concurring.
I join in the judgment of the court that the mitigation defense of hot-blooded response to adequate provocation as well as the common law doctrine of imperfect self-defense can apply to the crime of first degree assault. I disagree, however, with the majority’s rationale for so concluding, that, in light of Roary v. State, 385 Md. 217, 867 A.2d 1095 (2005) and under the felony-murder framework, first degree assault may be deemed a shadow form of homicide. I believe that, given the ambiguity in the statutory assault framework itself, the rule of lenity applies.
We expanded the applicability of imperfect self-defense to common law assault with intent to murder in State v. Faulkner, 301 Md. 482, 506, 483 A.2d 759, 772 (1984), and, in Richmond v. State, 330 Md. 223, 233 623 A.2d 630, 634-35 (1993), affirmatively limited the applicability of mitigation *334defenses to shadow forms of homicide, e.g., attempted murder, on the basis that only a very narrow class of malice triggers such defenses. This Court has never addressed the imputation of malice of the murderous species to first degree assault. The statutory assault scheme is ambiguous as to the character of intent present in first degree assault, and it is this ambiguity which, applying the rule of lenity, requires that mitigation defenses be permitted in cases of first degree assault.
Christian v. State and Stevenson v. State, the cases that are consolidated in this opinion, require that we determine whether certain defenses, heretofore applied, except for homicide offenses, only to assault with intent to murder charges, see Richmond v. State, 380 Md. 223, 228, 623 A.2d 630, 632 (1993), now apply to Maryland Code (2000, 2006 Supp.) § 3-202 of the Criminal Law Article, which proscribes the recently promulgated statutory offense of first degree assault.1 Daniel Christian, one of the petitioners, contends that his first degree assault conviction should be mitigated to a second degree assault conviction, as a result of his defense of imperfect self-defense. The other petitioner, Kalilah Romika Stevenson, similarly argues that she should have been convicted only of second degree assault, but on the basis of her defense of hotblooded response to adequate provocation.
The majority correctly recounts the facts of these cases, and explains the history of the crime of assault, related statutory history and the general perimeters of mitigation defenses *335under Maryland law. Christian v. State and Stevenson v. State, 405 Md. 310-17, 322-30, 951 A.2d 834-38, 841-46 (2008).
In 1996, by Chapter 632 of the Laws of Maryland 1996, effective October 1, 1996, the General Assembly changed the legal landscape with regard to the law of assault and battery, both statutory and common law. The effects of these changes were considered by the Court in Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999). There, the question presented was “whether ‘common law assault and battery was a cognizable crime in Maryland after October 1, 1996/ the effective date of statutory assault, 1996 Laws of Maryland, Ch. 632.” Id. at 687, 728 A.2d at 699. We held that they were not, “by this statutory enactment the General Assembly [having] repealed the common law crimes of assault and battery.” Id. In reaching that conclusion, we acknowledged that statutes are not presumed to repeal the common law, id. at 693, 728 A.2d at 702, “that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law,” id., quoting Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934) (quoting 25 R.C.L. 1054), but that it is otherwise where there is a conflict between a statute and the common law or where the statute deals with an entire subject-matter. Id. at 693, 728 A.2d at 702-03, quoting Lutz, 172 A. at 356 (citing Sutherland on Stat. Const. §§ 294; 12 C.J. 186); Watkins v. State, 42 Md.App. 349, 353-54, 400 A.2d 464, 467 (1979) and citing Irvine v. Rare Feline Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind.Ct.App.1997), transfer denied, 698 N.E.2d 1183 (Ind.1998). Although the 1996 statute contained no specific word of repeal or abrogation of the common law or any indication of a conflict,
We ... determined ... that the statutes as adopted represent the entire subject matter of the law of assault and battery in Maryland, and as such, abrogate the common law on the subject. The 1996 statutes are more than mere penalty provisions for the common law offenses of assault and battery. They created degrees of assault unknown to the common law, and while retaining the common law elements of the offenses of assault and battery and their *336judicially determined meanings, the statutes repealed the statutory aggravated assaults and created new offenses.
