Latoya Bonte Elzey v. State of Maryland , No. 1131, September Term, 2018

, Opinion by

Raker, J.

CRIMINAL LAW

– BATTERED OR ABUSED WOMEN, SPOUSES, OR

DOMESTIC PARTNERS

HOMICIDE

– SELF

- DEFENSE

Pursuant to Maryland Code, Courts and Judicial Proceedings, § 10

- 916(b), once a trial court determines that the defendant has adequately raised the issue of Battered Spouse Syndrome, it has the discretion to admit the evidence of repeated abu se of the defendant by the victim and expert testimony on Battered Spouse Syndrome. The jury can then

consider that evidence as it bears on the defense of self

- defense without first making (and agreeing upon) a predicate finding that the defendant was the subject of repeated physical and psychological abuse by the victim.Circuit Court for Wicomico County

Case No. C22

- CR17

- 000393

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1131

September Term, 20 18

LATOYA BONTE ELZEY

v.

STATE OF MARYLAND

Arthur, Friedman, Raker, Irma S. ( Senior Judge , Specially Assigned)

,

JJ.

Opinion by Raker

, J.

Filed : November 22, 2019Appellant Latoya Bonte Elzey was convicted by a jury in the Circuit Court for

Wicomico County of voluntary manslaughter, second

- degree assau lt, and reckless

endangerment. Appella nt presents the foll owing questions for our review

, which we have

re

- ordered as follows:

1. Did the trial court err in instructing the jury that, in order to consider expert testimony on Battered Spouse Syndrome, it first had to make a finding that Ms. Elzey “ was a victim of repeated physical and psychological abuse by the victim ” ?

2. Did the trial court err in instructing the jury that Battered Spouse Syndrome is caused by “ repeated physical and psychological abuse by [the] victim

, ” which in effect precluded the jury from considering expert evidence as to whether Ms. Elzey suffered from Battered Spouse Syndrome as a result of abuse in prior relationship s?

3. Did the trial court abuse its discretion by entering into evidence a prejudicial photograph when other photographs more clearly depicted the relevant information and did not

cont ain the prejudicial depictions?

4. Did the trial court err in refusing to excuse a juror who expressed an “ ethical dilemma ” with disregarding

information that was not in evidence?

5. Could any of the above

- described errors, either individually or cumulatively, have influenced the jury verdict ?

We shall hold that the trial court ’s Battered Spouse Syndrome instruction was erroneous

and unclear. Accordingly, we shall rever se and remand for a new trial. 1

1 Because we shall reverse on the issue of the Battered Spouse Syndrome instruction , we do not address appellant’s other issues.2 I.

Appellant was indicted by the Grand Jury for the Circuit Court for Wicomico

County on charges of first

- degree murder, second

- degree murder, voluntary manslaughter,

first

- degree assault, second

- degree assault, and reckl ess endangerment. The jury convicted

her of voluntary manslaughter, second

- degree ass ault, and reckless endangerment. The

court merged the second

- degree assault and reckless endangerment convictions into the

voluntary manslaughter conviction for sentencing purposes and sentenced appellant to a

term of incarceration of te n years for voluntary manslaughter

.

On May 22, 2017, appellant and her boyfriend, Migail Hunter, were fighting in the

living room of a friend’s home where they were staying temporarily

. As the fight

continued , a ppellant told Mr. Hunter “don’t put your hands on me” and “I’m tired of you

putting your f****** hands on me,” went to the kitchen

, and grabbed a knife

. T he friend

,

however, dissuaded appellant from taking the knife back to the living room. As the fight

escalated , appellant went back to the kitchen and retu rned with a knife. She told Mr. Hunter

to stay away from her and that she did not want to use the knife. Undeterred, Mr. Hunter

continued to approach her. Appellant testified that she held the knife loosely in front of

her and turne d her head away from Mr. Hunter , at which point he “lunged forward and

stabbed himself in the chest” or walked into the knife. Althou gh the wound was just one

inch long, one

- sixteenth of an inch wide, and two inches deep , it punct ured Mr. Hunter’s

aorta

. He died shortly thereafter.

