Bazzle v. State

ADKINS, J. In this case, we address the required evidentiary showing for an instruction on voluntary intoxication. Secondarily, we decide what constitutes a request for grounds of an objection within the meaning of Maryland Rules 5-103(a) and 4-323. After his convictions for attempted second-degree murder, attempted armed carjacking, and first-degree assault, Petitioner Chaz K. Bazzle appealed, arguing that the trial court had committed reversible error by (1) failing to instruct the jury on voluntary intoxication and (2) allowing a witness to testify as to the certainty of his eyewitness identification. The Court of Special Appeals affirmed, and Petitioner filed a petition for certiorari, which we granted.

Bazzle v. State, 423 Md. 450 , 31 A.3d 919 (2011). For the reasons described below, we shall affirm the judgment of the Court of Special Appeals and hold that (1) the evidence did not generate an instruction on voluntary intoxication because it was insufficient to allow a jury to rationally conclude that Petitioner was so intoxicated that he was unable to form the intent necessary to constitute his crimes; and (2) Petitioner failed to preserve his objection to the witness’s testimony because the trial court, by stating that it would overrule the objection unless grounds were provided, triggered the requirement, under Maryland ⁵⁴⁶ Rules 5-103(a) and 4-323, that Petitioner provide grounds or lose the opportunity to raise the objection on appeal. Facts and Legal Proceedings On June 29, 2008, Petitioner Chaz K. Bazzle got drunk with his friends. According to Petitioner, he consumed at least three 40-ounce containers of beer in an apartment complex, went to a mall in Columbia, and drank more alcohol.

He left the mall and was walking to meet his friend Lakita Butler when he was attacked and stabbed six or seven times. He ran to Butler’s house, arriving around 11 p.m. Butler testified that Petitioner was “bleeding” and “almost about to pass out” when he arrived. She called 911, and Petitioner was taken to a hospital, where his blood alcohol content was measured at .157, and then again at. 137.

At the hospital, Petitioner spoke with Detective Donald Guevara, telling him that he had been attacked by one man and one woman “on the footbridge that goes across Little Patuxent Parkway from the waterfront towards the mall.” Petitioner was asleep in a hospital bed when Kohlya Eggleston, who was also being treated for stab wounds suffered that evening, recognized Petitioner as his attacker. According to Eggleston’s testimony, earlier that evening he had been sitting in a truck in a gas station when a man approached, opened the door, and said, “Get out of the motherfucking car.” The man then stabbed him multiple times with a weapon before he could exit. Eggleston could not tell what kind of weapon was used because the man had wrapped a shirt around his hand to conceal it. The man had also been wearing a bandana to cover his face, but it slipped down during the encounter, allowing Eggleston to recognize him as Petitioner, whom he already knew as an acquaintance.

Asked how certain he was that Petitioner was his attacker, Eggleston testified: “very certain.” Petitioner testified in his own defense, denying that he had attacked Eggleston. He also said that he was unable to recall some of his own behavior on the night he was attacked. He objected to the question about Eggleston’s certainty, but was ⁵⁴⁷ overruled. He also requested a jury instruction on voluntary intoxication, but his request was denied.

A jury found Petitioner guilty of attempted second-degree murder, attempted armed carjacking, and first-degree assault. Petitioner appealed, arguing, among other things, that the trial court erred by denying his request for an instruction on voluntary intoxication and admitting Eggleston’s testimony about his certainty. The Court of Special Appeals affirmed, and Petitioner filed a petition for certiorari, asking: 1. Where, during the same evening that Petitioner was alleged to have committed specific-intent offenses, hospital personnel measured his blood alcohol level at .157 and .187, Petitioner testified that he drank heavily throughout the evening, and a witness described him as “bleeding” and “almost about to pass out,” did the trial court err in refusing to instruct the jury upon the defense theory of voluntary intoxication? 2.

In a prosecution in which the identity of the perpetrator is at issue, is it appropriate to admit into evidence the level of certainty of the complaining witness? Voluntary Intoxication Instruction In an unreported opinion, the Court of Special Appeals held that Petitioner had not presented enough evidence to entitle him to an instruction on voluntary intoxication. To be entitled to such an instruction, the court held, a defendant must show “some evidence of the great intoxication required to negate a specific intent crime.” The court held that, although there was evidence that Petitioner was intoxicated, there was no evidence that his intoxication was so severe that he could not form a specific intent, did not appreciate what he was doing, or was robbed of his mental faculties. Thus, it held that an instruction on voluntary intoxication was not generated by the evidence.