“Perhaps ironically, some of the best evidence that the 1996 assault statutes comprise more than just penalty provisions for the common law offenses of assault and battery, and that they actually abrogated those common law offenses, derives from the fact that the statutes explicitly repealed and replaced the entire statutory scheme for aggravated assaults then existent, i.e., Assault with Intent to Murder, Ravish or Rob, Assaul1>-Third Person Aiding One Being Assaulted, and Assault by Inmates, as well as the crime of Maiming. See 1996 Laws of Maryland, Ch. 632, § 1, at 3616-17 and 3629; Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.) Article 27, §§ 11E, 12, 12A, and 384-86. The new statutes thus subsumed all previous statutory assault provisions as well as the common law into a single scheme and established a two-tiered regimen.”
Robinson, 353 Md. at 694, 728 A.2d at 703.
The dissenting opinion in that case, Robinson, 353 Md. at 706-08, 728 A.2d at 708-10 (Chasanow, J., dissenting), construed the 1996 assault statute as simply establishing statutorily the penalty for the different forms of common law assault and battery. Rejecting that rationale, the Court chided:
“This interpretation ignores the critical fact that the new statutory scheme now incorporates within it all possible previous assault crimes-common law as well as statutory forms. Prior to October 1, 1996, if a person committed a criminal assault, that crime might have fallen under one of the aggravated assault provisions alluded to above. But not all criminal assaults committed prior to October 1, 1996 fit within the statutory scheme existing at the time. Those assaults that fell outside the statutory provisions could be prosecuted under the common law. The dichotomy between assaults that could fit within the statutory provisions, and those that could not, ended, however, on October 1, 1996. Whether an assault committed prior to the new statutes’ effect fit within the former statutory scheme for aggravated *337assaults, or fell under the common law for simpler offenses, the same assault committed after September 30, 1996 cannot help but fit within one of the new statutory provisions. Any and all assaults, no matter how simple or aggravated, now fit within § 12A, second degree assault, or § 12A-1, first degree assault.”
Id. at 694-695, 728 A.2d at 703.
As the majority states, “[b]y its terms, viewed in the context of the applicable definition of ‘serious physical injury,’ the first degree assault statute now covers the most serious assaults, including those former aggravated assaults, whose commission ordinarily, although certainly not always, involved the commission of a battery, e.g. assaults with intent to murder, maim and disfigure. Second degree assault, on the other hand, encompasses all other assaults, and batteries, including those former aggravated assaults that ordinarily did not involve completed batteries, e.g. assault with intent to rob, provided that no firearm was used.” Christian v. State and Stevenson v. State, 405 Md. at 320, 951 A.2d at 840.
The meaning of first degree assault, its elements and requirements, and its relationship to attempted voluntary manslaughter were considered by this Court in Dixon v. State, 364 Md. 209, 772 A.2d 283 (2001). In that case, the question presented was:
“Was Petitioner illegally sentenced to twenty years for first degree assault where in a prior trial he was convicted of attempted voluntary manslaughter and first degree assault and sentenced to concurrent terms of ten and twenty years, respectively, and the Court of Special Appeals, upon reversing the convictions, concluded for the trial court’s guidance on remand that first degree assault should have merged into attempted voluntary manslaughter, and on retrial the State was allowed, over objection, to nol pros the attempted voluntary manslaughter charge?”
Id. at 213, 772 A.2d at 285. We answered that question in the affirmative, but only after having considered the nature of the two crimes and conducted a merger analysis.
*338In Maryland, we noted, a person may be convicted of attempted voluntary manslaughter at common law when:
“an individual, engaged in an altercation, suddenly attempts to perpetrate a homicide caused by heat of passion in response to legally adequate provocation, and where the attempt results in something less than the actual wrongful killing....”
364 Md. at 238, 772 A.2d at 300, quoting Cox v. State, 311 Md. 326, 334, 534 A.2d 1333, 1337 (1988). Therefore, we determined, “attempted voluntary manslaughter requires an attempted homicide in the heat of passion in response to a legally adequate provocation.” 364 Md. at 238, 772 A.2d at 300. Having observed that first degree assault may be committed either by causing or attempting to cause “serious physical injury” or by use of a firearm, id. at 239, 772 A.2d at 300, we turned to the merger question. Acknowledging that, under federal double jeopardy principles and Maryland merger law, “the principal test for determining the identity of offenses is the required evidence test,” 364 Md. at 236-37, 772 A.2d at 299, (citing Nightingale v. State, 312 Md. 699, 703, 542 A.2d 373, 374 (1988)) (quoting Newton v. State, 280 Md. 260, 268, 373 A.2d 262, 266(1977)), see also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), pursuant to which offenses are the same and merge, thus prohibiting separate sentences for each offense, only if one offense requires proof of a fact which the other does not, id. at 236-237, 772 A.2d at 299, we opined: *339364 Md. at 239, 772 A.2d at 300-01. Further explaining the analysis, the Court said:
*338“Attempted voluntary manslaughter clearly has a different required mens rea-an intent to kill-than first degree assault, which requires the specific intent to cause, or attempt to cause, serious physical injury. Upon examination of the first modality, (a)(1), of the first degree assault statute, however, it is clear that (a)(1) is subsumed by attempted voluntary manslaughter. Attempted voluntary manslaughter requires a specific intent to commit a homicide, which embodies an intention to cause or attempt to cause serious physical injury as required by (a)(1).”
