WILSON v. STATE

ine qua non of both perfect and imperfect self-defense.

Subjectively Genuine Apprehension Of Harm to Life or Limb

Judge Bernhardt ruled that the appellant had not satisfied his burden of production on the issue of a genuine fear on his part that, as of the moment he pulled the trigger, he was in immediate danger of death or serious bodily injury.

It was the appellant who followed Adams and his friends as they walked toward their car. It was the appellant who, after concluding that the three were ready and willing to fight, deliberately closed the distance between them. It was the appellant who walked up until he and Adams stood mano-a-mano a few feet apart in a classic Western face-down. The two "homeboys" were standing several feet back. Adams had his hand on the gun in his pocket. The appellant had his hand on the knife in his pocket. Adams asked the appellant what he had in his pocket. The appellant asked Adams what he had in his pocket. The appellant testified that they went "back and forth" like that. Adams then pulled out his gun, looked at the appellant, and "smiled." The appellant, remarkably, "grabbed" for the gun and wrenched it away from Adams. The scene then froze as the appellant stood there holding the gun on Adams. The appellant testified that the homeboys "stood off a few feet behind Adams "kind of scared, like they didn't know what was up."

In terms of the duration of the then critical moment of decision, the appellant testified that, after grabbing the gun from Adams, he held it in his hand and paused, explaining that "it wasn't a whole minute, but I did wait" before deciding to pull the trigger and shoot Adams. (Emphasis supplied). On redirect examination, the appellant described that frozen moment in time as "no more than maybe, like, 15 seconds." As Judge (now Chief Judge) Bell made clear in State v. Martin, 329 Md. 351, 364, 619 A.2d 992 (1993), the critical issue is that of what the appellant "subjectively believed or felt when he fired the fatal shot." (Emphasis supplied). In Sims v. State, 319 Md. at 553, 573 A.2d 1317, Judge McAuliffe also pointed to the precise moment when the state of mind of the gunman is of critical significance, "[T]here is not a shred of evidence showing the state of mind of the defendant at the moment of the shooting." (Emphasis supplied).

The appellant testified as to what was going through his head during that critical moment of decision. He testified that he "was scared, I was mad, you know what I'm saying, I felt challenged, you know what I'm saying. I had a lot of emotion running through my head at that time." (Emphasis supplied). The appellant claimed that Adams twice challenged him to shoot the gun. In response, the appellant "pointed it to him. I point it to him, you know what I mean, I was land of shaking, you know what I'm saying. He was just, like, you got it now, shoot." The appellant then shot Adams four times. After the second shot, Adams fell to the ground. The appellant then shot him two additional times as he lay on the ground.

When asked why he shot Adams four times, the appellant explained that he "was just caught in the moment." The words were not those of someone desperately trying to save his own life.

Honestly, my finger was just on the trigger, you know what I'm saying. Like, I can't really explain, like, what was going through my mind, `cause like I said, it wasn't no thought in it, you know what I mean. It was just, like, just go, you know what I mean, I can't really explain it.

(Emphasis supplied). When asked specifically what "emotion" he was feeling, the appellant replied, "anger, really anger. I was scared, I was angry, all the same emotions I had when he pulled it on me." To meet the burden of production with respect to the apprehension of imminent death or serious bodily harm, a mere turbulent mish-mash of emotions will not suffice. In Lambert v. State, 70 Md.App. 83, 98, 519 A.2d 1340 (1987), Judge Bloom explained for this Court:

Being "scared" does not satisfy the burden of production. As State v. Martin, 329 Md. at 365 n. 6, 619 A.2d 992, pointed out, undifferentiated fear will not suffice. It must be more specifically confined to the necessary mental state that will trigger the defense:

It is doubtful that fear alone suffices to generate the requisite state of mind for imperfect self-defense. The fear must be of imminent death or serious bodily injury.

He did not state he felt it necessary to stab the victim to defend himself. The evidence leads to the conclusion that appellant subjectively experienced various emotions during the fight, but fear was not one of them. Moreover, appellant's repeated assertions that his mind was a "blank" during the incident are inconsistent with and belie a fearful state of mind.

(Emphasis supplied).

In his earlier statement to the police, which was taped and played for the jury, the appellant had also described the critical moment as he held the gun on Adams:

I pulled it at him. He was like, shoot. I stood there for a minute, man. He like, shoot. Okay, shoot. So I shot. Shot four time. Dropped the pistol. I took out. Got out of Dodge. My intentions, my, wasn't on killing this man. I'm no killer. I'm not no murderer. That's not my [style]. That's not how I get down. I done been in a couple fights. I done been out there in the streets for a minute. And, and I, and I done did what I done did. But that wasn't my intentions. Really. I aint even want to fight. And I'm saying it all happened so fast, man. Me trying to boost myself up, like, man, forget it, man. Aint nothing, aint nothing, aint nothing. Know what I'm saying? And it just happened real fast, man. And his dudes, you know what I'm saying? His, they kept talking slick, man. Like that was, like they was bears or something. You know what I'm saying? I tried to tell them, I'm, I aint from around here man. You know what I'm saying?