Petitioner disagrees, arguing that a voluntary intoxication instruction was relevant and generated by the evidence. The instruction was relevant, he says, because it provides that ⁵⁴⁸ intoxication can negate the specific intent element of a crime, and his convictions — attempted second-degree murder, attempted armed carjacking, and first-degree assault — each contained a specific intent element. 1 The instruction was generated by the evidence, he says, because four pieces of evidence show that he was “so intoxicated, at the time of the act, that he was unable to form” a specific intent: (1) his elevated blood alcohol content; (2) his memory loss; (3) the “senseless manner” in which the assault was committed; and (4) witness testimony describing him as “almost about to pass out” on the night of the crime. The State responds that Petitioner has not produced enough evidence to generate the instruction because, although there was evidence of intoxication, there was no evidence that he was “so intoxicated when he committed the crimes that he could not form the necessary legal intent.” The State asks that we adopt the reasoning of the Court of Special Appeals in Lewis v. State, 79 Md.App. 1 , 13 n. 4, 555 A.2d 509 , 515 n. 4 (1989), which held that, without more, mere evidence that a defendant consumed alcohol, even in an “inordinate amount,” is not sufficient to raise the issue of whether the defendant was so intoxicated that he could not form a specific intent. Maryland Rule 4-325(c) provides: “The court may, and at the request of any party shall, instruct the jury as to the applicable law[.]” We review “a trial court’s refusal or giving of a jury instruction under the abuse of discretion standard.” Stabb v. State, 423 Md. 454, 465 , 31 A.3d 922, 928 (2011).

In doing so, we keep in mind: ⁵⁴⁹ Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order [of the trial court] is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Id. (quoting In re Don Mc., 344 Md. 194, 201 , 686 A.2d 269, 272 (1996)).

In evaluating whether an abuse of discretion occurred: We consider the following factors when deciding whether a trial court abused its discretion in deciding whether to grant or deny a request for a particular jury instruction: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given. Id. at 465, 31 A.3d at 928-29. Here, the parties do not dispute that the requested instruction was a correct statement of the law and was not covered elsewhere in the trial court’s instructions. The only question is whether the instruction was applicable under the facts of the case.

The requested instruction, Maryland Criminal Pattern Jury Instruction 3:31.1, provides: You have heard evidence that the defendant acted while intoxicated by [drugs] [alcohol]. Generally, voluntary intoxication is not a defense and does not excuse or justify criminal conduct. However, when charged with an offense requiring a specific intent, the defendant cannot be guilty if [he] [she] was so intoxicated, at the time of the act, that [he] [she] was unable to form the necessary intent. A specific intent is a state of mind in which the defendant intends that [his] [her] act will cause a specific result.

In this case, the defendant is charged with the offense of (offense requiring a specific intent), which requires the ⁵⁵⁰ State to prove that the defendant acted with the specific intent to (specific intent). [Voluntary intoxication is not a defense to (list offenses not requiring a specific intent).] In order to convict the defendant, the State must prove, beyond a reasonable doubt, that the degree of the intoxication did not prevent the defendant from acting with that specific intent. A person can be [drinking alcoholic beverages] [taking drugs] and can even be intoxicated, but still have the necessary mental faculties to act with a specific intent. 2 A requested jury instruction is applicable if the evidence is sufficient to permit a jury to find its factual predicate. As we said in Dishman v. State: The threshold determination of whether the evidence is sufficient to generate the desired instruction is a question of law for the judge. The task of this Court on review is to determine whether the criminal defendant produced that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.

(Citations omitted.) Dishman v. State, 352 Md. 279, 292-93, 300 , 721 A.2d 699, 705, 709 (1998) (holding that, because “the evidence allowed the jury to conclude that Petitioner acted with gross negligence and not a specific intent to kill or cause serious bodily injury, the trial court erred by refusing the manslaughter instruction”); see also Binnie v. State, 321 Md. 572, 580 , 583 A.2d 1037, 1040-41 (1991) (“We first must determine if the evidence adduced at the trial generated a jury issue as to whether [the defendant] acted in the honest belief that he had the right to obtain or exert control over the property as he did.... In our view, [the defendant’s] testimony was sufficient to support fairly the issue whether he acted in an honest belief[.]” (quotation marks omitted)); Smith v. State, 302 Md. 175, 183 , ⁵⁵¹ 486 A.2d 196, 200 (1985) (“The instruction should be given in every case where there is sufficient evidence to take the issue to the jury.” (citations and quotation marks omitted)). As we explained in Dykes v. State, 319 Md. 206, 216-17 , 571 A.2d 1251, 1257 (1990), the threshold is low, as a defendant needs only to produce “some evidence” that supports the requested instruction: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says — “some,” as that word is understood in common, everyday usage.