The central issue at trial was whether appellant acted in self

- defense. Appellant ’s

position was t hat she acted reasonably under the circumstances as she experienced th em3

because she suffered from Battered Spouse Syndrome, sometimes referred to as Battered

Woman’s Syndrome. 2 Appellant’s medical psychiatric expert Dr. Neil Blumberg testified

,

inter alia

, that he found , based on the totality of appellant’s past abusive relationships

, that

appellant suffer ed from Battered Spouse Syndrome. Dr. Blumberg noted that appellant’s

relationship with Mr. Hunter was merely the latest in her long history of abuse

.

D efense counsel submitted a proposed jury instruction on Battered Spouse

Syndrome that read as fol lows:

“If you find, based on the testimony presented, that the

defendant suffered from Battered Woman’s S yndrome, you may consider how the effects of this condition may have altered the defendant’s mental state. Specifically, you may

consider this evidence in deciding whether the defendant actually believed that she needed to defend herself against an

imminent threat and whether that belief was reasonable based on all the facts and circumstances as they have been made known to you by the evidence an d the testimony in this case.

You may consider whether the presence of Battered Woman’s Syndrome altered the defendant’s perceptions and beliefs, including her perceptions and beliefs about the danger of the threat posed to her and that the danger was imm inent.

You must determine the reasonableness of the defendant’s belief and actions based on those beliefs in light of the circumstances as they appeared to the defendant at the time of the killing, and as they are evaluated by you now.

Reasonableness is based both on the defendant’s beliefs and on your evaluation as to their reasonableness.

If the defendant presents credible evidence of self

- defense, the

2 Battered Spouse Syndrome is “the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical and scientific community as the ‘Battered Woman’s Syndrome.’” Maryland Code, Courts and Judicial Proceed ings, § 10

- 916(a)(2).4 State must prove beyond a reasonable doubt that the defendant

did not act in self

- defense. If you ha ve a reasonable doubt as

to whether or not the defendant acted in self

- defense, your verdict must be not guilty.”

Instead, the court instructed the jury 3 using the instruction on “ Self

- Defense:

Battered Woman Syndrome ” in § 8.13(G) of D AVID E. A ARONSON

, M ARYLAND C RIMINAL

J URY I NSTRUCTIONS AND C OMMENTARY ( 2014

– 2015 ed. 2015 ) as follows :

“ Ladies and gentlemen, you have heard evidence that the

Defendant was a victim of repeated physical and psychological

abuse. You have also heard from an expert witness that a person who is a victim of repeated physical and psychological abuse by a victim may suffer from a psychological condition called Battered Spouse S

yndrome

. You have also heard expert testimony that the Defe ndant exhibits the c haracteristics consistent with Battered Spouse S yndrome. You must determine, based upon a consideration of all the evidence, whether the Defendant was a victim of repeated physical and psychological abuse by the victim, and i f so wheth er she suffered from Battered Spouse S yndrome

.

If you determine th at the Defendant suffered from Battered Spouse S yndrome then you should consider this evidence for the purpose of explaining the Defendant’s motive or state of mind, or both, and her belief s and perceptions at the time of the commission of the alleged offense in order to determine whether the req uirements of self

- defense exist. S pecifically you may consider this evidence in de termining : one, whether the Defendant actually believed in the ne cessity to use deadly force to defend herself against imminent or immediate danger of serious bodily harm or death; two, the reasonableness of the
Defendant’s belief that she was in imminent or immediate danger of serious physical harm or death. In assess ing reasonableness the issue is whether a reasonable person in the Defendant’s circumstances would have perceived or seen a threat of serious physical harm or death. Three, the reasonableness of the force used by the Defendant in response

3 M ARYLAND S TATE B AR A SS ’ N

, M ARYL AND C RIMINAL P ATTERN J URY I NSTRUCTIONS (2nd ed. 2018) do es not contain an instruction related to Battered Spouse Syndrome.5 to the perceived threat; and four, in evaluating the believability or credibility of the Defendant’s testimony.

