Martin v. State

SHARER, J. Marcus D. Martin, aka Karim Azim Razzaq, 1 appeals from convictions for first degree murder, conspiracy to commit first ¹⁹³ degree murder, first degree assault, use of a handgun in the commission of a crime of violence or felony, wearing and carrying a handgun, conspiracy to commit robbery with a dangerous or deadly weapon, robbery, and theft. The verdicts were returned after a jury trial in the Circuit Court for Baltimore City. Razzaq was sentenced to life in prison for the first degree murder conviction and to a consecutive term of 20 years for the use of a handgun in the commission of a crime of violence. The court also imposed 20 year sentences each on the conspiracy to commit murder, conspiracy to commit armed robbery, and armed robbery counts, each to run concurrent with the other and with the murder and handgun sentences.

Razzaq’s timely appeal presents for our review the following issues, which we have recast: I. Whether the trial court’s failure to instruct the jury on the charge of conspiracy, and to provide an alibi witness instruction, constitutes plain error.

II

Whether the trial court abused its discretion in denying the defense motion for a mistrial.

III

Whether the conviction for conspiracy to commit robbery should be vacated. For the reasons expressed below, we decline to note plain error with respect to the trial court’s instructions. We shall affirm the trial court’s refusal to declare a mistrial. We concur with the parties that the conviction for conspiracy to commit robbery is duplicative and must be vacated.

BACKGROUND Razzaq does not contest the sufficiency of the evidence. Accordingly, we need only recite a summary of the facts that gave rise to this prosecution, or that may be necessary to the resolution of issues raised in this appeal. See Whitney v. State, 158 Md.App. 519, 524 , 857 A.2d 625 (2004). On February 9, 2002, Craig Pope was found shot to death in his Baltimore City home.

Two men were implicated in the ¹⁹⁴ shooting: Xavier Evans and appellant. Evans and Razzaq had originally visited Pope to buy drugs. After they left the house, they discussed the idea of returning to rob and shoot Pope. Unfortunately for Pope, they executed their plan, and him.

On March 26, 2002, a grand jury sitting in the Circuit Court for Baltimore City returned four indictments charging Razzaq and Evans each with a variety of offenses arising out of the murder and robbery of Pope. Evans, for his part, pleaded guilty to first degree murder. In consideration of his plea, he agreed to testify against Razzaq in exchange for a life sentence, with all but 20 years suspended. We shall later review Evans’s testimony as it pertains to our discussion of the lack of a jury instruction on the offenses of conspiracy.

Razzaq went to trial on June 18, 2003, and on June 23 the jury returned guilty verdicts on all counts. His motion for a new trial was denied, and he was sentenced on August 28, 2003. This timely appeal followed. DISCUSSION I. Whether the trial court’s failure to instruct the jury on the charge of conspiracy, and to provide an alibi witness instruction, constitutes plain error.

Razzaq complains of the trial court’s failure to instruct the jury on the offense of conspiracy and the court’s failure to provide an alibi witness instruction. Recognizing that his trial counsel neither requested such instructions, nor objected to the trial court’s failure to give them, he nevertheless urges us to note these mistakes as plain error. The trial court, indeed, failed to instruct as to the two conspiracy charges and did not provide an alibi witness instruction. 2 The sole reference to the conspiracy charge was in ¹⁹⁵ the court’s discussion with the jury of the verdict sheets. Razzaq asserts that this oversight constitutes a violation of his due process rights because, with the failure to so instruct, “the jury could not have found the requisite elements of the conspiracy charges beyond a reasonable doubt.” With respect to the absence of an alibi witness charge, Razzaq, citing this Court’s decision in Robertson v. State, 112 Md.App. 366, 386 , 685 A.2d 805 (1996), asks us to note plain error because, “[wjithout such instructions, there is an inherent risk that a jury may simply weigh the defendant’s alibi claim against the State’s evidence and convict on a mere preponderance of the evidence.” Plain Error The failure to object before the trial court generally precludes appellate review, because “[ojrdinarily appellate courts will not address claims of error which have not been raised and decided in the trial court.” State v. Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035 (1980); see also Md. Rule 8-131(a). “[I]t is the extraordinary error and not the routine error that will cause us to exercise the extraordinary prerogative [of reviewing plain error].” Williams v. State, 34 Md. App. 206, 212 , 366 A.2d 399 (1976) (Moylan, J., concurring). “Plain error is ‘error which vitally affects a defendant’s right to a fair and impartial trial[,]’ ” and an appellate court should “ ‘intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.’ ” 3 Richmond v. State, 330 Md. 223, 236 , 623 A.2d 630 ¹⁹⁶ (1993) (quoting State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521 (1990), and Trimble v. State, 300 Md. 387, 397 , 478 A.2d 1143 (1984), cert, denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985)). “[P]lain error review tends to afford relief to appellants only for ‘blockbuster! ]’ errors.” United States v. Moran, 393 F.3d 1, 13 (1st Cir., 2004) (quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir.1987)).

