Johnson v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 158

September Term, 2014

KIMBERLY JOHNSON

v.

STATE OF MARYLAND

Meredith,
Woodward,
Wright,

JJ.

Opinion by Woodward, J.

Filed: May 28, 2015
 On May 21, 2013, appellant, Kimberly Johnson, hit Wayne Vendemia, causing him

to fall down and strike his head on the road. Vendemia later died of his injuries. Appellant

was subsequently convicted of involuntary manslaughter after a jury trial in the Circuit Court

for Baltimore City. The court sentenced appellant to seven years’ incarceration.

Appellant presents three questions on appeal, which we have rephrased as follows:1

1. Did the trial court err or abuse its discretion by modifying the
pattern jury instruction for second degree assault?

2. Did the trial court abuse its discretion in failing to instruct the
jury concerning self defense?

3. Did the trial court err by giving the pattern jury instruction for
involuntary manslaughter?

Answering all three questions in the negative, we shall affirm the judgment of the

circuit court.

1
Appellant’s questions as originally presented are:

1. Did the trial judge commit reversible error when he modified
a pattern jury instruction over defense counsel’s objection and
refused to allow defense counsel to argue that Kim Johnson
acted reasonably when she slapped a man who had just spit on
her?

2. Did the trial judge err when he refused to give a self-defense
instruction even when there was sufficient evidence to support
a self-defense theory?

3. Is reversal required because the pattern jury instruction given
on for [sic] involuntary manslaughter contained a gross
misstatement of the applicable law of the crime?
 FACTUAL BACKGROUND

At approximately 8:15 PM on May 21, 2013, Baltimore City police officers responded

to a call regarding an injured person on the 900 block of De Soto Road. According to

witnesses, appellant struck Vendemia, which caused him to fall down in the road and strike

his head. Appellant then left the scene. Vendemia was taken to the hospital, where he died

a few days later from his head injuries.

On May 23, 2013, appellant was arrested and transported to the police station, where

she agreed to be interviewed. Appellant gave a recorded statement in which she told police

that she had been driving around on the evening of May 21, 2013, looking for Ray Dillon,

with whom she had an on-again, off-again relationship. Appellant stated that upon seeing

Vendemia exit Dillon’s van, she ran towards the van and yelled at Vendemia, asking where

he had come from. Appellant described what happened next:

I said Wayne um where the fuck did you just come from and of course
I seen that he was all high and you know he was you know
spitting when he was talking and he kept you know just saying
um it’s a coincidence you didn’t see me and he spitting and I’m
really funny about but not on purpose but he’s just spitting on
me. . . . And I’m angry anyway so I hit him in his face on that side of
his face I hit him and the man fell and in the ground hit his head in the
street. And the trucks and cars are going by and you know of course
I’m mad and all but um I’m not going to see nobody get hit or killed
or anything.

(Emphasis added).

Appellant stated that she pulled Vendemia up and over to the curb to keep him from

being hit by cars driving on the street. Appellant told police that she asked other people

2
nearby for help, but that no one would help her. Appellant told police:

I mean yes, I did wrong. I was angry, upset and you know and he
when he was yelling at back me at it’s a coincidence and he started
you know spitting on me lips. It was just—I am scared to death of
germs . . . . And you know I don’t know what nobody’s got I don’t
want be spit you know what I’m saying and I was mad anyway and I
hit him one time and I believe if he wouldn’t have been so intoxicated
he wouldn’t have even fell.

Appellant also gave the police a note that she had written to Vendemia after being told

that he was alive but “brain dead,” which said:

Dear Wayne, I’m sorry for making you bust your head. Why did this
happen. Please believe I am so sorry. I don’t know what makes me
crazy and I know you do drugs and when you were yelling at me you
spit on me. I am scared of germs and disease. I am scared of
everything but I hope you forgive me. I am so, so sorry Wayne.

Appellant was subsequently indicted for second degree murder. On January 28, 2014,

trial began in the circuit court. Over the course of the trial, the State presented the testimony

of, among others, three witnesses to the altercation between appellant and Vendemia.

Bradley Baber testified that he and his girlfriend, Stacy Dillon, were driving on the

900 block of De Soto Road on May 21, 2013, when they saw appellant “dragging a guy off

the street and just saying help” and “someone help me get this junkie out of the street.”

Baber testified that he knew appellant as the girlfriend of Ray Dillon, who is Stacy Dillon’s

father. Baber testified that no one came to help appellant, and that he saw appellant drop

Vendemia on the concrete “in between the street and the sidewalk,” which caused

Vendemia’s head to hit the concrete. Appellant then got into her van and drove away.

3
 Stacy Dillon testified that she and Baber were driving to her aunt’s house on De Soto

Road on May 21, 2013. After she parked the car, Stacy saw appellant dragging Vendemia

out of the street, then pulling her arms out from under Vendemia and letting his head hit the

road. Stacy also testified that appellant called Vendemia a “fucking junkie.” When Stacy

told appellant, “I think he’s really hurt,” appellant screamed “No, he’s not.” Stacy testified

that she took Vendemia’s pulse and it was “racing.”