Evidence of Battered Spouse S yndrome is not in itself a defense to the crime of murder in the first and second degree, assault in the first and second degree and reckless endange rment. It has been admitted to assist you in determining whether the requirements of self

- defense are present in this case. ”

Defense counsel objected to the court’s proposed instruction as follows :

“ [ DEFENSE COUNSEL ] : Your Honor, the only

. . . change that the defense was planning to suggest was the language with regard to abuse by the victim. Because of Wallace

- Bey v.

State [ , 234 Md. App. 501 , 172 A.3d 1006 (2017) ]

, . . . we offered

. . . two suggested

. . . instructions, one of which would indicate by the victim and others, but the other would just say, repeated physical and psychological abuse period, without indicating specifically as to by whom.

THE COURT: Well, would it be necessary under your understanding of the law that [ the jury] be convinced that there was repeated physical and psychological abuse by the victim ? Because it seems to me that that’s a requirement. It’s also true

that there could be

. . . others.

***

THE COURT: Actually, it says, you must determine based on the consideration of all the evidence whether the defendant was a victim of repeated physical and psychological abuse by the victim, in the second paragraph. And I believe that [the jury] would have to so find.

. . . I’m not hearing the case law to be that you may use the Battered Spouse S yndrome to justify the killing of anyone . You know, yo u have to be using it to just . .

. mitigate or excuse . . . if the individual who has died didn’t abuse you in any way, I don’t think that you’re allowed to

invo ke the defense.

***

THE COURT: I do believe that in the second paragraph you6 have to be abused by the victim.

***

[DEFENSE COUNSEL]: I would ask

. . . that in that second paragraph, that it reads, you must determine based on a [consideration] of all of the evidence whether the defe ndant was a victim of repeated ly physical and psychological abuse by the victim and others

, and if so, whether she suffered from Battered Spouse S yndrome.

***

THE COURT: Well, what if they find that

. . . the defendant

was a victim of abuse by others but not the victim ? It doesn’t really matter whether they believe the testimony of her abuse of others if they believe that she was abused by the victim; right?

[DEFENSE COUNSEL]: Well, I think it could

. . . matter in the sense that her reaction may be affected by the abuse by the others piling onto the abuse by the victim.

THE COURT: But that would assume that there was repeated psychological abuse by the victim; right?

[DEFENSE COUNSEL]: Yeah

. . . and that’s why the language I suggest would include both, not just one. I don’t think she can rely on solely abuse by others, but if it lists both the victim and others, then that’s not relying solely on the abuse by others against her.

[THE STATE]: But she is not allowed to murder her current boyfriend because four boyfriends ago beat her up. And that’s what that instruction would be saying. ”

Before the court gave the instruction to the jury, d efense counsel noted her objection

for the second time as f

ollows :

“ [DEFENSE COUNSEL] : For the record, . . . the defense requested in the Battered Spouse S yndrome instruction that . . . where the instruction reads that if it was a victim of repeated7 physical and psychological abuse the Court indicated by the

victi m, we did make a request that and others be included . I

would note our objection to

—

THE COURT: Right. And I concluded because the s tatute requires that there be a finding by the jury that this victim had engaged in repeated physical and psychological abuse of the

victim because otherwise that Battered Spouse S yndrome doesn’t apply

. I will not in any way r estrict your argument because [the instruction] goes on to say that you have to determine, based upon the consideration of all the evidence,

whether [appellant] was a victim of repeated physical and psychological abuse by the victim and i f so whether she suffered from Battered Spouse S yndrome. My understanding is that we heard the testimony of other acts of abuse in aiding

us in deci ding whether she s uffered from Battered Spouse

S yndrome. So I think your argument will clear it up if it’s otherwise unclear. So I’ll note your exception. ”

T he jury convicted appellant on the charges , and this timely appeal followed.

