Braboy v. State

PAUL E. ALPERT, Judge (Ret., specially assigned). Appellant Rufus Oliver Braboy was convicted by a jury in the Circuit Court for Wicomico County (the Honorable J. ²²³ Davis presiding) of assault and carrying a deadly weapon and presents the following questions for our review, rephrased as follows: I. Did the circuit court err in refusing to give appellant’s requested jury instruction on the defense of habitation and instead giving a general self-defense instruction?

II

Did the circuit court err in denying appellant’s motion to suppress his statements to the police because he had supposedly invoked his rights to silence and counsel?

III

Did the circuit court abuse its discretion in admitting the inflammatory testimony of the victim’s mother regarding the condition of her son as exceeding the rule against lay opinion? We affirm the circuit court and explain. Background On the evening of May 17, 1998, appellant was at his residence in Salisbury, Maryland entertaining guests Ms. Cannon, Mr. Gregory (“Gregory”), and Sissy 1 The group played cards, drank alcohol, and used illegal narcotics. At some point in the evening, appellant and Gregory left the apartment and went to Ms. Cannon’s house. 2 Appellant asserts that he waited outside the house while Gregory went inside.

Hearing what sounded like the loading of a gun, appellant became suspicious and recalled an earlier conversation he overheard between Gregory and Ms. Cannon about committing a robbery. 3 Gregory emerged from Ms. Cannon’s ²²⁴ in a change of clothes, consisting of a dark sweat suit and a black hood covering his head, and suggested to appellant that they proceed back to appellant’s house through a dark alley instead of a well lit street. Appellant refused, and the two agreed to meet back at appellant’s house. On his way home, appellant was confronted by Gregory on the street soon after the two split up. Gregory allegedly pointed a handgun at appellant’s head, causing appellant to “smack” the gun out of his face, hit Gregory, and run away.

Appellant then called his friend, Mr. Lofland, and told him about the attempted robbery. The two spoke for several minutes about the incident. Appellant then decided to return home, remembering that Sissy was still at his apartment. 4 He ran into Sissy’s boyfriend, Mr. Daniels, on the way home, who agreed to accompany him back to his apartment. When the men reached his apartment, appellant put down the brick he had picked up for his protection and rang the apartment to be let in. 5 Appellant was met at the door by Gregory and immediately hit Gregory to prevent him from pulling the gun on him again.

A fight then broke out between the two men covering the entire space of appellant’s apartment. Appellant hit Gregory with a “T” shaped metal tool, dazing him, backing away, then yelling at Gregory to leave his apartment. 6 Gregory struggled to get up and then fell onto the second floor landing. He then unsuccessfully grabbed onto the railing that was about two feet off the ground to pull himself up, slipped and fell forward onto the ground below. ²²⁵ Gregory was seriously injured in the fight and was still hospitalized and unable to testify at the time of trial. The night following the incident, with a warrant out for his arrest, appellant turned himself in to the Salisbury Police Department.

While at the police department, appellant spoke with Officer Kolb and gave incriminating statements, admitting to the fight but claiming that he was attempting to prevent a robbery in his home. 7 Appellant was charged with (1) two counts of assault in the first degree; (2) two counts of assault in the second degree; (3) unlawful use and carrying of a handgun; (4) wearing and carrying a deadly weapon; and (5) conspiracy to commit assault. After appellant’s motions to suppress were denied, a jury trial was held in the Circuit Court for Wicomico County, and appellant was found guilty of one count of both first and second degree assault and carrying a deadly weapon. He was sentenced to 25 years for the assault and a consecutive 3-year sentence for the carrying of a deadly weapon. This appeal followed.

Discussion I. Jury Instruction on Defense of Habitation A. Preservation for Appeal Appellant contends that the circuit court erred in giving a self-defense jury instruction and rejecting his request for an instruction on the defense of habitation. 8 Without reaching the substantive merits of the appeal, we address appellee’s ²²⁶ contention that appellant did not properly preserve this issue for appeal. Maryland Rule 4-325(e) 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. Appellant’s counsel requested a jury instruction on the defense of habitation, 9 which was summarily denied by the court as adequately covered by the self-defense instruction. The court then asked if there was anything further before the instructions would be given, and appellant’s counsel replied in the negative.

The court then read the jury its instructions, using the instruction of self-defense and not the defense of habitation. At the conclusion of the instructions, appellant’s counsel stated that “the defense has no exceptions, Your Honor” whereupon counsel for both sides presented closing argument. We find Johnson v. State, 310 Md. 681 , 531 A.2d 675 (1987), analogous to the case at bar, and hold that the issue was not preserved for appeal. In Johnson , defense counsel requested a specific jury instruction at the close of the evidence but before the instructions were given to the jury.

The court denied the request, and “nothing more was said on the subject, and the trial court thereafter instructed the jury.” 310 Md. at 685 , 531 A.2d 675 . After the instructions were given, counsel approached the bench, at which time the court asked counsel if they had any objections, to which defense counsel replied “No exceptions.” Id. ²²⁷ The Court of Appeals held that the issue was not preserved because the language of the rule [Md. Rule 4 — 325(e) ] plainly requires an objection after the instructions are given, even though a prior request for an instruction was made and refused. Id. at 686 , 531 A.2d 675 . Policy rationales exist behind the strict application of this rule: There are good reasons for requiring an objection at the conclusion of the instructions even though the party had previously made a request.

