Medley v. State

Wilner, J., delivered the opinion of the Court. In an indictment filed in the Criminal Court of Baltimore on November 12, 1980, appellant was charged with the first degree murder of one Paul Watkins, use of a handgun in the commission of a felony or crime of violence, and unlawfully wearing, carrying, and transporting a handgun in violation of Md. Code art. 27, § 36B (b). * 1 From his conviction on the last charge, appellant noted this appeal, asking: ²²⁷ 1. "Did the trial court violate Maryland Rule 757d by failing to inform counsel of the substance of its instructions and of its action on the requests for instructions before jury arguments?” 2. "Did the trial court err in refusing to instruct the jury that the accused had a right to arm himself in reasonable anticipation of an attack?” 3.

"Did the trial court err in instructing the jury that they were bound by its instructions on the law?” Finding no reversible error, we shall affirm the judgment of the court below. On August 26,1980, at approximately 7:00 a.m., appellant appeared at the apartment of his former girlfriend, Charisse Williams, for the purpose of discussing the storage of Williams’ furniture while she was on military duty. Upon learning from Ms. Williams that the decedent, Paul Watkins, was in another room, appellant left, going downstairs to the seventh floor apartment of another friend, Betty Mae Floyd. Appellant’s departure may have been prompted by the fact that Watkins, who was a heroin user, had earlier told Ms. Williams that he would kill appellant "if he ever saw him in his territory or if he ever said anything wrong to him.” After appellant’s departure, Watkins made inquiry of Ms. Williams concerning the knock at the door.

When Ms. Williams refused to answer, Watkins began to beat her, only to be interrupted a short time later when Betty Mae Floyd knocked at the door. After a brief conversation, Watkins slammed the door on Ms. Floyd, who then returned to her apartment, while Watkins returned to beating the unfortunate Ms. Williams. At some point, Watkins, apparently surmising that appellant had been at the door earlier, grabbed a kitchen knife and, with Ms. Williams in ²²⁸ tow, proceeded to Ms. Floyd’s apartment, whereupon he proceeded to bang on the door and demand, in rather inelegant language, that appellant come out. After a short time, the door opened, and appellant, who was armed, stepped out in the hallway.

As he did, Ms. Floyd took hold of Ms. Williams and dragged her into the apartment, in the course of which Ms. Williams saw Watkins go "for the knife,” which was tucked- into the back of his pants. Appellant then shot Watkins, who fled to a nearby stairwell, where he died. At trial, after the presentation of evidence had been concluded, the court called for counsel to make closing argument. Without objection from either defense counsel or the State that the court had not yet announced "its proposed action on the requestfs] for instructions and the substance of the instructions which it propose[d] to give,” as required by Maryland Rule 757d, 2 the Assistant State’s Attorney proceeded, submitting that appellant had "made no effort to retreat,” and that he could carry a handgun only if he had a valid permit to do so.

After the Assistant State’s Attorney had concluded her remarks, and again without bringing to the court’s attention its failure to comply with Maryland Rule 757d, defense counsel addressed the jury. Contrary to what the prosecution had just argued, he told the jury that appellant was unable to retreat and that his client was not guilty of wearing, carrying, or transporting a handgun illegally because he had "the right to arm himself in reasonable anticipation of an attack.” The next morning, the court, still unaware of its oversight, proceeded to instruct the jury, telling it, inter alia, that "what I tell you about the law is binding on you.” No instruction concerning whether appellant had a right to arm himself in reasonable anticipation of attack was given, ²²⁹ although such an instruction had been requested by appellant. At the conclusion of the court’s charge, defense counsel complained, among other things, of (1) the court’s failure to grant his client’s requested instruction "that a person who is not seeking a fight, but is reasonably apprehensive he might be attacked has a right to arm himself in anticipation of such an attack”; and (2) the court’s general instruction that its instructions on the law were binding on the jury. Additionally, for the first time, and without seeking any specific relief, counsel objected to the court’s failure to comply with Rule 757d.