I I.

Although the primary issue in this case is the jury instruction on Battered Spouse

Syndrome, interpretation of Maryland Code, Courts and Judicial Proceedings Article

(“CJP”) , § 10

- 916

— i.e.

, the Maryland statute on “Battered Spouse Syndrome”

— is our

starting place . The s tatute reads as follows:

“ (a) Definitions

. — (1) In this section the following words have the meanings indicated. (2) ‘Battered Spouse Syndrome’ means the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant, or former cohabitant which is also recognized in the medical a nd scientific community as the ‘ Battered Woman ’ s Syndrome’

. (3 ) ‘Defendant’ means an individual charged with: (i) First degree murder, second degree murder,8 manslaughter, or attempt to commit any of these crimes;

or (ii) Assault in the first degree.

(b) Admissi bility of evidence

. — Notwithstanding evidence

that the defendant was the first aggressor, used excessive force, or failed to retreat at the time of the alleged offense, when the defendant raises the issue that the defendant was, at the time of the alleged offense, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of the

individual who is the victim of the crime for which the defendant has been charged, the court may admit for the

purpose of explaining the defendant ’ s motive or state of mind, or both, at the time of the commis sion of the alleged offense: (1) Evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged;

and (2) Expert testimony on the Battered Spouse Synd rome. ”

(Emphasis added).

Bef ore this Court, appellant argues that the trial court’s jury instruction on Battered

Spouse Syndrome was an incorrect statement of law for two reasons. First, a ppellant

contends that the court’s instruction incorrect ly requir ed the jury to make a predicate

finding that the accused was the subject of repeated physical and psychological abuse by

the victim before it could consider expert testimony on Battered Spouse Syndrome.

Appellant argues that the court’s instruction confus es the standard for admissibility

—

which is a question o f law to be decided by the trial court

— with a predicate factual finding

that a jury must make to consider evidence of Battered Spouse Syndrome

— on which the

statute is silent . In sum, appellant conclud es that “[n]othing in the statute requires the jury

to actually find that the defendant was the victim of repeated physical and psychological9

abuse by the victim in order to consider expert testimony on Battered Spouse Syndrome.”

Thus, argues appellant, t he court’s instruction has no basis in Maryland law. In appellant’s

view, once a trial court (1) finds that a defendant has made a foundational showing of

repeated physical and psychological abuse by the victim and (2) admits the evidence of

Battered Spouse Syndrome , the jury from that point on may consider the admitted evidence

to determine whether the state

- of

- mind element of self

- defense is met.

Second , a ppellant contends that the instruction asked the jury to disregard , contrary

to law, evidence of past abuse by individuals other than Mr. Hunter when considering

w hether appellant suffered from Battered Spouse S yndrome

. Appellant argues that the trial

court erroneously defined Battered Spouse Syndrome as a psychological condition caused

by repeated abuse by the victim

. Alternatively, appellant argues that the court’s instruction

was confusing and likely led the jury to beli eve erroneously that evidence of past abuse b y

others was legally irrelevant for explaining appella nt’s motive or state of mind.

The State argues that the court’s jury instruction on Battered Spouse Syndrome was

a correct statement of law and hence within the court’s discretion. Regarding the court’s

instruction that the jury must find that appellant w as abused by the victim before it could

consider the admitted expert testimony on Battered Spouse Syndrome, the State contends

that it stated the law correctly.

Regarding evidence of past abuse by others

, the State argues that the court’s

instruction corre ctly asked the jury to determine “ based upon a consideration of all the

evidence ”

— which the State points out includes ev idence of past abuse by others

— whether

appellant suffered from Battered Spouse Syndrome and how that could have affected her10

motive or state of mind.

III.