If the omission is brought to the trial court’s attention by an objection, the court is given an opportunity to amend or correct its charge. Moreover, a party initially requesting a particular instruction may be entirely satisfied with the instructions as actually given. Id. See also Bennett v. State, 230 Md. 562 , 188 A.2d 142 (1963).

Even if the rule is not completely complied with, “we have recognized that, on occasion, an objection in substantial compliance with the Rule will be considered adequately preserved.” Bowman v. State, 337 Md. 65, 69 , 650 A.2d 954 (1994). Certain conditions must be met for substantial compliance to exist, namely: There must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless. Id. (citing Gore v. State, 309 Md. 203, 209 , 522 A.2d 1338 (1987)).

We find nothing in the record to indicate that appellant’s counsel did anything other than request the instruction prior to the court’s instructing the jury. Once the request was denied and the instructions given, there was no further discussion. As such, we conclude that the issue was not preserved for appeal. ²²⁸ Appellant also asserts that even if the issue was not preserved for appeal, we should review it, pursuant to Maryland Rule 4-325(e), providing in pertinent part that an appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. This provision, however, is only applicable where the circumstances are “compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial.” Conyers v. State, 354 Md. 132, 171 , 729 A.2d 910 (1999) (citing State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980)).

Those circumstances do not exist in the case sub judice. B. Adequacy of Self-Defense Instruction Given Even though the issue was not properly preserved for appeal, we agree with the circuit court that the instruction given amply covered the habitation defense instruction. Appellant requested the following habitation defense instruction: You have heard evidence that the defendant acted in defense of [his][her] home. Defense of one’s home is a defense and you are required to find the defendant not guilty if all of the following three factors are present: (1) the defendant actually believed that victim was committing [was just about to commit] the crime of (crime) in [at] the defendant’s home; (2) the defendant’s belief was reasonable; and (3) the defendant used no more force than was reasonably necessary to defendant against the conduct of victim.

In order to convict the defendant, the state must show that the defense of one’s home does not apply in this case by proving, beyond a reasonable doubt, that at least one of the three factors previously stated was absent [emphasis added]. Instead, the trial judge used this instruction: ²²⁹ Self-defense is a defense and you are required to find the Defendant not guilty if all of the following three factors are present; one, the Defendant actually believed that he was in immediate and imminent danger of bodily harm; two, the Defendant’s belief was reasonable; and three, the Defendant used no more force than was reasonably necessary to defend himself in light of the threatened or actual harm. Deadly force is that amount of force reasonably calculated to cause death or serious bodily harm. If you find that the Defendant used deadly force, you must decide whether the use of deadly force was reasonable.

Deadly force is reasonable if the Defendant actually had a reasonable belief that the aggressor’s force was or would be deadly and that the Defendant needed a deadly force response. In addition, before using deadly force, the Defendant is required to make all reasonable efforts to retreat. The Defendant does not have to retreat if the Defendant was in his home, retreat was unsafe, the avenue of retreat was unknown to the Defendant, the Defendant was being robbed [emphasis added].... The court denied appellant’s request for the habitation defense instruction because it was “adequately covered” in the instruction given: THE COURT: One of your arguments to the jury will be that he was acting in defense of his home, is that correct? [COUNSEL FOR APPELLANT]: That’s a planned argument, Your Honor.

It was inside his house, I think there was evidence generated of that.... THE COURT: Okay. Well, reading the rule and the annotations with the pattern rule, it seems to me that giving the instruction, the complete instruction for self-defense ... adequately covers the point. So I’ll deny your request for the defense of habitation instruction.

We agree with the circuit court that the instruction given as a whole was “adequate to cover” the situation here. Both instructions discuss (1) defendant’s actual belief of danger of death or bodily harm; (2) that the belief was reasonable; and ²³⁰ (3) that no more force was used than reasonably necessary. Furthermore, the self-defense instruction also discussed the duty to retreat and the fact that the defendant does not have the duty to retreat (1) when he is in his home; or (2) being robbed. All of the major requirements in the habitation defense instruction were included in the instruction given.

Because we hold that the jury instruction request was not preserved for appeal, and despite that, was adequately covered in the instruction given, we do not address the substantive issues behind the defense of habitation. 10 II. Suppression of Statements Made to Police Appellant also contends that the trial court erred in denying his motion to suppress the incriminating statements he made to police in alleged violation of his rights to counsel and silence. 11 The trial court’s fact finding will be upheld ²³¹ unless it was “clearly erroneous”; however, as the appellate court we must make an independent constitutional determination on the confession’s admissibility. Williams v. State, 127 Md.App. 208, 212-13 , 732 A.2d 376 (1999). See also Riddick v. State, 319 Md. 180 , 571 A.2d 1239 (1990).

Prior to the interview with appellant, Officer Kolb explained appellant’s rights to him. Appellant’s responses to these advisements are what appellant relies on in maintaining that his constitutional rights were violated. The portions