Hugo Morales testified that he was mowing his front lawn when he observed the

following:

[MORALES]: I heard her say where’s my fucking old man at,
excuse my language and [Vendemia] walked
over to her and she asked him again and he said
I don’t know and she started hitting him and
[Vendemia] put his hands up trying to get away
from her and she hit him pretty good and
[Vendemia] put his hands up just to block the
shots and she said I’m going to ask you again
where is my old man at and [Vendemia] says I
don’t know. She says don’t you fucking lie to
me. I know you know where’s he’s at, you were
just with him. Even though [appellant] didn’t
mean to do it, but even though somebody else
gassed her up and got her all pumped up and
mad, she asked [Vendemia] again and at that
time she connected a good blow and he fell
down and hit his head on the concrete and—

***

[MORALES]: That’s when he hit the ground when he fell
straight back.

[PROSECUTOR]: What hit the ground?

4
 [MORALES]: His head.

[PROSECUTOR]: And what did you see?

[MORALES]: Him laying there and I told Jessie [2] to grab her
and Jessie says I’m not getting near her and it
just happened so quick and then she—well,
[Vendemia] wouldn’t respond. He was laying
on the ground and [appellant] said, oh, he’s just
fucking faking. He’s nodding and I said he’s
not nodding. He’s out. She had a big gulp of
soda and she said I’ll get his fucking ass up
watch this. Threw the whole big cup of coke, a
big cup of soda in his face and he didn’t
respond. So she kicked him and then spit on
him.

[PROSECUTOR]: Who kicked him?

[MORALES]: [Appellant] did.

Morales also testified that he had known Vendemia for about two years, that

Vendemia weighed about 100 to 110 pounds, and that appellant outweighed Vendemia by

about fifty pounds. Morales said that Vendemia was “purple” and that he believed Vendemia

was dead or dying when he called 911. Morales also stated that Vendemia had a bone

disease and that he usually drank every day and was a drug user.

Dr. Mary Ripple, the Deputy Chief Medical Examiner of Maryland, testified that

Vendemia had a “pretty severe head injury,” and that the cause of his death was subarachnoid

hemorrhage, or bleeding on the surface of his brain. According to Dr. Ripple, at the time

2
“Jessie” is Jessie Dillon, Ray Dillon’s sister and Stacy Dillon’s aunt.

5
Vendemia’s blood was drawn at 8:47 p.m. on May 21, 2013, he had a blood alcohol content

of .059. Dr. Ripple also testified that she had a report that Vendemia had Kennedy’s disease,

a genetic condition that weakens muscles and causes those afflicted to be more susceptible

to injury. Dr. Ripple stated that someone suffering from Kennedy’s disease would be “a little

less able to react so that makes you a little more suspectible [sic] to injury,” but that she did

not know the extent of the progression of Vendemia’s condition. Dr. Ripple indicated that

she did not see any injury to the back of Vendemia’s head, but that the impact to both sides

of his face indicated that he fell at least twice, or that he was punched on one side of his face

and fell on the other.

Detective Steven Matchett, a homicide detective with the Baltimore City Police

Department, testified that, after obtaining an arrest warrant, he arrested appellant on May 23,

2013. Detective Matchett stated that appellant was read her Miranda rights and gave the

aforementioned recorded statement to police. The court admitted the CD containing

appellant’s statement without objection from appellant, and the CD was played for the jury.

At the close of the State’s case-in-chief, appellant moved for judgment of acquittal

as to second degree murder. The State argued in response that there was sufficient evidence

to support the charge of second degree murder under the theory of second degree depraved

heart murder. The court granted the motion as to second degree murder, and the case

proceeded on the lesser included offense of involuntary manslaughter.

Appellant testified in her own defense. The testimony was substantively similar to her

6
recorded statement to the police. Appellant testified that Vendemia exited Ray Dillon’s van,

that she confronted Vendemia aggressively using profanity, that Vendemia responded by

“hollering and yelling at [her],” and that in doing so, he spit in her mouth. Appellant stated

that she hit Vendemia one time with the back of her hand, that Vendemia stumbled and fell

into the street, hitting his head, that she dragged Vendemia out of the street, and that she then

left the scene in her van.

Appellant testified further regarding her reaction when Vendemia spit on her: “I’m

so scared of diseases and germs that—it just—all kinds of emotions. I just felt all kind of

emotions, scared, you know. I went to my doctor’s and got a HIV test right after that. I

mean, that’s how scared I am of all of that.” Appellant said that when she hit Vendemia, “I

wasn’t thinking, I mean I wasn’t thinking nothing. It’s just—it was a reaction from the spit

in my face. You know, it went in my mouth. It went in my mouth.” Appellant agreed that

Vendemia never struck her, and that Vendemia fell because she hit him.

As previously stated, the jury convicted appellant of involuntary manslaughter. On

March 10, 2014, the court sentenced appellant to seven years’ incarceration. Appellant filed

a timely notice of appeal. Additional facts will be set forth as necessary to our discussion of

the questions presented in the instant appeal.

DISCUSSION

Standard of Review

On review of a trial court’s ruling granting or denying a proposed jury instruction, “we

7
consider whether the instruction was generated by the evidence, whether it was a correct

statement of law, and whether it otherwise was fairly covered by the instructions actually

given. We review the trial court’s decision not to grant a jury instruction under an abuse of

discretion standard.” Gimble v. State, 198 Md. App. 610, 627 (citations omitted), cert.

denied, 421 Md. 193 (2011).

