Johnson v. State, 5

• Decision Date: 07 October 1987
• Docket Number: No. 5,5
• Citation: 310 Md. 681,531 A.2d 675
• Parties: Cleo JOHNSON v. STATE of Maryland. Sept. Term 1986.
• Court: Maryland Court of Appeals

Page 681

310 Md. 681

531 A.2d 675

Cleo JOHNSON v. STATE of Maryland.

No. 5 Sept. Term 1986.

Court of Appeals of Maryland.

Oct. 7, 1987.

Michael R. Malloy, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, ^* McAULIFFE and ADKINS, JJ.

ELDRIDGE, Judge.

This criminal case presents two distinct questions, one relating to the trial court's jury instructions and one relating to the sentence.

Cleo Johnson and Arnold McDonald were indicted in the Circuit Court for Baltimore City on various charges growing out of an attack upon Dennis Dunlap. Specifically, Johnson and McDonald were charged with the following offenses: attempted murder; assault with intent to murder; assault with intent to maim, disfigure or disable; assault; and carrying a dangerous and deadly weapon with the intent to injure. Johnson and McDonald were tried together.

At the trial, the testimony on behalf of the State by the victim and two police officers showed the following facts. On the morning of October 22, 1984, Dennis Dunlap was walking toward a bus stop in Baltimore City when he was approached by Cleo Johnson and Arnold McDonald. McDonald was carrying a baseball bat. Johnson and McDonald, who were employed by a bail bond company, questioned Dennis Dunlap concerning the whereabouts of his brother, Robert Dunlap, who had failed to appear for a trial and whose bail bond was in danger of being forfeited. Upon being told by Dennis Dunlap that he did not know where his brother was, McDonald swung the baseball bat, hitting Dunlap on the mouth. McDonald then repeatedly struck Dennis Dunlap with the baseball bat while Cleo Johnson held Dunlap. McDonald threatened to kill Dunlap unless Dunlap revealed his brother's whereabouts. A police officer, hearing Dunlap's cries for help, went to the scene. When the officer arrived, he observed Cleo Johnson holding Dunlap and Arnold McDonald putting a baseball bat in a parked vehicle. A second police officer arriving at the scene saw Johnson holding Dunlap, who was bleeding from the mouth. McDonald and Johnson were arrested, and Dunlap was taken to a hospital. Dunlap suffered injuries to his face, elbow, leg and thigh.

At the conclusion of the evidentiary portion of the trial, but before the case was submitted to the jury, the State "abandoned" as to both defendants the charges of attempted murder, assault with intent to maim, disfigure or disable, and carrying a deadly weapon with intent to injure. The case was submitted to the jury on the charges of assault with intent to murder and simple assault. ¹ With regard to Arnold McDonald, the jury was unable to reach a verdict, and a mistrial was declared. The jury acquitted Cleo Johnson of assault with intent to murder but convicted him of simple assault. Thereafter the trial court sentenced Johnson to imprisonment for twenty years.

Johnson appealed to the Court of Special Appeals, claiming, inter alia, that the trial court erred in failing to give a requested jury instruction concerning impeachment of a witness by prior conviction. Johnson also maintained that the twenty-year sentence for assault was illegal in light of this Court's decisions in Gerald v. State, 299 Md. 138, 472 A.2d 977 (1984), and Simms v. State, 288 Md. 712, 421 A.2d 957 (1980). The intermediate appellate court, in an unreported opinion, held that the jury instruction issue was not preserved for appellate review because Johnson failed to object after the court instructed the jury. Consequently, the court did not reach the question of whether the requested instruction should have been given. The Court of Special Appeals agreed with Johnson that, under the circumstances, the sentence was illegal and that the maximum sentence on the assault conviction was ten years imprisonment. The Court of Special Appeals upheld the guilty verdict but vacated the sentence and remanded the case for a new sentencing.

Johnson filed a petition for a writ of certiorari, challenging the Court of Special Appeals' decision on the jury instruction issue. The State also filed a petition for a writ of certiorari regarding the sentencing issue. ² This Court granted both petitions, and we shall affirm.

