Christian v. State

In Christian v. State and Stevenson v. State, these consolidated cases, we must determine whether certain mitigation defenses, applied thus far only to homicide offenses and assault with intent to murder, may now be applied to first degree assault. See Maryland Code (1957, 1996 Repl.Vol.), Art. 27 § 12A.1 Daniel Christian contends that his first degree assault conviction should be mitigated to a second degree assault conviction based on the doctrine of imperfect self-defense. Kalilah Romika Stevenson similarly argues that her conviction for first degree assault should be mitigated to *310second degree assault based on hot-blooded response to adequate provocation. We shall hold that the mitigation defense of hot-blooded response to adequate provocation as well as the common law doctrine of imperfect self-defense can apply to the crime of first degree assault.

I.

No. 26 Christian v. State

Petitioner Daniel Christian was charged with first degree assault, carrying a deadly weapon, and related charges in the Circuit Court for Baltimore County. Petitioner was tried by jury for the assault and deadly weapon charges on October 3, 2002.2 The charges arose out of a confrontation instigated by Raynard Moulden, the victim, who suspected that Christian had become involved with Moulden’s girlfriend. A confrontation involving these three people occurred in a mall parking lot. According to Moulden, he verbally accused the petitioner of sleeping with his girlfriend, and turned to “nudge” his girlfriend, whereupon the petitioner attacked him. Christian claimed, to the contrary, that Moulden “shoved” the girlfriend in the face, and that as Christian walked away from Moulden to avoid confrontation, Moulden ran up as if he was going to tackle petitioner. Christian said that he stabbed Moulden to defend himself. The girlfriend’s statement to the police immediately following the incident largely corroborated petitioner’s story; at trial, however, her testimony corroborated Moulden’s version of events.

At trial, petitioner requested a jury instruction on imperfect self-defense as a defense to the first degree assault charge. The court denied this request. The jury convicted petitioner of first degree assault, second degree assault, and carrying a dangerous and deadly weapon openly with the intent to ipjure, and the court sentenced him to a term of incarceration for ten *311years for first degree assault. The remaining convictions merged for sentencing purposes. Petitioner noted a timely appeal to the Court of Special Appeals. Before that court, he argued that the trial court erred in refusing to instruct the jury on imperfect self-defense with respect to the charge of first degree assault. The Court of Special Appeals, in an unreported opinion, rejected petitioner’s argument, stating as follows:

“Since Richmond, there have been no changes to the legal landscape concerning the application of imperfect self-defense to offenses other than homicides, and we are not persuaded that the re-codification of the aggravated assaults calls into question the rationale for the holding in Richmond. That holding is as valid today as when Richmond was decided: imperfect self-defense only applies to homicide cases. [The petitioner] was not entitled to an instruction on that proposition, and the trial court correctly declined to give it.”

This Court granted certiorari to consider whether, in light of the 1996 assault statutes and the recognition of first degree assault as a proper foundation for felony murder in Roary v. State, 385 Md. 217, 867 A.2d 1095 (2005), this Court should now recognize imperfect self-defense as a defense to first degree assault. Christian v. State, 387 Md. 465, 875 A.2d 769 (2005).

No. 95 Stevenson v. State

Petitioner Kalilah Romika Stevenson was charged with first degree assault and related charges in the Circuit Court for Wicomico County. Petitioner proceeded to trial before a jury. The charges arose out of a violent confrontation between petitioner and her husband, Antonio Corbin, on September 3, 2003. The parties had separated and were living apart at the time that the incident occurred. Corbin had taken their daughter to the emergency room when she fell ill, and Stevenson arrived separately to complain that Corbin should not have taken the daughter to be treated without first calling the daughter’s doctor, as Stevenson’s insurance required. They *312fought openly, and Corbin eventually left the hospital with his girlfriend, returning to his home in Salisbury, Maryland, where he resided with his mother.

Shortly thereafter, Stevenson arrived at Corbin’s home to retrieve her daughter’s book bag, and she began arguing with Corbin’s mother. Corbin’s testimony and Stevenson’s testimony at trial presented conflicting versions of the events. Cor-bin testified that he intervened and began arguing with Stevenson, and that they were “pushing each other back and forth,” and he tried to push her out of the house to calm her and his mother down. He said that he was walking out the back door when Stevenson took a butcher knife from the kitchen and stabbed him twice in his left forearm. He denied threatening Stevenson or approaching her in a threatening manner.

