Sydnor v. State

DAVIS, Judge. A jury sitting in the Circuit Court for Baltimore City convicted appellant Roosevelt Ptrdyon Sydnor of voluntary manslaughter and unlawful use of a handgun during a crime of violence. 1 The court subsequently sentenced him to concurrent sentences of ten years for manslaughter and twelve years for use of a handgun, the first five years to be served without the possibility of parole. Appellant asks a single question on appeal: Did the trial court err in its self-defense jury instruction? Upon a review of the relevant law and facts, we shall affirm the court’s judgments.

FACTUAL BACKGROUND At approximately 8:40 p.m. on December 9, 1998, appellant shot and killed Anthony Jackson, the victim, in the 800 block of Chester Street in Baltimore City. Appellant admitted to shooting the victim but claimed he acted in self-defense. Among others, two residents of the block in which the victim was killed testified for the State. Yvette Kiah testified that, just before the shooting, she. looked out of her window, in the 800 block of Chester Street, and saw three men across the street struggling for a gun.

She heard one of the men say, “Oh, you have a gun, M-F. Well, if you have a gun you better use it----” She backed away from the window and heard the sound of running feet. She then heard five or six gunshots. When she looked out of the window again, she saw a man running, followed by several people running behind him. ¹⁷⁷ Yavonda Jones testified that, at approximately 8:40 p.m. on December 9, 1998, she exited her home in the 800 block of Chester Street and walked to the corner store. As she did so, she saw appellant sitting on the steps of a row house.

She then saw the victim approach appellant and pull a gun from his pocket. Appellant and the victim struggled for control of the gun. After appellant and two other men were successful in obtaining the gun from the victim, the victim started to run away. When the victim was between fifteen and twenty feet away from appellant, appellant shot him in the back and then ran.

Police officers, who were nearby when the shooting occurred, chased appellant several blocks. Eventually the police apprehended appellant, who was holding a .22 caliber gun. Appellant told the police, “I shot the mother fucker because he was beating me with a gun and robbed me for $30 so I took the gun from him and shot him.” After appellant was arrested, he was taken to a police station for questioning. While at the station, appellant gave a taped statement to the police in which he explained the events preceding the shooting.

In the statement, appellant said: Well, it all started when ... I was sitting on the steps, you know, drinking with some of my friends. And all of the [sic] sudden this guy just walked up ... to me and asked me did I have any weed? So I stated no, I do not smoke____ All of the [sic] sudden he starts to say[] something about my jewelry on my neck and pulled his gun out and told me to give it up, you know.

Next thing you know, this guy was talking about how he [sic] going to do this to me and all of that____ [T]hen he came across the head, in the back of the head, with the gun---- He got [sic] $30 from me[.] ... He was about to take my chain [and he] still kept talking about how he [sic] going to kill me and all of that, right. So, as soon as I saw ... he had the gun pointed a different way, I just ... grabbed the gun---That’s when I asked this other guy, Eric, ... to help so he helped me. So we got to the point where we got to tussling so hard on the front steps that we tussled all the way to the, ¹⁷⁸ you know, to the street____ Then he hit me in my eye, both eyes____ I twisted the gun out of his hand____ After that I panicked I just shot at him, as soon as I got the gun from him.

You know, I didn’t know whether or not he had ... another gun on him or not____ Like I said I looked at it like this, it would be my life or his life. He said he was going to kill me. I was sitting there minding my business. Appellant told the officers that, after he shot the victim, he panicked and ran.

The victim died of four gunshot wounds to his body. One shot entered the front of his thigh, one shot entered the back side of his forearm, and two shots entered his back. One of the shots to his back showed stippling, which, according to the medical examiner, results when a gun is fired at close range. The police recovered thirty dollars from the victim’s body.

LEGAL ANALYSIS STANDARD OF REVIEW Judge Thieme, writing for the Court in Redcross v. State, 121 Md.App. 320, 326 , 708 A.2d 1154 (1998), succinctly reiterated our task when a party assails the trial court’s charge to the jury: Maryland Rule 4-325(c) provides that a trial court “may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” When the trial court does so instruct the jury, it has a duty “to provide an accurate and complete statement of the law.” We, as a reviewing court, must determine whether “the requested instruction was a correct statement of the law; whether it was applicable under the facts of the case; and whether it was fairly covered in the instructions actually given.” In making that determination, we view the instructions as a whole and not in isolation or out of context. (Citations and emphasis omitted.) I Appellant’s singular claim of error is that ¹⁷⁹ [t]he trial judge departed from the pattern jury instruction because he thought it would be “confusing” for the jury to view the incident as one event (robbery) when it might be two events (robbery and a separate shooting). Under the facts of this case the judge was wrong as a matter of law. Citing State v. Raines, 326 Md. 582 , 606 A.2d 265 (1992), he contends that the Court of Appeals, in deciding what constitutes complicity for the purpose of determining accomplice liability, declared that an escape was considered part of the robbery “[b]ecause the assaults were determined by the jury to have been in furtherance of the commission of the armed robbery and the escape therefrom____” Id. at 598 , 606 A.2d 265 .