*339“The intent to kill envelops the intent to do serious physical injury.” Therefore, there is nothing required by modality (a)(1) of the first degree assault statute that is not also required by attempted voluntary manslaughter; the evidence required to show an attempt to kill would demonstrate causing, or attempting to cause, a serious physical injury. Cf. Newton [v. State], 280 Md. [260,] 269, 373 A.2d [262,] 267 [ (1977) ] (determining that felony murder and the underlying felony merged because “[t]he evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony”); Thomas [v. State], 277 Md. [257,] 270, 353 A.2d [240,] 248 [ (1976) ] (concluding that “[u]nder the Bloekburger required evidence test, the same evidence necessary to convict on ... [a Maryland Code (1957, 1970 Repl. Vol, 1975 Cum.Supp.), Art. 66]é, § 4-102, driving a motor vehicle without the consent of the owner and with the intent temporarily to deprive the owner of possession,] offense would always be sufficient to establish a [Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 349, taking of a motor vehicle without the consent of the owner and without the intent to appropriate or convert the vehicle,] offense”).”
364 Md. at 239-40, 772 A.2d at 301, quoting Bruce v. State, 317 Md. 642, 647-48, 566 A.2d 103, 105 (1989), in turn quoting LeFave & Scott, Criminal Law, § 6.2, at 500 (2nd ed.1986).
As the majority states, “[w]e therefore determined, as pertains to merger, that first degree assault, when committed under the modality of intentionally causing or attempting to cause serious physical injury to another, is a lesser included offense of attempted voluntary manslaughter. 364 Md. at 241, 772 A.2d at 302. On the other hand, we pointed out, first degree assault, when committed under the modality of committing an assault with a firearm, is not a lesser included offense of attempted voluntary manslaughter. Id.” Christian v. State and Stevenson v. State, 405 Md. at 321-22, 951 A.2d at 841.
*340Under Dixon, first degree assault with the intent to cause, or attempt to cause, serious bodily injury, became a lesser included offense of homicide, for the purpose of merger. First degree assault, under this interpretation, appeared akin to the previous assault with intent to murder addressed in Faulkner. The relationship between first degree assault and the pre1996 re-codification assaults, in particular, assault with intent to murder, apart from merger, however, remained unexamined.
Also under Dixon, this Court characterized the rule of lenity as a guiding principle of statutory construction, and as an “aid in ascertaining legislative intent with respect to a statutory offense,” which should be used to facilitate penal fairness. 364 Md. at 250, 772 A.2d at 307 (citations omitted). The rule of lenity provides that if a criminal statute contains language that creates ambiguity with respect to penalties, then such language must be interpreted in favor of the defendant. See e.g., State v. Kennedy, 320 Md. 749, 754, 580 A.2d 193, 195 (1990) (citations omitted). The rule of lenity is frequently applied to resolve ambiguity as to whether the legislature intended that there be multiple punishments for the same act or transaction. E.g., Marquardt v. State, 164 Md.App. 95, 149, 882 A.2d 900, 932 (2005) (citations omitted). As a result, the rule of lenity tends to arise as an alternate basis of merger in cases where the required evidence test, discussed supra, is not satisfied. The rule of lenity has also been applied to resolve ambiguity as to whether the legislature intended for a more severe penalty to apply in certain cases. See e.g., Haskins v. State, 171 Md.App. 182, 193-94, 908 A.2d 750, 756-57 (2006) (citations omitted). This Court has explained that the policy underlying lenity means, “the Court will not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what the legislature intended.” White, 318 Md. 740, 744, 569 A.2d 1271, 1273 (citing Simpson v. U.S., 435 U.S. 6, 15, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978)) (quoting Ladner v. U.S., 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958)).
