52 Md. App. 171, 447 A.2d 880, 294 Md. 600, 451 A.2d 664 (1982)
— a legal prologue —
In the decade that commenced with the assassination of President Kennedy, climaxed with the creation of this Court, and concluded with the marriage of Tiny Tim, violence proliferated, partly because police were constitutionally hobbled in controlling a rebellious reaction and partly because citizens were reluctant—or afraid—to become “involved” in deterring that violence.
This reticence seemed to emanate less from fear of physical harm than from the potential consequences of a legal aftermath. Representative was the 1964 New York homicide of Catherine “Kitty” Genovese, who was viciously ravaged and repeatedly stabbed while onlookers turned their backs to avoid witnessing the butchery, and neighbors closed their doors and windows to shut out her screams of anguish until her suffering was finally ended by the murderer. Witnesses who were interviewed excused their indifference by noting that the law did not protect a protector from criminal assault charges if the one he aids was initially in the wrong, however misleading appearances may have been. See People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319 (1962). The onlookers hesitated to become involved in the fracas at their legal peril; even if their hearts had been stout enough to enter the fray in defense of a stranger being violently assaulted, the fear of legal consequences chilled their better instincts.
At common law, the privilege of using force for crime prevention did not include authority for intervenors to protect third persons who were strangers to the intervenor. The privilege, even now in some jurisdictions, was limited to the protection of those closely related to, or associated with, the intervenor. See Guerriero v. State, 213 Md. 545, 132 A.2d 466 (1957). That restriction to family or close associates was imposed because the right evolved not from the right of self-defense, as most cases imply, but from the right to protect one's property. R. Perkins, Criminal Law (2nd ed. 1969) at 1018–1019. III W. Blackstone, Commentaries on the Law of England, described the right as only Blackstone could:
“In these cases, if the party himself, or any of these his relations, be forceably attacked on his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray.”
Although it was merely a defense, an excuse for breach of the peace (or even homicide), Blackstone put great emphasis upon the natural source of this legal right. He felt that it “is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.”
Perhaps because the right to protect one's “property” (i.e., his household, which included wife, children, servants, etc.) carried the same limitations upon the degree of force employed as did self-defense, many, if not most, of the courts in this country addressed the issue from the view that no force could be justifiably employed unless the protected person might have justifiably defended himself. That generally was the law espoused by the leading New York case of Young, supra, where the court affirmed the conviction for assault of a defendant who, in good faith, intervened in a struggle between a plainclothes police officer and a person whose arrest the officer was attempting to effect.
The Maryland Court of Appeals has never directly addressed the issue, but inclined with the majority by strong dicta in 1957. In Guerriero v. State, the Court acknowledged, if somewhat grudgingly, that a third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used. The Court was careful to refrain from espousing any law beyond the narrow confines of the facts of that case, and noted that the cases differ as to whether, and under what circumstances, one may so defend a brother in danger, assuming without deciding that he may, since the State conceded the point.
Early in this Court's judicial life, it carefully adhered to that narrow and restricted espousal of the right to aid third persons, limiting the beneficiaries of such right to relatives or close associates of the intervenor, and more significantly for our present purposes, by restricting the right to such a manner that the victim could properly have defended himself by the use of force. Although the reciprocal right limitation was not clearly or definitively expressed in either Guerriero or Tipton, both cases showed Maryland leaning toward the New York view that one goes to the aid of another at his peril, and his protection from criminal charges depends not on what appears to him when he intervenes, but rather upon the rights of the person whom he has succored.
Perkins finds fault with the “standing in the shoes” theory because it forces a Good Samaritan to gamble not only his health but his freedom and reputation, and overlooks the likelihood that the intervenor might have acted entirely without mens rea, and perhaps even with the highest sense of duty. It treats such a defender as a willing participant in a brawl; whereas, from his standpoint (with the facts as they reasonably appear to him), he may be seeking to defend an innocent victim from a felonious assault. Perkins' preferred position better fulfills our contemporary social needs by merging the encouragement of crime prevention with the privilege of defending others.
That approach was approved instinctively by this Court in Gray v. State, 6 Md.App. 677, 253 A.2d 395 (1969). Gray dealt with a son who killed his father, allegedly to protect his mother, and the Court held that an “acting on appearances” instruction was properly denied only because the issue had already been fully instructed: the defendant had to have believed at the time that a person close to him was in danger of losing life or suffering serious bodily harm, and that the circumstances were such as to warrant reasonable grounds for such belief in a mind of ordinary reason. The trial judge supplemented the instruction by adding that the test was not what the jury thought a reasonable man would believe, but rather what the defendant, as a reasonable man, believed.
