Kissinger v. State

SONNER, Judge. A jury for the Circuit Court for Baltimore County convicted Walter Duff Kissinger of attempted robbery with a deadly weapon,for which he received a sentence of fifteen years’ imprisonment. At the close of the trial, the court (Cadigan, J.), without a request from appellant, issued an “anti-inference” instruction to the members of the jury, advising them of the defendant’s constitutional right not to testify and that no adverse inference should be drawn from his election to remain silent. Appellant has noted this appeal and alleged that the giving of that instruction without his request constitutes error.

Questions Presented 1. Did counsel for appellant object to the antiinference instruction so as to preserve the issue for appellate review? 2. Did the trial court err in giving an antiinference instruction without the defendant’s request? Factual Background According to the testimony of the witnesses at trial, the victim, William S. Naylor, was visiting with some friends in the parking lot of a WaWa Store on North Point Boulevard, ³⁷⁴ when appellant approached him and asked for some directions.

When Naylor stated that he could assist him, appellant requested that Naylor accompany him to his car, which was parked nearby at Donovan’s Lounge, so that he could get paper and pencil to write down the directions. When they reached Donovan’s Lounge, appellant motioned Naylor toward some steps, at the top of which he claimed he would be able to find a pen and a piece of paper. Naylor described the steps as being enclosed on both sides, making it difficult for Naylor’s friends to watch him ascend to the top. As they reached the top of the stairs, Naylor testified that appellant pulled out a gun, pointed it at Naylor’s chest, and said, “Give me your money or ... something is going to happen ...” Instead of complying, Naylor grabbed the gun with one hand and appellant’s throat with his other and wrestled appellant to the foot of the steps.

A friend of Naylor’s, Dennis Nugent, saw the struggle and quickly approached from the WaWa Store to see what was happening. In the meantime, appellant succeeded in releasing Naylor’s hold on the gun and told Nugent to “back off.” Both Naylor and Nugent managed to flee, and Naylor went to a fire station in the vicinity, where he called the police. Officer Charles Hornbarger arrived at the scene first, interviewed Naylor, and, as a result of other information, he arrested appellant at a home of one of his friends who resided nearby. Appellant did not testify at trial.

During instructions to the jury at the close of the case, the trial court issued an instruction as follows: The Defendant did not testify in this case. The Defendant has an absolute constitutional right not to testify. The fact that the Defendant did not testify must not be held against the Defendant. It must not be considered by you in any way or even be discussed by you.

The court did not advise appellant’s counsel of his intention to give that instruction prior to addressing the jury. After instructions, appellant’s counsel remarked to the court: ³⁷⁵ Your honor, I want to make an exception to one of your instructions that wasn’t requested and you gave and I am not going to argue it, but I am going to make my exception. You instructed the Jury about inferences with respect to someone testifying. That was not an instruction that anybody requested and it’s an instruction that I never requested.

The court replied, “Okay. You have your exception.” Appellant has noted a timely appeal to this Court. I. Legal Analysis Preliminarily, we must determine if appellant objected to the instruction and properly preserved the issue for our review. Objections to jury instructions must comply with Maryland Rule 4-325(e), which states, 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 ground for the objection.

The State contends that the language used and the exchange do not make clear the ground for the objection and, as a consequence, the issue is unpreserved. We disagree. Although the objection to the instruction may not appear to be “distinct,” it is clear that counsel, as well as the court, were referring to that which informed the jury not to draw any inferences from the defendant’s failure to testify. To conclude otherwise would require us to find in the court’s instructions to the jury some other statement about inferences and testimony.

There is no such other instruction. It is clear to us, as indeed it appears that it was clear to the court, that appellant’s counsel was referring to the no adverse inference instruction about which appellant complains on appeal, and the court, by saying, “Okay. You have your excep ³⁷⁶ tion.” succeeded in making the objection distinct and in compliance with the rule. Appellee directs us to Bowman v.