Austin v. State

MOYLAN, Judge The number of occasions on which we are asked to invoke the “plain error” exemption from the otherwise foreclosing effect of non-preservation through failure to object remains so epidemic that it behooves us periodically, as forcefully as we know how, to do what we can to limit the contagion. Maryland Rule 4-325(e) states the basic and simple principle with unmistakable clarity: “No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” That is the norm. That is the clearly articulated standard that must be satisfied as a precondition for appellate review. It is the norm to which we have always adhered and to which we shall continue to adhere.

The rule does go on to state a very limited exception, whereby an appellate court may (though it need not and usually will not) choose to overlook, in unusual circumstances, the procedural dereliction: “An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any ²⁵⁸ plain error in the instructions, material to the rights of the defendant, despite a failure to object.” We choose to restate in a published opinion the hierarchical relationship between the rule and its exception because the exception, through promiscuous indulgence, periodically threatens to swallow the rule. In Brown v. State, 14 Md.App. 415, 418 , 287 A.2d 62 (1972), Judge Powers pointed out that the “plain error” exception to the rule “leaves slightly ajar the door to appellate relief ...” In Williams v. State, 34 Md.App. 206, 207-208 , 366 A.2d 399 (1976), we picked up on Judge Powers’ metaphor and noted the consequences: “Whenever a door is left slightly ajar, there is irresistible temptation on the part of bar, and sometimes even bench, ever to widen the breach. The process is gradual and each progressive nudge imperceptible when viewed alone. What began, however, as a door almost, though not quite, closed is suddenly perceived to be a door almost, though not quite, wide open.” The Present Case The appellant, Darryl Shjuan Austin, was convicted by a Montgomery County jury, presided over by Judge William C. Miller, of attempted second-degree murder and the use of a handgun in the commission of a crime of violence.

Upon this appeal, he raises the following two contentions: 1. That the judge committed plain error in instructing the jury on the mens rea requirement of attempted second-degree murder; and 2. That the judge erroneously refused to instruct the jury on other uncharged, albeit arguably related, offenses. Briefly, let us set the stage.

The appellant was a Montgomery County police officer. His shooting victim, Willie Lee Jackson, and he were both in love with the same teenaged girl, Khavah Carter. Willie Jackson testified that he was “so attracted to her, [he] was stupid with love for ²⁵⁹ her.” Jackson wrote the appellant, informing him that they were both in love with the same woman, accusing him of being “dumb,” and suggesting that they should talk out the matter. Jackson believed that the appellant was displaying “utter stupidity” because the appellant, at age twenty-eight, was nine or ten years older than Khavah.

The two arranged to meet on the evening of February 28, 1990, at 12601 Layhill Road, the apartment where Khavah was living. The appellant demanded that Khavah choose between them. Khavah did so. When she chose Willie Jackson, the appellant “flipped.” The appellant initially shoved Khavah up against a wall, held her in a choke hold, and threatened to kill her.

He finally stopped choking her after about ninety seconds. As Willie Jackson went to hold and comfort Khavah, the appellant opened fire on him. As significant insight into his purpose or mens rea, the appellant announced, as he fired, “You’re going to die, bastard.” Lifesaving measures at the emergency room of the Suburban Hospital, however, thwarted that purpose. One bullet had entered the left side of Jackson’s neck and exited through his cheek.

A second bullet entered and exited through the frontal bone of his head. Willie Jackson nonetheless survived. The appellant, incidentally, was on duty and in uniform at the time of the encounter. A recent graduate of the police academy, Officer Brian Holloway, assigned to the appellant to learn proper police procedures, was sitting outside in a cruiser, from which point he could observe the appellant, Willie Jackson, and Khavah inside the apartment.

Although Willie Jackson himself apparently heard only two shots, Officer Holloway heard four gunshots in rapid succession and saw the appellant in a crouched position pointing his gun downward. After the appellant returned to the police cruiser, Officer Holloway observed him replace four rounds of ammunition in his revolver. In the patrol car, the appellant, moreover, concocted an exculpatory story that Officer Holloway was instructed to tell the Office of Internal Affairs. ²⁶⁰ Khavah told essentially the same story except that her recollection of what the appellant announced, as he fired, was, “Die, bastard, die.” The Instructional Error In instructing the jury on attempted second-degree murder, the judge began by defining second-degree murder: “Second-degree murder is the killing of another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result. Second-degree murder does not require premeditation or deliberation.