(Emphasis supplied).

In declining to instruct the jury on imperfect self-defense, Judge Bernhardt pointed out that the appellant, who bore the burden of production, never testified that at the critical moment of decision, as he was holding a gun on the unarmed Adams and was in complete control of the scene, he was acting out of fear of imminent death or serious bodily harm.

And according to his testimony he put his hand in his pocket where the knife was. And Mr. Adams, according to him, had his hands in his pockets, so they both were looking at each other with their hands in their pockets. And there's a lot of thinking going on here, a lot of decision making going on here, none of which smacks nor is there any evidence that there's fear of death or imminent bodily harm coming, so that's [him] protecting himself. In fact, he's going towards the source of the fear of death and imminent bodily harm, if that's what was present at this point [ W]hen Mr. Adams is looking at one of his friends the Defendant disarms him and he holds the gun for upwards of — for a period of whatever, but 15 seconds is the number that was testified to, before firing the shots four times. During that time period, when asked about his state of mind, and that's the operable time period, really, for this, when asked about his state of mind, he expressed that he was caught up in the moment. There's no specific articulation of fear of death or serious imminent bodily harm, there's no specific articulation of observations that prompted his fear, at that moment. He has the upper hand, he has control of the situation, he's, by all accounts, at that moment in time, not confronted by a weapon. There's no articulation of any behavior by Brian Adams, during that moment in time, that would — that could be pointed to as a source that would cause fear of imminent death or of death or serious bodily harm.

(Emphasis supplied).

The appellant did not, in the words of Bruce v. State, 218 Md. 87, 97, 145 A.2d 428 (1958), establish a prima facie case that he "believed at the time he was in such immediate danger of losing his own life or suffering serious bodily harm as made it necessary to take the life of the deceased to save himself." What the appellant may have felt at the Crown Station perhaps five minutes earlier or even when Adams pulled a gun perhaps two minutes earlier is not the critical state of mind. As the Court of Appeals noted in State v. Martin, 329 Md. at 365, 619 A.2d 992:

Evidence that a defendant may have been afraid of a victim at an earlier time, assuming that is the relevant subjective belief, does not mean that, at the moment of the fatal encounter, that state of mind persisted, especially when, as here, the defendant returned to the site of the encounter after apparently arming himself. Since it is the defendant's subjective belief at the moment that the fatal shot is fired that is relevant and probative, evidence of a prior mental state mil not suffice.

(Emphasis supplied).

Judge Bernhardt was not in error. In yet a second respect, the appellant failed to qualify for an instruction on imperfect self-defense. There was no evidence as to this element of the defense, either from the testimony of the appellant or from any other source.

Subjective Belief That the Force Used Was Not Excessive

The force used by the appellant in ostensible self-defense was the firing of four bullets into the body of Adams. For perfect self-defense, the issue would have been whether, objectively measured, it would have appeared to the reasonable man that such a degree of force was necessary to save him from death or serious bodily harm and was, thus, non-excessive. As noted above, Judge Bernhardt ruled that this was not the case and denied the requested jury instruction on perfect self-defense. The appellant has not appealed that ruling.

To qualify for an instruction on imperfect self-defense, on the other hand, it would only be necessary that the appellant should have entertained a genuine subjective belief that such a degree of force was necessary, quite regardless of whether objectively it was or was not. The subject matter of the subjective belief, it must be carefully noted, is not the use of force per se, but of the degree of force that was necessary. If the force employed was more than was necessary, it was by definition excessive.

The appellant offered not a shred of testimony as to whether he thought it necessary for his own protection to kill Adams or, if he thought it was, why he thought so. No such evidence, moreover, was produced by any other witness offered by the defense or by the State. The appellant offered no explanation as to why, while holding a gun on unarmed men, he could not have ordered them at gunpoint to turn and walk away. He offered no explanation as to why he himself could not have walked away, backing away cautiously if need be in order to keep his eye on the threesome. If the appellant thought the use of the gun was somehow necessary, moreover, he offered no insight into why he thought that shooting Adams four times was not excessive, if done exclusively for self-protection. The appellant did not reveal why seriously wounding Adams with a single bullet into his arm or shoulder or disabling Adams with a single bullet to the leg or knee or foot would not have been sufficient for self-protection. The appellant offered no thought as to why, as Adams lay on the ground after the first two shots, the third and fourth shots were not excessive but were deemed by him to have been necessary.