Involuntary Manslaughter and Jury Instruction on Second Degree Assault

Involuntary manslaughter is a common law felony defined as an unintentional killing

done without malice

(1) in doing some unlawful act not amounting to a felony, or (2) in
negligently doing some act lawful in itself, or (3) by the negligent
omission to perform a legal duty. To this basic definition other
authorities add the qualification, as to the first class of involuntary
manslaughter, that the unlawful act be malum in se, and not merely
malum prohibitum, and as to the second and third classes of the
offense, that the negligence be criminally culpable, i.e., that it be
gross.

State v. Gibson, 4 Md. App. 236, 242 (1968) (footnote and citations omitted), aff’d, 254 Md.

399 (1969).

In the instant case, it is undisputed that the type of involuntary manslaughter at issue

is the “unlawful act” involuntary manslaughter, and that the unlawful act is the battery form

of second degree assault. See Md. Code (2002, 2012 Repl. Vol.), § 3-203 of the Criminal

Law (I) Article; Snyder v. State, 210 Md. App. 370, 382 (noting that there are three types of

second degree assault: intent to frighten, attempted battery, and battery), cert. denied, 432

Md. 470 (2013).

8
 The Maryland pattern jury instruction for the battery form of second degree assault

provides:

Assault is causing offensive physical contact to another person. In
order to convict the defendant of assault, the State must prove:

(1) that the defendant caused [offensive physical
contact with] [physical harm to] (name);

(2) that the contact was the result of an intentional
or reckless act of the defendant and was not
accidental; and

(3) that the contact was [not consented to by
(name)] [not legally justified].

Maryland Criminal Pattern Jury Instructions 4:01 (2d ed. 2012) (“MPJI-Cr”) (brackets and

parentheses in original).

During the court’s discussion of the above pattern jury instruction with counsel for

the parties, the following colloquy occurred:

[PROSECUTOR]: And then when we get to the 4.01
second degree assault b attery
instruction I believe that given the facts
of this case that number three that contact
was not legally justified that would be
only if, A, she was charged with assault
and, B, if this was a—there has been
some legal defense put forth and right
now there is nothing—the way I read the
self-defense statute there’s nothing that
w ould generate a self-d efense
instruction or a legal justification.

Now, there might be some type of, you
know, people might feel—

9
THE COURT: I don’t disagree. I mean in the sense
that—all right, [defense counsel], even if
I gave that instruction what is—I mean I
think the jury needs—what are you
saying is the legal justification I guess?

[DEFENSE COUNSEL]: That her response was that of a [sic]
ordinary reasonable person in those
circumstances.

THE COURT: Okay. Is there an instruction to that
effect? I mean I don’t think a jury—I
mean I don’t know. They certainly
wouldn’t know from their own
knowledge.

[DEFENSE COUNSEL]: Are you going to say this jury can’t find
that her action was reasonable?

THE COURT: Well, what I need to do is I need, if I
was going to give this instruction, I
need to have a definition of legal
justification. That’s what I need. I
don’t know if this jury knows what that
term means in and of itself. If we define
it for them and it’s appropriate, maybe I
would give it but I think just saying it’s
legally justified—I think there has to be
some explanation of that if it’s going to
be permitted. So what is the legal
justification?

[PROSECUTOR]: I have 5-07 here self-defense
instruction from the Maryland Pattern
jury instruction and I can hand it up to
Your Honor. I have a copy.

THE COURT: I got it.

[PROSECUTOR]: It’s 5-07.

10
THE COURT: Okay. I mean do you disagree,
[defense counsel]? Self-defense isn’t
the legal justification here.

[DEFENSE COUNSEL]: That is correct, Your Honor.

THE COURT: Okay. So what is? You got to tell me
what is—I think of legal justification as
a generic term and inside that, for
instance, self-defense or defense of
another or something to that effect. So
what is the legal justification and give me
that. That’s what I need to tell this jury.
What is the legal justification for a
defense of this charge?

[DEFENSE COUNSEL]: The legal justification is that a person
upon whom one has spit has the right
to react whether it be to slap or come
back the way she described it.

THE COURT: Okay. You’re saying what? Because
this is such provocative [sic] that
spitting in itself—

[DEFENSE COUNSEL]: Yes.

THE COURT: Again, that’s sort of—I get what you
want to argue. I just want to know what
legally—how do I define what you are
asking me to do. Defenses, defense of
others, defense of (inaudible) duress,
entrapment. I mean, I think there’s
a—isn’t there—to reduce a charge I
mean, provocation or something to that
effect.

[DEFENSE COUNSEL]: I looked at that one. That deals with the
reduction of, or heat of hot blood.

11
 THE COURT: Okay. So tell me—if you can show me
some sort—I mean, if you show me a
case that provocation is a defense to
assault, I’m happy to use it but I
don’t—I mean, do you have something
like that [defense counsel]? I mean—

[DEFENSE COUNSEL]: I do not, Your Honor. As I indicated
when I came in, I was assuming we were
under B, not C but that doesn’t excuse it.
I have a brain chill.

(Emphasis added).

