State v. Rich

MURPHY, J. In the Circuit Court for Baltimore City, a jury convicted Lewis Rich, Respondent, of voluntary manslaughter. Respondent noted an appeal to the Court of Special Appeals, and argued that (in the words of his brief) “THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON VOLUNTARY MANSLAUGHTER DESPITE THE LACK OF ⁵⁷⁰ ANY EVIDENCE OF HOT BLOODED RESPONSE TO LEGALLY ADEQUATE PROVOCATION.” After the Court of Special Appeals exercised its discretion to conduct a “plain error” review of this argument, and vacated the judgment of conviction, 1 this Court granted the State’s petition for writ of certiorari. From our review of the record, we are persuaded that (1) Respondent’s argument should be rejected under the “invited error” doctrine, and (2) there is no merit in the argument that the jurors did not receive any evidence of hot blooded response to legally adequate provocation. We shall therefore reverse the judgment of the Court of Special Appeals.

Background The murder occurred in a McDonald’s restaurant, on a stairwell leading to the second floor. It was the State’s theory of the case that Respondent and an accomplice attempted to rob the victim, and that it was Respondent who stabbed the victim to death. Respondent made a post-arrest statement, in which he admitted that he followed the victim into the stairwell, but denied that he intended to rob the victim and denied that he stabbed the victim. Respondent told the investigating officers that he went into the stairwell to purchase marijuana from the victim, and that he punched the victim because he was offended by the victim’s utterance of a racial slur, but claimed that the victim had not been robbed or stabbed during the time that both he and the victim were in the stairwell.

The opening statement of Respondent’s trial counsel included the following comments: And, you’re going to listen to Mr. Rich’s statement. Mr. Rich is honest and open. What he tells the police is consistent with what you’re going to see on that tape. He tells the police: Yes, I was there.

He puts himself there. Yes, I went there to buy drugs, to buy marijuana. And, you’re going to hear that marijuana is found on [the victim]. ⁵⁷¹ What he said matches the evidence. [The victim] also had a large amount of money on him; almost $500.00. Mr. Rich says: I was there to do a drug deal, to buy marijuana.

That matches the evidence. In his statement, he’s going to tell you that they got into an argument. He got into an argument with [the victim] about whether it was hash or marijuana. Something about the drags caused an argument.

It wasn’t just out of the blue. Premeditated murder at a downtown McDonald’s at 10:45 in the morning!?] [P]lanned? I don’t think so. They get to arguing.

He said they got into an argument. And, he’s called a derogatory name and he’s spit at. And, he tells the police: I did react to that. I punched him.

I plucked him. I had a closed fist. I punched him in the face. And, you’re going to hear from the medical examiner.

It matches the evidence. There’s abrasions and bruising on the face. And, he tells the detectives that he never saw a knife. He doesn’t know what happened.

He just left after that. And, you’re going to hear when Detective Bradshaw tells him—tells him that [the victim] got stabbed. He tells him that [the victim] later died. The shock, the surprise, is genuine in Mr. Rich.

He had no idea when he left that McDonald’s that day that he would be sitting here tried for first degree murder. When he left, [the victim] was walking. He was talking. He was yelling.

And, you’re going to see it—on the video, [the victim] actually makes it all the way to the top of the stairs before coming back down. [The victim] was alive. Mr. Rich has no blood on his hands. He didn’t know what happened. And, you’re going to hear that shocking surprise in his voice.

Respondent’s post-arrest statement was introduced into evidence during the State’s case-in-chief. When the prosecutor “rested” the State’s case, Respondent’s trial counsel made “a motion for judgment of acquittal on all charges,” and presented the following argument in support of that motion: ⁵⁷² Mr. Rich is charged with first degree premeditated murder. Even, at this point, looking at all of the evidence in a light most favorable to the State, the State has not proven that there was any kind of premeditation involved in this case. Even assuming that Mr. Rich did the stabbing, we have the argument.

We have the provocation. One stab wound and the fact that he was still alive and appeared to be—from—at least from the front, okay to the some of the witnesses, even one of the witnesses testified: Man, you’re okay. You’re okay. I don’t think the State has even shown enough for premeditated murder to go [to] the jury.

(Emphasis added). The closing argument of Respondent’s trial counsel included the following comments: Now, what do we know? We know that ... We hear from the [McDonald’s] workers that there’s a commotion up there.