*341A.
Owing to our decision in Robinson, specifically, our determination that all previous assaults have been subsumed either in first or second degree assault, it is clear that, substantively, aggravated assaults that were recognized prior to the 1996 re-codification of assaults assumed a place within the revised statute. See Robinson 353 Md. at 694, 728 A.2d at 703. There exists, nonetheless, ambiguity as to where the former classifications of assault, and, in particular, assault with intent to murder, fall within the revised statutory assault scheme.
The State argues that assault with intent to murder was, by virtue of the 1996 re-codification, placed completely outside of the purview of the revised assault statute, and within the purview of the revised attempted murder statute. For that proposition, it relies upon part of the Committee Note to Revise Article 27, which states that “the assault revision repealed the Article 27, § 12 crimes of assault with intent to murder, rape, rob or commit sexual offense, and codified the offense of attempted murder, rape, robbery and sexual offense.” Maryland Code (1974, 1995 Repl.Vol., 1997 Supp.) §§ 9-106 of the Courts and Judicial Proceedings Article; 1996 Laws of Maryland, Ch. 632. I do not agree.
This Court is cognizant that Ch. 632, §§ 2 of the 1996 Laws of Maryland clearly states, “the Committee Notes and catch-lines contained in this Act are not law,” 1996 Laws of Maryland, Ch. 632, §§ 2, at 3633 (emphasis added), and, therefore, we are not bound by, nor need be, persuaded by them. Lack of clarity with respect to the general consequences of any statute is resolved not only in light of legislative history, but also in light of case law and statutory purpose. E.g., Mayor and Town Council of Oakland v. Town Council of Mountain Lake Park, 392 Md. 301, 896 A.2d 1036, 1045 (2006). In Robinson, we opined that the Legislature re-codified assault in 1996 for the purpose of eliminating the dichotomy between common law assault and battery crimes, and statutory assaults; we did not, however, presuppose legislative intent to *342eliminate, in substance, prior statutory assaults. See 353 Md. at 694-695, 728 A.2d at 703.
Assault and battery retain their “judicially determined meanings” under the 1996 re-codification. Md.Code (2000, 2006 Supp.) § 3-201, Crim. Law Art. First and second degree assault, therefore, provides the perimeters of assault, but does not circumscribe the elements of common law assault and battery. The scope of the relevant common law, which the Legislature intended to be incorporated into the new assault scheme, is informed by the nature of the prior statutes that proscribed aggravated assaults. The prior statutes, unlike the current statute, did not prescribe any of the elements of aggravated assaults e.g., assault with intent to murder; rather, all of the elements of those assaults were the product of case law. See Art. 27, § 12; see e.g., Franklin v. State, 319 Md. 116, 125-26, 571 A.2d 1208, 1212 (1990). As a result, the substance of former aggravated assaults, as expressed in case law, is a part of the judicially determined meanings of assault.
The State also relies upon our decision in Williams v. State, 323 Md. 312, 593 A.2d 671 (1991). That reliance is to no avail. In Williams, we opined that the offense of assault with intent to murder and attempted second degree murder are the same offense for the purpose of merger. Id., at 319, 593 A.2d at 673. The doctrine of merger, however, is an evidentiary doctrine, which does not determine how the Legislature intended to classify offenses. In addition, although the doctrine of merger may inform the nature of offenses, this Court has recognized that the Legislature may reject, and, thus, override, the doctrine and the assumptions underlying it. Frazier v. State, 318 Md. 597, 614-615, 569 A.2d 684, 693 (1990) (holding that the Legislature may impose punishment for conduct with aggravated circumstances under separate statutory offenses, even where offenses might otherwise be deemed the same under the required evidence test). Moreover, our decision in Williams preceded the 1996 re-codification of assault, which, under Robinson, places all aggravated assaults squarely within the purview of the revised assault statute. 353 Md. at 694, 728 A.2d at 703.
*343I find that ambiguity related to statutory classifications of offenses can trigger the rule of lenity if such ambiguity affects the availability of certain defenses, which, in turn, affects penalties. To interpret an ambiguity in a criminal statute in a manner that eliminates a mitigating defense, and thereby subjects the defendant to a greater penalty, necessarily increases the penalty to which the defendant may be subject. Thus, the rule of lenity applies to make available defenses that would have been available, consistent with legislative intent, absent statutory ambiguity.
