Squire v. State

³⁰⁸ Murphy, J., delivered the opinion of the Court. The appellant was found guilty by a jury in the Criminal Court of Baltimore of assault with intent to murder and of the unlawful use of a handgun in the commission of a crime of violence; he was sentenced to eight years’ imprisonment. He contends on appeal that the lower court, in its jury instructions, erroneously imposed upon him the burden of proving self-defense, thereby violating the due process clause of the fourteenth amendment by relieving the State of its burden of proving, beyond a reasonable doubt, every fact necessary to constitute the crime charged. He relies on In re Winship, 397 U. S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975).

The pertinent portion of the jury instructions is as follows: “Moreover, 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 obliged to prove a valid self-defense beyond a reasonable doubt. Naturally, in every criminal case, the burden is always upon the State to establish proof of every element of the crimes that are charged against the Defendant beyond a reasonable doubt.” The appellant argues that this instruction violated the principles of Mullaney since it shifted the burden to him to prove that the homicide was justifiable or excusable in contravention of our holding in Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), aff'd, State of Maryland v. Edward Evans, 278 Md. 197 , 362 A. 2d 629 (1976). While he acknowledges that no exceptions were taken to the instructions, the appellant urges that the error was plain and material and that we should take cognizance of it on our motion under Maryland Rule 756 g. He contends that “the ³⁰⁹ full scope of Mullaney was not realized” at the time of his trial, and that it was not until we decided Evans v. State, supra, on November 26, 1975, five months after his trial, that the implications of Mullaney , and its applicability to self-defense, were made clear.

The State, while agreeing that there was legally sufficient evidence to raise the issue of self-defense, and also agreeing that the instruction violated the principles announced in Mullaney , contends that “[s]ince the trial of this case occurred after the Mullaney decision was handed down, ... the question is not one of plain error [in the instructions], but one of waiver.” The Supreme Court decided Mullaney on June 9,1975. The appellant’s trial took place on June 13, 1975. Maryland Rule 756 g provides that upon appeal a party assigning error in the jury instructions may not do so of right 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 the objection