’ as defined under Maryland law as ‘the psychological condition of a victim of repeated physical and psychological abuse’ by a current of former spouse or cohabitant.” Id. at 527. As Dr. McGraw testified, “the court continued to enforce its prohibition on admitting words spoken by Whaley,” striking her testimony about what Whaley had said to Wallace-Bey, including claims “that he was divinely ordained’ or the ‘police of God’” and instances where “he ‘insisted’ that she do certain things.” Id. at 528. The State called Dr. Christine Tellefsen, as an expert in forensic psychiatry, to rebut Dr. McGraw’s testimony. Id. Not surprisingly, she disagreed with Dr. McGraw and concluded that Wallace-Bey did not suffer from battered spouse syndrome. Id.

The jury found Wallace-Bey guilty of first-degree premeditated murder and the use of a handgun in the commission of a crime of violence, and the trial judge sentenced her to life for the murder conviction and a consecutive twenty-year term for the handgun charge. She appealed.

Writing for a panel that included Judges Douglas Nazarian and Dan Friedman, Judge Arthur discussed the “two varieties of self-defense: perfect (or complete) self-defense and imperfect (or partial) self-defense,” and how “evidence of the psychological condition known as battered spouse syndrome may be relevant to the state-of-mind elements of perfect and imperfect self-defense.” Id. at 530, 532 (citations omitted). Judge Arthur then turned his attention to the circuit court’s hearsay rulings.

After briefly touching on Wallace-Bey’s defense theory, Judge Arthur started with the basics and the definition of hearsay, i.e. “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Id. 536 (Internal quotation marks omitted)(quoting Md. Rule 5-801(c)). Judge Arthur further explained that, under Rule 5-801(a), a “statement” must be an “assertion.” Id. at 537. And an assertion is a communication of a factual proposition, which is capable of being either true or false. Id. at 537, 539. To constitute hearsay, the proponent of the out-of-court statement must offer the statement to prove that it is true. Id. at 537. Before going further in his analysis, Judge Arthur observed that the State’s pretrial motion in limine was baseless on its face:

In its motion in limine at the outset of Wallace–Bey’s defense case, the State requested a categorical ruling that vastly exceeded the scope of the rule against hearsay. The State requested that Wallace–Bey “not be able to testify to any words that the victim,” Whaley, “said to her.” (Emphasis added.) Aside from identifying Whaley as the declarant, the State offered no details about any of the declarations that it sought to exclude. The State supplied no information for the court to evaluate whether any of the unspecified declarations were “assertion[s]” by Whaley and thus “statement[s]” within the meaning of Rule 5–801(a). The State insisted that Whaley’s words would be “offered for the truth,” but said nothing about what “truth” Whaley was asserting or what “truth” Wallace–Bey would be attempting to prove. The State did not come anywhere close to meeting its burden on its motion in limine. The court should have summarily denied the State’s unfounded motion.

Id. at 537-38.

After concluding that granting the motion in limine was error, the Court considered the trial court’s rulings sustaining the State’s objections to specific questions and granting the State’s motions to strike specific pieces of testimony. The Court noted that “[i]n general, orders and commands are not factual assertions,” and “[t]o the extent that the two declarations ‘get naked’ and ‘you are not leaving’ were orders, they were not assertions.” Id. at 539. And even if those declarations were assertions, “Wallace-Bey did not offer that evidence to prove what Whaley said was true.” Id.

The Court then addressed the trial court’s ruling that precluded Wallace-Bey from testifying about what Wallace said to her shortly before she shot him:

Wallace–Bey argues that the court further erred by striking her testimony that, just before Whaley raped her on the morning of the killing, he “said ‘you need to learn to take the dick.’ ” The State again insists that this statement was hearsay, but conspicuously fails to make any effort to explain how the statement could possibly satisfy the definition of hearsay. Even if Whaley’s alleged remark were an assertion of some kind, defense counsel certainly was not offering that testimony to prove the “truth” of whatever vile message he was allegedly asserting. Defense counsel introduced that statement to show how Wallace–Bey understood that Whaley was going to rape her at that time. The decision to strike that testimony was particularly aberrant, because Wallace–Bey’s testimony about those words was important to evaluating her perception that Whaley would assault her again when she shot him minutes later.

