Sibiga v. State

ROBERT M. BELL, Judge. John Joseph Sibiga, appellant, was found guilty by a jury in the Circuit Court for Baltimore County of hindering a police officer in the performance of his duty and contributing to the delinquency of a minor. He was sentenced to two concurrent one year sentences. On appeal, he attacks his convictions on four bases: ⁷² I. The lower court erred by refusing to instruct the jury that they were the judges of the law and were not bound by the court’s instructions on the law.

II

The lower court erred by allowing the prosecutor, in his closing argument to the jury, to compare appellant to A1 Capone.

III

The lower court erred by denying appellant’s motion for judgments of acquittal because the evidence was insufficient.

IV

The lower court erred by denying appellant’s motion for acquittal on the charge of contributing to the delinquency of a minor. On the morning of September 1, 1983, law enforcement officers of the Baltimore County Police and Sheriff’s Departments went to appellant’s home to execute a writ of possession which had been issued by the Circuit Court for Baltimore County and which authorized appellant’s eviction. After some delay, appellant responded to the officers’ knocking and, at their request, opened the door. The writ of possession was shown to him and the purpose of the officers’ presence explained.

When appellant attempted to close the door a struggle between appellant and the officers ensued. As a result, appellant having been removed from the house was pinned on the ground and subdued. During the struggle, appellant yelled to his 11 year old son, Patrick, “go get it”. 1 When officers approached the house, they found Patrick, standing in the living room pointing a shotgun at them demanding that his father be left alone. When their attempts to convince the boy to put the gun down failed, they requested appellant to tell his son to put the gun down.

He refused, stating “he knows what he’s doing.” Other attempts to get appellant to cooperate, includ ⁷³ ing a request that he tell them his son’s name, failed. 2 Subsequently, the gun was put down and appellant was arrested. His son was detained by the juvenile authorities. On August 18, 1983, in the Circuit Court for Baltimore County in a civil action 3 to foreclose the mortgage on appellant’s home, the mortgagee’s petition for issuance of a writ of possession was granted. 4 At his criminal trial, appellant testified that following the court’s oral decision, he advised the court of his intention to appeal and, on the next day, ordered the transcript from the court reporter. According to appellant, he also gave the court reporter a written notice of appeal and paid $50.00, for both of which he received a receipt.

He was not told about the need to file a supersedeas bond. 5 Upon his release from custody on September 1, 1983, appellant testified that, his motion to stay the writ of possession in the civil action was granted. Also he filed a notice of appeal. Some time later, appellant filed a supersedeas bond in the civil action. I. Following the close of the evidence, the trial judge met with counsel and appellant in chambers to discuss requested jury instructions.

The trial judge, believing them to be correct statements of the law, informed counsel that he intended to give the hindering and contributing to the delinquency of a minor instructions requested by the State. Both appellant and his attorney explicitly agreed that the ⁷⁴ hindering instruction correctly stated the law. 6 Neither, however, commented with respect to the proposed instruction on contributing to the delinquency of a minor. 7 The court later denied appellant’s jury instruction requests Nos. 1 8 and 2, 9 stating: ... those requests are contrary to the law of the State of Maryland as stated in Stevenson v. State and Montgomery v. State. Stevenson is 289 Md. 167 [ 423 A.2d 558 (1980) ]. Montgomery is 292 Md. 84 [ 437 A.2d 654 (1981) ].

I don’t see any dispute as to the law in this case and I will instruct the jury in the absence of such a dispute as to the law of the crime my instructions are binding on them as to the law. I will so instruct the jury. Although neither the appellant nor his attorney objected, at that time, to the court’s refusal of these requests, appellant did so later, prior to the end of the conference. The trial court instructed the jury consistent with its expressed intention. 10 Following the court’s instructions, ⁷⁵ the following colloquy occurred at the bench, out of the presence of the jury: MR.

KING: Your Honor I am again going to renew my objection as to the fact that in the State of Maryland the jury is both the judge of law and the facts. Also, number two, the jury shall be told that they are the judges of the law and the court’s instructions are advisory only. THE COURT: Mr. King, is there anything else? Let me just address those two.

As I indicated to you in our chambers’ conference when I reviewed your request for instructions, my reading of the Montgomery v. State and Stevenson v. State indicates that the instruction that I have given to the jury, with respect to their role as judges of the law, is a proper instruction. I have your exception, sir. Although the court gave no instructions on such issues and, except for appellant’s request No. 10a, 11 none requested, both appellant and the State argued to the jury concerning the effect of the writ of possession and of appellant’s ⁷⁶ appeal of the circuit court’s judgment pursuant to which the writ was issued. The State argued that the writ of possession issued as a result of appellant’s failure to make required mortgage payments, was a lawful court order and that, absent a supersedeas bond, neither appellant’s attempted appeal prior to eviction nor his perfection of that appeal following eviction, could legally have prevented that eviction.