In brief, the appellant argues fervently that the evidence permits an inference that the appellant may well have believed that the use of force was necessary to defend himself even if he did not expressly say so. In response to just such an argument, Lambert v. State, 70 Md.App. at 99, 519 A.2d 1340, replied:

While someone in appellant's position might have entertained an honest but unreasonable belief that he needed to use deadly force to defend himself, the evidence furnishes no indication that appellant did, in fact, so believe.

(Emphasis supplied).

We hold that the instruction on imperfect self-defense was properly denied on this basis alone. The appellant did not meet his burden of production with respect to having a subjective belief that the amount of force he used was necessary to save him from death or serious bodily harm.

The Duty to Retreat

The elements of self-defense, both perfect and imperfect, do to a limited extent overlap or blend into one another at least at the edges. In a sense, an awareness of an avenue of possible retreat could influence a defendant's apprehension of the imminence of the threat to life or limb or could influence a defendant's belief in the degree of force, if any, necessary for self-preservation. The duty to retreat could thus be treated as a contingent factor sometimes having a bearing on either or both of two other requirements. On the other hand, the duty to retreat has enough special features to qualify as an independent fifth element for self-defense analysis. We will so treat it.

Although allusively mentioned in Bruce v. State, 218 Md. at 97, 145 A.2d 428, and distinguished in Gainer v. State, 40 Md.App. 382, 386-89, 391 A.2d 856, cert. denied, 284 Md. 743 (1978), the duty to retreat before using force in self-defense was first fully analyzed by Judge Wilner for this Court in Barton v. State, 46 Md.App. 616, 618, 420 A.2d 1009 (1980):

One aspect of that law is the duty that one has "to retreat or avoid danger if such means [ are] within his power and consistent with his safety" and, ordinarily, to invoke the defense successfully, the defendant must show that it was not possible to retreat safely, either at all or any farther than he had.

(Emphasis supplied). See also Burch v. State, 346 Md. 253, 283, 696 A.2d 443 (1997) ("One of the elements of the defense of self-defense is the duty of the defendant to retreat or avoid danger if such means were within his power and consistent with his safety."); Lambert v. State, 70 Md.App. 83, 92, 519 A.2d 1340 (1987) ("[I]t is the duty of the defendant, when defending himself outside the home, to retreat or avoid the danger if the means to do so are within his power and consistent with his safety."); Corbin v. State, 94 Md.App. 21, 25, 614 A.2d 1329 (1992) ("Under ordinary circumstances . . . the accused must make all reasonable efforts to retreat before resorting to the use of deadly force."); Redcross v. State, 121 Md.App. 320, 328, 708 A.2d 1154 (1998) ("In cases in which self-defense is claimed, the accused normally has a duty to retreat. In other words, except in limited circumstances, the accused must make all reasonable efforts to withdraw from the encounter before resorting to the use of deadly force."); Thornton v. State, 162 Md.App. 719, 734, 876 A.2d 142 (2005) ("[T]o be entitled to a self-defense instruction, an accused has a duty to retreat or avoid danger if such means [are] within his power and consistent with his safety.").

Despite the legal and moral obligation to do so, the appellant most definitely did not retreat. He stood his ground like Will Kane at "High Noon" and blasted away. As the only armed man on the scene, his available avenues of retreat boxed the compass. The only thing blocking the appellant's retreat was his own testosterone-driven Code of Bushido that "real men don't walk away from a fight." Such Samurai machismo, however, has been flatly repudiated by the law of Maryland which commands that even "real men" must walk away from a fight — whenever they can and even if they have been "disrespected." We have not had the Code Duello for two hundred years and are not about to resurrect it.

Neither the appellant nor any other witness revealed anything about any inner thoughts he may have entertained on the efficacy of retreat. If he thought that no avenue of retreat was available, he never said so. If he thought that retreat was unsafe under the circumstances, he never said so. His, of course, was the burden of production in that regard. In ruling on the imperfect self-defense instruction, Judge Bernhardt gave us the benefit of his conclusion on the duty to retreat:

He — after having removed the threat of deadly force from Mr. Adams, he didn't retreat, there's been no testimony that he was incapable of retreating. The only testimony as it relates to the other two fellas was, that they were frozen and watching, as opposed to taking up positions to block any route of escape.

(Emphasis supplied).

Conclusion As To Imperfect Self-Defense

In four separate regards, the appellant failed to generate a prima facie case of imperfect self-defense. Any one of those failures, standing alone, would cause us to affirm the decision of Judge Bernhardt not to instruct the jury on that issue. We, therefore, affirm.

