Wright v. State

Eldridge, J., delivered the opinion of the Court. Appellant, after having been found guilty by a jury in the Criminal Court of Baltimore on October 16, 1975, of first degree murder and carrying a concealed weapon, was' ⁶⁹ sentenced to life imprisonment on the murder charge and three years’ imprisonment, to be served concurrently, on the concealed weapons charge. On appeal he challenges only the murder conviction, making two contentions: (1) the trial judge’s instructions to the jury improperly placed the burden of proving self-defense upon appellant; (2) the evidence was insufficient to support a verdict of murder in the first degree. The State in this case concedes, correctly we think, that: (1) the issue of self-defense was fairly generated by the evidence adduced; (2) the trial judge told the jury that the defendant had the burden of persuasion on the question of self-defense, and therefore the instruction was erroneous under Mullaney v. Wilbur, 421 U. S. 684 , 95 S. Ct. 1881 , 44 L.Ed.2d 508 (1975); and (3) under Evans v. State, 28 Md. App. 640 , 349 A. 2d 300 (1975), aff'd, State v. Evans, 278 Md. 197 , 362 A. 2d 629 (1976), the first degree murder conviction would not cure an improper allocation of the burden of persuasion with respect to self-defense.

Cf. Dorsey v. State, 278 Md. 221 , 362 A. 2d 642 (1976). The State, however, argues that as the trial in the instant case occurred four months after the Supreme Court’s decision in Mullaney v. Wilbur, supra, and as the appellant failed to object to the instruction concerning the burden of persuasion, the erroneous instruction furnishes no basis for reversing the conviction. While acknowledging in oral argument before us that the appellant might be able to secure relief under the Post Conviction Procedure Act in light of the requirements of that statute for finding a waiver of a constitutional right, Maryland Code (1957, 1976 Repl.

Vol.), Art. 27, § 645A (c), the State urges that we decline on direct appeal to consider the erroneous instruction. Maryland Rule 756 g provides that ordinarily an appellate court will not consider an error in a jury instruction unless the instruction was objected to before the jury retired. However, the rule further states that an appellate court “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 ....” See Dempsey v. ⁷⁰ State, 277 Md. 134, 152 , 355 A. 2d 455 (1976); Dimery v. State, 274 Md. 661 , 338 A. 2d 56 (1975). On July 15, 1976, in State v. Evans, supra, 278 Md. at 211, the Court of Appeals in an opinion by Chief Judge Murphy held that the Court of Special Appeals did not abuse its discretion under Rule 756 g by taking cognizance of, and reversing on the basis of, a jury instruction, erroneous under Mullaney v. Wilbur, which had not been objected to.

The trial in Evans had taken place prior to the Mullaney decision, and the Court of Appeals, in holding that the case was appropriate for taking cognizance of a “plain error” in the instruction, relied upon section (d) of the Post Conviction Procedure Act, Code (1957, 1976 Repl. Vol.), Art. 27, § 645A (d). That section provides: “For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.” The Court of Appeals reasoned that since the “Mullaney errors were subject to collateral attack under this section in any event,” it was not inappropriate to take cognizance of the erroneous instruction on direct appeal