By contrast, Stevenson testified that when she attempted to retrieve her daughter’s book bag, Corbin’s mother pulled a gun on Stevenson. As she pushed the gun away, she claimed Corbin punched her and kept beating her until she found herself in the kitchen. There, she spotted the backpack, grabbed it and ran to her car. Stevenson testified that she did not grab a knife or stab Corbin. Stevenson testified that she was in fear for her life and stated that she had called the police and filed assault charges against Corbin on multiple prior occasions.

The trial court instructed the jury on self-defense, but denied petitioner’s request that the jury be instructed on the mitigation defense of hot-blooded response to mutual combat, a form of legally adequate provocation, because the trial court found that the defense was inapplicable to first degree assault. The jury found petitioner guilty of first degree assault, second degree assault, reckless endangerment, and malicious destruction of property, and the court sentenced her to a term of incarceration of ten years for first degree assault and merged the remaining convictions.

Petitioner noted a timely appeal to the Court of Special Appeals, raising the issue of the court’s refusal to grant the *313jury instruction on hot-blooded response to adequate provocation. The Court of Special Appeals affirmed the conviction, reasoning that since assault was not a “shadow offense” of murder, the mitigation defense of hot-blooded response to adequate provocation was inapplicable. Stevenson v. State, 163 Md.App. 691, 696, 882 A.2d 323, 326 (2005). The Court of Special Appeals, however, stated as follows:

“Although we acknowledge that appellant’s position is neither illogical nor unreasonable and that other states have legislatively approved adequate provocation as a mitigating circumstance in assault cases, we cannot ignore the unwavering line of appellate decisions confining this mitigation defense to murder and its ‘shadow’ offenses. Maryland, at least for now, confines consideration of mitigation in assault cases to the discretion of the court at sentencing. If any change is to be made, it must be done by the Court of Appeals or the legislature. We shall affirm the judgments of the circuit court, confident that we have not heard the last of this matter.”

Id. at 693, 882 A.2d at 324-25 (footnote omitted).

We granted certiorari to address whether the mitigation defense of hot-blooded response to mutual combat could apply to the crime of first degree assault. Stevenson v. State, 390 Md. 90, 887 A.2d 655 (2005).

II.

Stevenson and Christian offer three basic arguments in favor of applying mitigation defenses to the crime of first degree assault to second degree assault. First, they argue that, in light of the recodification of the assault statutes in 1996, we should now recognize that imperfect self-defense may mitigate first degree assault. Petitioners contend that first degree assault is the equivalent of the former crime of assault with intent to murder, or that the intent to cause serious physical injury now supplies sufficient malice to recognize first degree assault as a shadow form of homicide. Second, petitioners note that, based on Roary v. State, 385 Md. 217, 867 *314A.2d 1095 (2005), first degree assault now serves as a predicate crime for felony murder, and as such, mitigation defenses should apply. Finally, petitioners argue that allowing the defenses would eliminate an anomaly in Maryland law, whereby a defendant whose victim dies may be sentenced to less time than a defendant whose victim lives. Petitioners cite to other states that allow for the mitigation of first degree assault.3

By contrast, the State argues that the question in this case is controlled by Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993), where, prior to the 1996 statutes, we declined to expand the availability of mitigation defenses beyond assault with intent to murder. The State contends that the new statutes place the former crime of assault with intent to murder outside the scope of first degree assault, into the newly codified offense of attempted murder. The State invokes the principle of stare decisis and argues that, in accordance with our reasoning in Richmond, the new first degree assault statute does not require an intent or malice in the *315same way as murder and its shadow forms, and therefore, a mitigation defense that operates in effect to negate malice is not applicable. Finally, the State contends that using Roary as a basis for allowing mitigation for first degree assault would undermine the purpose of the felony murder doctrine.

III.

Before turning to whether mitigation defenses apply to the new assault statute, we review the relevant history of the crime of assault in Maryland. At common law, Maryland recognized the crime of assault and the closely related, but distinct, crime of battery.4 Robinson v. State, 353 Md. 683, 692 n. 5, 728 A.2d 698, 702 n. 5 (1999); Ford v. State, 330 Md. 682, 700, 625 A.2d 984, 992 (1993). There were two forms of assault: an attempt to commit a battery and an intentional placing of another in apprehension of an immediate battery. Ford, 330 Md. at 699, 625 A.2d at 992. See also Snowden v. State, 321 Md. 612, 617, 583 A.2d 1056, 1059 (1991); Dixon v. State, 302 Md. 447, 457, 488 A.2d 962, 966 (1985).