The petitioner correctly notes that, “[i]f a person acting under a misguided belief could have been completely exonerated under the former statute because that person did not possess the intent required for the crime, it would seem that this misguided belief should at least mitigate [first degree assault] to second degree assault.” As stated in the dissenting opinion in Richmond:
As we have seen, to act maliciously, one must act with intent to cause the harm charged and without justification or excuse.... One who acts in the belief, sincerely and honestly held, that he or she is in imminent peril of death or grievous bodily injury acts in the belief that his or her actions are justified or excused, hence, without malice. A finding, to that effect, by the trier of fact precludes the defendant’s conviction of a crime requiring proof of malice. It does not, however, prevent the trier of fact from further concluding that the defendant’s belief was unreasonable and, thus, not justified. In the latter event, the defendant could be convicted of any charged offense, whether or not lesser included, or any lesser included offense, whether or not charged, ... which does not require proof of malice. While in the case of a murder indictment, the State’s failure to prove malice may result in conviction of manslaughter, in the case of an aggravated assault requiring proof of malice, as in the present case, a failure of proof may result in conviction of simple assault.”
330 Md. at 253-254, 623 A.2d at 645 (Bell, J., dissenting) (citations and footnotes omitted) (emphasis added).
*344The statutory language of the 1996 re-codification is ambiguous with respect to whether and, if so, where and how, it subsumes assault with intent to murder within the present two-tiered assault scheme. To be sure, under the current formulation of the assault scheme, first degree assault prohibits the commission of an assault with the specific intent “to cause serious physical injury” to another; however, it does not, in terms or by necessary implication, clearly characterize that proscribed intent as “the intent to murder.” Under the prior regime, to be convicted of assault with intent to murder, the defendant must have committed the charged assault with the specific intent to murder, while, concurrently possessing malice of the murderous species. If these elements were met, were proven, the defendant could raise and, if appropriate— the issue had been generated, see Shuck v. State, 29 Md.App. 33, 349 A.2d 378 (1975), cert. denied, 278 Md. 735 (1976)—, the jury would be instructed with respect to the mitigation defenses, of imperfect self-defense and hot blooded response to adequate provocation. See Faulkner, 301 Md. at 483, 483 A.2d at 769; see also Webb v. State, 201 Md. 158, 161-62, 93 A.2d 80, 81-82 (1952).
The intent required by the first degree assault statute and the intent required by the former aggravated assault of assault with intent to murder, while not identical and, in many particulars, different, are specific ones, “to cause serious physical injury” and “to murder.” Nevertheless, the required intent for first degree assault is not necessarily inconsistent with, and certainly does not exclude or negate, the required intent for assault with intent to murder, the possession of an intent to murder. It is trae, of course, that proof of first degree assault does not require proof of an intent to murder, only that the physical injury on which the charge is based “[cjreates a substantial risk of death.” Md.Code (2000, 2006 Supp.) § 3-201(d)(l), § 3-202(a)(l) of the Criminal,Law Article. But that this is so is neither surprising, nor particularly telling. It is the intent with which the assault is committed that is dispositive, not the degree of risk the conduct creates that a particular consequence will occur. The effect of the *345criminal conduct, the degree of risk that it involves, informs the decision with regard to intent—in the case of first degree assault, when the injury caused makes the risk of death substantial, the intent to cause “serious physical injury” may be inferred—; it does not define the intent. Whether the intent to cause serious physical injury is the equivalent of, or may encompass, the intent to murder is a matter that must be considered case by case, on the facts, circumstances and permissible inferences of the particular case. Pertinent to this point, in Webb, 201 Md. at 161-62, 93 A.2d at 82, quoting, with approval, Wharton, Criminal Law (12th Ed.) Section 841, we said:
“ ‘On an indictment for an assault with intent to murder, the intent is the essence of the offense. Unless the offense would have been murder, either in the first or second degree, had death ensued from the stroke, the defendant must be acquitted of this particular charge.... It is not necessary, however, to sustain such an indictment that a specific intent to take life should be shown. If the intent were to commit grievous bodily harm, and death occurred in consequence of the attack, then the case would have been murder in the second degree; and, in case of death not ensuing, then the case would be an assault with intent to commit murder in the second degree. And if the intent were to kill in hot blood, or to kill one erroneously believed to be an aggressor, then the defendant may be convicted of an assault with intent to commit manslaughter.’ In Wharton, Criminal Evidence (11th Ed.) Section 79, it is said: ‘If intent is an element, the State must introduce evidence to show it. However, since intention is a fact which cannot be positively known to other persons, no one can testify directly concerning it and the matter must be an inference which the jury must find from established facts.’ ”
The State argues that the Legislature’s use of the word, “risk,” indicates that it was its intention to exclude the “intent to murder” from the intent to cause serious physical injury. This Court has stated that, “in interpreting a statute, we should employ a rule of construction that avoids a result *346inconsistent with common sense.” Kennedy, 320 Md. at 750, 580 A.2d at 194. (citations omitted). It simply does not comport with common sense that the General Assembly would create a statutory scheme requiring such “nice” parsing, making the proof of the requisite intent depend upon the defendant’s having the intent to seriously injure, but not to murder. It is doubtful, in this context, that the State would be able to carry the burden of showing the defendant’s intent to brutalize the victim only to the point of near certain death, but not death itself. The intent to cause serious physical injury cannot be said to exclude the intent to murder, to cause death.