He further constructs his hypothesis by citing Mangerich v. State, 93 Nev. 683 , 572 P.2d 542, 543 (1977), for the proposition that “force used to prevent the immediate retaking of property constitutes robbery” and that “[w]hether the purpose of the force was to facilitate the escape or to prevent the victim from retaking the property is irrelevant because the purpose of not having the money retaken is served.” Appellant claims that the State’s theory of the case was summarized in its opening statement when the prosecutor said: “The State does not dispute in anyway [sic] that Anthony Jackson robbed or tried to rob the [appellant] and we don’t dispute that the [appellant] got the gun away from Anthony Jackson and used that gun to shoot him.” Characterizing the dispute between the defense and the State as “a narrow one,” appellant posits that Jackson robbed appellant, who successfully disarmed Jackson, subsequently chasing him down the street one hundred feet or more, and then shot him several times, according to the State’s theory of the case. Appellant contrasts his theory as a shooting which took place in the course of a struggle between appellant and the robber. Appellant summarily postulates his claim of error: Thus, even if the scenario urged by the State were accepted, the shooting was part of the robbery and not a separate event. It follows that the State was entitled to have the jury to decide [sic] if the State disproved self-defense by establishing that excessive force had been used; the State ¹⁸⁰ was not entitled to have the jury reject the defense because Appellant had a duty to retreat.

Indeed, if Appellant had a duty to retreat no robbery victim would be entitled to attempt to retake his property or apprehend the robber. There is no legal support for such a counterintuitive notion. It is impossible to know on what theory the jury relied in reaching its verdict. Under well established legal principles, this ambiguity must be resolved in favor of Appellant.

(Citing Nightingale v. State, 312 Md. 699 , 542 A.2d 373 (1988)) (emphasis added). The State initially replies that appellant has failed to preserve this argument for our review. After the parties had rested, the court instructed the jury on the duty to retreat when interposing the defense of self-defense: And further with respect to the defense of self-defense: Deadly force is the amount of force reasonably calculated to cause death or serious bodily harm. If' you find the [appellant] used deadly force, you must decide whether the use of deadly force was reasonable.

Deadly force is reasonable if the [appellant] actually had a reasonable belief that the aggressor’s force was or would be deadly and the [appellant] needed a deadly force response. In addition, before using deadly force, the [appellant] is required to make all reasonable efforts to retreat. [The appellant] does not have to retreat if the [appellant] was in his home or retreat was unsafe or the avenue of retreat was unknown to the [appellant] or the [appellant] was being robbed at the moment that the force was used or the [appellant] was lawfully arresting the victim. If you find the [appellant] did not use deadly force, then the [appellant] had no duty to retreat. Appellant took no exception to the court’s instruction. 2 After the jury retired to deliberate, the jury sent a note to the ¹⁸¹ trial court asking for re-instruction on, among other things, self-defense.

Thereafter, the court re-instructed the jury on the duty to retreat as follows: In addition, before using deadly force, the [appellant] is required to make all reasonable effort to retreat. The [appellant] does not have to retreat if the [appellant] was in his home or retreat was unsafe or if the avenue of retreat was unknown to the [appellant] or if at the moment that the shots were fired the [appellant] was being robbed, or the defendant was lawfully arresting the victim. If you find the [appellant] did not use deadly force, then the [appellant] had no duty to retreat. After the re-instruction, the defense took exception to the language, “if at the moment that the shots were fired.” The court responded that it instructed the jury as it did because it could be confusing for the jury to view the robbery and the' shooting as one incident when, in fact, it was also possible for them to view it as separate incidents, and so in order for the law to adequately be explained so that the State could differentiate between the moment of the robbery, as in fact they did, and for you to try to tie the two into one event, I thought that it was necessary in this particular case, and it was also not prejudicial in this particular case, to give the jury the most accurate recitation of the law.