In 1853, the Maryland Legislature created, statutorily, another, aggravated, form of assault that described the specific intent for its commission that must accompany the assault. The General Assembly provided that “any person [who] ... shall unlawfully and maliciously stab, cut or wound ... or shall assault or assault and beat any person, with intent to maim, disfigure or disable such person” shall be guilty of a felony. 1853 Md. Laws, Chap. 99 § 1 (codified at Md.Code (1888), Art. 27 § 189). See also Hammond v. State, 322 Md. 451, 453, 588 A.2d 345 (1991). This statute, amended over the years, was the predecessor of Md.Code (1957, 1992 Repl.Vol.), Art. 27 § 386.5 With the advent of this and subsequent *316aggravated assault statutes, assault took on yet another meaning. As we explained in Ford, “[i]n some contexts, the word ‘assault’ has still a third meaning. When part of a statutorily defined crime, assault can also encompass a completed battery. The crimes of assault with intent to murder or assault with intent to maim, for example, may include, but do not require, actual battery.” Ford, 330 Md. at 699 n. 6, 625 A.2d at 992 n. 6.

By 1992, Article 27 of the Maryland Code contained several statutory provisions proscribing assault and battery type crimes. In addition to § 386, the Code included prohibitions against assault with intent to murder, ravish, or rob in § 12,6 *317mayhem in § 384,7 maiming in § 385,8 assaults on inmates or Division of Corrections employees in § 11E,9 and spousal assault in § 11F.10

In 1996, the General Assembly changed the legal landscape with regard to the law of assault and battery, both statutory and common law. It repealed the various assault type provisions in Article 27, replacing them with §§ 12,12A,11 and 12A-*3181. 1996 Laws, Chap. 632. Section 12 defined the terms “assault” and “serious physical injury” as follows:

“(b) Assault.—Except as otherwise provided in this subheading, ‘assault’ means the offenses of assault, battery, and assault and battery, which terms retain their judicially determined meanings.” (c)Serious physical injury.—‘serious physical injury’ means physical injury which:

(1) Creates a substantial risk of death;

(2) Causes serious permanent or serious protracted disfigurement;

(3) Causes serious permanent or serious protracted loss of the function of any bodily member or organ; or

(4) Causes serious permanent or serious protracted impairment of the function of any bodily member or organ.”

Section 12A, proscribing second degree assault, provided that “[a] person may not commit an assault.” Section 12A-1, the predecessor to current § 3-202 of the Criminal Law Article, provided as follows:

“ § 12A-1. First degree assault.

“(a) Serious physical injury; use of a firearm.—

“(1) A person may not intentionally cause or attempt to cause serious physical injury to another.

“(2) A person may not commit an assault with a firearm, including:

(i) A handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 36F of this article;

(ii) An assault pistol, as defined in § 36H-1 of this article;

(iii) A pistol, revolver, or antique pistol or revolver, as those terms are defined in § 441 of this article;

(iv) An assault weapon, as defined in § 481E of this article; and

(v) A machine gun, as defined in § 372 of this article.”

*319This Court considered the effect of these statutory changes in Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999). We were called upon in that case to determine whether common law assault and battery was a cognizable crime in Maryland after the effective date of the new 1996 statutory provisions. Id. at 686-87, 728 A.2d at 699. We held that it was not, stating that “by this statutory enactment the General Assembly repealed the common law crimes of assault and battery.” Id. While recognizing the general principle that statutes are not presumed to repeal the common law, we noted that this principle does not apply where there is a conflict between a statute and the common law, or where the statute deals with an entire subject-matter. Id. at 693, 728 A.2d at 702-03. Although the 1996 statute contained no specific word of repeal or abrogation of the common law or any indication of a conflict, we stated as follows:

“[T]he statutes as adopted represent the entire subject matter of the law of assault and battery in Maryland, and as such, abrogate the common law on the subject. The 1996 statutes are more than mere penalty provisions for the common law offenses of assault and battery. They created degrees of assault unknown to the common law, and while retaining the common law elements of the offenses of assault and battery and their judicially determined meanings, the statutes repealed the statutory aggravated assaults and created new offenses.