The trial court then discussed several cases with counsel, including State v. Rich, 415

Md. 567 (2010), and Christian v. State, 405 Md. 306 (2008), in an attempt to determine if

provocation was a legal defense to second degree assault. During the discussion, defense

counsel said: “I suggest that the definition of legal justification in this case is whether or not

the defendant’s conduct was that consistent with the actions of a reasonably prudent

individual under the same circumstances.” The State disagreed, arguing that provocation is

not a defense to involuntary manslaughter, and could only reduce first degree assault to

second degree assault. Defense counsel agreed that he had found no case to support his

argument, but continued to argue “that the defendant acted reasonably under the reasonable

man concept.”

The trial court decided not to give the legal justification part of the pattern jury

instruction for the battery form of second degree assault. The court instructed the jury, in

relevant part:

12
 The defendant is charged with the crime of involuntary manslaughter.
In order to convict the defendant of involuntary manslaughter, the
State must prove, one, that the defendant committed an assault; two,
that the defendant killed [ ] Vendemia and three, that the act resulting
in the death of [ ] Vendemia occurred during the commission of the
assault.

So you understand what an assault is. An assault is causing
offensive physical contact to another person. So the State must
prove then that the defendant caused offensive physical contact to
[ ] Vendemia and that the contact was the result of an intentional
or reckless act of the defendant and was not accidental, okay.

(Emphasis added). After the court finished instructing the jury, appellant objected that the

court did not give the third element of the pattern jury instruction, namely, that the contact

was not legally justified.

Contentions

Appellant argues that the trial court erred by modifying the pattern jury instruction for

second degree assault, because the court should have read the last part of the jury instruction,

which would have allowed the jury to consider “the possible effect on liability if there was

justification for [appellant’s] behavior.” Appellant contends that the court’s modification to

the instruction “expressly prevented defense counsel from arguing that [appellant] should not

be convicted because she had behaved reasonably, and thus was legally justified in flailing

out at [ ] Vendemia when he spit on her.” According to appellant, the jury should have been

instructed regarding reasonableness, because if the jury believed appellant’s testimony that

she “acted reflexively” without thinking when she hit Vendemia, then the jury could have

believed that appellant “did not intend to slap [ ] Vendemia, but rather was simply reacting

13
to having her body invaded by the bodily fluids of a known drug and alcohol abuser.” 3

The State responds that the trial court did not err in declining to instruct the jury that

in order to find the battery form of second degree assault, the State must prove that

appellant’s conduct was “not legally justified,” because (1) “reasonableness” is not a

recognized defense, and (2) the defense of provocation is inapplicable. The State argues that

“reasonableness” does not absolve a defendant of criminal liability; rather, the criminal code

prohibits conduct that is presumptively unreasonable and thus is subject to criminal sanction.

Moreover, the State argues, a provocation defense is inapplicable to the instant case, because

provocation may only mitigate the presence of malice; it cannot eliminate all responsibility

for an otherwise criminal act. Because second degree assault is a general intent offense that

does not require malice, the State concludes that whether appellant was provoked has no

effect on her criminal liability.

Analysis

The Maryland pattern jury instruction for second degree assault provides in its

entirety:

MPJI-Cr 4:01
SECOND DEGREE ASSAULT

3
Appellant conceded in her brief that “[t]he trial judge correctly instructed the jury
by stating the offensive conduct must be intentional or reckless.” At oral argument before
this Court, however, appellant’s counsel asserted that appellant’s reflexive response to the
spitting negated the mens rea necessary to a finding that appellant committed a battery. Such
argument relates to an issue of the sufficiency of the evidence to convict appellant. That
issue was not raised in or decided by the trial court and thus is not preserved for our review.
See Rule 8-131(a).

14
The defendant is charged with the crime of assault.

A
INTENT TO FRIGHTEN

Assault is intentionally frightening another person with the threat of
immediate [offensive physical contact] [physical harm]. In order to
convict the defendant of assault, the State must prove:

(1) that the defendant committed an act with the
intent to place (name) in fear of immediate
[offensive physical contact] [physical harm];

(2) that the defendant had the apparent ability, at
that time, to bring about [offensive physical
contact] [physical harm]; and

(3) that (name) reasonably feared immediate
[offensive physical contact] [physical harm];
[and]

[(4) that the defendant’s actions were not legally
justified.]

B
ATTEMPTED BATTERY

Assault is an attempt to cause [offensive physical contact] [physical
harm]. In order to convict the defendant of assault, the State must
prove:

(1) that the defendant actually tried to cause
immediate [offensive physical contact with]
[physical harm to] (name);

(2) that the defendant intended to bring about
[offensive physical contact] [physical harm]; and

(3) that the defendant’s actions were not consented

15
 to by (name) [or not legally justified]. (notes on
use)

C
BATTERY

Assault is causing offensive physical contact to another person. In
order to convict the defendant of assault, the State must prove:

(1) that the defendant caused [offensive physical
contact with] [physical harm to] (name);

(2) that the contact was the result of an intentional
or reckless act of the defendant and was not
accidental; and

(3) that the contact was [not consented to by
(name)] [not legally justified].

Notes on Use

Use this instruction if the defendant is charged with second
degree assault, under Md. Code Ann., Crim. Law I § 3-203 (2012).
Use version “A” when the only theory of assault is an intent to
frighten type of assault. Use (4) only if the evidence generates
justification, e.g., self-defense, and give the instruction for that
justification. Use version “B” when the only theory of assault is an
attempted battery type of assault. Out of an abundance of caution, use
(3) unless it is clear that there is neither justification nor consent. Use
version “C” when the only theory of assault is a battery. Out of
an abundance of caution, use (3) unless it is clear that there is
neither justification nor consent. Although version “B” and version
“C” may both be applicable, it is unlikely that both version “A” and
version “B” are applicable or that both version “A” and version “C”
are applicable.