Hot-Blooded Response to Legally Adequate Provocation

In a secondary attempt at mitigation, the appellant requested a jury instruction on hot-blooded response to legally adequate provocation. That is the classic paradigm for a finding of voluntary manslaughter. The so-called Rule of Provocation, though for centuries an integral part of Anglo-American common law, was first recognized by the Court of Appeals in Davis v. State, 204 Md. 44, 102 A.2d 816 (1954). The defendant there had argued that he was resisting an unlawful arrest when he fired several shots, one of which killed an officer. Judge Hammond concluded for the Court, id. at 54, 102 A.2d 816:

These cases apply a subjective standard and hold that the accused must in fact have been filled with passion aroused by the illegal arrest sufficient to meet the usual provocation tests, if murder is to be reduced to manslaughter. The courts following this line usually classify illegal arrest with sudden combat, assault and battery upon one's person, and the sight of one's wife in the act of adultery, as the standard situations in which a homicide arising out of the agitation stirred up in ordinary men by them will be manslaughter, rather than murder.

(Emphasis supplied).

The seminal examination of this theory of mitigation was subsequently made by this Court, speaking through Judge Orth, in Whitehead v. State, 9 Md.App. 7, 10, 262 A.2d 316 (1970):

For the "Rule of Provocation" to be invoked there are four requirements:

(1) There must have been adequate provocation;

(2) The killing must have been in the heat of passion;

(3) It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;

(4) There must have been a causal connection between the provocation, the passion, and the fatal act.

The Burden of Production Is On the Appellant

With the Rule of Provocation as with the imperfect defenses, the burden of production is on the defendant to generate a prima facie case with respect to each and every one of the four elements of the defense. Should any one of the four be lacking, mitigation based on the Rule of Provocation will not be an issue for the jury to consider. This Court described the rigorous nature of the requirement in Tripp v. State, 36 Md.App. 459, 477, 374 A.2d 384 (1977):

Each of the four elements is a sine qua non for a defense of mitigation based upon hot-blooded response to legally adequate provocation. The evidence was palpably insufficient with respect to at least three of the elements, all of which would be necessary to generate a genuine jury issue.

(Emphasis supplied). See also Lang v. State, 6 Md.App. 128, 131, 250 A.2d 276 (1969); Cunningham v. State, 58 Md.App. 249, 258, 473 A.2d 40, cert. denied, 300 Md. 316, 477 A.2d 1195 (1984) ("The appellant had failed to establish a prima facie case of hot-blooded provocation with respect to at least two of the necessary four elements. Either failure would be fatal to his theory of mitigation."); Scott v. State, 64 Md.App. 311, 323, 494 A.2d 992, cert. denied, 304 Md. 300, 498 A.2d 1186 (1985) ("Failure to prove any one of the necessary four elements is fatal to establishing a theory of hot-blooded provocation."); Price v. State, 82 Md.App. 210, 218, 570 A.2d 887 (1990).

To avoid any possible confusion, we repeat briefly what we earlier said in greater detail about the burden of production in cases of imperfect self-defense. Although the burden of production is on the appellant, the appellant himself need not testify in order to satisfy that burden of production. Any evidence in this case, whether emanating from the appellant or the appellant's witnesses or the State's witnesses or from any source, can satisfy the burden of production.

Acting in the Heat of Passion

The first of the four elements of the defense is that the defendant actually acted in the heat of passion. The appellant here never testified that, as he shot Adams four times, he was acting in hot-blooded rage brought on by the act of Adams in pulling a gun from his pocket and smiling. Although the appellant, on several occasions, described one of his overlapping emotions as that of being "angry," every indication is that his anger stemmed from having been insulted and "disrespected" back at the Crown Station rather than from any action by Adams at the homicide scene. Whatever anger or retaliatory motive impelled the appellant to initiate the ultimately deadly confrontation was already driving him forward as he made his hasty turnaround at his grandmother's house, sought his cousin to serve as his "backup," armed himself with a knife, and then set out in search of Adams and his companions. His testimony that he had armed himself because he "thought I would see `em again," that he "went right to those three guys . . . `cause [he] wanted to confront them;" that he is "not the type that run," that he "just figured whatever was gonna happen `it might as well happen now,'" and that he "was ready to fight" clearly locate the onset of his anger at a time well before he and Adams stood toe to toe. He hardly mentions Adams's drawing of the gun from his pocket and never so much as suggests that it, and not the prior insult at the Crown Station, was the catalytic event that precipitated a sudden surge of hot-blooded rage.