“Perhaps ironically, some of the best evidence that the 1996 assault statutes comprise more than just penalty provisions for the common law offenses of assault and battery, and that they actually abrogated those common law offenses, derives from the fact that the statutes explicitly repealed and replaced the entire statutory scheme for aggravated assaults then existent, ie., Assault with Intent to Murder, Ravish or Rob, Assault-Third Person Aiding One Being Assaulted, and Assault by Inmates, as well as the crime of Maiming. See 1996 Laws of Maryland, Ch. 632, § 1, at 3616-17 and 3629; Maryland Code (1957, 1992 RepLYol., 1995 Supp.) Article 27, §§ 11E, 12, 12A, and 384-86.”

*320Id. at 694, 728 A.2d at 703. We went on to note that “the new statutes thus subsumed all previous statutory assault provisions as well as the common law into a single scheme and established a two-tiered regimen.” Id.

By its terms, viewed in the context of the applicable definition of “serious physical injury,” the first degree assault statute now covers the most serious assaults, including those former aggravated assaults, whose commission ordinarily, although certainly not always, involved the commission of a battery, e.g., assaults with intent to murder, maim and disfigure. Second degree assault, on the other hand, encompasses all other assaults and batteries, including those former aggravated assaults that ordinarily did not involve completed batteries, e.g., assault with intent to rob, provided that no firearm was used.

In Dixon v. State, 364 Md. 209, 772 A.2d 283 (2001), this Court considered the new statutory offense of first degree assault in the context of merger. In Dixon, the defendant was originally convicted by jury trial in the Circuit Court for Prince George’s County of first degree assault, attempted voluntary manslaughter, and the use of a handgun in the commission of a crime of violence. The Court of Special Appeals, in an unreported opinion, reversed and remanded for a new trial. On remand, the defendant was convicted of first degree assault and the use of a handgun in the commission of a crime of violence,12 and was sentenced to twenty years for the assault conviction and twenty years consecutive for the use of a handgun in the commission of a crime of violence. The defendant argued that under Md.Code (1974, 1998 Repl.Vol.), § 12-702(b) of the Courts & Judicial Proceedings Article, he could not on retrial receive a sentence for first degree assault greater than the sentence previously imposed (ten years) in the prior trial for the attempted voluntary manslaughter *321conviction. We agreed that defendant’s argument was correct if, in the prior trial, defendant’s convictions for first degree assault and attempted voluntary manslaughter merged. Id. at 228, 772 A.2d at 294.

Under federal double jeopardy principles and Maryland merger law, “the principal test for determining the identity of offenses is the required evidence test.” Id. at 236-37, 772 A.2d at 299 (footnote omitted). The required evidence test prohibits separate sentences for each offense if only one offense requires proof of a fact which the other does not. Id. In Maryland, we noted, a person may be convicted of attempted voluntary manslaughter at common law when:

“an individual, engaged in an altercation, suddenly attempts to perpetrate a homicide caused by heat of passion in response to legally adequate provocation, and where the attempt results in something less than the actual wrongful killing....”

Id. at 238, 772 A.2d at 300. Therefore, we concluded, “attempted voluntary manslaughter requires an attempted homicide in the heat of passion in response to a legally adequate provocation.” Id. at 238, 772 A.2d at 300. Having observed that first degree assault may be committed either by causing or attempting to cause “serious physical injury” or by use of a firearm, we turned to the merger question. We said as follows:

“Attempted voluntary manslaughter clearly has a different required mens rea—an intent to kill—than first degree assault, which requires the specific intent to cause, or attempt to cause, serious physical injury. Upon examination of the first modality, (a)(1), of the first degree assault statute, however, it is clear that (a)(1) is subsumed by attempted voluntary manslaughter. Attempted voluntary manslaughter requires a specific intent to commit a homicide, which embodies an intention to cause or attempt to cause serious physical injury as required by (a)(1).”

Id. at 239, 772 A.2d at 301. We therefore determined that, as pertains to merger, first degree assault, when committed *322under the modality of intentionally causing or attempting to cause serious physical injury to another, is a lesser included offense of attempted voluntary manslaughter. Id. at 241, 772 A.2d at 302. On the other hand, we pointed out, first degree assault, when committed under the modality of committing an assault with a firearm, is not a lesser included offense of attempted voluntary manslaughter. Id.

