Squire v. State

Digges, J., delivered the opinion of the Court. At the trial of petitioner John Henry Squire in the Criminal Court of Baltimore on charges of assault with intent to murder and unlawful use of a handgun, the trial judge, without objection, instructed the jury that: ¹³⁴ On appeal, the Court of Special Appeals, exercising the discretion it possesses under Maryland Rule 756 g, declined to take cognizance of error in this instruction; accordingly, it affirmed the trial court’s judgment of conviction and sentence. Squire v. State, 32 Md. App. 307 , 360 A. 2d 443 (1976). That court, while recognizing that the record discloses there ^ was sufficient evidence to generate a self-defense issue and that the quoted portion of the jury instruction was improper under the decision of the United States Supreme Court in Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975), as well as under our decision in State v. Evans, 278 Md. 197 , 362 A. 2d 629 (1976), explained that because the error “could have been corrected by additional or supplemental instructions had Mullaney been called to the attention of the trial judge ..., we decline to invoke the provision's of [Rule 756 g] in this case.” Squire v. State, supra at 310 [445].

Although in granting certiorari we stated that this Court would consider whether the Court of Special Appeals abused its discretion in failing to take cognizance of the plain error, it becomes unnecessary for us to consider that precise issue since we have concluded (in the exercise of our independent discretion derived from Rule 756 g) that this Court should recognize the existence of the error in the trial court’s instruction and reverse the judgment. ¹³³ The burden of proof of proving self-defense is on the Defendant, not upon the State, although this burden by the Defendant may be fulfilled by a preponderance of the credible evidence; in other words, the Defendant is not obligated to prove a valid self-defense beyond a reasonable doubt. ¹³⁴ Usually, of course, this Court will not consider claims of error which have not been presented and decided by the trial court. Md. Rule 885. Moreover, as expressed in Rule 756 g, the same is true specifically with respect to jury instructions in criminal Causes. That rule in full reads: Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time.

Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own ¹³⁵ motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule. Therefore, absent the existence of compelling circumstances, the failure of a defendant to register an objection to a jury instruction pursuant to Rule 756 f bars our consideration of the matter. However, as Judge Eldridge stated for this Court in Dempsey v. State, 277 Md. 134, 141-42 , 355 A. 2d 455, 459 (1976): “Rule 756 g [does make it clear that] with respect to jury instructions, and as the cases hold with respect to errors of law generally, an appellate court may in its discretion in an