Appellant, on the other hand, noting that he ordered the transcript of the proceedings and gave a notice of appeal to the court reporter, contended that he attempted in good faith to appeal. Further, he pointed out that he filed an appeal on September 1st, prior to the expiration of the appeal period and that on the same day on which he perfected his appeal, the trial judge stayed the effect of the writ of possession pending his appeal. Appellant now argues that there was a dispute between the parties about the law applicable to the case; therefore, the court erroneously instructed that its instructions on the law were binding. The dispute, he asserts, concerned “the legal scope and effect of the writ of possession” and “whether appellant had the right to resist a removal from his home.” He reasons that “because he acted in good faith without criminal intent, on the reasonable assumption that he was entitled to remain in his home and to resist being moved from his home”, his actions were not criminal.

With specific reference to the hindering charge, appellant urges that since it involves interfering with the performance of an officer’s “lawful” duties, “if appellant was correct in his legal argument that Officer Windsor and others had no legal right to move him from his house, then appellant could not have been convicted of hindering Officer Windsor.” Similarly, regarding contributing to the delinquency of a minor, he says, “If the jury had been allowed to fulfill their role as judges of the law, they may have concluded that appellant and his son lacked the necessary criminal intent to sustain appellant’s conviction for that charge.” ⁷⁷ Maryland Courts have consistently held that the trial judge must give requested instructions that correctly state the applicable law and have not been fairly covered in the instructions actually given. Mack v. State, 300 Md. 583 , 479 A.2d 1344 (1984); Lansdowne v. State, 287 Md. 232 , 412 A.2d 88 (1980); Hamilton v. State, 62 Md.App. 603 , 490 A.2d 763 (1983). See also Maryland Rule 4-325(c). 12 A trial judge must be afforded the opportunity to correct any misstatement of law, clarify any ambiguity, or correct any inaccuracies which may exist in his instructions. Leatherwood v. State, 49 Md.App. 683 , 435 A.2d 477 (1981).

Therefore, in order to preserve a point for appellate review, the party, in addition to a request for instructions, must object, stating distinctly the grounds for his objection, to the instructions actually given prior to the retirement of the jury. Maryland Rule 4-325(e). See also Lyles v. State, 63 Md.App. 376 , 492 A.2d 959 (1985). Appellant has preserved for appellate review the correctness of the court’s instructions as to the jury’s law-judging function.

The question that must be resolved is, what is it that appellant has preserved? Unless the issue preserved involves a dispute of law of the kind, the resolution of which is entrusted to the jury, there is nothing for us to review and, in any event, this assignment of error is meritless. The jury’s law-judging function is limited to resolving disputes as to the substantive “law of the crime,” which occurs “when an instruction culminates in a dispute as to the proper interpretation of the law of the crime for which there is a sound basis.” Montgomery v. State, 292 Md. 84, 89 , 437 A.2d 654 (1981); Stevenson v. State, 289 Md. 167 , 423 A.2d 558 (1980). We pointed out in Allnutt v. State, 59 Md. 694 , 702, 478 A.2d 321 (1984), ⁷⁸ A distillation of Stevenson and Montgomery leads us to conclude that it will be a rare case indeed where there is “a dispute or sound basis for a dispute” as to the “law of the crime.” We concluded that “instances of dispute of the law of the crime are an endangered species rapidly approaching extinction.” Id. at 703, 478 A.2d 321 .

We continue to adhere to this view. Appellant may not now dispute the court’s instructions defining hindering and contributing to the delinquency of a minor. Both he and his counsel conceded that the definition of hindering given to the jury correctly stated the law and no exception to that definition was taken. Although neither affirmatively and explicitly agreed with the definition of contributing to the delinquency of a minor, neither expressed disagreement and, again, no exception was taken.

Moreover, the record does not reflect that there is any sound basis for a dispute as to the definition of those crimes. Appellant did except to the court’s refusal to instruct the jury that it was the sole judge of the law; however, that exception did not create a dispute as to the law of the crime where none existed. Furthermore, it could not preserve an issue which had already been waived. We conclude that no issue as to the law of the crime has been preserved for appellate review.

The issues which appellant designates as disputes of law involve the sufficiency of the evidence and the jury’s fact-finding function. In order to resolve them, the jury had to weigh the credibility of the witnesses and determine the weight of the evidence and apply the law to the facts found. Its choice was between the “facts”, including the inferences deducible therefrom, presented by the State and those presented by the defense, and not between conflicting interpretations of the law. The court correctly instructed the jury that it was the sole judge of the facts and that the court’s instructions in that regard were advisory only and that ⁷⁹ [y]ou are instructed that if you find, after hearing all of the evidence, that the defendant lacked the intent to commit any of the crimes for which he is charged, then you must find him not guilty of such crimes.

Appellant was entitled to no more. We find no error.

II

During his closing argument, the prosecutor said: Now, if you were to accept Mr. Sibiga’s way of thinking I think we’d be in a little bit of a turmoil. Mr. Sibiga wants to interpret the law as whichever way he thinks proper, forgetting what the appellate courts and the courts have said in cases. He wants to interpret it the way he wants the law to be. A1 Capone could go around and rob banks as easily as anyone if A1 Capone made the decision that carrying a gun in your hand is proper.

This is what Mr. Sibiga has done. Mr. Sibiga has made the decision that his interpretation of the law is the law. Appellant now asserts that the prosecutor’s comparison of him to A1 Capone was inaccurate, irrelevant and highly prejudicial. Conceding that no objection was made to the argument at trial, he nevertheless contends that the lower court’s