It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or “preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim ... the defendant has met his burden. Then the baton is passed to the State.

It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury [the specific facts stated in the instruction]. See also State v. Evans, 278 Md. 197, 207-08 , 362 A.2d 629, 636 (1976) (“[T]he burden of initially producing some evidence on the [requested instruction] (or of relying upon evidence produced by the State) sufficient to give rise to a jury issue with respect to [the instruction], is properly cast upon the defendant.”). 3 Furthermore, “[i]n evaluating whether competent evidence exists to generate the requested instruction, we view the evidence in the light most favorable to the accused.” General v. State, 367 Md. 475, 487 , 789 A.2d 102, 108 (2002). 4 ⁵⁵² Petitioner contends that four pieces of evidence, viewed together and in the light most favorable to him, meet this low threshold. He argues that his blood alcohol content and memory loss on the night of the crime, combined with Butler’s testimony that he was “almost about to pass out” and the illogical manner in which the assault was committed (asking Eggleston to exit the vehicle and then not giving him the opportunity to do so 5 ), constitute “some evidence” that would ⁵⁵³ allow a jury to rationally conclude that he was so intoxicated that he could not form a criminal intent. Thus, he argues, the trial court invaded the province of the jury by refusing to give a voluntary intoxication instruction.

The State responds that such evidence, at most, only goes to show that Petitioner’s functioning was impaired by alcohol, not that he was incapable of forming an intent. The State cites Lewis , in which Judge Pollitt for the Court of Special Appeals wrote: [T]he single fact that one has consumed what some may consider to be an inordinate amount of alcohol, standing alone, with no evidence as to the [effect] of that alcohol on the defendant, would not permit a jury reasonably to conclude that he had lost control of his mental faculties to such an extent as to render him unable to form the intent[.] [T]here was no attempt in this case to offer expert opinions as to the [effect] on the defendant of the ingestion of those quantities of alcohol.... Without knowing the level of one’s tolerance, no good correlation can be observed between the amount of alcohol consumed and the degree of drunkenness displayed. In short, it is not the amount consumed but the effect on the consumer that is important.

(Citations and quotation marks omitted.) Lewis, 79 Md.App. at 12-13 , 13 n. 4, 555 A.2d at 514-15 , 515 n. 4. As we said in Hook v. State, mere intoxication is insufficient to negate a specific intent: Evidence of drunkenness which falls short of a proven incapacity in the accused to form the intent necessary to constitute the crime merely establishes that the mind was affected by drink so that he more readily gave way to some violent passion and does not rebut the presumption that a ⁵⁵⁴ man intends the natural consequence of his act. (Emphasis added.) (Citations and quotation marks omitted.) Hook v. State, 315 Md. 25 , 31 n. 9, 553 A.2d 233 , 236 n. 9 (1989); see also Shell v. State, 307 Md. 46, 62 , 512 A.2d 358, 366 (1986) (“The question ... is whether a defendant has reached that stage of intoxication that renders him incapable of forming the requisite mens rea which is a necessary element of all specific intent crimes.” (citation and quotation marks omitted)); Avey v. State, 249 Md. 385, 388 , 240 A.2d 107 (1968) (“[W]here intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent, he cannot be convicted of a crime requiring that intent[.]” (citations and quotation marks omitted)); 6 Lipscomb v. State, 223 Md. 599, 603-04 , 165 A.2d 918, 921 (1960) (“[E]ven if [the defendant] was drunk on these occasions, it is the general rule that voluntary drunkenness does not relieve an individual of responsibility for his crimes.”); Beall v. State, 203 Md. 380, 386 , 101 A.2d 233, 236 (1953) (“As a defense to intent here the accused must show that he was so intoxicated that he was robbed of his mental faculties. He is criminally responsible as long as he retains control of his mental faculties sufficiently to appreciate what he is doing.”). 7 ⁵⁵⁵ In light of the high degree of intoxication required to negate a specific intent, we agree with the reasoning of the Court of Special Appeals in Lewis that the mere consumption of alcohol, “with no evidence as to the [effect] of that alcohol on the defendant, would not permit a jury reasonably to conclude that he had lost control of his mental faculties to such an extent as to render him- unable to form the intentf.]” Lewis, 79 Md.App. at 13 n. 4, 555 A.2d at 515 , 515 n. 4.