While Gray indicated a first impression in Maryland on the question of an accused's state of mind, it did not express the legislative intent of Art. 27, § 12A because the statute was not mentioned in the opinion. Indeed, the only direct reference to that statute which we are able to find in any reported opinion appears in Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979), where Judge Orth acknowledged the Act as one of two “Good Samaritan” statutes enacted by the General Assembly and described its purpose as intending to “afford protection to one who assists another in certain circumstances.” That is not only its obvious raison d'être.
When House Bill 139 (which became § 12A) was sponsored in 1965, it arose in the wake of Genovese and other similar causes célèbres publicizing the legal dangers of “involvement.” As indicated by Pope, the Act was clearly intended to encourage and to afford protection to “good samaritans” by removing their legal doubts, which might impede crime prevention and deter those who witness violent assaults upon persons but otherwise would aid an apparent victim of criminal violence. Even in the days of Blackstone, such need was recognized to supplement the slowly grinding vehicles of justice, and that need has increased with the contemporary increase in violent crime.
Maryland thus appears to have been in the forefront in safeguarding the right which Blackstone recognized as a legal adjunct of natural instincts, and in adopting what Perkins recommends as the more “enlightened view.” Subject to the familiar limitations as to the degree of force permitted, one who is himself free from fault may intervene and use force to protect an innocent victim of intended crime, and under the sound view he is protected by the usual mistake-of-fact doctrine and may act upon the situation as it reasonably seems to be.
The clear and unambiguous language of the statute is that the witnessing of the violent assault is what affords protection for the intervenor. There is no reference at all in the Act indicating as a prerequisite to legal absolution that the apparent victim be faultless. To interpret the statute as limited by the common law restrictions would eliminate any purpose for its enactment.
— the factual setting —
The appellant, Ralph Alexander, a prisoner in the Maryland Penitentiary, was convicted by a jury in the Criminal Court of Baltimore (along with Bruce Shreeves, a fellow prisoner), of an assault on a correctional officer, Dale Tscheulin. As might be expected, the witnesses for the State and those for the defense saw the same scene from divergent points of view. The State's witnesses contended that Officer Tscheulin was attacked by Shreeves, who was subsequently assisted in assaulting the officer by appellant Alexander. Appellant Alexander and his witnesses alleged that another officer, Samuel Stokes, Jr., had apparently grabbed prisoner Shreeves from behind, without provocation, and then Officer Tscheulin came to the scene and started hitting Shreeves. Although Shreeves implicitly acknowledged his initial aggression, he contended that Alexander had seen only the violent overreactions by the guards, and that Alexander's actions were therefore appropriate according to his limited view of the situation.
When Alexander approached Tscheulin to state that he didn't have to “beat on” Shreeves as he was doing, Tscheulin turned around and struck him. Alexander stated that he then simply grabbed the bars and pinned Tscheulin between himself and the bars, but did not strike him; whereupon, he returned to his cell. The State's version did not vary substantially except as to the degree of force used by Alexander. Tscheulin and Stokes agreed that they were subduing Shreeves, who had approached them with a fighting pose on the catwalk of the third tier when the prisoners were ordered to “lock in” after the exercise period. Alexander rushed upon the scene, leapt on Tscheulin, who was preoccupied with Shreeves, and struck the officer in the chest and head.
The issue here is not which version to believe, for that is the role of the factfinder. The issue is whether the trial court erred when it instructed the jury in regard to the law applicable to the defense theory that appellant intervened to aid the apparent victim of an assault. The judge instructed the jurors on defendant Shreeves' right of self-defense as well as appellant's right of self-defense, if they chose to believe that right was raised by the facts or inferences available from the evidence. He then added that Alexander had a right to go to the defense of Shreeves to the same extent that Shreeves had a right to defend himself: Alexander's right of self-defense was the same as that of Shreeves, no more, no less; if Shreeves had the right to defend himself then Alexander had the right to help him, and if Shreeves did not have the right to defend himself then Alexander did not have the right to help him. Under that instruction, if Shreeves was not guilty because he had a right of self-defense, then Alexander also had to be found not guilty, and conversely.
