Jackson v. State

Gilbert, C. J., delivered the opinion of the Court. This case concerns two appeals involving different cases in the Criminal Court of Baltimore, on two different indictments, tried before the same judge on two different days. In one case the judge presided over a jury that found the appellant guilty of robbery. In the other case, the appellant pled guilty to attempted robbery.

The two sentences were exactly the same, except that one is concurrent with the other. "The rule of two” that seems to run through these two cases will prevail on appeal as there are two reversals and two remands. — THE RULE WITH RESPECT TO ADVISORY JURY INSTRUCTIONS IN CRIMINAL CASES — Md. Rule 757 provides in pertinent part: "a. Written Requests. At the close of the evidence, and upon service of ³²⁷ copies on all other parties, any party may file written requests that the court instruct the jury as set forth in the requests. b.

How Given. The court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law. The court may give its instructions orally or, with the consent of the parties, in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given.

In every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only. h. Appeal. An objection is not reviewable as of right unless it is made in compliance with section f of this Rule. An appellate court, either upon its own motion or upon the suggestion of a party, may take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f of this Rule.” — THE PROCEDURE IN THE INSTANT CASE — The record reveals that after the close of the evidence in the matter presently before us, the appellant, Bernard Jackson, did not present to the trial judge "written requests” for instructions to the jury.

The transcript shows the following dialogue between counsel and the trial judge: "THE COURT: You have any written requests for instructions? MR. MARCUS [Defense Counsel]: No, Your Honor. MRS.

BRUNING [Assistant State’s Attorney]: No. ³²⁸ THE COURT: Then the case will go to the jury. MR. MARCUS: Would your instructions include — THE COURT: You may argue reasonable doubt and so forth. Tell them anything you care to.

It is a very simple case. MR. MARCUS: Your Honor, I think the jury ought to be instructed — THE COURT: You answered my question, no written requests. MR.

MARCUS: That’s right. THE COURT: No instructions will be given.” The trial judge then told the jury that: "As you all have heard, the evidence has been concluded. You will have one charge to consider, and that is, the robbery of this lady, Annabell Collins, at the conclusion of the case. Where we are now, the State’s Attorney has the right to make the first opening argument; defendant’s counsel then makes his argument; and the State’s Attorney may make a final argument in rebuttal; after which you will retire to consider your verdict.” The jury returned a verdict of guilty of robbing Annabell Collins by violently stealing $22 from her.

As a result, Jackson was sentenced to ten years imprisonment. Jackson argues: "The trial judge erred in refusing to consider [ajppellant’s request for advisory instructions.” — THE PROCEDURAL ERROR — Appellant contends that Md. Rule 757 b requires the trial judge to " 'give those advisory instructions to the jury ... [that] correctly state the applicable law....’” We think that the trial judge misinterpreted Md. Rule 757 because he apparently was misled by a reading of subsection a. That subsection, quoted above, provides that a "party may ³²⁹ file written requests that the court instruct the jury as set forth in the request.” The subsection does not, however, mandate that written requests for instruction be submitted, nor is it to be construed as providing that in the absence of written requests, no instruction need be given. The failure, neglect, or purposeful declination to submit written requests for jury instruction, in criminal cases, does not constitute a waiver of the right to seek advisory instructions.

Indeed, subsection b of Md. Rule 757 makes manifest that a trial judge shall "give those advisory instructions to the jury as correctly state the applicable law.” That clause of subsection b simply means that the trial judge, if requested by a party, must instruct the jury as to the law of the particular charge or charges, including those areas of the law that are fairly generated by the evidence. Evans v. State, 28 Md. App. 640, 655-69 , 349 A.2d 300, 309-20 (1975), aff'd, 278 Md. 197 , 362 A.2d 629 (1976); Byrd v. State, 16 Md. App. 391, 400 , 297 A.2d 312, 317 (1972); Peterson v. State, 15 Md. App. 478, 498-99