There’s yelling. There’s a scuffle. There’s something going on up there____We know this. We agree on this.

Mr. Rich was honest with the police. He went there, and he told them what happened. He didn’t try to make up any lie saying I wasn’t there ... He puts himself there.

He puts himself right there. And he puts himself in a fight. He told the detective on the tape, ‘We got into a fight over hash and marijuana. And he called me an “N” and he spit on me, and I got angry, and I punched him.” Respondent’s trial counsel filed a written request titled “PROPOSED JURY INSTRUCTIONS,” that expressly included a request for the following instructions: 17.

MPJI 4.17 Homicide—1st & 2nd degree murder 18. MPJI 4.17.2 1st, 2nd degree murder, voluntary manslaughter (imperfect self defense) ⁵⁷³ 19. MPJI 4.17.4 voluntary manslaughter (hot blooded response to legally adequate provocation). (Emphasis added).

The Circuit Court’s instructions included a “voluntary manslaughter” instruction that was in substantial compliance with MPJI 4.17.4. Respondent’s trial counsel noted no exceptions to the instructions other than an “exception to the aiding and abetting language as used on the verdict sheet and the charges.” During jury deliberations, the jurors submitted the following question: “Is spitting a legally adequate provocation?” The Circuit Court gave the following answer to that question: Spitting onto a person’s body may be battery____That the spitter caused offensive physical contact with, in this case, the defendant, that the contact was a result of an intentional or reckless act of the spitter and was not accidental and that the contact was not consented to by the defendant or was not legally justified. Respondent’s trial counsel did not note an exception to this answer. The jury found Respondent guilty of voluntary manslaughter, and not guilty of all remaining charges.

The Court of Special Appeals reversed Respondent’s conviction on the ground that the evidence presented to the jury was insufficient to generate the issue of whether Respondent acted in “hot-blooded response to legally adequate provocation.” The Court noted that, although Respondent specifically requested the instruction and appears to have benefitted from it in that he was convicted of a lesser charge than first-or second-degree murder, “the instructional error materially affected his right to a fair and impartial trial,” and therefore, warranted a finding of plain error. Discussion I. We hold that the Court of Special Appeals erred in concluding that the evidence was insufficient to generate the ⁵⁷⁴ issue of whether Respondent was guilty of manslaughter. In Starr v. State, 405 Md. 293 , 951 A.2d 87 (2008), this Court stated: It is well settled that “appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.” Lotharp v. State, 231 Md. 239, 240 , 189 A.2d 652, 653 (1963). A criminal defendant who moves for judgment of acquittal is required by Md. Rule 4-324(a) to “state with particularity all reasons why the motion should be granted[,]” and is not entitled to appellate review of reasons stated for the first time on appeal.

State v. Lyles, 308 Md. 129, 135-36 , 517 A.2d 761, 764-65 (1986); Muir v. State, 308 Md. 208, 218-19 , 517 A.2d 1105, 1110 (1986); Graham v. State, 325 Md. 398, 416-17 , 601 A.2d 131, 140 (1992). Id. at 302, 951 A.2d at 92 . The “rules for preservation of issues have a salutary purpose of preventing unfairness and requiring that all issues be raised in and decided by the trial court, and these rules must be followed in all cases ... The few cases where we have exercised our discretion to review unpreserved issues are cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics.” Conyers v. State, 354 Md. 132, 150 , 729 A.2d 910, 919 (1999).

It is clear that the tactics employed by Respondent’s trial counsel included the argument that, if Respondent were guilty of any offense, he was only guilty of manslaughter. Under these circumstances, because Respondent was convicted by a jury, he is not entitled to appellate relief on the basis of a “sufficiency” argument that is in direct conflict with the argument actually asserted by his trial counsel. 2 ⁵⁷⁵ In the case at bar, because the manslaughter instruction was specifically requested by Respondent’s trial counsel, the doctrine of invited error is applicable to his argument that “the instructional error materially affected his right to a fair and impartial trial.” The “invited error” doctrine is a “shorthand term for the concept that a defendant who himself invites or creates error cannot obtain a benefit— mistrial or reversal—from that error.” Klauenberg v. State, 355 Md. 528, 544 , 735 A.2d 1061, 1069 (1999), quoting Allen v. State, 89 Md.App. 25, 43 , 597 A.2d 489, 498 (1991) cert. denied, 325 Md. 396 , 601 A.2d 129 (1992). “The doctrine stems from the common sense view that where a party invites the trial court to commit error, he cannot later cry foul on appeal.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.2009). The doctrine is applicable to appellate review of jury instructions specifically requested by the criminal defendant’s counsel. Bromley v. State, 150 P.3d 1202, 1213 (Wyo.2007); Vanvorst v. State, 1 P.3d 1223, 1229 (Wyo.2000).

