Johnson v. State

223 Md.App. 128

115 A.3d 668

Kimberly JOHNSON

v.STATE of Maryland.

No. 158, Sept. Term, 2014.

Court of Special Appeals of Maryland.

May 28, 2015.

Renee M. Hutchins (University of Maryland School of Law, on the brief), Baltimore, MD, for appellant.

Ryan R. Dietrich (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: MEREDITH, WOODWARD, and WRIGHT, JJ.

Opinion

WOODWARD, J.

On May 21, 2013, appellant, Kimberly Johnson, hit Wayne Vendemia, causing him to fall down and strike his head on the road. Vendemia later died of his injuries. Appellant was subsequently convicted of involuntary manslaughter after a jury trial in the Circuit Court for Baltimore City. The court sentenced appellant to seven years' incarceration.

Appellant presents three questions on appeal, which we have rephrased as follows:¹

1. Did the trial court err or abuse its discretion by modifying the pattern jury instruction for second degree assault?

2. Did the trial court abuse its discretion in failing to instruct the jury concerning self defense?

3. Did the trial court err by giving the pattern jury instruction for involuntary manslaughter?

Answering all three questions in the negative, we shall affirm the judgment of the circuit court.

FACTUAL BACKGROUND

At approximately 8:15 PM on May 21, 2013, Baltimore City police officers responded to a call regarding an injured person on the 900 block of De Soto Road. According to witnesses, appellant struck Vendemia, which caused him to fall down in the road and strike his head. Appellant then left the scene. Vendemia was taken to the hospital, where he died a few days later from his head injuries.

On May 23, 2013, appellant was arrested and transported to the police station, where she agreed to be interviewed. Appellant gave a recorded statement in which she told police that she had been driving around on the evening of May 21, 2013, looking for Ray Dillon, with whom she had an on-again, off-again relationship. Appellant stated that upon seeing Vendemia exit Dillon's van, she ran towards the van and yelled at Vendemia, asking where he had come from. Appellant described what happened next:

I said Wayne um where the fuck did you just come from and of course I seen that he was all high and you know he was you know spitting when he was talking and he kept you know just saying um it's a coincidence you didn't see me and he spitting and I'm really funny about but not on purpose but he's just spitting on me .... And I'm angry anyway so I hit him in his face on that side of his face I hit him and the man fell and in the ground hit his head in the street. And the trucks and cars are going by and you know of course I'm mad and all but um I'm not going to see nobody get hit or killed or anything.

(Emphasis added).

Appellant stated that she pulled Vendemia up and over to the curb to keep him from being hit by cars driving on the street. Appellant told police that she asked other people nearby for help, but that no one would help her. Appellant told police:

I mean yes, I did wrong. I was angry, upset and you know and he when he was yelling at back me at it's a coincidence and he started you know spitting on me lips. It was just—I am scared to death of germs.... And you know I don't know what nobody's got I don't want be spit you know what I'm saying and I was mad anyway and I hit him one time and I believe if he wouldn't have been so intoxicated he wouldn't have even fell.

Appellant also gave the police a note that she had written to Vendemia after being told that he was alive but “brain dead,” which said:

Dear Wayne, I'm sorry for making you bust your head. Why did this happen. Please believe I am so sorry. I don't know what makes me crazy and I know you do drugs and when you were yelling at me you spit on me. I am scared of germs and disease. I am scared of everything but I hope you forgive me. I am so, so sorry Wayne.

Appellant was subsequently indicted for second degree murder. On January 28, 2014, trial began in the circuit court. Over the course of the trial, the State presented the testimony of, among others, three witnesses to the altercation between appellant and Vendemia.

Bradley Baber testified that he and his girlfriend, Stacy Dillon, were driving on the 900 block of De Soto Road on May 21, 2013, when they saw appellant “dragging a guy off the street and just saying help” and “someone help me get this junkie out of the street.” Baber testified that he knew appellant as the girlfriend of Ray Dillon, who is Stacy Dillon's father. Baber testified that no one came to help appellant, and that he saw appellant drop Vendemia on the concrete “in between the street and the sidewalk,” which caused Vendemia's head to hit the concrete. Appellant then got into her van and drove away.