The court made no response other than to submit the case to the jury. I. Appellant’s first assignment of error is that the court failed to abide by the provisions of Maryland Rule 757d, thus denying him the "opportunity to reflect on the court’s instructions in closing arguments.” This omission, he contends, worked to his prejudice in the following ways: (1) "[D]efense counsel’s argument that it was the jury’s function to interpret the law as to the facts of the case” "clashed” with the court’s charge that the jury was bound by its instructions on the law; (2) defense counsel’s argument that appellant had a right to arm himself in reasonable anticipation of an attack by Watkins "was not supported by an instruction of the court. . .”; and (3) counsel was unable to ameliorate the conflict by arguing to the jury that "it was their duty to resolve differences between the court and counsel as to the law of the case, and that counsel could argue conflicting interpretations of the law ... even if the court’s instructions were to the contrary.” In response, the State concedes that the trial court failed to comply with Rule 757d, but argues that the issue was not preserved for appellate review because, as we have seen, "[ajppellant did not bring this omission to the court’s attention until after both closing arguments and the court’s instructions had been given.” ²³⁰ We agree with the State, and conclude that appellant has waived the issue by failing to make a timely objection. The condition expressed in Rule 757d is a mandatory one. If the trial court opts to reserve its instructions until after closing arguments of counsel, as it has a right to do, it must, prior to their closing argument, "advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give.” The obvious purpose of that requirement is to enable counsel to anticipate the court’s instructions, and to tailor their arguments accordingly.

Given that entirely sensible purpose, it is easy to see how the court’s failure to comply with the requirement could be of considerable prejudice to either or both sides in the case; and, if the prejudice went to the accused, the error would ordinarily require a reversal of any adverse judgment entered against him. There is, however, the equally compelling, and even more pervasive mandate of Maryland Rule 1085 — that "[t]his Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; ....” Maryland Rule 1085 and its counterpart applicable to the Court of Appeals (Maryland Rule 885) express a limitation on appellate review that is of long standing in Maryland. As early as 1826, the General Assembly directed that "the court of appeals shall not reverse or affirm any ... judgment on any point or question which shall not appear to have been presented to the county court, and upon which that court may have rendered judgment.” Acts of 1825, ch. 117. By 1896, it was clear that that limitation was applicable to criminal as well as civil judgments (see Mitchell v. State, 82 Md. 527 (1896); Hamilton v. State, 127 Md. 312 (1916)).

The Court of Appeals gave its own imprimatur to the requirement by including it as part of its original "Rules and Regulations Respecting Appeals” (see Rule 9, Md. Code (1951), Appendix B, p. 4823) and by continuing it throughout all the subsequent revisions to the Rules. See Gordon v. State National Bank, 249 Md. 378, 383 (1968). As explained in Basoff v. State, 208 Md. 643, 650 (1956): ²³¹ "This rule [then Rule 9] applies to both civil and criminal cases. When a party has the option either to object or not to object, his failure to exercise the option while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal.

The Court of Appeals adopted the rule to ensure fairness for all parties to cases and to promote the orderly administration of the law.” (Emphasis supplied.) See also Clayman v. Prince George’s County, 266 Md. 409, 416 (1972), where the Court noted, with respect to Rule 885, that its "principal purposes” were "(a) to require counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings, Lane v. State, 226 Md. 81 , 172 A.2d 400 (1961) and (b) to prevent the trial of cases in a piecemeal fashion, thus accelerating the termination of litigation,. .. It is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorously enforced. Even errors oí Constitutional dimension may be waived by failure to interpose a timely objection at trial (see, for example, Smith v. State, 16 Md.App. 317 (1972), cert. den. 267 Md. 744 (1973); Hewitt v. State, 242 Md. 111 (1966)), and so may alleged violations of sub-constitutional procedural rules. See Logan v. State, 289 Md. 460, 487 (1981).

The proper time for objecting to the court’s noncompliance with Maryland Rule 757d was when that noncompliance became manifest — prior to the State’s initial closing argument or, at the very latest, prior to appellant’s closing argument. That is the point at which the omission and any prejudice arising from it became obvious; and that is also the ²³² point at which the court could have easily brought itself into compliance and avoided all possible prejudice to appellant. Waiting until after the instructions had been given to bring the matter to the court’s attention runs exactly counter to the expressed purpose of Maryland Rule 1085 and, whether or not intended in this case, smacks of a deliberate entrapment of the trial court. 3 As we said in connection with another section of Maryland Rule 757 (§f), "[i]t is not the purpose and design of the rule to provide an avenue for a party to lay away ammunition in the arsenal of appeal,” but rather "to correct errors while the opportunity to correct them still exists.” Vernon v. State, 12 Md.App. 157, 163 (1971).

II

Appellant’s second contention is that despite the provisions of Md. Code art. 27, § 36B (b), Gunther v. State, 228 Md. 404 (1962), recognized a residual common law right "to arm ... in reasonable anticipation of attack,” and that, as such, the court erred in denying his request for an instruction to that effect. In the precise context in which the case reaches us, we disagree, finding Gunther to be inapposite. In Gunther v. State, supra, the defendant was charged with the murder of his brother-in-law. In the face of evidence that he had gone to the decedent’s home armed with a rifle, the defendant sought to prove that he had acted in self-defense, the decedent having the characteristics of a violent and dangerous person.

At the conclusion of the case, and evidently in an effort to minimize the negative inferences that could be drawn from the