Self-defense requires fear of harm

gavel2In criminal cases involving violence, the defense of self-defense is often raised by a criminal defendant. In a reported opinion from Maryland’s Court of Special Appeals called Donovan Bynes v. State, senior Judge Charles Moylan explored what the elements are to allow such a defense to be considered by a jury.

With his usual colorful language, Judge Moylan’s opinion describes what he called a “case of belligerent pillow talk run amok.” The only two witnesses at the trial on assault charges were the Defendant, and his alleged victim who was his fiancé and the mother of his two children. Both testified that they were in bed having an argument, and the fiancé grabbed the Defendant’s cell phone, threw it against a wall and left the room. At that point, their stories parted. The victim said that the Defendant struck her in the face two times during their argument. 

According to the Defendant, it was his fiancé who slapped him, whereupon he ordered her to leave the house. He claimed that he grabbed her clothes and shoes and threw them out the door, as they continued to argue. He then admitted that at that point he grabbed her and successfully removed her from the house. Based on the testimony, the trial Judge declined to instruct the jury on self-defense, and the jury clearly believed the victim and convicted the Defendant of assault. 

The opinion explains that the elements of self-defense (short of deadly force) are that the Defendant actually believed he was in imminent danger of bodily harm, that belief was reasonable, he must not have been the aggressor in provoking the conflict, and must have used nor more force than was reasonable to protect himself. Here, the Defendant himself never expressed that he was in fear of harm after his fiancé allegedly slapped him. His actions, according to him, showed that “he was not afraid, he was offended.” During their argument, what the parties were exchanging were “barbs, to be sure, but not blows.” 

In the absence of some evidence that he was in fear of bodily harm, the trial judge properly held that self-defense was not generated by the evidence and the jury could not consider it.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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