In assessing whether to note, and perhaps to correct, an unpreserved issue, “[t]he touchstone remains our discretion.” Williams, supra, 34 Md.App. at 212 , 366 A.2d 399 ; see also, e.g., Claggett v. State, 108 Md.App. 32, 40 , 670 A.2d 1002 (1996); Stockton v. State, 107 Md.App. 395, 396-98 , 668 A.2d 936 (1995); Austin v. State, 90 Md.App. 254, 268 , 600 A.2d 1142 (1992). Indeed, this Court recently iterated that “even the likelihood of reversible error is no more than a trigger for the exercise of discretion and not a necessarily dispositive factor.” Morris v. State, 153 Md.App. 480, 513 , 837 A.2d 248 (2003), cert, denied, 380 Md. 618 , 846 A.2d 402 (2004). Reversible error “is assumed, as a given, before the purely discretionary decision of whether to notice it even comes into play.” Perry v. State, 150 Md.App. 403, 436 , 822 A.2d 434 (2002). To underscore the discretionary nature of plain error review in most instances, even where this court has exercised its discretion to do so in another case, Judge Moylan emphasized in Morris that the discretionary decision of an appellate panel to notice plain error is totally ad hoc and a decision by one particular panel on one particular occasion to notice plain error is by no means precedentially binding on subsequent panels on ¹⁹⁷ subsequent occasions, even when similar subject matter seems to be involved.

A particular exercise of discretion may be inspired by any number of reasons, some of which have nothing to do with the subject matter of the jury instruction in question. Morris, 153 Md.App. at 517-18 , 837 A.2d 248 ; see also, e.g., Evans v. State, 28 Md.App. 640, 650-51 , 349 A.2d 300 (1975) (exercise of discretion prudent in view of importance of issue beyond confínes of that appeal), aff'd, 278 Md. 197 , 362 A.2d 629 (1976). Maryland Rule 4-325(e) governs appellate review of unpreserved error in the context of allegedly improper jury instructions, and provides: 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. Upon request of any party, the court shall receive objections out of the hearing of the jury.

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. We have pointed out that the Rule’s salutary function is to provide the trial “court an opportunity to correct the instruction before the jury starts to deliberate.” Allen v. State, 157 Md.App. 177, 183 , 850 A.2d 365 (2004). The Court of Appeals has “defined ‘plain error’ in a jury instruction as ‘error which vitally affects a defendant’s right to a fair and impartial trial’ and [we] have limited our review under the plain error doctrine to circumstances which are ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’ ” Miller v. State, 380 Md. 1, 29 , 843 A.2d 803 (2004) (quoting State v. Hutchinson, supra, 287 Md. at 203 , 411 A.2d 1035 ) (further citations omitted). “ ‘Maryland cases abound with instances where the plain error doctrine was advanced for a failure to instruct and [the ¹⁹⁸ Maryland Courts] subsequently denied review.’ ” Conyers v. State, 354 Md. 132 , 171 & n. 6, 729 A.2d 910 (quoting Hall v. State, 292 Md. 683 , 691 n. 3, 441 A.2d 708 (1982)), cert, denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999). We agree with the First Circuit that “ ‘[t]he plain error hurdle, high in all events, nowhere looms larger than in the context of alleged instructional errors.’” United States v. Sabetta, 373 F.3d 75, 80 (1st Cir.) (emphasis added) (quoting United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir.2001)), cert, denied., 543 U.S. 968 , 125 S.Ct. 433 , 160 L.Ed.2d 338 (2004).

Failure to Provide a Conspiracy Instruction The Court of Appeals has declined to review a trial court’s failure to fully instruct the jury as to a particular crime as charged. In Reynolds v. State, 219 Md. 319 , 149 A.2d 774 (1959), the defendant had been convicted of keeping a disorderly house and related offenses. The trial court’s jury instructions were incomplete with respect to one charge. Reynolds did not object at trial, but averred on appeal that the trial judge, when he undertook to give advisory instructions, had an obligation to both the jury and the defendant to define and explain the offenses charged in the several counts of the indictment, particularly the difference between such counts and the meaning of the technical words and phrases used therein; and that he had a further duty to state precisely and accurately the essential elements of each offense.

Id. at 324 , 149 A.2d 774 . Speaking for the Court, Judge Horney observed: The State frankly admits that the trial court did not fully instruct the jury as to the particular offenses charged in the indictment ... But, the State insists that because the defendant failed to make a timely objection to the court’s instructions, she is precluded from raising the objection here. We must agree.

But the defendant, admitting that she did not seasonably object pursuant to Maryland Rule 739 f, insists that this Court should of its own motion invoke the provisions of Rule ¹⁹⁹ 739 g and take cognizance of and correct what she asserts is a plain error material to her rights. We do not agree. In this case it is obvious that the errors complained of are such that the trial court could have — and undoubtedly would have — corrected if the defendant had interposed her objections, as she should have done, before the jury retired to consider its verdict. Id. at 324-25 , 149 A.2d 774 (citations omitted).