In Roary v. State, 385 Md. 217, 867 A.2d 1095 (2005), we held that an assault in the first degree, when committed or attempted in a manner that caused a significant threat to life or limb and resulted in the death of another, could support a common law second degree felony murder conviction. Id. at 236, 867 A.2d at 1106. The defendant in Roary was acquitted of “intent to kill” second degree murder and transporting a handgun on his person, but was convicted of second degree felony-murder in the course of a first degree assault, involuntary manslaughter, first and second degree assault, and other charges. Id. at 224, 867 A.2d at 1099. This Court held that “first degree assault is a proper underlying felony to support a second degree felony-murder conviction.” Id. at 222, 867 A.2d at 1098.

IV.

Traditionally, the mitigation defenses invoked by petitioners in this case have applied only to cases of criminal homicide and its shadow forms, such as attempted murder. See Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993).

The first defense, commonly referred to as hotblooded response to legally adequate provocation, typically involves passion-creating circumstances, those that provoke action, and therefore, those to which the rule of provocation applies. Girouard v. State, 321 Md. 532, 538, 583 A.2d 718, 721 (1991). See also State v. Faulkner, 301 Md. 482, 486, 483 A.2d 759, 761 (1984). In Girouard, we stated the test for determining when the defense of provocation may apply as follows:

“1. There must have been adequate provocation;

*3232. 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.”

Girouard, 321 Md. at 539, 583 A.2d at 721. We have recognized that the defense may be raised in cases involving mutual affray,13 assault and battery, discovering one’s spouse in the act of sexual intercourse with another, resisting an illegal arrest, witnessing, or being aware of, an act causing injury to a relative or a third party, and anything the natural tendency of which is to produce passion in ordinary men and women. Id. at 538, 583 A.2d at 721. See also Faulkner, 301 Md. at 486, 483 A.2d at 761-62; Glenn v. State, 68 Md.App. 379, 403-04, 511 A.2d 1110, 1123, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); 1 Ronald A. Anderson, Wharton’s Criminal Law And Procedure § 276 (1957). Words alone, we have been clear, are insufficient provocation. See, e.g., Girouard, 321 Md. at 540, 583 A.2d at 722; Sims v. State, 319 Md. 540, 552, 573 A.2d 1317, 1322-23 (racial slurs and “[ijnsulting words or gestures, no matter how opprobrious, do not amount to an affray, and standing alone, do not constitute adequate provocation”); Rollin M. Perkins, Perkins On Criminal Law 62 (2d ed.1969) (even comments characterized as fighting words are insufficient provocation).

Imperfect self-defense is a defense to murder. Faulkner, 301 Md. at 500, 483 A.2d at 768. First recognized in Faulkner, we characterized “imperfect self-defense” as a *324“mitigation defense,” and explained its effect in the murder context as follows:

“Perfect self-defense14 requires not only that the killer subjectively believed that his actions were necessary for his safety but, objectively, that a reasonable man would so consider them. Imperfect self-defense, however, requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so. If established, the killer remains culpable and his actions are excused only to the extent that mitigation is invoked.”

Id. at 500, 483 A.2d at 768-69 (quoting Faulkner v. State, 54 Md.App. 113, 115, 458 A.2d 81, 82) (footnote omitted). Commonly a mitigating defense to homicide, we explained the application of imperfect self-defense in terms of negating the malice element of murder:

“Logically, a defendant who commits a homicide while honestly, though unreasonably, believing that he is threatened with death or serious bodily harm, does not act with malice. Absent malice he cannot be convicted of murder. Nevertheless, because the killing was committed without justification or excuse, the defendant is not entitled to full exoneration. Therefore, as we see it, when evidence is presented showing the defendant’s subjective belief that the use of force was necessary to prevent imminent death or serious bodily *325harm, the defendant is entitled to a proper instruction on imperfect self-defense.”

Id. at 500, 483 A.2d at 769 (footnote omitted).

