Is Self-Defense an Available Defense in a Charge of Affray?

What is an “affray?” An affray in Maryland happens when two people fight (either with each other’s consent or without) in a public place “to the terror of the people.” The elements of “public place” and “terror of the people” can be controversial because it begs the question of whether there can be a terror of the people if two people fight in a public place without anyone else around. In a recent case, an appellate court considered whether a circuit court erred in its jury instruction regarding self-defense in an affray case.

The case arose when a husband and wife entertained family at a Fourth of July cookout on their back porch. The defendant called the wife’s sister and learning of the cookout, drove over.  The sister left with her kids after the defendant’s arrival, but he stayed. The witnesses differed in what happened next. But they all agreed significant alcohol consumption occurred.

The husband and the defendant started a playful wrestling match that turned into a fistfight that was eventually broken up. The wife tripped and the husband believed the defendant caused her fall. The husband got angry that the defendant wouldn’t shake his hand and kicked the defendant’s moped and swung at the defendant first. However, the defendant punched him until he fell unconscious. The husband died.

The next day the defendant was charged with involuntary manslaughter and he was eventually convicted. He appealed. The appellate court explained the rules regarding an “affray.” The court reasoned that the “terror” element does not require that there be other people around. Rather, fighting in public is always “terror of the people” in a legal context. Therefore, in this case the State of Maryland only had to establish that the fight was likely to cause other people terror, not that it actually did cause terror in someone.

The defendant argued that the circuit court should not have instructed the jury that self-defense is not available in the context of an affray charge. The State argued that this defense wasn’t available in this case because the defendant’s opening brief agreed that the fighting was mutual. The evidence demonstrated that the defendant asked the husband to step off the patio to fight, but the husband stepped off of his own free will. Therefore, the State argued, there was no reversible error.

The appellate court stated that a self-defense claim can be invoked in an affray. Self-defense applies to most assaultive crimes.

The appellate court noted that the State’s claim that the defendant conceded the fight was mutual had almost no basis, only the defense attorney’s statement during opening statements that the men had entered the fight willingly. In trial work, an attorney’s opening and closing statements are not in and of themselves evidence. Additionally, the court did not find the evidence showed it was not self-defense. During a bench conference, the court found that the evidence created self-defense. It only limited self-defense to assaults and not affrays at the State’s insistence during trial.

The court explained that mutuality is a question of fact for the jury. The court cannot decide whether there was mutual fighting; these are issues for the jury. The defendant’s argument was that the judge’s instruction to the jury allowed the judge to rule on mutuality when it was an issue for the jury. Accordingly, the court ruled that the judge must instruct the jury on self-defense when that issue is generated by the evidence.

If you are arrested or charged with a crime, you should call a knowledgeable Maryland criminal defense attorney. We can determine what kinds of defenses are available in your particular case. Contact us at 301-519-2801 or via our online form.

More Blogs

The Impact of a Defendant’s Signed Statement in Maryland, Maryland Criminal Lawyer Blog, October 12, 2013

Reasonable Grounds for Requiring a Blood Test in Maryland, Maryland Criminal Lawyer Blog, September 25, 2013


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