The appellant objected timely, arguing that Alexander's right to intervene was not tied to the actual propriety of Shreeves' conduct, but rather depended upon what the jury believed Alexander's conduct was intended to do. Defense counsel requested clarification that the jury should judge Alexander's actions by the standard of what Alexander saw when he appeared on the scene, and that mere holding against the bars, if believed to be an attempt to stop a fracas, may not constitute an assault. The State correctly pointed out that Gunther v. State, 228 Md. 404, 179 A.2d 880 (1962), is inapposite because it applies only to self-defense rather than to defense of another, and the State argued that the trial court's instructions were substantially in compliance with Maryland Criminal Jury Instructions and prior Maryland case law concerning defense of another.
However, the statute enacted by the Legislature in 1965 dealing with unrelated third persons aiding those under assault, Md. Ann. Code (1982 Repl.Vol.), Art. 27, § 12A, was not considered by the parties or the court below. Under the facts of this case, the statute is particularly apposite. Contextually we doubt that the Legislature gave any thought to the application of § 12A in a circumstance behind prison walls, but laws must apply to all persons equally. The facts and the prison atmosphere may give rise to inferences which change or even nullify the applicability or the effect of laws. A factfinder may consider whether Alexander was witnessing two guards properly subduing a recalcitrant prisoner when he leapt at an opportunity to release pent-up frustrations on a guard, or whether Alexander saw two overzealous guards violently assaulting a fellow prisoner and intervened to prevent injury and avoid an explosive incident. That was the theory the appellant advanced.
Shreeves, who represented himself, urged the jury to consider the unique realities of penitentiary life and how those circumstances affect perceptions and reactions. He described how inmates adapt to an alien condition, losing sensitivity and relying on instinct to avoid danger, and argued that Alexander's intervention may have been motivated by a desire to prevent a far worse outcome.
In light of appellant's singular defense and his counsel's pointed objection to the instructions, we believe the court erred in not correcting its instruction, which linked Alexander's fate to Shreeves' culpability. An intervenor's right to react is not strictly coterminous with a participant's right to self-defense. Under the trial court's instruction, Shreeves' admissions sealed Alexander's fate regardless of Alexander's view of the situation.
Under § 12A, however, Alexander must be judged on his own conduct, based upon his own observation of the circumstances as they reasonably appeared to him. The reasonableness of his perceptions and the bona fides of his reactions are key elements for the factfinder, who must review the totality of the circumstances in their setting. Whether it is reasonable for a fellow prisoner to perceive that two guards subduing a prisoner on a catwalk of a maximum security prison are violently assaulting him may be contrasted with, for example, the reasonableness of a priest's perceptions in another setting. Even assuming that both perceived a violent assault, it must be decided whether the reaction to intervene was a bona fide attempt to aid the person being assaulted; an intent to punish or to avenge will not suffice. The intervention's purpose must have been to aid the victim, or the statutory protection is lost.
Whatever the law may have been in Maryland prior to 1965, it is clear that the Legislature, motivated by increasing violence in society and the reluctance of citizens to “get involved,” sought to afford protection to a defender who acts while injury may still be prevented, rather than awaiting judicial reprisals after the damage has been done. Whether that was appellant's motivation in this prison setting remains a jury question under proper instructions.
— subsequent assault as reflecting upon credibility —
Our reversal of the judgment of the Criminal Court of Baltimore resolves two other issues raised by appellant: his right to be present at a critical stage of the trial and his effort to obtain a severance of trial from his codefendant. One issue, however, should be addressed for guidance on retrial. Appellant sought to cross-examine the prosecuting witnesses on an incident that occurred immediately after the alleged assault: he proffered that, moments later, Officers Tscheulin and Stokes returned with other guards, took appellant to the shower, then stripped and beat him. Appellant proffered this as an attack on the credibility of the two prosecuting witnesses. The trial judge did not permit cross-examination and we cannot say that such declination was an abuse of discretion.
Assuming the truth of the allegation for purposes of this determination, it was at most an accusation, not a conviction, of a subsequent bad act and had no relevance to the actors' propensities for truth or falsity. The witnesses' motives of revenge or punishment do not relate to whether the accused was an aggressor or a protected intervenor in the prior altercation, and if admitted would have constituted a diversion from issues before the jury. If true, the matter is a penal circumstance to be corrected within the system, but this trial is not the appropriate forum for its investigation or exposition.
JUDGMENT REVERSED; CASE REMANDED FOR RETRIAL. COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.