MPJI-Cr 4:01 (emphasis added) (brackets and parentheses in original).

The commentary instructs the trial court to use the third part of the subject instruction

16
“unless it is clear that there is neither justification nor consent.” In the instant case, there was

neither. There has been no issue raised by appellant regarding consent, and, as the State

correctly argues, there is no legal justification, because appellant’s asserted reasonable

behavior is not a recognized defense to second degree assault.

The law recognizes certain defenses as legal justification for criminal acts: self

defense, defense of others, duress, etc. See, e.g., Lee v. State, 193 Md. App. 45, 58

(“Defense of others, like self-defense, is a justification or mitigation defense.”), cert. denied,

415 Md. 339 (2010); Wentworth v. State, 29 Md. App. 110, 117 (1975) (“[D]uress, coercion

or compulsion is ordinarily a valid defense to a charge of crime.”), cert. denied, 278 Md. 735

(1976). For a claim of “reasonableness” to be relevant to a determination of criminal

liability, that “reasonableness” must be rooted in one or more of the defenses recognized by

the law as applicable to the offense at issue. See, e.g., Christian, 405 Md. at 323-27

(discussing the applicability of reasonable behavior with regard to a claim of perfect and

imperfect self defense). Here, appellant claims that her reflexive response to Vendemia

spitting in her mouth was reasonable, but does not tie that behavior to any recognized legal

defense. Appellant cites to no authority, and we have found none, for the proposition that,

standing alone, reasonableness is a defense recognized as a legal justification for second

degree assault.

In our view, the closest recognized legal defense raised by appellant’s argument is

17
provocation.4 A provocation defense, however, serves only to mitigate the presence of

malice and cannot absolve an individual of all criminal liability. See State v. Faulkner, 301

Md. 482, 486 (1984) (“These acts, because they create passion in the defendant and are not

the product of a free will, negate malice and thus mitigate a homicide to manslaughter.”);

Dennis v. State, 105 Md. App. 687, 695 (stating that provocation “constitute[s] a mitigating

factor sufficient to negate the element of malice [that] thereby reduce[s] murder to

manslaughter”), cert. denied, 340 Md. 500 (1995). Because the defense of provocation may

mitigate only one criminal offense into another, lesser criminal offense, it follows that, even

if the defense of provocation applied in the instant case, any application of that defense

would necessarily and ultimately result in a finding that appellant committed some lesser

criminal offense.

Moreover, second degree assault is a general intent offense that does not require

malice. See Genies v. State, 196 Md. App. 590, 601 (2010), aff’d, 426 Md. 148 (2012); see

also Wieland v. State, 101 Md. App. 1, 40 (1994) (“A consummated intentional battery

requires a general intent on the part of the perpetrator to hit the victim.”). Because it lacks

the element of malice, second degree assault cannot be reduced by the defense of

provocation into some lesser offense. Indeed, second degree assault has no lesser included

offense. Consequently, an instruction on provocation could not have had any effect on

4
Although, in her brief, appellant disclaims that she is arguing that she “was so
provoked by [ ] Vendemia spitting on her that she killed him in a hot-blooded rage,” the State
has argued extensively the inapplicability of a provocation defense. Thus we believe it
appropriate to briefly address the argument.

18
whether appellant committed second degree assault as the “unlawful act” for involuntary

manslaughter. Accordingly, the court did not err in declining to give the third part of the

pattern instruction on the battery form of second degree assault.

Self Defense Instruction

Contentions

Appellant next argues that appellant was entitled to a self defense instruction, because

“her testimony established sufficient evidence to support a theory [that] Vendemia was the

aggressor and assaulted [appellant] first.” Appellant asserts that in her testimony, she

expressed her belief that “she was in danger of bodily harm via infection or disease,” which

was corroborated by the fact that she got an HIV test after Vendemia spat on her. Moreover,

appellant argues, “[t]he fact that no one . . . was willing to come to [ ] Vendemia’s aid after

he fell to the ground in the middle of the street added credibility to an argument that

[appellant’s] fear was objectively reasonable.” Appellant also points to the fact that

Vendemia spit on her before she hit him to support her argument that Vendemia was the

aggressor.

The State responds that appellant’s claim of error regarding the court’s failure to

instruct on self defense is waived for appellate review, because appellant did not object

below and in fact affirmatively rejected the court’s invitation to consider the instruction’s

applicability. Additionally, the State argues, the evidence did not generate a self defense

instruction, because appellant’s recorded statement to the police and her trial testimony

19
showed that she understood the spitting to be accidental, and appellant did not produce

testimony that she believed that she was in immediate or imminent danger of bodily harm.

Analysis

We agree with the State that any error on the part of the trial court in failing to give

a self defense instruction is not only not preserved for our review, but is affirmatively

waived. First, appellant waived her rights on this issue when she did not request a self

defense instruction. See Tull v. State, 230 Md. 152, 156 (1962) (holding that it was not plain

error for the court not to give a self defense jury instruction where the defendant did not

request one); Martin v. State, 174 Md. App. 510, 520 (2007) (“[A] party waives his/her rights

when he/she fails to request an instruction . . . .”); Cicoria v. State, 89 Md. App. 403, 426

(1991) (considering Maryland Rule 4-325(e) and determining that, where a party failed to

request the court to instruct the jury on a good faith defense, “he waived any possible error”),

aff’d, 332 Md. 21 (1993).