Moreover, a defendant could, consistent with the first degree assault statute, commit an assault with a firearm, while possessing an intent to murder, as required by the former assault with intent to murder. Md.Code (2000, 2006 Supp.) § 3-201(a)(2), Crim. Law Art. That certainly would qualify as first degree assault, by the express terms of the statute. Indeed, this is quite a likely and predictable scenario.
The effect of the ambiguity as to where, within the first degree assault statute, assault with intent to murder falls is that, consistent with the rule of lenity, first degree assault is subject to the mitigation defenses of imperfect self-defense and hot-blooded response to adequate provocation, although only to the same extent that conduct that would have been punishable under the prior assault with intent to murder statute now is punishable as a first degree assault. Otherwise, the defendant who satisfies the elements of assault with intent to murder, and, so, would have been charged under the prior assault scheme is not only unable, as the petitioner points out, to defend himself or herself with all judicially recognized defenses, as provided by § 3-209,2 but he or she faces a harsher penalty. See Md.Code (2000,2006 Supp.) § 3-202(b), § 3-203(b), § 3-209, Crim. Law Art. Without being able to interpose the mitigation defenses, the defendant would *347face a sentence of twenty five years imprisonment, the maximum penalty for first degree assault, rather than the ten year maximum for second degree assault.
Imperfect self-defense, as we have seen, does not exonerate the defendant; therefore, allowing imperfect self-defense to be asserted in first degree assault cases would not, as suggested by the State in Faulkner, “reward unreasonableness.” 301 Md. at 503, 483 A.2d at 770. As the petitioner appropriately points out, the dissent in Richmond, “recognizes that while it may not be appropriate to completely exonerate a defendant who commits an aggravated assault in the honest but unreasonable belief of the need for self defense, ... if mitigation to a lesser offense is available, the punishment is more likely to fit the crime.” Similarly, while it is not appropriate to exonerate a defendant who commits an aggravated assault, if the defendant acts in hot-blooded response to adequate provocation then mitigation to a lesser offense again makes it more likely that the punishment will fit the crime.
Insofar as the first degree assault statute subsumes assault with intent to murder, first degree assault stands in the place of assault with intent to murder as an exception to the rule, stated in Richmond, that mitigation defenses apply only to murder and its shadow form offenses. See 330 Md. at 233, 623 A.2d. at 634-35. It for this reason that one charged with first degree assault can employ all available defenses typically available to defend or mitigate against a charge of assault with intent to murder.
. Maryland Code (1957, 1996 Repl.Vol.) Art. 27 § 12A, now codified as amended at Md.Code (2002, 2006 Cum.Supp.), § 3-262 of the Criminal Law Article, provides, as pertinent:
“(a)(1) A person may not intentionally cause or attempt to cause serious physical injury to another.
"(2) A person may not commit an assault with a firearm, including:
"(i) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 4-201 of this article;
"(ii) an assault pistol, as defined in § 4-301 of this article;
"(iii) a machine gun, as defined in § 4-401 of this article; and
"(iv) a regulated firearm, as defined in § 5-101 of the Public Safety Article.”
. § 3-209. Defenses
A person charged with a crime under § 3-202, § 3-203, § 3-204, or § 3-205 of this subtitle may assert any judicially recognized defense.