Austin v. State

• Decision Date: 01 September 1991
• Docket Number: No. 343,343
• Citation: 90 Md.App. 254,600 A.2d 1142
• Parties: Darryl Shjuan AUSTIN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 254

90 Md.App. 254

600 A.2d 1142

Darryl Shjuan AUSTIN v. STATE of Maryland.

No. 343, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 31, 1992.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before WILNER, C.J., and MOYLAN and ALPERT, JJ.

MOYLAN, Judge

The number of occasions on which we are asked to invoke the "plain error" exemption from the otherwise foreclosing effect of non-preservation through failure to object remains so epidemic that it behooves us periodically, as forcefully as we know how, to do what we can to limit the contagion. Maryland Rule 4-325(e) states the basic and simple principle with unmistakable clarity:

"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."

That is the norm. That is the clearly articulated standard that must be satisfied as a precondition for appellate review. It is the norm to which we have always adhered and to which we shall continue to adhere. The rule does go on to state a very limited exception, whereby an appellate court may (though it need not and usually will not) choose to overlook, in unusual circumstances, the procedural dereliction:

"An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object."

We choose to restate in a published opinion the hierarchical relationship between the rule and its exception because the exception, through promiscuous indulgence, periodically threatens to swallow the rule. In Brown v. State, 14 Md.App. 415, 418, 287 A.2d 62 (1972), Judge Powers pointed out that the "plain error" exception to the rule "leaves slightly ajar the door to appellate relief ..." In Williams v. State, 34 Md.App. 206, 207-208, 366 A.2d 399 (1976), we picked up on Judge Powers' metaphor and noted the consequences:

"Whenever a door is left slightly ajar, there is irresistible temptation on the part of bar, and sometimes even bench, ever to widen the breach. The process is gradual and each progressive nudge imperceptible when viewed alone. What began, however, as a door almost, though not quite, closed is suddenly perceived to be a door almost, though not quite, wide open."

The Present Case

The appellant, Darryl Shjuan Austin, was convicted by a Montgomery County jury, presided over by Judge William C. Miller, of attempted second-degree murder and the use of a handgun in the commission of a crime of violence. Upon this appeal, he raises the following two contentions:

1. That the judge committed plain error in instructing the jury on the mens rea requirement of attempted second-degree murder; and

2. That the judge erroneously refused to instruct the jury on other uncharged, albeit arguably related, offenses.

Briefly, let us set the stage. The appellant was a Montgomery County police officer. His shooting victim, Willie Lee Jackson, and he were both in love with the same teenaged girl, Khavah Carter. Willie Jackson testified that he was "so attracted to her, [he] was stupid with love for her." Jackson wrote the appellant, informing him that they were both in love with the same woman, accusing him of being "dumb," and suggesting that they should talk out the matter. Jackson believed that the appellant was displaying "utter stupidity" because the appellant, at age twenty-eight, was nine or ten years older than Khavah.

The two arranged to meet on the evening of February 28, 1990, at 12601 Layhill Road, the apartment where Khavah was living. The appellant demanded that Khavah choose between them. Khavah did so. When she chose Willie Jackson, the appellant "flipped." The appellant initially shoved Khavah up against a wall, held her in a choke hold, and threatened to kill her. He finally stopped choking her after about ninety seconds. As Willie Jackson went to hold and comfort Khavah, the appellant opened fire on him. As significant insight into his purpose or mens rea, the appellant announced, as he fired, "You're going to die, bastard."

Lifesaving measures at the emergency room of the Suburban Hospital, however, thwarted that purpose. One bullet had entered the left side of Jackson's neck and exited through his cheek. A second bullet entered and exited through the frontal bone of his head. Willie Jackson nonetheless survived.

The appellant, incidentally, was on duty and in uniform at the time of the encounter. A recent graduate of the police academy, Officer Brian Holloway, assigned to the appellant to learn proper police procedures, was sitting outside in a cruiser, from which point he could observe the appellant, Willie Jackson, and Khavah inside the apartment. Although Willie Jackson himself apparently heard only two shots, Officer Holloway heard four gunshots in rapid succession and saw the appellant in a crouched position pointing his gun downward. After the appellant returned to the police cruiser, Officer Holloway observed him replace four rounds of ammunition in his revolver. In the patrol car, the appellant, moreover, concocted an exculpatory story that Officer Holloway was instructed to tell the Office of Internal Affairs.

Khavah told essentially the same story except that her recollection of what the appellant announced, as he fired, was, "Die, bastard, die."

The Instructional Error

In instructing the jury on attempted second-degree murder, the judge began by defining second-degree murder:

"Second-degree murder is the killing of another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result.

Second-degree murder does not require premeditation or deliberation. The elements of second-degree murder are that the conduct of the defendant caused the death of the victim. That the defendant engaged in the deadly conduct either with the intent to kill, or intent to inflict such serious bodily harm that death would be the result." (emphasis supplied).

Thus far, the instruction was technically correct. When death results, there are no less than four mens reae that are sufficiently blameworthy to support a murder conviction. The instruction referred to two of them--the intent to kill and the intent to inflict grievous bodily harm. The difficulty is that the inchoate crimes of attempted murder and assault with intent to murder are far more limited in their mental elements than is the case with consummated murder. One may only be convicted of attempted murder when there is the specific and actual intent to kill. An intent to commit grievous bodily harm, by contrast, will not support a conviction for attempted murder although it will support a conviction for actual murder. The next step in the instructional syllogism was, therefore, incorrect:

"The third possible verdict would be guilty of attempted second-degree murder, which involves an attempted killing with the intent to kill or inflict such bodily harm that would be likely to cause death, but absent premeditation and deliberation." (emphasis supplied).

Let this be clearly noted. That instruction is wrong. State v. Earp, 319 Md. 156, 164-167, 571 A.2d 1227 (1990); State v. Jenkins, 307 Md. 501, 510-515, 515 A.2d 465 (1986); Glenn v. State, 68 Md.App. 379, 511 A.2d 1110 (1986), cert. den., 307 Md. 599, 516 A.2d 569 (1986).

Let this be equally clearly noted. The appellant did not object to that instruction. Under the central thrust of Rule 4-325(e), therefore, he may not "assign as error the giving" of that instruction. The point, which would have been a very good one if properly preserved, has not been preserved for appellate review.

The fact of instructional error is in no way dispositive of the preservation issue. The preservation rule contemplates error. It assumes that an error has probably occurred. Its concern is that the error was not brought to the trial judge's attention so that he could have had the opportunity to correct it. Indeed, if the instruction in question were not in error, it would make very little difference whether the point had been preserved or not.

Under the clear command of the rule, the appellant may not assign as error this erroneous instruction. We decline, therefore, to consider the contention. Nothing persuades us, in the exercise of our discretion, to take the extraordinary step of overlooking the appellant's procedural failure.

The Appellate Discretion is Plenary

Many trial advocates seem to suffer the misapprehension that if the instructional error, even in the absence of an objection, is plain and is material to the rights of the accused, the appellate court is thereby divested of its discretion and is required to consider the contention on its merits. They would limit the appellate discretion to decisions as to whether 1) to consider whether an instructional error had even occurred, in the first instance, and 2) assuming the error so leaped off the page that it could not be ignored, to consider whether the error was actually material to the rights of the accused, in the second instance.

The appellate discretion is not so cabined. On the question of overlooking non-preservation, the appellate discretion is plenary. As a matter of course, it may be exercised so as not even to consider the initial question of whether instructional error occurred: "Because the issue has not been preserved, we, in the exercise of our discretion, decline even to read the arguably flawed instruction." Equally as a matter of course, the appellate court, if faced with an instructional...