On review of a jury instruction, we consider whether the instruction was generated

by the evidence, whether it was a correct statement of the law , and whether it was covered

elsewhere by the instructions given. Johnson v. State , 223 Md. App. 128, 138 , 115 A.3d

668, 674 (2015) (emphasis added). A misstatement of law in a jury instruction constitutes

reversible error unless the State proves, beyond a reasonable doubt, that the error did not

play any role in the jury’s verdict, i.e. , that it was harmless. Porter v. State , 455 Md. 220,

234 , 166 A.3d 1044, 1052 (2017). “[I] nstructions which are ambiguous, misleading, or

confusing to jurors can ne ver be classed as noninjurious.” Battle v. State , 287 Md. 675,

685 , 414 A.2d 1266, 1271 (1980)

. In evaluating whether a jury instruction was erroneous,

questi ons of statutory interpretation are reviewed de novo

. Wallace

- Bey , 234 Md. App. at

548 , 172 A.3d at 1033

.

We hold t hat the jury instruction on Battered Spouse Syndrome was erroneous and

unclear

, constituting reversible error. Primarily, the instruction reflected an erroneous

interpretation of the statute and instructed the jury, before it could consider the d efense of

self

- defense and Battered S pouse S yndrome, to first find that the defendant was the subject

of repeated physical and psychological abuse by the victim

. The B attered S pouse

Syndrome statute, CJP § 10

- 916(b)

, addresse s admissibility of the evidence and provides

that the court may adm it evidence of abuse notwithstanding traditional notions of self

defense, both imperfect and perfect. The statute reads, in pertinent part, as follows:11 “[W]hen the defendant raises the issue that the defendant was, at the time of the alleged offense, suffering from the Battered Spouse Syndrome as a result of the past course of conduct of

the individual who is the victim of the crime for which the

defendan t has been charged, the court may admit for the purpose of explaining the defendant’s motive or state of mind

. . . .”

(E mphasis added). See also Porter , 455 Md. at 226 , 166 A.3d at 1048 (citing CJP § 10

-

916(b)) ( “Maryland law allows a woman on trial for harming her abuser to present evidence

explaining battered spouse syndrome and its psychological effects regardless of whether

she was the first aggressor, used excessive force, or failed to retreat. ” )

.

To “raise the issue” of Battered Spouse Syndrome, a defendant must produce “some

evidence” that the victim caused the defendant to suffer from Battered Spouse Syndrome.

See, e.g. , Dykes v. State

, 319 Md. 206, 215

, 571 A.2d 1251, 1256 (199 0 ) (discussing the

showing required to raise the issue of self

- defense). Whether the defendant has adequately

raised the issue of Battered Spouse Syndrome is a question of law to be decided by the trial

court. Id

. at 221

, 571 A.2d at 1259

. Once a trial court determines that the defendant has

adequately raised the issue, it has the discretion to admit

, for the jury’s consideration, the

evidence of repeated abuse of the defendant by the victim and expert testimony on Battered

Spouse Syndrome

. CJP § 10

- 916 (b)

. In the case at hand, the trial court determined that

appellant had adequately raised the issue and admitted the expert testimony.

Hence, t he jury could consider that evidence as it bore on the defense of self

- defense

without first making (and agreei ng upon) a predicate finding. After admitting the evidence,

however, the trial court erred in instructing the jury to make a predicate finding before the12

jury c ould consider the evidence of Battered Spouse Syndrome

. The court’s instruction, in

pertinent part, read as follow:

“ You must determine

, based on a consideration of all the evidence, whether the Defendant was a victim of repeated physical and psychological abuse by the victim, and if so whether she suffered from Battered Spouse Syndrome. If you determine that the Defendant suffered from Battered Spouse Syndrome, then you should consider this evidence for the

purpose of explaining the Defendant’s motive or state of mind[.]”