Stacy Dillon testified that she and Baber were driving to her aunt's house on De Soto Road on May 21, 2013. After she parked the car, Stacy saw appellant dragging Vendemia out of the street, then pulling her arms out from under Vendemia and letting his head hit the road. Stacy also testified that appellant called Vendemia a “fucking junkie.” When Stacy told appellant, “I think he's really hurt,” appellant screamed “No, he's not.” Stacy testified that she took Vendemia's pulse and it was “racing.”

Hugo Morales testified that he was mowing his front lawn when he observed the following:

[MORALES]: I heard her say where's my fucking old man at, excuse my language and [Vendemia] walked over to her and she asked him again and he said I don't know and she started hitting him and [Vendemia] put his hands up trying to get away from her and she hit him pretty good and [Vendemia] put his hands up just to block the shots and she said I'm going to ask you again where is my old man at and [Vendemia] says I don't know. She says don't you fucking lie to me. I know you know where's he's at, you were just with him. Even though [appellant] didn't mean to do it, but even though somebody else gassed her up and got her all pumped up and mad, she asked [Vendemia] again and at that time she connected a good blow and he fell down and hit his head on the concrete and—

* * *

[MORALES]: That's when he hit the ground when he fell straight back.

[PROSECUTOR]: What hit the ground?

[MORALES]: His head.

[PROSECUTOR]: And what did you see?

[MORALES]: Him laying there and I told Jessie^{[ 2 ]} to grab her and Jessie says I'm not getting near her and it just happened so quick and then she—well, [Vendemia] wouldn't respond. He was laying on the ground and [appellant] said, oh, he's just fucking faking. He's nodding and I said he's not nodding. He's out. She had a big gulp of soda and she said I'll get his fucking ass up watch this. Threw the whole big cup of coke, a big cup of soda in his face and he didn't respond. So she kicked him and then spit on him.

[PROSECUTOR]: Who kicked him?

[MORALES]: [Appellant] did.

Morales also testified that he had known Vendemia for about two years, that Vendemia weighed about 100 to 110 pounds, and that appellant outweighed Vendemia by about fifty pounds. Morales said that Vendemia was “purple” and that he believed Vendemia was dead or dying when he called 911. Morales also stated that Vendemia had a bone disease and that he usually drank every day and was a drug user.

Dr. Mary Ripple, the Deputy Chief Medical Examiner of Maryland, testified that Vendemia had a “pretty severe head injury,” and that the cause of his death was subarachnoid hemorrhage, or bleeding on the surface of his brain. According to Dr. Ripple, at the time Vendemia's blood was drawn at 8:47 p.m. on May 21, 2013, he had a blood alcohol content of .059. Dr. Ripple also testified that she had a report that Vendemia had Kennedy's disease, a genetic condition that weakens muscles and causes those afflicted to be more susceptible to injury. Dr. Ripple stated that someone suffering from Kennedy's disease would be “a little less able to react so that makes you a little more suspectible [sic] to injury,” but that she did not know the extent of the progression of Vendemia's condition. Dr. Ripple indicated that she did not see any injury to the back of Vendemia's head, but that the impact to both sides of his face indicated that he fell at least twice, or that he was punched on one side of his face and fell on the other.

Detective Steven Matchett, a homicide detective with the Baltimore City Police Department, testified that, after obtaining an arrest warrant, he arrested appellant on May 23, 2013. Detective Matchett stated that appellant was read her Miranda rights and gave the aforementioned recorded statement to police. The court admitted the CD containing appellant's statement without objection from appellant, and the CD was played for the jury.

At the close of the State's case-in-chief, appellant moved for judgment of acquittal as to second degree murder. The State argued in response that there was sufficient evidence to support the charge of second degree murder under the theory of second degree depraved heart murder. The court granted the motion as to second degree murder, and the case proceeded on the lesser included offense of involuntary manslaughter.

Appellant testified in her own defense. The testimony was substantively similar to her recorded statement to the police. Appellant testified that Vendemia exited Ray Dillon's van, that she confronted Vendemia aggressively using profanity, that Vendemia responded by “hollering and yelling at [her],” and that in doing so, he spit in her mouth. Appellant stated that she hit Vendemia one time with the back of her hand, that Vendemia stumbled and fell into the street, hitting his head, that she dragged Vendemia out of the street, and that she then left the scene in her van.

Appellant testified further regarding her reaction when Vendemia spit on her: “I'm so scared of diseases and germs that—it just—all kinds of emotions. I just felt all kind of emotions, scared, you know. I went to my doctor's and got a HIV test right after that. I mean,...