Cruz v. State
| Decision Date | 23 January 2009 |
| Docket Number | No. 10, September Term, 2008.,10, September Term, 2008. |
| Citation | 963 A.2d 1184,407 Md. 202 |
| Parties | Oscar A. CRUZ v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for Petitioner.
Robert Taylor, Jr., Asst. Atty. Gen. (Dougals F. Gansler, Atty. Gen., on brief), for Respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
We are asked to decide whether a supplemental jury instruction on a new theory of culpability that is supported by the evidence given during jury deliberations can result in prejudice to a defendant that merits a new trial. Oscar A. Cruz was convicted by a jury in the Circuit Court for Montgomery County of second degree assault. Before closing argument the State requested a jury instruction on the common law battery version of assault, but did not request an instruction on either of the two other types of common law assault: intentionally frightening another with the threat of an immediate battery and attempting to commit a battery. After closing arguments and during jury deliberations, the court, in response to a jury question, instructed the jury on attempted battery.
We conclude that it was improper for the court to give a supplemental instruction on attempted battery during jury deliberations after the court, at the close of evidence, agreed that it would only instruct the jury on battery, the sole second degree assault theory elected by the State. The court's supplemental instruction, though generated by the evidence, was not appropriate under Maryland Rule 4-325 because defense counsel's reliance on the court's pre-closing argument instructions resulted in prejudice to Cruz.
Oscar Cruz, petitioner, was charged with first degree assault on Hayder Meza1 and Oscar Martinez. At trial, fifteen-year-old Meza and fourteen-year-old Martinez testified that on January 21, 2005, at four or five in the afternoon, they were walking to the Chicken Basket restaurant when they saw Cruz drive past them and turn into an apartment complex. Martinez claimed that Ricky, a passenger in Cruz's car, pointed at him. Meza and Martinez decided to take a shortcut, walked into a parking lot, and then encountered Cruz and his friends standing outside the vehicle Cruz had been driving. Meza indicated that Cruz and his friends gave Meza and Martinez "hard looks[,]" which he described as "when somebody looks at you with hatred."
Meza went up to Cruz and said, " " Cruz replied, " " Meza continued to ask Cruz if he had a problem, and Cruz said, "`Well, if you want problems, I'll give it to you.'" Meza and Martinez claimed that Cruz made MS-13 gang symbols. Martinez responded with an insult by saying "`Fuck MS-13'" and flicking his middle finger.
Meza and Martinez testified that Cruz then took a baseball bat from Ricky. When Cruz approached Meza and swung the bat at him, Meza jumped back, dodged it, and started running away from Cruz. According to Meza, Cruz chased Martinez first, and then started chasing Meza. Meza testified that when Cruz swung the bat at him again, Meza jumped back, slipped on the snow, and fell down. Cruz then hit Meza on the head with the bat. Martinez testified that he saw Cruz strike Meza and that Cruz then turned his attention to Martinez, swinging the bat at him. Martinez blocked the bat with his arm, Cruz ran off, and then left in his vehicle.
Later that evening, Meza was treated at Shady Grove Adventist hospital. The treating physician testified that Meza had a laceration, or a cut, about two centimeters long on the right side of his head. The physician acknowledged on cross-examination that Meza's injury "could have happened from different kind[s] of incidents[,]" including "if he struck his head on the curb of a sidewalk."
Reynaldo Herrera-Flores ("Reynaldo"), a friend of Cruz, testified as a defense witness. Reynaldo indicated that Cruz and Ricky stopped by while he was fixing his car in the parking lot. He said that two individuals came over and insulted Cruz. They called Cruz a "son-of-a-bitch" and said that they wanted to kill him. According to Reynaldo, Ricky grabbed a baseball bat as the two individuals approached and Cruz then grabbed the bat and chased the two away. He said that one of the individuals fell down during the chase, but that Cruz did not hit either one with the bat.
At the close of evidence, the following discussion took place concerning the jury instruction for second degree assault set forth in the Maryland Criminal Pattern Jury Instructions ("MPJI-Cr"), Section 4:01 (1997):2
Your Honor, I think the applicable part of the second degree assault instruction is part C, which is the battery.
The court then instructed the jury on second degree assault as follows:
Now, in this case the defendant is charged with the crime of second degree assault on Heder Meza Herrera and, or Oscar Martinez[.] Assault is causing offensive physical contact to another person.
In order to convict the defendant of assault the State must prove: one, that the defendant caused offensive physical contact with, and, or physical harm to Heder Meza Herrera and, or Oscar Martinez. Two, that the contact was the result of an intentional or reckless act of the defendant and was not accidental. And, three, that the contact was not consented to by Heder Meza Herrera and/or Oscar Martinez.
During deliberations the jury sent a note asking, "[I]s Y falling on a sidewalk & hitting head while being chased by a bat by X, an assault by X on Y?" Upon consideration of this note, the court informed the parties that it was "going to give another instruction on second degree assault, section B, of an attempted battery." Over defense counsel's objection, the court then addressed the jury upon its reentry:
I have your note, and I've talked to counsel. And I'm going to give you another instruction and you can take it back into the jury room with you. The defendant is charged with the crime of assault on Heder Meza Herrera and/or Oscar Martinez.
Assault is an attempt to cause offensive physical contact and, or physical harm. In order to convict the defendant of assault the State must prove: one, the defendant actually tried to cause immediate, offensive, physical contact with, or physical harm to Heder Meza Herrera and/or Oscar Martinez.
Two, the defendant intended to bring about the harmful offensive physical contact and, or physical harm. And, three, the defendant's actions were not consented to by Heder Meza Herrera and, or Oscar Martinez.
The jury found Cruz not guilty of first degree assault, but convicted him of second degree assault on Meza. He was sentenced to ten years imprisonment, with all but three years suspended, and ordered to serve two years probation upon his release. Cruz filed a motion for a new trial on the ground that it was error for the court to respond to the jury's question with a "different and inapplicable instruction on assault." The court denied the motion and Cruz noted an appeal to the Court of Special Appeals. That court rejected Cruz's contention that the supplemental jury instruction was an abuse of discretion and affirmed the judgment, holding that the instruction was supported by the evidence and that Cruz was not prejudiced by its having been given during jury deliberations.
Cruz contends that it was improper for the trial court to instruct the jury on a new theory of culpability, the attempted battery version of assault, after closing arguments were completed. Cruz argues that this was error because counsel had given their closing arguments with the understanding that the instruction on the battery version of second degree assault covered the State's sole theory of how the offense was committed.3 Although Cruz concedes that the attempted battery instruction was an accurate statement of the law and generated by the evidence, he argues that the timing of the supplemental instruction was inappropriate and denied him his "right to be heard in summation of the evidence from the point of view most favorable to him[.]" Cruz maintains that he was prejudiced by the supplemental instruction, because he strategically conceded in closing that he "went after" Meza with the bat, thinking that attempted battery was off the table. He therefore focused on the offensive contact requirement of battery, arguing that Cruz never "hit" Meza with the bat. Had he known that the jury would be instructed on attempted battery, Cruz says he would have focused his argument on Cruz's lack of intent to cause offensive physical contact.
"The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict." Chambers v. State, ...
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