(Emphasis added). Th is instruction confuses the statute’s standard for admissibility of

evidence

— a matter for the court to find prior to admission

— and passes it onto the jury as

a further condition on their actual consideration of the admitted evidence. The legislative

history of the statute makes it clear that the statute speaks to admissibility of evidence of

Battered Spouse Syndrome by a trial court. When the General Assembly enacted the

Battered Spouse Syndrome statute in 1991, t he Senate Judicial Pr oceedings Committee

Floor Report noted as follows:

“ According to testimony on the crossfiled Senate bill, while

courts are currently permitted to admit evidence of the battered

spouse syndrome, some judges will not admit it; therefore,

such evidence is not admitted equally in all jurisdictions. This

bill would clarify that the court has discretion to admit

evidence of repeated physical and psychological abuse of the

defendant by the alleged victim and expert testimony on the

battered spouse syndrome

. ”

S. Judicial Proceedings Comm., Floor Report on House Bill 49, 401st Sess. (Md. 1991)

(Emphasis added); s ee also Porter

, 455 Md. at 238

, 166 A.3d at 1055 (citing CJP § 10

-

916(b) ) (“According to the Senate Judicial Proceedings Committee Floor Report, the intent

of the statute was to ‘clarify that the court has discretion to admit evidence of repeated13

physical and psychological abuse of the defendant by the alleged victim and expert

testimony on the battered spouse syndrome. ’” )

.

In addition to the erroneous interpretation of the statute , the court’s instruction sent

mixed messages to the jury

. The instruction stated that “a person who is a victim of

repeated psychological abuse by [the] victim may suffer from a psychological condition

called Battered Spouse Syndrome

. ” The instruction subsequently asked the jury to

“determine, based upon a consideration of all the evidence , whether the Defendant was a

victim of repeated physical and psychological abuse by the victim, and if so whether she

suffere d from Battered Spouse Syndrome

. ” N ext

, the instruction stated, “ [i] f you

determine that the Defendant suffered from Battered Spouse Syndrome then you should

consider this evidence for th e purpose of explaining the Defendant’s motive or state of

mind . . . .” T he court’s instruction was unclear and potentially misleading as to what, if

any , effect past abuse may have had on appellant’s state of mind

, even though the court

had admitted app ellant’s expert witness testimony on her past abuse and its effect on her

state of mind.

The State argues that any error in the Battered Spouse Syndrome instruction was

harmless beyond a reasonable doubt because appellant was convicted only of voluntary

manslaughter

— i.e.

, the best result that she could have received from the jury even under a

correct instruction. In the State’s view, Battered Spouse Syndrome is relevant only for

establishing imperfect self

- defense, which the jury credited and gave appell ant the benefit

of, and hence, a different instruction could not have reduced further appellant’s conviction

of voluntary manslaughter.14

We disagree. Maryland case law is clear that Battered Spouse Syndrome is relevant

to both impe rfect and perfect self

- de fense. If credited, “ the [Battered Spouse S]yndrome

evidence would then play its proper role in explaining why and how, in light of that pattern

of abuse, the defendant could honestly, and perhaps reasonably , perceive an immin ent

threat of immediate dange r. ” State v. Smullen , 380 Md. 233, 273 , 844 A.2d 429, 453 (2004)

(emphasis added) ; s ee also Wallace

- Bey , 234 Md. App. at 532 , 172 A.3d at 1023

( “Maryland law recognizes that evidence of the psychological condition known as battered

spouse syndrome may be relevant to the state

- of

- mind elements of perfect and imperfe ct

self

- defense

. ” (E mphasis added) ) ; Banks v. State , 92 Md. App. 422, 429 , 608 A.2d 1249,

1253 (1992) ( “[E]vidence of the Battered Spouse Syndrome is offered in support of the

state of mind element of perfect or imperfect self

- defense, i.e. , it is offered to prove the

honesty and reasonableness of the defendant’s belief that he or she was in imminent da nger

at the tim e of the offense

. ” (E mphasis added) )

.

W e reverse and remand for a new trial.

JUDGMENTS OF THE CIRCUIT

COURT FOR WICOMICO COUNTY

REVERSED

. CASE REMANDED TO

THAT COURT FOR A NEW TRIAL.

COSTS TO BE PAID BY WICOMICO

COUNTY

.