We will turn to the legal significance of the insult at the Crown Station in a moment. For the nonce, we are making the point that the appellant never really actually described a sense of hot-blooded rage, let alone attributed such a sense of overpowering rage to the actions of Adams at the crime scene. No one else, moreover, testified as to such a sense of rage on his part. This element of the defense, the actual state of rage in the mind of the defendant, is a subjective requirement. It would not be enough that some legally adequate provocation had occurred. It would not be enough that, objectively speaking, the circumstances could have created hot-blooded rage in an average or reasonable person. It must affirmatively be established that the defendant himself was actually acting in hot blood. Sims v. State, 319 Md. 540, 553, 573 A.2d 1317 (1990) ("The blood must indeed be hot, and under some circumstances only the hot-blooded killer can attest to that."); Conway v. State, 94 Md.App. 436, 443, 617 A.2d 1130 (1993); Price v. State, 82 Md.App. 210, 218, 570 A.2d 887, cert. denied, 320 Md. 16, 575 A.2d 742 (1990); Carter v. State, 66 Md.App. 567, 573, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 469, 374 A.2d 384 (1977); Bartram v. State, 33 Md.App. 115, 175, 364 A.2d 1119, aff'd 280 Md. 616, 374 A.2d 1144 (1977). In this regard alone, the issue of hot-blooded response to provocation was not generated.

A Cooling Period

If the precipitating cause of the appellant's later behavior was, as it clearly appears to have been, the earlier confrontation at the Crown Station, that would raise the further question of whether there had been a reasonable opportunity for the passion to cool between that confrontation and the ultimate shooting. This is an element of the defense that in this case is to be measured objectively from the point of the "reasonable man." It is not here an element that is to be measured subjectively from the point of view of the defendant.

The cooling of the blood is a tricky analytic concept and must be handled delicately. It is a factor that appears in two of the paradigmatic criteria. It is to be subjectively measured in one of them but objectively measured in the other. When the issue is whether the defendant actually killed in hot-blooded rage (the first requirement), the presence and the continuation of hot blood is a subjective factor, as examined in Criminal Homicide Law, supra, § 9.7, "The Cooling Period," p. 172:

That distinction is important to remember because the figure of speech about the "cooling of blood" appears as a factor in the provocation equation on two separate occasions. The issue of whether the defendant's blood actually cooled is, of course, part of the subjective component of whether he acted in the heat of passion. That component, by definition, embraces both the generation of hot blood in the first instance and then the continuation of that heated state until the moment of killing in the second instance. If, albeit initially enraged, the defendant's blood actually cooled before he committed the criminal act, then that defendant is bereft of the benefit of `provocation even if the time for cooling was, objectively speaking, so brief that the average person's blood would not have cooled. That purely subjective cooling or non-cooling of the defendant's blood, however, has nothing to do with the very different objective component of provocation now being analyzed. This component is concerned with the hypothetical temperature of the average person's blood, not the actual temperature of the defendant's blood.

(Emphasis supplied).

When we turn, by contrast, to the distinct and autonomous criterion of whether enough time had elapsed for the hypothetical reasonable man's blood to have cooled, that specimen of "coolness" is placed under an objective microscope. With respect to the nature of the measurement, Tripp v. State, 36 Md.App. at 470, 374 A.2d 384, was clear.

We are here concerned with the objective test of whether there had been a sufficient cooling time for the passion of an average and reasonable man to abate.

(Emphasis supplied). In Carter v. State, 66 Md.App. at 573, 505 A.2d 545, Judge Wilner reaffirmed the objective nature of this particular inquiry.

In the analysis of this element, we are concerned with the objective test.

(Emphasis supplied).

Bartram v. State, 33 Md.App. at 175, 364 A.2d 1119, also explained the objective nature of the test.

By an objective standard, moreover, the time frame must be close enough so that an average and reasonable man would not have had an adequate "cooling period" for the first fury to abate.

(Emphasis supplied).

Dorsey v. State, 29 Md.App. 97, 105, 349 A.2d 414, aff'd, 278 Md. 221, 362 A.2d 642 (1976), stressed once again the objective nature of the test.

The more difficult problem, even in the limited terms of finding a fair jury question, is in dealing with the additional requirement that, from the point of view of a reasonable man, the passions would not have cooled

(Emphasis supplied).

In the Tripp v. State opinion, 36 Md.App. at 471-72, 374 A.2d 384, this Court articulated the rationale undergirding the concept of a cooling period.

The long-smoldering grudge . . . may be psychologically just as compelling a force as the sudden impulse but it, unlike the [sudden] impulse, is a telltale characteristic of premeditation. The law extenuates certain killings not simply because they have been provoked but because there has also been the lack of time between the provoking cause and the impulsive response to think about the consequences or the alternatives. In the case of the spontaneous explosion, reason has no opportunity to intervene; in the case of the "slow burn," it has.

