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«Tony Lamont Haile v. State of Maryland, No. 112, September Term, 2006. Opinion by Bell, C.J. CRIMINAL LAW – PROCEDURE – MOTION FOR JUDGMENT OF ...»

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“(3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and “(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.” Roach v. State, 358 Md. 418, 429–30, 749 A.2d 787, 793 (2000) (citations omitted).

Applying the above standard to the case sub judice, it is readily apparent that the petitioner’s assertion of self-defense cannot succeed because he invited (“provoked”) the conflict, thus failing to meet the third required element. The facts are unambiguous. The stabbing victim named and identified the petitioner as his assailant. Upon being found, the petitioner was ordered by law enforcement to stop. Disregarding this order, he fled from police. Officer Davies and Bennie, his canine, who joined the search efforts as back-ups, discovered the petitioner and ordered him to surrender and to keep his hands in unobscured view. He ignored those orders and refused to submit to arrest, even when repeatedly and explicitly warned that non-compliance would result in Bennie being released. It was only after this series of events, constituting consistent disregard for the law by the petitioner, that the canine was released.

The petitioner’s self-defense argument also fails because he used excessive force in his interaction with the canine. In response to its trained attempts to restrain him, the petitioner struck the canine several times, inflicting a half-inch wide cut above its right eye.

Contrary to the petitioner’s assertions, such an injury is hardly “insignificant.” Regardless of degree, however, the petitioner, as we have seen, violated the statute by intentionally inflicting any bodily harm on the police canine.

In sum, we reject the petitioner’s contention that his conviction should be reversed due to the insufficiency of the evidence presented at trial. The undisputed facts show that the petitioner intentionally and repeatedly struck Bennie, who was performing its duty in accordance with police procedure, on its head, causing it bodily harm. There is absolutely no contention that Bennie, or its owner, for that matter, was acting illegally. As such, a rational jury could have found and, indeed, did find beyond a reasonable doubt, that the petitioner’s conduct satisfied the elements of aggravated cruelty to animals, thus violating § 10-606 (a) (3). In light of the facts, we also reject the petitioner’s contention that he acted in self-defense, and, therefore, was relieved of the consequences of his § 10-606 (a) (3) violation.

Like the Court of Special Appeals, we believe that it is unnecessary to address the petitioner’s claim of ineffective assistance, since it rests, solely, on his assertion that the evidence presented against him was insufficient to sustain his § 10-606 (a) (3) conviction.

We do, however, note that a failure to renew a motion for judgment of acquittal, in our opinion, does not automatically render assistance ineffective. That would be the effect were we to hold as the petitioner would have us do. The basis of the petitioner’s insufficient evidence claim, which is essential to his ineffective assistance claim, is a statutory construction and factual argument, unresolved when presented. There simply is no objective, uncontroverted or conceded error. Under such circumstances, we agree with the State; the issue of the effectiveness of counsel must await subsequent post-conviction review.

We affirm the judgment of the Court of Special Appeals.

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