The elements of second-degree murder are that the conduct of the defendant caused the death of the victim. That the defendant engaged in the deadly conduct either with the intent to kill, or intent to inflict such serious bodily harm that death would be the result." (emphasis supplied). Thus far, the instruction was technically correct. When death results, there are no less than four mens reae that are sufficiently blameworthy to support a murder conviction.

The instruction referred to two of them — the intent to kill and the intent to inflict grievous bodily harm. The difficulty is that the inchoate crimes of attempted murder and assault with intent to murder are far more limited in their mental elements than is the case with consummated murder. One may only be convicted of attempted murder when there is the specific and actual intent to kill. An intent to commit grievous bodily harm, by contrast, will not support a conviction for attempted murder although it will support a conviction for actual murder.

The next step in the instructional syllogism was, therefore, incorrect: “The third possible verdict would be guilty of attempted second-degree murder, which involves an attempted killing with the intent to kill or inflict such bodily harm that would be likely to cause death, but absent premeditation and deliberation.” (emphasis supplied). ²⁶¹ Let this be clearly noted. That instruction is wrong. State v. Earp, 319 Md. 156, 164-167 , 571 A.2d 1227 (1990); State v. Jenkins, 307 Md. 501, 510-515 , 515 A.2d 465 (1986); Glenn v. State, 68 Md.App. 379 , 511 A.2d 1110 (1986), cert. den., 307 Md. 599 , 516 A.2d 569 (1986). Let this be equally clearly noted.

The appellant did not object to that instruction. Under the central thrust of Rule 4-325(e), therefore, he may not “assign as error the giving” of that instruction. The point, which would have been a very good one if properly preserved, has not been preserved for appellate review. The fact of instructional error is in no way dispositive of the preservation issue.

The preservation rule contemplates error. It assumes that an error has probably occurred. Its concern is that the error was not brought to the trial judge’s attention so that he could have had the opportunity to correct it. Indeed, if the instruction in question were not in error, it would make very little difference whether the point had been preserved or not.

Under the clear command of the rule, the appellant may not assign as error this erroneous instruction. We decline, therefore, to consider the contention. Nothing persuades us, in the exercise of our discretion, to take the extraordinary step of overlooking the appellant’s procedural failure. The Appellate Discretion is Plenary Many trial advocates seem to suffer the misapprehension that if the instructional error, even in the absence of an objection, is plain and is material to the rights of the accused, the appellate court is thereby divested of its discretion and is required to consider the contention on its merits.

They would limit the appellate discretion to decisions as to whether 1) to consider whether an instructional error had even occurred, in the first instance, and 2) assuming the error so leaped off the page that it could not be ignored, to consider whether the error was actually material to the rights of the accused, in the second instance. ²⁶² The appellate discretion is not so cabined. On the question of overlooking non-preservation, the appellate discretion is plenary. As a matter of course, it may be exercised so as not even to consider the initial question of whether instructional error occurred: “Because the issue has not been preserved, we, in the exercise of our discretion, decline even to read the arguably flawed instruction.” Equally as a matter of course, the appellate court, if faced with an instructional error so patent that it could not be ignored, might nevertheless decline to go further and analyze the course of the trial to determine whether even the obvious error was at all material to the trial outcome: “Because the issue has not been preserved, we, in the exercise of our discretion, decline to make an assessment of whether the admittedly erroneous instruction was in any way material.” The ultimate appellate discretion, however, is one of whether, even in the face of error both plain and material, to overlook the procedural dereliction and to consider the contention upon its merits. In Reynolds v. State, 219 Md. 319, 324 , 149 A.2d 774 (1959), the Court of Appeals was faced with an instructional error that did not fully define or explain the very offenses with which the defendant had been charged.