The reason that you don’t have a more accurate re[-]instruction in Willey [v. State, 328 Md. 126 , 613 A.2d 956 (1992) ] is because Willey is not an incomplete self-defense during a robbery situation and so therefore I had to make that modification in order to give the jury the most accurate definition of the law. I think to literally quote Willey dicta on that issue without the recalibration, would have been more misleading to the jury, although to your advantage, ¹⁸² than I’m permitted to do in order to accurately] advise the jury as to the law. The court declined to re-instruct the jury. Maryland Rule 4-325(e) (2000) provides: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Thus, the Rule requires that the offended party object to the given instruction before the jury retires to deliberate. State v. Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035 (1980). Here, appellant did not object to the original jury instruction. Only after the jury retired to deliberate and sent a note to the court asking for re-instruction, which the court gave, did appellant object.

In addressing the preservation issue, appellant argues that the original and supplemental jury instructions on the duly to retreat were different. In the original instruction, the court stated that a defendant does not have a duty to retreat if “the defendant was being robbed at the moment that the force was used.” In the supplemental instruction, the court stated that a defendant does not have a duty to retreat “if at the moment that the shots were fired the defendant was being robbed.” Under both instructions, the jury was instructed that the accused does not have to retreat if he was being robbed at the time he was acting in self-defense. In our view, however, given the testimony of Yavonda Jones that, at least one of the four shots was fired into the victim’s back at a distance of fifteen to twenty feet from appellant, the re-instruction had the effect of placing greater emphasis on the severability of appellant’s employment of force. The reference, in the original instruction, to “the force [which] was used” tended to depict the four shots fired collectively as a single act that the jury had to determine either occurred during the robbery or after the robbery was thwarted and the victim was in the process of fleeing the scene.

As we see it, ¹⁸³ the re-instruction to which appellant excepted was different— at least in its emphasis—and thus, appellant did not waive his objection thereto by failing to object to the original jury instruction. Even if we were to conclude that appellant failed to preserve the issue of the propriety, vel non, of the court’s instructions in a technical sense, appellant’s counsel interposed his exception in response to the jury’s request for re-instructions. Significantly, the exception was lodged at a point in time when the trial judge was afforded an opportunity to correct any instruction that constituted an erroneous statement of the law or otherwise misled the jury in its advisement regarding applying the law to the facts. The purpose of Maryland Rule 8-131 is to allow the court to correct trial errors, obviating the necessity to retry cases had a potential error been brought to the attention of the trial judge.

The Rule is also designed to prevent lawyers from “sandbagging” the judge and, in essence, obtaining a second “bite of the apple” after appellate review. Although we retain plenary authority to take cognizance of plain error prejudicial to the rights of the accused and we have complete discretion in deciding to review the alleged error, Austin v. State, 90 Md.App. 254, 257-58 , 600 A.2d 1142 (1992), counsel obviously believed challenging a jury instruction that parroted the applicable pattern jury instruction would have been to no avail. Appellant held a much different view of the merits of challenging the departure from the pattern jury instructions and we cannot say, on the record before us that at least the interposition of the exception was clearly without substantial justification. In other words, the issue is sufficiently viable to warrant our review.

II It is generally well recognized that a defendant is entitled to instructions on the law when generated by the evidence and not covered by instructions actually given. Patterson v. State, 356 Md. 677, 683 , 741 A.2d 1119 (1999); Ware v. State, 348 ¹⁸⁴ Md. 19, 58, 702 A.2d 699 (1997); see also Md. Rule 4-325(e) (2000). Appellant asserts that the trial judges’s departure from the recommended language in the pattern jury instructions resulted in the possibility that the jury rejected his claim of self-defense because it erroneously believed he had a duty to retreat. In general, we have favored implementation of the Maryland Pattern Jury Instructions: Nevertheless, we say for the benefit of trial judges generally that the wise course of action is to give instructions in the form, where applicable, of our Maryland Pattern Jury Instructions.

Those instructions have been put together by a group of distinguished judges and lawyers who almost amount to a “Who’s Who” of the Maryland Bench and Bar. Many of these instructions have been passed upon by our appellate courts. Green v. State, 127 Md.App. 758, 771 , 736 A.2d 450 (1999). As the State points out, however, deviation from the recommended language in the pattern jury instructions does not per se constitute error.

We explained in Green v. State, 119 Md.App. 547, 562 , 705 A.2d 133 (1998), that, “When the evidence generates an issue that is not covered by a pattern instruction, we must count on the court to incorporate relevant and valid legal principles gleaned from the case law.” The court sought “to give the jury the most accurate recitation of the law” in its modification, of the pattern instruction from “at the moment that the force was used” to “at the moment the shots were fired.” The change more precisely explicates the law of self-defense when considered in the context of the trial judge’s express advisement to the jury, in essence, that appellant was no longer entitled to use deadly force