Id. at 540 (citations omitted).[1]

As Judge Arthur explained for the Court, “[t]estimony about words spoken by the victim to the defendant can be particularly probative in cases where the defendant raises the issue of battered spouse syndrome,” as that evidence sheds insight on “the cycle of violence at the center of the syndrome.” Id. at 541. Evidence of what Whaley said to Wallace-Bey was both “essential to explaining the nature of [Wallace-Bey’s] psychological abuse” and crucial to establish the foundation for Dr. McGraw’s expert testimony. Id. at 542. Not only did the trial court err when it restricted Wallace-Bey’s testimony, it also erred when it placed the same restrictions on Dr. McGraw’s testimony. “The defense offered testimony about [Whaley’s] comments for the appropriate purpose of illuminating Dr. McGraw’s opinion about psychological abuse from Whaley that Wallace–Bey suffered. The court duplicated its earlier error by continuing to rule that everything spoken by Whaley to Wallace–Bey was inadmissible hearsay.” Id. at 544 (footnote omitted).

Having concluded that the trial court erred, the appellate court turned to the issue of harmless error – an issue that figured prominently in the State’s argument on appeal. Judge Arthur described the State’s position: “Perhaps because of the indefensibility of the absurd position that the prosecution persuaded the trial court to adopt, the State makes almost no effort to explain how Whaley’s reported statements could possibly have been hearsay.” The State instead argued harmless error, suggesting “that the excluded testimony could not have affected the jury’s evaluation of Wallace-Bey’s self-defense claim.” Id. The Court of Special Appeals was not impressed, concluding “that the exclusion of an entire category of evidence substantially impaired the presentation of Wallace-Bey’s defense.” Id. at 546. Consequently, the Court could not “come anywhere close to saying that the erroneous rulings had no effect on the outcome.” Id. Wallace-Bey’s convictions were reversed and she was awarded a new trial.[2]

I think there is a moral to this story. Trial lawyers are frequently tempted to “push the envelope,” hoping they can persuade a busy trial judge to adopt a position that is at best doubtful and at worst simply wrong. Here, the prosecutor inveigled the trial judge into a position that the appellate court labelled as “absurd.” The temptation to push the envelope should be avoided, for while trial counsel might earn a victory, the victory will likely be short lived. In this case, the prosecution’s strategy ultimately earned it the right to try the case a third time.

[1] At trial, the prosecutor also argued “that it was ‘unfair’ for Wallace-Bey to ‘say that the victim said all these things with no possible way for the State to rebut’ her testimony, because Whaley was dead.” Id. at 541. But the same was true for Wallace-Bey’s “testimony about things Whaley allegedly did to her.” Id. (emphasis in original). Plus, the rules of evidence “do not bar admission of nonhearsay simply because the opposing party is unable to call the declarant to confirm or deny whether he actually made a declaration.” Id. The Court rejected the State’s novel argument.

[2] As the case was remanded for a new trial, the court also addressed other issues raised by Wallace-Bey, which could come up again at the new trial. First, evidence that persons other than Whaley abused Wallace-Bey can be relevant and is not excluded by Md. Code Ann., Cts. & Jud. Proc. §10-916. Second, “[t]estimony about how battered spouse syndrome relates to other psychological conditions, including post-traumatic stress disorder and depression, and about whether and how Wallace–Bey experienced those related conditions, should not be excluded as irrelevant.” Id. at 563. Finally, a portion of Wallace-Bey’s testimony conflicted with a detective’s testimony. On cross-examination, the prosecutor asked her if she was calling the detective a liar. That was improper, so when the case is tried again, and “upon a timely objection, the court should not permit any witness to be questioned about the credibility of any other witness.” Id.

This article originally appeared in the Maryland Appellate Blog.