In State v. Studd, 137 Wash.2d 533 , 973 P.2d 1049 (1999), the Supreme Court of Washington stated: [W]e have also held that “[a] party may not request an instruction and later complain on appeal that the requested instruction was given.” State v. Henderson, 114 Wash.2d 867, 870 , 792 P.2d 514 (1990) (emphasis omitted) (quoting State v. Boyer, 91 Wash.2d 342, 345 , 588 P.2d 1151 (1979)). Henderson also involved erroneous WPIC instructions proposed by a defendant and later complained of, and we held there that “even if error was committed, of whatever kind, it was at the defendant’s invitation and he is therefore precluded from claiming on appeal that it is reversible error.” Henderson, 114 Wash.2d at 870 , 792 P.2d 514 (emphasis added). Henderson is directly on point. There can be no ⁵⁷⁶ doubt that this is a strict rule, but we have rejected the opportunity to adopt a more flexible approach.

Here, the record is quite clear ... that these defendants requested instructions modeled after WPIC 16.02. Consequently, the doctrine of invited error prevents them from now complaining about the trial court acceding to their request to give a certain instruction ... We reached this conclusion despite the fact that “the unconstitutional instruction was standard in this state, In re Hagler, 97 Wash.2d 818, 819 , 650 P.2d 1103 (1982), and had been expressly approved by this court.” Griffith, 102 Wash.2d at 104, 683 P.2d 194 [J Id. at 1055-56. (Emphasis in original).

In State v. Fabricatore, 281 Conn. 469 , 915 A.2d 872 (2007), the Supreme Court of Connecticut stated: In State v. Duncan, 96 Conn.App. 533, 557 , 901 A.2d 687 , cert. denied, 280 Conn. 912 , 908 A.2d 540 (2006), the defendant claimed that the trial court improperly had instructed the jury on the elements of alteration of a firearm identification mark or number and the presumptive inference that the jury was permitted to draw. After the court had given its oral instructions to the jury, the prosecutor directed the court’s attention to a discrepancy between the oral charge and the written charge that was to be submitted to the jury on the elements of alteration. Id., at 558, 901 A.2d 687 . The court and both counsel agreed that the written charge was incorrect, and, upon reviewing a corrected version of the written charge, “[b]oth the prosecutor and defense counsel stated that they were ‘satisfied’ with the correction.” Id.

The Appellate Court concluded that the defendant had waived any challenge to the alleged constitutional violation because “the defendant not only failed to object to the court’s instruction, but also voiced satisfaction with it.... To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce ⁵⁷⁷ potentially harmful error, and then ambush the state with that claim on appeal.... ” In the present case, defense counsel not only failed to object to the instruction as given or to the state’s original request to charge the jury with the duty to retreat, but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the instruction as given was proper. Indeed, defense counsel himself addressed the duty to retreat in his own summation. Thus, the defendant accepted the duty to retreat theory presented by the prosecutor, and openly acquiesced at trial, thereby waiving his right to challenge the instruction on appeal.

Under this factual situation, we simply cannot conclude that “injustice [has been] done to either party”; (internal quotation marks omitted) State v. Whitford, supra, 260 Conn. [610] 620, 799 A.2d 1034 [ (2002) ]; or that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.... ” State v. Golding, supra, 213 Conn. [233] 240, 567 A.2d 823 [ (1989) ]. Id. at 879-880 . (Footnotes omitted). In People v. Robertson, 34 Ill.App.3d 762 , 340 N.E.2d 213 (1975), the Appellate Court of Illinois, Third District was presented with the very same argument that Respondent has presented in the case at bar: “Defendant argued during the trial that, if the jury did not decide to acquit defendant, evidence of provocation was sufficient to reduce the crime from murder to voluntary manslaughter....

On appeal, defendant contends that the evidence of provocation by the victim was inadequate to support the voluntary manslaughter verdict.” Id. at 215. While rejecting that argument, the Robertson Court stated: Defendant is actually complaining