Prior to the new assault provisions enacted in 1996, this Court allowed for the limited expansion of these mitigation defenses, which traditionally served to reduce murder to manslaughter, to allow for the defenses to be raised in cases of assault with intent to murder. See Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984); Richmond, v. State, 330 Md. 223, 228, 623 A.2d 630, 632 (1993). The defense of hot-blooded response to adequate provocation was recognized by this Court logically to apply to assault with intent to murder in Webb v. State, 201 Md. 158, 93 A.2d 80 (1952). In Webb, the defendant, who had been convicted of assault with intent to kill and murder, argued on appeal that the evidence did not support that he acted with malice aforethought. Addressing the defendant’s argument, this Court explained that while there is no per se intent to kill by the fact of the assault, even if factors such as the use of deadly weapon are present, the “essence” of the offense would be outcome-determinative. Id. at 161-162, 93 A.2d at 81-82 (internal quotations and citations omitted).

Where the essence of an assault is aligned with the essence of a murder, this Court has further recognized imperfect self-defense as a proper defense to the statutory crime of assault with intent to murder. We did so because we considered imperfect self-defense to be a shadow form of self-defense. State v. Faulkner, 301 Md. 482, 483 A.2d 759. See also Cunningham v. State, 58 Md.App. 249, 254, 473 A.2d 40, 43, cert. denied, 300 Md. 316, 477 A.2d 1195 (1984). We explained in Faulkner as follows:

“Faulkner seeks to apply the mitigation defense of imperfect self-defense to the statutory offense of assault with intent to murder under Md.Code (1957,1982 RepLVol.), Art. 27, § 12. A proper analysis of this statute requires us to take heed of the principle of statutory construction that in determining the real legislative intent, we consider the *326‘language of an enactment in its natural and ordinary signification.’ In view of this principle § 12 does no more than use the term ‘murder.’ The statute does not define the term or limit it in any manner. The ‘natural and ordinary signification’ of this term is that the General Assembly intended to incorporate the common law of murder into this particular statute. Indeed, we have repeatedly defined the offense of assault with intent to murder as an assault upon the victim coupled with an intent to murder, which can be shown that the crime would have been murder if the victim had died. Logically, because the statutory offense is defined in terms of murder, all the defenses available in a murder prosecution are applicable in an assault with intent to murder prosecution. There is, however, one difference in the effect that the defenses to the statutory crime have on the offense. For murder, mitigation defenses reduce the offense to manslaughter. By contrast, for assault with intent to murder, a mitigation defense reduces the crime to, at most, simple assault. The rationale behind this result is that Maryland does not recognize the offense of assault with intent to manslaughter.”

Faulkner, 301 Md. at 503, 483 A.2d at 770-771 (footnote and citations omitted).

Subsequent attempts to extend the imperfect self-defense and provocation defenses to other aggravated assaults have been rejected by this Court. See Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993); Watkins v. State, 328 Md. 95, 613 A.2d 379 (1992). In Watkins, we characterized the Faulkner holding as “a generous expansion of the law of self-defense. ...” Watkins, 328 Md. 95, 106 n. 3, 613 A.2d 379, 384 n. 3. We declined to extend Faulkner to the crimes of unlawful shooting with intent to disable, use of a handgun in the commission of a crime of violence and battery, noting that, “the defense of imperfect self-defense does not apply to and is not available to mitigate any of the crimes of which the defendant was convicted.” Id. at 106, 613 A.2d at 384 (footnote omitted).

*327In Richmond, the defendant was convicted of malicious wounding with the intent to disable. Richmond challenged the trial court’s refusal to instruct the jury on the issue of imperfect self-defense, arguing that the defense should mitigate his aggravated assault charge to “assault and battery.” Richmond, 330 Md. at 227, 623 A.2d at 631. We rejected that argument and held that imperfect self-defense did not apply to malicious wounding with intent to disable, explaining that “imperfect self-defense as a mitigating factor ... is limited to criminal homicide and its shadow forms, such as attempted murder.” Id. at 233, 623 A.2d at 634-635 (quotation omitted). We also rejected the defendant’s argument that “the principles of imperfect self-defense apply to every crime that requires proof of malice without regard to whether a criminal homicide is involved.” Id. at 227, 623 A.2d at 632. In so doing, we accepted the State’s arguments that “ ‘malice’ as an element of the crime of murder differs from ‘malice’ with respect to other crimes, and imperfect self-defense negates only that species of malice applicable to murder [and that] the concept of mitigation has universally and historically been limited to offenses involving criminal homicide, or the ‘shadow’ or inchoate forms of those offenses.” Id. at 227-28, 623 A.2d at 632 (footnote omitted).15