(Emphasis supplied).

Bartram v. State, 33 Md.App. at 175-76, 364 A.2d 1119, also examined the reasoning behind why the presence of a cooling period would disqualify a defendant from resorting to this particular theory of mitigation.

[I]n terms of the legal adequacy of the provocation, the discovery of adultery must be sudden and unexpected. The appellant here had been a regular eyewitness, an aider and abettor (albeit a reluctant one) and indeed a bed partner to the adultery on a weekly basis for the better part of several years.

. . . .

All of this is simply not what is contemplated by the law of mitigation when it looks to the hot blood or uncontrollable fury of a betrayed spouse suddenly catching a partner in an unanticipated act of infidelity.

The law recognizes the human frailty of sudden fury. For the long-suffering spouse, the way out of the unbearable predicament must be the divorce court and not a bullet.

(Emphasis supplied).

If we were, therefore, to take the insult the appellant suffered at the Crown Station as the spark for his subsequent anger, as his testimony unequivocally suggests we should do, we think the circumstances were such that the blood of an average and reasonable man would have cooled before the lethal encounter. The cooling period is measured not just by the ticking of the clock but by the intervening events, which in this case represented a clean break between the alleged cause and the alleged effect. The appellant was insulted. The appellant then walked to his grandmother's house. The appellant was completely out of contact with his tormenters as he entertained what Tripp v. State described as a "slow burn." There was a phase of deliberation as the appellant tried to call his cousin and then decided to arm himself with a knife. The appellant decided to leave the house and had some distance to walk in first locating and then catching up with Adams and the "homeboys." Objectively measured, this clean break in the chain of events would have had a cooling effect on the blood of the hypothetical reasonable man. The criterion of an objectively measured cooling period militates against resort to the Rule of Provocation in this case.

The Legal Adequacy of Provocation

As the common law of manslaughter evolved over the course of 450 years, it cautiously and grudgingly created a very few sets of circumstances that might trigger the Rule of Provocation. What is required is not simply that an event be provocative in fact, but also that it fall into the small category of provocations that have received legal recognition. In Dennis v. State, 105 Md.App. 687, 695, 661 A.2d 175, cert. denied, 340 Md. 500, 667 A.2d 341 (1995), Chief Judge Wilner for this Court noted the austerely limited scope of the defense.

[ T]he provocation must be one the law is prepared to recognize as minimally sufficient, in proper circumstances, to overcome the restraint normally expected from reasonable persons. There are many "slings and arrows of outrageous fortune" that people either must tolerate or find an alternative way, other than homicide, to redress.

(Emphasis supplied). See also Tripp v. State, 36 Md.App. at 473, 374 A.2d 384; Girouard v. State, 321 Md. 532, 542, 583 A.2d 718 (1991) ("[W]e agree with the Court of Special Appeals . . . `there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law.'" (citing Tripp v. State)).

The Rule of Provocation was traditionally limited to four or five relatively narrow situations that were recognized as legally adequate provocation:

1. a mutual affray,

2. a response to a significant battery,

3. the sudden discovery of one's spouse in an act of adultery,

4. resistance to an unlawful arrest, and

5. a possible fifth variety of legally adequate provocation is a battery on a close relative. See Girouard v. State, 321 Md. at 538 [ 583 A.2d 718]; Dorsey v. State, 29 Md.App. 97, 104-05, 349 A.2d 414 (1975).

By Chapter 317 of the Acts of 1997, now codified as Maryland Code, Criminal Law Article, § 2-207(b), the sudden discovery of one's spouse in an act of adultery is no longer recognized as a legally adequate form of provocation to trigger the Rule of Provocation.

Criminal Homicide Law, § 9.12, p. 182, explained the recent demise of this variety of legally adequate provocation.
In a high-profile case in Baltimore County in the mid-1990's, however, newspaper accounts of the trial and of comments made in the course of the trial caused this form of mitigation to fall into strong disrepute. It was not the legal principle itself that in any way offended; it was the public misperception of how the principle operated that triggered the strong public reaction. Although this variety of legally adequate provocation was, in theory at least, gender neutral, it was sensationally portrayed as creating "an open season on erring wives" for the benefit of male chauvinist husbands.

In this case, there was clearly no battery on a relative of the appellant and the appellant was not subjected to an unlawful arrest.

A Mutual Affray

Nor was the allegedly provoking incident in this case a mutual affray, which, as Judge McAuliffe explained in Sims v. State, 319 Md. at 551-52, 573 A.2d 1317, means an actual fight in progress.

