Gore v. State, 58

• Citation: 522 A.2d 1338,309 Md. 203
• Decision Date: 01 September 1986
• Docket Number: No. 58,58
• Parties: Walter Anthony GORE v. STATE of Maryland
• Court: Court of Appeals of Maryland

Page 203

309 Md. 203

522 A.2d 1338

Walter Anthony GORE v. STATE of Maryland.

No. 58 Sept. Term, 1986.

Court of Appeals of Maryland.

April 1, 1987.

Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals (retired), Specially Assigned.

COUCH, Judge.

In this case we must determine whether a trial judge erred when he told a jury in a criminal case that

"one of the attorneys mentioned to you that the evidence was insufficient upon which you could make a finding of guilty as to a certain count. Sufficiency of the evidence is a matter of law. The Court decided that, not the Jury. Whether you believe that evidence beyond a reasonable doubt is for you to decide. But the counts could never go to you if there were not evidence sufficient under the law; whether you believe it and weigh it so that you have no reasonable doubt is for you, the Jury, to decide."

We shall hold that the court erred.

I

The petitioner, Walter Anthony Gore, was convicted in a jury trial in the Circuit Court for Prince George's County of first degree rape, false imprisonment, robbery with a deadly weapon and use of a handgun in the commission of a crime of violence. During closing argument Gore's counsel made the following statement to the jury:

"I say, take the testimony and you believe all, the entire testimony of both Sandra Edwards and Derrick Dixon and there's insufficient testimony for you to be able to conclude that what was being displayed at that time was in fact an operable revolver as opposed to either a pellet gun, a starter pistol or revolver that was in fact at that time not operable, simply because you do not know.

Now, you have the authority, okay, and the Court has instructed you that you have the ability or authority to infer from all the facts in front of you, but that does not allow you the right to speculate, because you have a sworn duty to try this case solely on the facts before you and not speculate. So with respect to that count alone, if you believe everything that was said, there's insufficient evidence for a finding."

No objection was made by the State. However, at a bench conference shortly thereafter, the result of an objection by the State regarding a different statement made by Gore's attorney during closing argument, the following colloquy ensued:

"THE COURT: Let me tell you something. I am going to tell you right now. You [defense counsel] told them it was insufficient for them to find that that was a handgun. I'm sorry, Tony, but I'm going to tell them when it's all over, when it gets ready to go to the jury if there was insufficient evidence on any count, the law requires me to stop it and not send it to them. There is sufficient evidence if they believe beyond a reasonable doubt to make the finding. You told them there was insufficient evidence."

[DEFENSE COUNSEL]: Perhaps I can clarify.

THE COURT: I'm going to do it. I can assure you, I'm going to do it.

[DEFENSE COUNSEL]: I would object to that, Your Honor.

THE COURT: You can object all you want, but I'm going to do it. Go on."

At the end of closing arguments the trial judge stated to the jury what we have set forth at the beginning of this opinion. No further objection was taken by defense counsel.

Gore noted an appeal to the Court of Special Appeals and that court affirmed the convictions in an unreported per curiam opinion. The Court of Special Appeals concluded:

"Our affirmance on the merits is only foreclosed by the failure of the appellant to make an objection and by our absolute disinclination to review a non-preserved issue under the notion of 'plain error.' "

We granted the petition for writ of certiorari to review the judgment of the intermediate appellate court.

II

The threshold issue is whether the error assigned to the instruction is preserved for review as of right, and, if not, whether this Court will take cognizance of the error under the plain error doctrine. We do not reach the issue of plain error for we perceive petitioner's objection to the instruction as sufficient to preserve the assigned error for our consideration.

Md. Rule 4-325(e) governs objections to jury instructions in criminal cases and provides, in pertinent part, as follows:

No party may assign as error the giving or 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.

Rule 4-325(e) makes clear that an objection to a jury instruction is not preserved for review unless the aggrieved party makes a timely objection after the instruction is given and states the specific ground of objection thereto.

Gore first argues that the trial judge's comment to the jury was not an instruction within the contemplation of Rule 4-325. Gore maintains that Rule 4-325 refers only to a trial court's instruction at the conclusion of the evidence and directs our attention to Rule 4-322(c) which covers objections to "[o]ther rulings and [o]rders." ¹ Under 4-322(c), error is preserved if the party "at the time the ruling or order is sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court."

Contrary to Gore's assertion that the communication to the jury is an order or ruling, we characterize the communication as a supplemental instruction on the sufficiency of the evidence to sustain a conviction. Subsection (a) of Rule 4-325 directs the trial court to instruct the jury at the conclusion of the evidence, but also permits the court to give additional subsequent instructions where appropriate. Hence, we find no merit to Gore's initial contention and regard the judge's comment to the jury as a supplemental instruction.

In the alternative, Gore, relying on Bennett v. State, 230 Md. 562, 188 A.2d 142 (1962), contends that substantial compliance with Rule 4-325(e) is sufficient to preserve error for appellate review. We are persuaded that substantial compliance with Rule 4-325(e), under the limited circumstances hereinafter expressed, is sufficient to preserve review of assigned error as of right. We are further persuaded that Gore's objection to the instruction is in substantial compliance with Rule 4-325(e).

In Bennett v. State, supra, defense counsel submitted four proposed instructions to the trial judge in a chambers conference after the close of evidence. The trial judge granted three of the requested instructions. On the issue of whether the trial judge's refusal to grant the other instruction was preserved for review, the Court in Bennett stated:

"In the instant case, where the requests for instructions were submitted to the court in writing and written instructions to the jury were prepared by the court and were discussed in chambers with counsel for both parties before the charge was read to the jury in open court, it is clear that the trial court was fully aware of the particular instruction the defendant desired the court to give, for in rejecting the second request, the court noted in writing thereon that it was 'sufficiently covered in [the] court's instruction.' Moreover, the record discloses that the defendant not only objected then and there to the denial of the second requested instruction but also excepted to the refusal of the court to read it to the jury. And while no further exceptions were made to the prepared charge after it had been read to the jury, there was in this case no reason to repeat in the court room what had already been said and recorded by the reporter in chambers."

Id. at 568-69.

The Bennett Court further noted that the purpose of the requirement that the objection to the instruction be made before the jury retired to consider its verdict--to give the trial court an opportunity to correct its charge if it deems correction necessary--had not been defeated by counsel's failure to renew the objection after the jury was instructed. Id. at 568, 188 A.2d 142. ²

Several conditions for the establishment of substantial compliance with Rule 4-325(e) emerge from Bennett: there must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless.

We are satisfied that Gore's objection at the bench conference was sufficient to establish substantial compliance with Rule 4-325(e) and therefore will review his assignment of error.

III

As set forth in the beginning of the opinion, the trial judge gave the following instruction after closing arguments:

"one of the attorneys mentioned to you that the evidence was insufficient upon which you could make a finding of guilty as to a certain count. Sufficiency of the evidence is a matter of law. The Court decided that, not the Jury. Whether you believe that evidence beyond a reasonable doubt is for you to decide. But the counts could never go to you if there were not evidence sufficient under the law; whether you believe it and weigh it so that you have no reasonable doubt is for you, the Jury, to decide."

Gore argues that the instruction was an improper comment on the evidence. We agree with Gore's contention and begin our analysis with a brief review of the functions of the judge and the jury in a criminal case.

Article 23 of the Maryland Declaration of Rights provides in pertinent part:

In the trial of all criminal cases, the Jury shall be the Judges of the Law, as well as of...