Razzaq, anticipating the State’s reliance on Reynolds , asserts that the Court was unclear with respect to the nature of the instruction that was in fact given, or the offense at issue. We agree that the jury was not “fully charged” in Reynolds . There is some ambiguity as to whether the trial judge failed completely to instruct on an offense, or left out some elements so as not to have “fully charged” the jury, thus rendering an incomplete instruction. Nonetheless, we consider the holding of Reynolds to be pertinent to the issue of whether an appellate court must correct an error in the failure to instruct the jury, in whole, with respect to an offense, where that error had not been called to the attention of the trial court.

Razzaq also refers us to Monk v. State, 94 Md.App. 738 , 619 A.2d 166 (1993), to support his contention that the failure to instruct the jury on all of the elements of a crime is an error of constitutional dimension. The reference to Monk is well-placed, for such an instructional error will often implicate due process concerns. An accused on trial enjoys a due process right to “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.” In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). Even errors with constitutional impact may be subject to waiver. “ ‘No procedural principle is more familiar to this Court than that a constitutional right[ ] ... may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” United States v. Olano, 507 U.S. 725, 731 , 113 ²⁰⁰ S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Yakus v. United States, 321 U.S. 414, 444 , 64 S.Ct. 660 , 88 L.Ed. 834 (1944)).

Our decision in Monk , however, provides no comfort to Razzaq because defense counsel in that case had in fact objected to the trial court’s instruction. Judge Alpert concluded for this Court: Because it is essential that the State prove the arrest was lawful [for the offense of resisting arrest], the trial judge erred in refusing, over defense counsel’s objection, to instruct the jury on the issue.... In fact, the judge specifically instructed the jury not to consider the legality of the arrest.... In addition, when the jury requested the judge to reinstruct them on the offense [of resisting arrest], he reiterated his original instruction verbatim.

Monk, supra, 94 Md.App. at 742 , 619 A.2d 166 (emphasis added). Faulty Instruction Versus No Instruction A distinction has been drawn between the failure of a trial judge to instruct on an element of an offense and total neglect to mention an offense in charging the jury. We must determine at the outset whether either oversight would constitute structural error requiring automatic reversal, regardless of lack of preservation. If so, we would have no occasion to entertain an appeal to plain error. 4 In Sullivan v. Louisiana, 508 U.S. 275, 278 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993), the Supreme Court held that a constitutionally deficient reasonable doubt instruction cannot be harmless error.

In the wake of Sullivan , the United States Court of Appeals for the Ninth Circuit had the occasion ²⁰¹ to examine its effect in a situation that is apposite to the case at hand: Applying Sullivan and other Supreme Court authority, we have held that omitting instruction on, or otherwise failing to submit to the jury, one element of an offense is reversible per se.... We recognized that harmless error analysis was not feasible in the face of such omission[.] The error in this case is considerably more egregious[.] ... The jury here was not given instruction (oral or written) on any element of the counts Harmon challenges. This error is more akin to that in Sullivan , because the entire basis for the jury verdict was tainted; we cannot be sure that the jury made any of the requisite factual findings.

As the district court properly concluded, this error requires automatic reversal. The error undoubtedly affected Harmon’s constitutional right to a proper jury verdict.... We find it difficult to imagine a more fundamental or structural defect than allowing the jury to deliberate on and convict Harmon of an offense, for which it had no definition .... There is no way we can determine the extent to which Harmon’s convictions were actually affected by the failure to instruct, because we simply cannot tell how the jury reached its decision.

Hannon v. Marshall, 69 F.3d 963, 965-66 (9th Cir.1995) (per curiam) (citations omitted). Razzaq has also drawn our attention to a number of earlier cases in which courts have held the total lack of an instruction to require a reversal. See, e.g., State v. Miller, 184 W.Va. 367 , 400 S.E.2d 611, 612-13 (1990) (jury not even told what crimes for which defendant was tried); Gardner v. State, 185 Ga.App. 184 , 363 S.E.2d 843 (1987). In Byrd v. United States, 342 F.2d 939, 940-42 (D.C.Cir.1965), the United States Court of Appeals for the District of Columbia reversed a conviction for robbery where the district court, as instruction, merely read the robbery statute to the jury.

That was error, the court explained, because not all of the elements of common law ²⁰² robbery were codified in the statutory provisions that had been recited to the jury. We are mindful of additional authority for the proposition that a jury charge omission dictates automatic reversal. In People v. Duncan, 462 Mich. 47 , 610 N.W.2d 551 (2000) (per curiam), for example, the Michigan Supreme Court reversed a conviction for use of a firearm in the commission of a felony where the trial court neglected to instruct the jury on any of the elements of that offense. The error was unpreserved.

The Michigan court nevertheless decided to rule: We issue this opinion to iterate a bright line rule: It is structural error requiring automatic reversal to allow a jury to deliberate a criminal charge where there is a complete failure to instruct