Bowman v. State

RAKER, Judge. In this case, we are asked to decide whether the trial court erred in failing to instruct the jury on the doctrine of “imperfect” defense of others. 1 We hold that appellant’s claim ⁶⁷ was not preserved for review, and we affirm the judgment of the Circuit Court for Prince George’s County. 2 Appellant Charles E. Bowman, III, was convicted by a jury in the Circuit Court for Prince George’s County of one count of second degree murder, in violation of Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.) Article 27, § 411, and one count of use of a handgun in the commission of a crime of violence, in violation of Article 27, § 36B. He was sentenced to thirty years imprisonment on the second degree murder charge and twenty years imprisonment for the handgun offense, both sentences to be served concurrently. He appealed his convictions to the Court of Special Appeals, and we issued a writ of certiorari prior to consideration of the case by that court 334 Md. 468 , 639 A.2d 695 . 3 Our analysis begins with the fundamental proposition that appellate review of a jury instruction will not ordinarily be permitted unless the appellant has objected seasonably so as to allow the trial judge an opportunity to correct the deficiency before the jury retires to deliberate.

State v. Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035, 1037 (1980); Johnson v. State, 310 Md. 681, 686 , 531 A.2d 675, 677 (1987). The party making the objection also must specifically state the grounds therefor. Gore v. State, 309 Md. 203, 207 , 522 A.2d ⁶⁸ 1338,1339 (1987). These principles are embodied in Maryland Rule 4-325(e), which provides in pertinent part: 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.

In this case, the record is sparse concerning any discussions on proposed instructions which may have taken place between the court and counsel. We glean the following: At the conclusion of all the evidence, the trial judge invited counsel to chambers for an instruction conference. If any discussion took place, it was off the record and never summarized for the record. Before the court instructed the jury, Bowman’s counsel advised the court, “I don’t know if the Court noticed it and we did not discuss it at all, was a proposal for the Court to give an imperfect defense of others?

I guess it’s theoretically possible.” 4 After the court instructed the jury, defense counsel addressed the court at the bench. The following colloquy occurred: [Defense Counsel]: Your Honor, the only thing I have is that even though you touched upon it, you really didn’t go into a more specific kind of imperfect defense of others. But that’s my only comment. I think it was a little sketchy, even though you incorporated some of it, but it wasn’t exactly what I had in mind.

The Court: Okay. Again, I think the instructions as given are sufficient and I’m declining to give any further instructions. [Defense Counsel]: Thank you, Your Honor. As the record indicates, defense counsel made no express request, in writing or orally, for an instruction on “imperfect” ⁶⁹ defense of others. He merely stated to the court that the instruction as given was not “exactly what [he] had in mind.” Furthermore, counsel did not bring to the court’s attention the portion of the instructions which he thought was “sketchy,” nor did he state to the court in what manner the instructions should be amended.

We have recognized that, on occasion, an objection in substantial compliance with the Rule will be considered adequately preserved.