(1)

The particular facts underlying Johnson's contentions that the trial court erred in its jury instructions, and that the issue was properly preserved for appellate review, are these. In the course of his testimony, the victim Dennis Dunlap admitted that he had previously been convicted of theft. After the close of the evidence, but before the trial court instructed the jury, the following colloquy took place:

"DEFENSE COUNSEL: YOUR HONOR, I DIDN'T ASK YOU THAT, BUT I ASSUME AS PART OF YOUR ORDINARY INSTRUCTION THAT YOU INSTRUCT THE JURY AS TO IMPEACHMENT BY PRIOR CONVICTION.

THE COURT: I NEVER DID.

DEFENSE COUNSEL: ONE OF THE WITNESSES HAD A PRIOR CONVICTION. I WOULD LIKE TO HAVE THAT INSTRUCTION.

THE COURT: WHAT INSTRUCTION?

DEFENSE COUNSEL: THAT YOU CAN CONSIDER THAT FACT IN WEIGHING THE CREDIBILITY OF A WITNESS.

THE COURT: THAT IS NOT A QUESTION OF LAW, IT IS A MATTER OF COMMON SENSE, ISN'T IT?

DEFENSE COUNSEL: SOME JUDGES DO THAT.

THE COURT: I DO WITH THE DEFENDANT WITH THE PURPOSE OF MAKING IT CLEAR THAT THEY CANNOT BASE THE VERDICT IN THIS CASE ON PRIOR MISCONDUCT."

Nothing more was said on the subject, and the trial court thereafter instructed the jury. The court did not in its instructions specifically mention impeachment by prior conviction. At the conclusion of the court's instructions, counsel approached the bench, and the following was said:

"PROSECUTOR: NO EXCEPTIONS, YOUR HONOR.

THE COURT: DOES THE DEFENDANT HAVE ANY?

DEFENSE COUNSEL: NO EXCEPTIONS."

Johnson asserts that his "direct request to the trial court to give the [impeachment] instruction, combined with the court's refusal to do so, was adequate to preserve the issue for appeal." (Johnson's brief, p. 13).

Maryland Rule 4-325(c), applicable to criminal cases, provides that the trial court, "at the request of any party shall ... instruct the jury as to the applicable law...." ³ This provision is mandatory; under it "a trial judge is required to give a requested instruction which correctly states the applicable law and which has not been fairly covered in instructions actually given, and ... the failure to give such an instruction constitutes error." Lansdowne v. State, 287 Md. 232, 239, 412 A.2d 88 (1980), and cases there cited. Accord: Smith v. State, 302 Md. 175, 179-180, 486 A.2d 196 (1985); Mack v. State, 300 Md. 583, 592, 479 A.2d 1344 (1984); Montgomery v. State, 292 Md. 84, 93, 437 A.2d 654 (1981).

Although the trial court's failure to give a requested instruction may constitute error, the rules go on to indicate that such error is ordinarily not preserved for appellate review unless the requesting party objects after the trial court instructs the jury. Rule 4-325(e) provides in pertinent part that "[n]o party may assign as error ... the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury...." ⁴ The language of the rule plainly requires an objection after the instructions are given, even though a prior request for an instruction was made and refused.

There are good reasons for requiring an objection at the conclusion of the instructions even though the party had previously made a request. If the omission is brought to the trial court's attention by an objection, the court is given an opportunity to amend or correct its charge. Moreover, a party initially requesting a particular instruction may be entirely satisfied with the instructions as actually given. See generally, Bennett v. State, 230 Md. 562, 568, 188 A.2d 142 (1963); Vernon v. State, 12 Md.App. 157, 162-163, 277 A.2d 635 (1971).

The defendant relies on two of this Court's cases which, he contends, support his position that a request for a particular instruction is sufficient to preserve for appellate review the issue of whether such instruction should have been given, and that an objection after the jury is instructed is not necessary. They are Bennett v. State, supra, 230 Md. at 568-569, 188 A.2d 142, and Merritt v. Darden, 227 Md. 589, 597-598, 176 A.2d 205 (1962). While these cases do indicate that substantial compliance with the rules concerning instructions will be deemed sufficient to preserve an issue for appellate review, they do not support the defendant's argument or help the defendant under the circumstances here.

In Bennett v. State, supra, 230 Md. at 568, 188 A.2d 142, after pointing out that a defendant seeking appellate review of jury instructions "is required to make reasonable objection thereto," this Court stated: "But substantial compliance with the requirements of the rule has been held to be sufficient to preserve the right to a review." The Court then delineated the circumstances in Bennett which amounted to substantial compliance ( id. at 568-569, 188 A.2d 142):

"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 instructions.' 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 ...