Second, defense counsel expressly advised the trial court that appellant was not

asserting self defense:

[PROSECUTOR]: I want to do a little quick—I might want
to do a little quick research to see if
assault second is a lesser included
offense of manslaughter.

THE COURT: Okay. I thought that was in the
instructions somewhere. Somebody
asked for that, I don’t know.

20
 [PROSECUTOR]: I asked for it just because of the way
manslaughters instruct, but I might ask
for it as an actual charge and then
secondly I might want to do a little
research because it sounds like he’s
alluding to its self-defense—

[DEFENSE COUNSEL]: No.

(Emphasis added).

As previously quoted, when the trial court stated that “[s]elf-defense isn’t the legal

justification here,” defense counsel responded, “That is correct, Your Honor.” Later, the

court again said: “I think [that defense counsel] is saying it wasn’t self-defense. So I mean

he’s not arguing that.” Defense counsel did not correct the trial court.

Even if preserved, the evidence was not sufficient to generate a self defense

instruction. There are four elements of self defense:

(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 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.

Haile v. State, 431 Md. 448, 472 (2013) (alterations in original) (citations and internal

21
quotation marks omitted); MPJI-Cr 5:07.

In the instant case, the evidence was arguably insufficient as to all four factors. The

evidence was most clearly insufficient for the fourth factor, because appellant responded with

“unreasonable and excessive” force by hitting Vendemia after he spit on her. Haile, 431 Md.

at 472. There is no evidence of aggressive conduct by Vendemia towards appellant during

their conversation. In her recorded statement to police, appellant said that Vendemia was

“spitting when he was talking . . . but not on purpose but he’s just spitting on me,” indicating

that even she believed that the spitting was unintentional on Vendemia’s part. Accordingly,

even if preserved, the trial court did not err in failing to instruct the jury concerning self

defense.

Involuntary Manslaughter Instruction

The Maryland pattern jury instruction for unlawful act involuntary manslaughter

provides:

MPJI-CR 4:17.9
HOMICIDE–INVOLUNTARY MANSLAUGHTER
(GROSSLY NEGLIGENT AND UNLAWFUL ACT)

***

B
INVOLUNTARY MANSLAUGHTER–
UNLAWFUL ACT

The defendant is charged with the crime of involuntary manslaughter.
In order to convict the defendant of involuntary manslaughter, the
State must prove:

22
 (1) that [the defendant] [another participating in the
crime with the defendant]] [[committed]
[attempted to commit]] (unlawful act(s));

(2) that [the defendant] [another participating in the
crime] killed (name); and

(3) that the act resulting in the death of (name)
occurred during the [commission] [attempted
commission] [escape from the immediate scene]
of the (unlawful act(s)).

MPJI-Cr 4:17.9B (brackets and parentheses in original). In accordance with the pattern jury

instruction, the trial court in the instant case instructed the jury as follows:

The defendant is charged with the crime of involuntary manslaughter.
In order to convict the defendant of involuntary manslaughter, the
State must prove, one, that the defendant committed an assault; two,
that the defendant killed [ ] Vendemia and three, that the act resulting
in the death of [ ] Vendemia occurred during the commission of the
assault.

Appellant did not object to this instruction.

Contentions

Appellant argues that the trial court misstated the law when it gave the pattern jury

instruction on involuntary manslaughter, because the instruction fails to “inform the jury that

the act resulting in the victim’s death must be one that typically endangers human life,” as

required by United Life & Accident Insurance Co. v. Prostic, 169 Md. 535, 538 (1936).

Appellant argues that MPJI-Cr 4:17.9B eliminates the “endangering life” requirement, which

creates a lower standard for conviction.

23
 The State responds that appellant’s argument regarding the “endangers human life”

requirement misstates the law and therefore cannot constitute error. The State points to

Schlossman v. State, 105 Md. App. 277, 288 (1995), cert. dismissed as improvidently

granted, 342 Md. 403 (1996), overruled on other grounds by Bailey v. State, 355 Md. 287

(1999), and the subsection of Judge Moylan’s treatise titled “The Unlawful Act Need Not Be

Life-Endangering.” The State argues that the law is clear that second degree assault is a

malum in se offense, i.e., “punishable because it is wrong in itself,” and thus the jury need

not find that appellant’s assault endangered human life in order for her to be convicted of

involuntary manslaughter.

Analysis

Because appellant did not object to the involuntary manslaughter jury instruction at

trial, this issue is not preserved for our review. Rule 4-325(e) provides:

No party may assign as error the giving or the failure to give an
instruction unless the party objects on the record promptly after
the court instructs the jury, stating distinctly the matter to which the
party objects and the grounds of the objection. Upon request of any
party, the court shall receive objections out of the hearing of the jury.
An appellate court, on its own initiative or on the suggestion of a
party, may however take cognizance of any plain error in the
instructions, material to the rights of the defendant, despite a failure
to object.

(Emphasis added). As this Court has explained, “the Rule’s salutary function is to provide

the trial court an opportunity to correct the instruction before the jury starts to deliberate.”