Mutual combat has been recognized as a possible source of adequate provocation. The rule of provocation will apply when persons enter into angry and unlawful combat with a mutual intent to fight and, as a result of the effect of the combat, the passion of one of the participants is suddenly elevated to the point where he resorts to the use of deadly force to kill the other solely because of an impulsive response to the passion and without time to consider the consequences of his actions.

A mutual affray was the archetypical trigger for the Rule of Provocation and, as was explained in Glenn v. State, 68 Md.App. 379, 403, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986), grew out of what had earlier been described as chance medley or chaud medley. See Whitehead v. State, 9 Md.App. 7, 11, 262 A.2d 316 (1970); Shuck v. State, 29 Md.App. 33, 38-40, 349 A.2d 378 (1975); Carter v. State, 66 Md.App. 567, 571-72, 505 A.2d 545 (1986). Nothing that happened at the Crown Station constituted a mutual affray.

Had the appellant testified that he shot Adams in hot-blooded rage and that the trigger for his rage was staring at the barrel of a gun and then wrestling for the control of that gun, we would be facing a far more problematic issue. The Maryland caselaw is not helpful with a close analogy. Although the ancient concept of chaud medley more typically involved the rough-and-tumble combat of a "Pier Six brawl" or a "Donnybrook Fair," it would nonetheless seem that two men wrestling over the control of a gun could qualify as a mutual affray. In this case, however, the appellant has neither offered the fight for the gun as the catalyst for any hot-blooded rage on his part nor offered such hot-blooded rage as his reason for shooting his victim.

Response to a Substantial Battery

The only variety of provocation that the appellant seems to be invoking in this case is response to a substantial battery. For the provocation to be deemed objectively adequate, a slight battery or merely offensive touching is not enough. The battery has to be significant enough in a physical sense that it might ignite the passion of and cloud the reason of a reasonable or average person. Scott v. State, 64 Md.App. 311, 323, 494 A.2d 992, cert. denied, 304 Md. 300, 498 A.2d 1186 (1985), made the point that neither bumping nor arguing will suffice.

In the instant case, appellant failed to establish a theory of manslaughter based on hot-blooded provocation from the very beginning — the requirement that there must have been adequate provocation. Here, the evidence showed that appellant bumped into the victim, the two argued and then appellant turned and fired 4-6 shots from his gun in the direction of the victim. We find that appellant presented no evidence to generate a jury question on the issue of hot-blooded provocation. The instruction appellant sought in this regard, therefore, was properly denied.

(Emphasis supplied).

"Sticks and Stones May Break My Bones . . . "

As examples of what might qualify as a substantial battery, in Dorsey v. State, 29 Md.App. at 103, 349 A.2d 414, we held that a response to a significant battery would be established if the victim had thrown the defendant down the stairs. Moreland, The Law of Homicide (1952), points out at p. 76:

While a trivial blow is not sufficient, a substantial battery upon the defendant or a close relative will justify the reduction of an intentional homicide to voluntary manslaughter. A clout with a heavy hickory stick and a blow upon the back of the head with a pistol represent illustrations of the type of injury required.

(Emphasis supplied).

Perkins, Criminal Law (2d ed. 1969), p. 60, also describes what a significant battery might consist of:

Knocking a person down with a heavy stick, or hitting him over the head with a revolver, are rather obvious instances of such force; but a weapon is not indispensable for this purpose. Thus even a blow with the fist may be sufficient to reduce an intentional killing to manslaughter, particularly if it is a blow in the face or a "staggering" blow.

(Emphasis supplied). Clark and Marshall, Law of Crimes (6th ed. 1958), at p. 623, describes the type of significant battery that can stun or infuriate its victim:

Every man, when assailed with violence or great rudeness, is inspired with a sudden impulse of anger, which puts him upon resistance before time for cool reflection; and if, during that period, he attacks his assailant with a deadly weapon, even with intent to kill, and death ensues, it is regarded as done through heat of blood, and, unless malice is shown by the circumstances, the killing is only manslaughter. To reduce the killing to manslaughter, the assault must have been with violence or great rudeness, and must have been reasonably calculated to excite passion and heat of blood.

(Emphasis supplied).

In McKay v. State, 90 Md.App. 204, 207, 600 A.2d 904 (1992), the defendant was successful in invoking the Rule of Provocation in a situation in which his ultimate victim had pounded the defendant's head several times into metal steps along a sidewalk and was giving him a "beating" before the defendant angrily drew a revolver and shot his assailant.