A defendant is not entitled to an instruction on voluntary intoxication unless he can point to “some evidence” 8 that “would allow a jury to rationally conclude” 9 that his intoxication made him incapable of “form[ing] the intent necessary to constitute the crime[.]” 10 See also 4 Oscar L. Warren & Basil M. Bilas, Warren on Homicide § 332 (1938) (“With regard to charging on the defense of intoxication, the usual rule applies that the charge must be based on and applicable to the evidence, and such a charge is properly refused where there is no evidence tending to show such intoxication.”). Mere drunkenness does not equate to the level of intoxication necessary to generate a jury instruction on intoxication as a defense to a crime. In this case, the evidence is insufficient to allow a jury to rationally conclude that Petitioner was so severely impaired that he could not form the intent necessary to constitute his crimes. To be sure, Petitioner’s blood alcohol content of .157 was nearly twice the legal driving limit.

See Maryland Code (1977, 2009 Repl.Vol.), § 11-174.1 of the Transportation Article (setting the limit at .08). Illogical behavior and memory ⁵⁵⁶ loss are also generally associated with excessive alcohol consumption. 11 Yet Petitioner has not shown that such phenomena, which are undoubtedly “some evidence” that he was drunk, are also “some evidence” that he was unable to form a specific intent. Essentially, all Petitioner has shown is that he was drunk and exhibited the typical characteristics of being drunk. This is not evidence that he was unable to form a specific intent, and is therefore insufficient to raise a jury issue on voluntary intoxication as a defense to a specific intent crime.

Regarding Butler’s testimony that Petitioner was “bleeding” and “almost about to pass out,” we agree with the Court of Special Appeals that those statements, in the context of describing Petitioner’s appearance after having just been stabbed, “plainly appear to refer to [his] injured state.” We do not decide whether, in some circumstances, describing a defendant as about to pass out from alcohol could be sufficient to generate a jury issue on voluntary intoxication. We simply hold that when a person has just been attacked and stabbed, and then walked bleeding to a friend’s house, a general description of him as “bleeding” and “about to pass out,” without more specification, is insufficient to constitute “some evidence” that he was so intoxicated that he could not form a specific intent. Moreover, some of Petitioner’s actions on the night in question are inconsistent with the intoxication defense. To begin with, when Petitioner was attacked and stabbed after leaving the mall, he was able to recognize the gender of his two attackers, escape by running (not walking) away from them, and then locate Ms. Butler’s house on foot in the dead of night while severely injured.

Surely this was no easy task, and his ability to complete it, immediately after having consumed all the alcohol that he claims to have consumed, is flatly inconsistent with his assertion that he was so extremely intoxicated that he was unable to form a specific intent. See ⁵⁵⁷ Kreijanovsky v. State, 706 P.2d 541, 544 (Okla.Crim.App.1985) (holding that “appellant’s testimony negated the [intoxication] defense by demonstrating he was in control of his mental faculties”); State v. Davis, 81 Ohio App.3d 706 , 612 N.E.2d 343, 345 (1992) (defendant’s ability to be “properly oriented regarding his location” and “fully aware of the facts and circumstances occurring around him” was inconsistent with the intoxication defense); State v. Netter, 79 So.3d 478, 483 (La.Ct.App.2011) (testimony that the defendant “was not stumbling or staggering” was inconsistent with the intoxication defense); State v. Williamson, 668 S.W.2d 597, 600 (Mo.Ct.App.1984) (defendant’s ability to spend the afternoon “chopping wood and dismantling a fireplace” was inconsistent with the intoxication defense). Petitioner’s ability to speak intelligibly while allegedly intoxicated also contradicts his intoxication theory. Petitioner’s speech, even after he had consumed all the alcohol that he claims to have consumed, was understandable to both Eggleston and Detective Guevara, as Eggleston was able to repeat Petitioner’s words verbatim at trial, and Guevara testified that Petitioner had explained the details of being robbed by one male and one female on “the footbridge that goes across Little Patuxent Parkway from the waterfront towards the mall.” Such clear, detailed speech is inconsistent with the level of intoxication required to negate a