Martin v. State, 165 Md. App. 189, 197 (2005) (citations and internal quotation marks

24
omitted), cert. denied, 391 Md. 115 (2006). Nevertheless, appellant asks us to exercise plain

error review. We decline to do so and shall explain.

At the outset, we note that it is well-established that a trial court is strongly

encouraged to use the pattern jury instructions. See Yates v. State, 202 Md. App. 700, 723

(2011) (noting that we have repeatedly “recommended that trial judges use the pattern

instructions”), aff’d, 429 Md. 112 (2012); Minger v. State, 157 Md. App. 157, 161 n.1 (2004)

(“Appellate courts in Maryland strongly favor the use of pattern jury instructions.”); Green

v. State, 127 Md. App. 758, 771 (1999) (“[W]e say for the benefit of trial judges generally

that the wise course of action is to give instructions in the form, where applicable, of our

Maryland Pattern Jury Instructions.”). Moreover, the pattern jury instructions are drafted by

“a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who’ of the

Maryland Bench and Bar.” Green, 127 Md. App. at 771.

Speaking for this Court in Yates, Judge Graeff wrote: “This Court has recommended

that trial judges use the pattern instructions. Appellant has not cited any case in which a

Maryland appellate court has held that a trial court committed plain error in following this

recommendation and giving, without objection, a pattern jury instruction.” 202 Md. App.

at 723 (citations and footnote omitted). At oral argument before this Court, appellant’s

counsel conceded that since Yates was published, still no opinion has reversed a trial court

for giving, without objection, a pattern jury instruction. On that ground alone, we would

decline to exercise plain error review.

25
 However, we note for the benefit of the trial bench and bar that the pattern jury

instruction on unlawful act involuntary manslaughter does not misstate the law, as claimed

by appellant. The precise issue raised by appellant was addressed and resolved by this Court

in Schlossman. 105 Md. App. at 284-91. In Schlossman, the appellant was convicted of

involuntary manslaughter stemming from a battery committed on the victim, which later

caused the victim to suffer a fatal heart attack. Id. at 281-82. In discussing unlawful act

involuntary manslaughter, we said:

The first classification of involuntary manslaughter, known as
unlawful act involuntary manslaughter or misdemeanor manslaughter,
can broadly be stated as occurring where one commits a criminal act
not amounting to a felony that unintentionally causes the death of
another. This overly simplistic statement of the rule is misleading,
however, because the rule’s specific requirements hinge upon whether
the unlawful act was malum in se or malum prohibitum. See United
Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539, 182 A. 421
(1935); Gibson, 4 Md. App. at 242, 242 A.2d 575. “An offense
malum in se is properly defined as one which is naturally evil as
adjudged by the sense of a civilized community,” Garnett v. State, 332
Md. 571, 603 n.12, 632 A.2d 797 (1993); it is an act that is wrongful
in itself “without any regard to the fact of its being noticed or
punished by the laws of the state.” Black’s Law Dictionary 959 (6th
ed. 1990). Unlawful acts that are wrong only because they are
prohibited by statute are considered to be malum prohibitum acts.
Garnett, 332 Md. at 603 n.12, 632 A.2d 797 (citation omitted). In the
case sub judice, appellant concedes that he committed “unlawful
acts.” We now must determine whether those acts were malum in se
or malum prohibitum.”

Schlossman, 105 Md. App. at 284-85.

26
 We determined that the appellant’s acts, which included poking the victim with a

stick, urinating on him, and kicking dirt and trash on him while he was passed out,

constituted a criminal battery, and thus such unlawful acts were malum in se. Id. at 285-88.

This Court went on to decide “whether an unlawful act that is malum in se but is not itself

dangerous to life can support a conviction for involuntary manslaughter.” Id. at 285-86.

After reviewing the relevant case law from the Court of Appeals, we concluded:

[A] homicide resulting from the perpetration of a malum in
se unlawful act not amounting to a felony is manslaughter, regardless
of whether the unlawful act was “dangerous to life.” Because
appellant’s battery against the victim was a malum in se criminal
act, we hold that the State was not required to prove that
appellant’s acts were dangerous to life in order to establish a
prima facie case of involuntary manslaughter.

Id. at 288 (bold emphasis added).

The Court of Appeals granted a writ of certiorari in Schlossman, but later dismissed

the writ as improvidently granted. 342 Md. at 403. Over the next twenty years, the Court

of Appeals has not overruled Schlossman. If the Court had intended to overrule Schlossman,

it would have expressly done so. See Moore v. State, 412 Md. 635, 657 (2010) (stating that

“[t]his Court is not in the habit of overruling cases without stating that it intends to do so”

(citations and internal quotation marks omitted)). Accordingly, Schlossman remains good

law today.5

5
In her reply brief, appellant asserts that Schlossman is not “the controlling standard
for unlawful act involuntary manslaughter,” because the Court of Appeals “has never
recognized this standard.” Appellant cites to no authority for such proposition, and we know
(continued...)