The error was admitted by the State. Its materiality, with respect to crimes that by no means defined themselves, was clear. The Court of Appeals, nonetheless, declined to overlook the procedural default: “The State frankly admits that the trial court did not fully instruct the jury as to the particular offenses, charged in the indictment, and that it did not explain the real meaning of keeping a disorderly house or the other offenses charged in the indictment. But, the State insists that because the defendant failed to make a timely objection to the court’s instructions, she is precluded from raising the objection here.

We must agree____ But the defendant, admitting that she did not seasonably object pursuant to Maryland Rule 739 f, insists that this Court should of its own motion invoke the provisions ²⁶³ of Rule 739 g and take cognizance of and correct what she asserts is a plain error material to her rights. We do not agree.” (citations omitted). Judge Powers, in Brown v. State, 14 Md.App. 415, 418 , 287 A.2d 62 (1972), explicitly reaffirmed that open-ended character of the appellate discretion: “Any error, once recognized, may be called plain error, and unless it can be held to be harmless, it must be considered as material to the rights of the accused. But it is not every such error that the appellate courts will take cognizance of and correct____ We take it that if the error is not plain, or if it is not material to the rights of the accused, the appellate court would in no event consider it.

Even if the error meets both of these tests, its consideration on appeal is not a matter of right, for the use of the word ‘may’ makes it permissive, and necessarily leaves its exercise to the discretion of the appellate court.” In Williams v. State, 34 Md.App. 206, 211 , 366 A.2d 399 (1976), we reiterated the basic principle: “Even granted harmful and material error of constitutional dimensions, notice thereof is still the exception and not the rule.” In Sine v. State, 40 Md.App. 628, 631-632 , 394 A.2d 1206 (1978), we were faced with an instructional error that arguably cast upon a defendant the burden of proving that his incriminating statements were involuntary. Notwithstanding that the error was both plain and material, we again declined to overlook the procedural default: “Although it does not explicitly allocate the burden of proof as between the parties, this statement is clearly susceptible of the interpretation that the appellant bore the burden of proving by a preponderance of the evidence that his incriminating statements were made involuntarily. Accordingly, it constituted error. The record shows, however, and appellant concedes, that no objection was made to the instruction as required by Md.Rule 757 ²⁶⁴ f____ Nevertheless, appellant urges us to exercise our. discretion and take cognizance of and correct this error in the instructions under the provision of Rule 757 h.

The discretion conferred upon us by that rule will not be exercised as a matter of course, even where the error complained of is clear.” (footnote and citations omitted) (emphasis supplied). Indeed, in Sine v. State, supra, Judge Thompson amplified on the point that the fact that a material error has resulted in prejudice to the accused does not ipso facto call for the appellate court to entertain the contention notwithstanding its non-preservation. In Sine , this Court declined to consider the contention, after having noted, at 40 Md. App. at 632 , 394 A.2d 1206 : “Appellant points to three considerations which, he argues, would justify the exercise of our discretion in his favor in this case. First, he points out that the error was prejudicial.

The mere fact that the alleged error may have resulted in some prejudice to the appellant does not, in itself, justify the invocation of the plain error rule. Otherwise, any error that could not be considered harmless would be reviewable and Rule 757 f and h would be meaningless.” Chief Judge Murphy, on assignment to this Court in Squire v. State, 32 Md.App. 307, 309 , 360 A.2d 443 (1976), rev’d on other grounds, 280 Md. 132 , 368 A.2d 1019 (1977), explained that: “[E]ven if an error in jury instructions is plain, its consideration on appeal is not a matter of right; the rule is couched in permissive terms and necessarily leaves its exercise to the discretion of the appellate court.” (citation omitted). The Reason for the Requirement The requirement that a defendant must have made a timely objection to an allegedly erroneous instruction in order to preserve the issue for appellate review is not an arbitrary one. It is supported by a solid rationale.

At the ²⁶⁵ most basic level, it recognizes that appellate courts do not range forth, like knights errant, seeking flaws in trials. Their quest is far more modest. They monitor a trial for the limited purpose of seeing if the trial judge committed error. Braun