*328The 1996 legislative repeal of the prior assault provisions, and enactment of a new assault statute in Md.Code (1957, 1996 Repl. Vol), Art. 27 §§ 12, 12A, and 12A-11, represented a substantive change in the law of assault in Maryland. See Robinson v. State, 353 Md. 683, 694, 728 A.2d 698, 703 (1999) (“[T]he statutes as adopted represent the entire subject matter of the law of assault and battery in Maryland, and as such, abrogate the common law on the subject____[the statutes] created new offenses.”). The new consolidated assault statute compels us to revisit whether mitigation defenses, formerly recognized for assault with intent to murder and attempted murder, should be applicable in cases of first degree assault. The question of whether mitigation defenses apply to the 1996 assault statute is a matter of first impression, in as much as the statute created a new offense and abrogated the common law offense of assault and battery. Robinson, 353 Md. at 694, 728 A.2d at 703.

*329The question in this case is resolved most appropriately by applying our rationale in prior cases where we decided whether mitigation defenses could apply. We implied that the defense of hot-blooded response to adequate provocation could serve as a mitigation defense for assault with intent to murder in Webb v. State, 201 Md. 158, 162, 93 A.2d 80, 82 (1952). We stated in Webb that “there was no evidence ... that the accused had any adequate provocation” in order to negate malice. Id. Similarly, we held that the mitigation defense of imperfect self-defense applied to assault with intent to murder in State v. Faulkner, 301 Md. 482, 483 A.2d 759 (1984). We said as follows:

“Logically, because the statutory offense is defined in terms of murder, all defenses available in a murder prosecution are applicable in an assault with intent to murder prosecution .... a mitigation defense reduces the crime to, at most, simple assault. The rationale behind this is that Maryland does not recognize the offense of assault with intent to manslaughter.”

Id. at 504, 483 A.2d at 771. Mitigation applied because imperfect self-defense served to negate malice. Id. at 500, 483 A.2d at 769.

When we declined to extend the mitigation defenses beyond assault with intent to murder in Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993), our reasoning hinged also upon the requirement of malice. In Richmond, we said as follows:

“Malice, as this Court has pointed out, is a chameleonic term, taking on different meanings according to the context in which it is used. In the context of murder cases, this Court has said that malice means the presence of the required malevolent state of mind coupled with the absence of legally adequate justification, excuse, or circumstances of mitigation. When correctly defined in criminal cases not involving murder, malice does not involve proof of the absence of mitigation. Simply put, mitigation that will reduce one offense to another is a concept peculiar to homicide cases.”

*330Id. at 281, 623 A.2d at 634. Thus, we held that the doctrine of imperfect self-defense was limited to “criminal homicide and its shadow forms, such as attempted murder.... ” Id. at 233, 623 A.2d at 635 (citations omitted). We repeated this principle with approval more recently in Jones v. State, 357 Md. 408, 422, 745 A.2d 396, 404 (2000), a case decided obviously well after the passage of the 1996 assault statutes. In Jones we reasoned that “[i]f established, imperfect self-defense negates the element of malice in a charge of murder----” Id.

The landscape with respect to Richmond’s limitation on mitigation defenses for assault changed significantly after our decision in Roary v. State, 385 Md. 217, 867 A.2d 1095 (2005). Roary held that first degree assault could serve as a predicate crime to support felony murder. When deciding the question in Roary, we noted that one frequent objection to allowing assault as a predicate for felony-murder was the idea that such a rule “would ... relieve the prosecution in the great majority of homicide cases of the burden of having to prove malice in order to obtain a murder conviction.... ” Id. at 233, 867 A.2d at 1104 (quoting California v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1028 (1994)). Nonetheless, the majority in Roary articulated the rule from Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001), that “a criminal homicide committed in the perpetration of or in the attempted perpetration of a dangerous to life felony will supply the element of malice necessary to raise the homicide to the level of murder in this State.” Roary, 385 Md. at 232, 867 A.2d at 1103. We concluded that assault, as a predicate for felony-murder, served the purpose of the felony-murder doctrine, “to deter dangerous conduct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill.” Id. at 226-27, 867 A.2d at 1100 (quoting Fisher, 367 Md. at 262, 786 A.2d at 732). Thus we said as follows:

“We do not hesitate to hold that first degree assault is dangerous to human life. The nature of the crime committed, a crime which ‘creates a substantial risk of death,’ is undoubtedly dangerous to human life .... first degree *331assault is a proper underlying felony to support a second degree felony-murder conviction.”