27
 Nevertheless, appellant cites to several opinions from the Court of Appeals in which

unlawful act involuntary manslaughter is defined as an unintentional killing done without

malice, “by doing some unlawful act endangering life.” State v. Albrecht, 336 Md. 475, 499

(1994); see Corbin v. State, 428 Md. 488, 513 n.14 (2012); State v. Pagotto, 361 Md. 528,

548 (2000); Dishman v. State, 352 Md. 279 (1998); Cox v. State, 311 Md. 326, 331-32

(1987). None of the cases cited by appellant involve “unlawful act” involuntary

manslaughter as is present in the instant case.6 Therefore, statements in those opinions

relating to unlawful act involuntary manslaughter are pure dicta. See Halliday v. Sturm,

Ruger & Co., Inc., 138 Md. App. 136, 160 (2001) (“[Dictum] refers to a statement made by

a court incidentally or collaterally, and not directly upon the question before it, or upon a

point not necessarily involved in the determination of the cause.” (citation and internal

quotation marks omitted)), aff’d, 368 Md. 186 (2002).

In his book, Maryland Criminal Jury Instructions and Commentary § 5.54(C), at 5-204

to -05 (3d ed. 2009), Professor David E. Aaronson discussed the apparent conflict between

5
(...continued)
of none. The adoption of appellant’s proposition would have the effect of wiping out most
of the body of caselaw issued by this Court over the course of its almost fifty years of
existence. “[A] reported decision [of the Court of Special Appeals] constitutes binding
precedent . . . .” Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292, 325 (2007),
aff’d, 405 Md. 43 (2008).

6
In Dishman, the Court of Appeals “note[d], without deciding, that the facts may also
support an instruction on unlawful act involuntary manslaughter . . . . We need not reach the
question given our conclusion that the facts generated the gross negligence variety of
involuntary manslaughter.” Dishman v. State, 352 Md. 279, 300 n.10 (1998).

28
the dicta of the Court of Appeals in the aforementioned cases and the holding of this Court

in Schlossman, and came to the conclusion that Schlossman expressed the law in Maryland

on this issue. Professor Aaronson wrote:

The legal significance of offenses that are malum in se, malum
prohibitum, or dangerousness to life were examined in Schlossman v.
State, 105 Md. App. 277, 659 A.2d 371. In that case, the Court of
Special Appeals held that an unlawful act can form the basis of
involuntary manslaughter when the act was malum in se regardless of
whether the act was dangerous to human life, or when the act was
dangerous to human life, regardless of whether the act was malum in
se or malum prohibitum. Id. at 288-90, 659 A.2d at 376-77. Note,
however, that in State v. Pagotto, 361 Md. 528, 762 A.2d 97 (2000),
the Court of Appeals recently defined involuntary manslaughter as “an
unintentional killing done without malice by doing some unlawful act
endangering life which does not amount to a felony. . .” Id. at 548,
762 A.2d at 107-08 (emphasis added). State v. Pagotto did not deal
with unlawful act involuntary manslaughter, but instead involved
lawful act grossly negligent manslaughter. Therefore, the
language used by the Court of Appeals in Pagotto may have been
inadvertent and not intended to conflict with the Court of Special
Appeals’s holding in Schlossman. The Court of Appeals had
originally granted certiorari in Schlossman, but subsequently
dismissed certiorari as improvidently granted. Schlossman v. State,
342 Md. 403, 676 A.2d 513 (1995).

Aaronson, supra, at 5-204 to -205 (italic emphasis and alterations in original) (bold emphasis

added).

Accordingly, Professor Aaronson’s jury instruction on unlawful act involuntary

manslaughter states, in relevant part:

In order for ____________ (insert name of defendant) to be
found guilty of involuntary manslaughter, the State must prove
beyond a reasonable doubt that: (1) ____________ (insert name of
defendant) [or another participant in the crime] committed or

29
 attempted to commit ____________ (insert unlawful act(s)) . . . .

***

If the defendant caused the unforeseen death of another
while committing or attempting to commit an unlawful act, [he]
[she] is criminally liable for that death. In order to convict the
defendant of manslaughter, a causal connection between the unlawful
act [attempted] [committed] and the death that results must exist,
although it is not essential that the ultimate harm that resulted was
foreseen or intended. Any killing, even if accidental or impulsive,
is involuntary manslaughter, if committed in the [commission]
[attempted commission] [escape from the immediate scene] of the
____________ (insert unlawful act(s)) .

Id. at 5-203 to -204 (brackets and parentheses in original) (bold emphasis added).

Finally, in his treatise, Criminal Homicide Law § 11.6, at 216-21 (“The Unlawful Act

Need Not Be Life-Endangering”) (2002), Judge Charles E. Moylan, Jr., stated that the

holding in Schlossman was “eminently sound.” Id. at 216. Judge Moylan explained:

Blackstone’s definition of this variety of involuntary manslaughter as
the causing of an unintended death “in the commission of some
unlawful act” made no mention of any requirement that the unlawful
act be dangerous to life. Hochheimer’s definition expressly
disclaimed any such requirement.

The offense is manslaughter, if death results from
merely unlawful conduct . . . contrary to intention, by
means not likely to produce death or mortal injury.

In discussing in detail this variety of involuntary manslaughter,
none of the leading academic authorities, albeit requiring that the
unlawful act be malum in se, makes any mention of a requirement
that it be life-endangering.

Id. (emphasis added) (footnote omitted). Accordingly, we do not hesitate to conclude that

30
the pattern jury instruction on unlawful act involuntary manslaughter accurately states

Maryland law on this crime.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED;
APPELLANT TO PAY COSTS.

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