Stockton v. State

MOYLAN, judge. The appellant, Marcus Aaron Stockton, was convicted by a Prince George’s County jury, presided over by Judge G.R. Hovey Johnson, of attempted second-degree murder and a related handgun offense. On this appeal, he raises the single contention that Judge Johnson gave an erroneous instruction to the jury on the subject of the State’s burden of persuasion. The appellant acknowledges that he made no objection and that the point is, therefore, not preserved for appellate review.

Md.Rule 4-325(e). He asks us, however, to exercise extraordinary discretion by way of noticing what he alleges to be “plain error,” notwithstanding his failure to preserve the issue. We decline to do so. Austin v. State, 90 Md.App. 254 , 600 A.2d 1142 (1992).

This is all that need be said. Our holding is complete and the case is decided. The rest is dicta. We indulge because of how profligate the resort to the “plain error” argument has become.

On the appellate shore, moreover, there is, with each passing year, noticeable erosion of the preservation requirement and the dike is in need of constant repair. The appellant leans heavily on Himple v. State, 101 Md.App. 579 , 647 A.2d 1240 (1994), an occasion on which we opted to notice plain error with respect to an instruction on the subject of reasonable doubt. An exercise of discretion by an appellate court, however, unlike a ruling of law, is unique and unreviewable and is not, therefore, precedent for the next occasion when an exercise of discretion is requested, even on the same subject and under similar circumstances. Indeed, an earlier discretionary notice of plain error actually argues against its ³⁹⁷ repetition.

One of the reasons we sometimes elect to overlook non-preservation has nothing to do with the fortunes of the appellant. We may choose to notice plain error simply to seize the occasion as a vehicle to communicate a desired message to bench and bar that might otherwise go unsent. Austin v. State, 90 Md.App. at 271-72 , 600 A.2d at 1151 . Once having delivered a message, as in Himple , there is self-evidently less urgency to send it again, by way of redundant repetition.

In this respect, the existence of Himple hurts the appellant more than it helps him. The influences on discretion are myriad; it is not something controlled by stare decisis. It is rather the case that, having said something once, there is less compelling need to say it again. One of the strong factors militating against the notice of plain error is the reluctance of courts to forgive the non-diligence of attorneys by pulling their neglected chestnuts out of the fire for them.

Austin v. State, 90 Md.App. at 270-71 , 600 A.2d at 1150-51 . The appellant in this case seeks sustenance in Wills v. State, 329 Md. 370 , 620 A.2d 295 (1993) and Joyner-Pitts v. State, 101 Md.App. 429 , 647 A.2d 116 (1994). The opinion in Wills was filed on March 5, 1993; the opinion in