Jackson v. State

• Decision Date: 26 July 1974
• Docket Number: No. 1,1
• Citation: 322 A.2d 574,22 Md.App. 257
• Parties: Stonewall JACKSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 257

22 Md.App. 257

322 A.2d 574

Stonewall JACKSON v. STATE of Maryland.

No. 1.

Court of Special Appeals of Maryland.

July 26, 1974.

Harold Buchman, Baltimore, for appellant.

James I. Keane, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Thomas Howard, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before GILBERT, MENCHINE and DAVIDSON, JJ.

GILBERT, Judge.

Stonewall Jackson, appellant, was convicted by a jury in the Criminal Court of Baltimore of robbery with a dangerous and deadly weapon, Md.Ann.Code art. 27, § 488, and was sentenced to ten years incarceration under the supervision of the Division of Correction.

In this Court Jackson complains, inter alia, that his conviction should be reversed because of the trial judge's erroneous instruction to the jury as to the 'burden of proof' when the defense of alibi is raised. For the reasons hereinafter stated, we agree with Jackson's contention, reverse the judgment of the Criminal Court and remand the case for a new trial.

James Bland, the prosecuting witness, was robbed at gunpoint on the evening of October 26, 1972 by a group of five young men. As a result of a description furnished to the police, Bland was shown various photographs from which he identified Jackson as one of the robbers. Jackson was subsequently apprehended and charged with the offense. Although there were witnesses called to testify as to the validity, vel non, of the photographic identification procedure, as well as an in-court identification made in the District Court of Maryland at the time of the preliminary hearing, Bland was the only witness for the State on the question of Jackson's culpability. Jackson testified that he knew nothing of the offense of which he was charged and stated that at the time of the robbery he was at his girlfriend's house. Jackson said that he recalled the specific hour and date because his girlfriend was pregnant, and he went to her home to ascertain what her plans were in respect to the pregnancy.

At the conclusion of the evidence the State requested an advisory instruction regarding the defense of alibi. The instruction was granted by the trial judge over the strenuous objection of Jackson's counsel. The judge advised the jury:

'The defendant has offered testimony designed to establish an alibi. An alibi is a defense arising from proof that the defendant was elsewhere at the time the crime was committed, and therefore, he could not be the guilty person, and it is a proper and legitimate defense.

You should consider the testimony offered to prove an alibi, and if you have a reasonable doubt that the defendant was elsewhere when the crime was committed, the defendant is entitled to the benefit of that doubt and should be found not guilty.

The presence of the defendant at the time and place of the criminal act is not to be presumed until he succeeds in shaking off that suspicion, because where the presence of the defendant at the commission of the crime is essential to his conviction, the State must establish this fact beyond a reasonable doubt.

However, it is the defendant who has the burden of proving an alibi defense, and must do so by a preponderance of the evidence and not beyond a reasonable doubt. Preponderance of evidence means more likely than not. In order to prove an alibi, the testimony must cover the whole time during which the crime by any possibility might have been committed, and must show that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission of the crime; and the defensive alibi should be subjected to rigid scrutiny.

All of the evidence in a criminal case is to be considered together, and you are not to weigh merely the evidence relating to the alibi and determine from that alone whether you have a reasonable doubt of guilt. So, the defendant is entitled to acquittal if the alibi testimony, taken into consideration with all the other evidence in the case, raises a reasonable doubt of guilt.

But, the jury is not bound to accept alibi testimony, and it is not necessary for the State to contradict such testimony.' (Emphasis supplied).

Appellant's counsel excepted to the court's alibi instruction. See Md. Rule 756 f. The italicized portion of the trial judge's advisory jury instructions is in direct conflict with the recent decision of this Court in Robinson v. State, 20 Md.App. 450, 316 A.2d 268 (1974). ¹ In Robinson Judge Moylan, writing for this Court, said at 459, 316 A.2d at 273:

'We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State's proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State's effort to establish criminal agency.'

Cited in Robinson v. State, supra, was Stump v. Bennett, 398

F.2d 111 (8th Cir. 1968), wherein the court pointed out that an instruction concerning the burden of proof of an alibi by the preponderance of the evidence is inconsistent and confusing. The court said, at 116:

'. . . The jury is told that before it can acquit the defendant by reason of (an alibi) defense the defendant must establish it by the preponderance of evidence. Yet the jury is also told that if any evidence creates a reasonable doubt as to the crime as a whole, then it can return a verdict of not guilty. This court, of course, has consistently adhered to the general rule that instructions are to be viewed in their entirety. . . . But even when so viewed, the presence of serious confusion here as to burden of proof seems inescapable.'

The Stump court asked the rhetorical question that if the jury followed the trial judge's instructions, which of the two conflicting instructions did it follow-the preponderance of evidence instruction in regard to the defense of alibi, or guilt beyond any reasonable doubt?

Judge Moylan noted in Robinson, supra, that Chief Justice Schaefer, for the Supreme Court of Illinois, put the matter in proper perspective in People v. Pearson, 19 Ill.2d 609, 169 N.E.2d 252 (1960), when he wrote, at 613-614, 169 N.E.2d at 255:

'In part, the extraordinary difficulties that have arisen with respect to instructions concerning alibi stem from the fact that the defense of alibi has often been spoken of as an affirmative defense . . .. Logically, proof of an alibi is not proof of an affirmative defense because in order to establish its case the prosecution must show that the defendant was present at the scene of the crime, and evidence that the defendant was elsewhere is only one method of negativing the prosecution's case. So where an instruction was unequivocally placed upon a defendant the burden of establishing an alibi, the conviction has been reversed. . . . To say that the burden is upon the defendant to establish an alibi can be accurate only if the term 'burden' is used in the sense of the requirement of going forward with evidence. But if that is all that is intended, any reference in an instruction to a burden upon the defendant...