". . . But Words Will Never Hurt Me"

Nothing in the circumstances of this case showed the appellant to have been the victim of a significant battery. The appellant at the Crown Station had suffered an insult, an insult to his manhood. The insult, however, was exclusively verbal. That is not a legally adequate provocation. In Lang v. State, 6 Md.App. 128, 250 A.2d 276 (1969), the victim had called the defendant a "chump" and a "chicken" and had dared him to fight. He shouted obscenities at the defendant, pointed his finger at him, and shook his fist at him. This Court held that the provocation was not legally sufficient:

We hold . . . that merely shouting epithets such as "chump" and "chicken," or shouting obscene words, or shaking finger or hand at the appellant, where there is no evidence of a present intention or ability to cause the appellant bodily harm will not constitute legally sufficient provocation for purposes of requiring an instruction on heat of passion.

6 Md.App. at 132, 250 A.2d 276. The Court of Appeals reached the same conclusion in Sims v. State, 319 Md. at 552, 573 A.2d 1317.

Insulting words or gestures, no matter how opprobrious, do not amount to an affray, and standing alone, do not constitute adequate provocation. Although there was evidence from which the jury could have found that Bucino had directed racial and derogatory comments toward Sims in the bar, this conduct did not constitute adequate provocation.

(Emphasis supplied).

In terms of provocative insults, it would be hard to surpass the taunting words uttered by a wife as she ridiculed her husband for his manifold inadequacies in Girouard v. State, 321 Md. at 540, 583 A.2d 718. Indicative of the general tenor of the sustained and continuing taunting were such observations as, "I never did want to marry you and you are a lousy fuck and you remind me of my dad." The Court of Appeals held, "Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are not adequate provocation." The Court's conclusion, 321 Md. at 542, 583 A.2d 718, underscored the principle that, no matter how provocative an essentially verbal confrontation may be in psychological fact and even if it is compounded by some physical contact not amounting to a significant battery, society cannot permit the passions to be unbridled.

We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for holding in favor of those who find the easiest way to end a domestic dispute is by killing the offending spouse.

The appellant here was obviously provoked, but he failed to establish any legally adequate provocation.

Every Assault Is Not A Battery

Had the appellant attempted to establish that he shot Adams in hot-blooded rage triggered by Adams's having pulled a gun on him (he did not so attempt), that could present a touchier problem in terms of the legal adequacy of the provocation. The answer to such a hypothetical problem seems clear, but we would at least be writing on a clean slate.

All of the Maryland cases and all of the academic authorities listing the legally adequate provocations refer expressly to one of them as a "response to a significant battery." There is no mention of a "response to a significant assault." The crime of assault, of course, is a three-headed monster. It is a battery. It is also an attempted battery. It is finally the intentional placing of the victim in fear of an imminent battery.

When Adams pulled a gun on the appellant and smiled, that was an assault. It might even have qualified as a substantial assault. It was not, however, a battery. It was not, not yet at least, even an attempted battery. The Maryland cases — Dorsey v. State, supra, and McKay v. State, supra — and the academic authorities — Moreland, Perkins, and Clark and Marshall — all speak of actual batteries. They describe the stunning effect of severe physical blows. Particularly because the historic trend has been toward tightly restricting the categories of legally adequate provocation rather than toward expanding them, we would not be inclined to add a new category(or even sub-category) to the list. In this case, moreover, the problem is only hypothetical.

A Causal Connection

The last requirement for invoking the Rule of Provocation is that the appellant establish a causal connection between his hot-blooded rage and his use of deadly force. The appellant never said, "Adams insulted me, or `disrespected me,' at the Crown Station, which caused me to fly into a violent rage and shoot him." He never said, "Adams pulled a gun on me and smiled, which caused me to fly into a violent rage and shoot him." It is not enough to show, objectively, circumstances from which the possibility of such reactions might be inferred. It was necessary for the defense to establish a prima facie case of such a causal connection in the appellant's subjective motivation. In this regard, it is the defense that must connect the dots. It did not do so in this case. Judge Bernhardt was not in error in refusing to instruct the jury on the Rule of Provocation.

The Plague of Plain Error

The appellant asks us to hold that Judge Bernhardt erroneously failed, sua sponte, to instruct the jury that either or both of the mitigating doctrines of imperfect self-defense and hot-blooded response to legally adequate provocation might apply to the charge of first-degree assault. A request for such an instruction was never remotely suggested to Judge Bernhardt, however, and nothing in this regard has been preserved for appellate review.

The appellant invites us, in our discretion, to take notice of plain error. We decline to do so. We must note, in passing, that the promiscuous invocation of the plain error exception to the preservation requirement is rapidly becoming a juridical nuisance. There is a place for the notice of plain error but it is for the truly extraordinary occasion. There should probably be such notice taken more often than the periodic appearances of Bailey's Comet but not nearly so frequently as quadrennial presidential elections. In any event, this is not one of those rare occasions.

JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.