Id. at 230, 867 A.2d at 1102 (footnote omitted).

There was no defense of mitigating circumstances raised in Roary, such as imperfect self-defense or provocation. We noted a potential future issue to be decided by this Court, should a case present the mitigation issue. Id. at 235, 867 A.2d at 1105. We noted that a common reason given by courts against allowing assault to serve as a predicate for felony murder is “the concern that ... then ‘every felonious assault resulting in death would be murder, and any lesser offense such as voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide would effectively be eliminated.’ ” Id. (citation omitted). We went on to say as follows:

“In response to this concern, Georgia has adopted a modified version of the felony-murder doctrine. It precludes a felony-murder conviction only where it would prevent an otherwise warranted conviction of voluntary manslaughter. The court reasoned that ‘the strict liability element of felony-murder, which allows the ‘bootstrapping’ of an assault charge to support a felony-murder conviction, is unfair in those instances where the killings otherwise could have been reduced, on the ground of mitigation, to manslaughter.” Whether Maryland should or needs to adopt a similar modification to the felony-murder rule, however, need not be decided today as the facts of the case do not remotely raise the issue of mitigation.”

Id. (citations omitted). Although Stevenson and Christian do not implicate felony-murder issues because, fortunately, the victims survived in both cases, they do require us to examine the issue of mitigation in first degree assault cases in light of the felony-murder framework.

The application of the felony-murder rule relies on the imputation of malice from the underlying predicate felony. In State v. Allen, 387 Md. 389, 875 A.2d 724 (2005), we limited the felony-murder rule to situations where the intent to commit *332the underlying felony existed prior to or concurrent with the act causing the death of the victim, and not afterwards. Id. at 402, 875 A.2d at 732. In so doing, we explained: “the felony-murder rule is a legal fiction in which the intent and the malice to commit the underlying felony is ‘transferred’ to elevate an unintentional killing to first degree murder____” Id. at 401, 875 A.2d at 731 (citation omitted).

This rationale is in accord with the reasoning expressed by the Supreme Court of Georgia in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992). The court in Edge said:

“[W]here the jury renders a verdict for voluntary manslaughter, it cannot also find felony murder based on the same underlying aggravated assault. This can be understood by recognizing the theory of felony murder; that is, that it depends on the transfer or imputation of malice from the mens rea of the felonious assault to the killing. If the jury finds voluntary manslaughter, it necessarily finds the felonious assault was mitigated by provocation, and committed without the mens rea essential to impute malice to the killing. Thus, the felony of assault in that instance cannot support a felony-murder conviction because there is no malice to be transferred.”

Id. at 464-65 (citation and footnote omitted).

The felony-murder rule relies on the imputation of malice from the underlying crime, in this case, first degree assault, and therefore the result of Roary is that the statutory crime of first degree assault in § 3-202 could supply the malice necessary to charge a defendant with murder if the victim dies. That the intent to commit first degree assault may now serve to sustain a murder charge convinces us that statutory first degree assault should be considered, under certain circumstances, a shadow form of homicide in Maryland. The application of mitigation defenses is still limited to only “criminal homicide and its shadow forms” on the basis that only homicide and its shadow forms require the same proof of malice. But under Roary, the intent to commit first degree assault suffices to imply the malice required for a *333murder conviction. Where such intent may be imputed to underlie a murder conviction, the limitations of Richmond are no longer viable, and mitigation defenses should be available for charges of first degree assault.

Accordingly, we hold that the mitigation defenses of hot-blooded response to adequate provocation and imperfect self-defense could apply to mitigate first degree assault where those assaults could now supply the malice necessary for felony-murder if the victim dies.

JUDGMENTS IN CHRISTIAN V. STATE AND STEVENSON V. STATE REVERSED. CASES REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO REMAND THE CASES TO THE CIRCUIT COURT FOR BALTIMORE COUNTY AND THE CIRCUIT COURT FOR WICOMICO COUNTY RESPECTIVELY FOR NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE AND WICOMICO COUNTIES.

BELL, C.J., concurs.