Martin v. State

• Decision Date: 28 October 2005
• Docket Number: No. 1675,1675
• Citation: 885 A.2d 339,165 Md. App. 189
• Parties: Marcus D. MARTIN a/k/a Karim Azim Razzaq v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

885 A.2d 339

165 Md. App. 189

Marcus D. MARTIN a/k/a Karim Azim Razzaq v. STATE of Maryland.

No. 1675, September Term, 2003.

Court of Special Appeals of Maryland.

October 28, 2005.

Allison E. Pierce (Nancy S. Forster, Public Defender, on brief), for appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel HOLLANDER, SHARER, MOYLAN and CHARLES E., JR. (Retired, Specially Assigned), JJ.

SHARER, J.

Marcus D. Martin, aka Karim Azim Razzaq,¹ appeals from convictions for first degree murder, conspiracy to commit first degree murder, first degree assault, use of a handgun in the commission of a crime of violence or felony, wearing and carrying a handgun, conspiracy to commit robbery with a dangerous or deadly weapon, robbery, and theft. The verdicts were returned after a jury trial in the Circuit Court for Baltimore City.

Razzaq was sentenced to life in prison for the first degree murder conviction and to a consecutive term of 20 years for the use of a handgun in the commission of a crime of violence. The court also imposed 20 year sentences each on the conspiracy to commit murder, conspiracy to commit armed robbery, and armed robbery counts, each to run concurrent with the other and with the murder and handgun sentences.

Razzaq's timely appeal presents for our review the following issues, which we have recast:

I. Whether the trial court's failure to instruct the jury on the charge of conspiracy, and to provide an alibi witness instruction, constitutes plain error.

II. Whether the trial court abused its discretion in denying the defense motion for a mistrial.

III. Whether the conviction for conspiracy to commit robbery should be vacated.

For the reasons expressed below, we decline to note plain error with respect to the trial court's instructions. We shall affirm the trial court's refusal to declare a mistrial. We concur with the parties that the conviction for conspiracy to commit robbery is duplicative and must be vacated.

BACKGROUND

Razzaq does not contest the sufficiency of the evidence. Accordingly, we need only recite a summary of the facts that gave rise to this prosecution, or that may be necessary to the resolution of issues raised in this appeal. See Whitney v. State, 158 Md.App. 519, 524, 857 A.2d 625 (2004)

.

On February 9, 2002, Craig Pope was found shot to death in his Baltimore City home. Two men were implicated in the shooting: Xavier Evans and appellant. Evans and Razzaq had originally visited Pope to buy drugs. After they left the house, they discussed the idea of returning to rob and shoot Pope. Unfortunately for Pope, they executed their plan, and him.

On March 26, 2002, a grand jury sitting in the Circuit Court for Baltimore City returned four indictments charging Razzaq and Evans each with a variety of offenses arising out of the murder and robbery of Pope. Evans, for his part, pleaded guilty to first degree murder. In consideration of his plea, he agreed to testify against Razzaq in exchange for a life sentence, with all but 20 years suspended. We shall later review Evans's testimony as it pertains to our discussion of the lack of a jury instruction on the offenses of conspiracy.

Razzaq went to trial on June 18, 2003, and on June 23 the jury returned guilty verdicts on all counts. His motion for a new trial was denied, and he was sentenced on August 28, 2003. This timely appeal followed.

DISCUSSION

I. Whether the trial court's failure to instruct the jury on the charge of conspiracy, and to provide an alibi witness instruction, constitutes plain error.

Razzaq complains of the trial court's failure to instruct the jury on the offense of conspiracy and the court's failure to provide an alibi witness instruction. Recognizing that his trial counsel neither requested such instructions, nor objected to the trial court's failure to give them, he nevertheless urges us to note these mistakes as plain error.

The trial court, indeed, failed to instruct as to the two conspiracy charges and did not provide an alibi witness instruction.² The sole reference to the conspiracy charge was in the court's discussion with the jury of the verdict sheets. Razzaq asserts that this oversight constitutes a violation of his due process rights because, with the failure to so instruct, "the jury could not have found the requisite elements of the conspiracy charges beyond a reasonable doubt." With respect to the absence of an alibi witness charge, Razzaq, citing this Court's decision in Robertson v. State, 112 Md.App. 366, 386, 685 A.2d 805 (1996), asks us to note plain error because, "[w]ithout such instructions, there is an inherent risk that a jury may simply weigh the defendant's alibi claim against the State's evidence and convict on a mere preponderance of the evidence."

Plain Error

The failure to object before the trial court generally precludes appellate review, because "[o]rdinarily appellate courts will not address claims of error which have not been raised and decided in the trial court." State v. Hutchinson, 287 Md. 198, 202, 411 A.2d 1035 (1980); see also Md. Rule 8-131(a). "[I]t is the extraordinary error and not the routine error that will cause us to exercise the extraordinary prerogative [of reviewing plain error]." Williams v. State, 34 Md.App. 206, 212, 366 A.2d 399 (1976) (Moylan, J., concurring). "Plain error is `error which vitally affects a defendant's right to a fair and impartial trial[,]'" and an appellate court should "`intervene in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.'"³Richmond v. State, 330 Md. 223, 236, 623 A.2d 630 (1993) (quoting State v. Daughton, 321 Md. 206, 211, 582 A.2d 521 (1990), and Trimble v. State, 300 Md. 387, 397, 478 A.2d 1143 (1984),cert. denied, 469 U.S. 1230, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985)). "[P]lain error review tends to afford relief to appellants only for `blockbuster[]' errors." United States v. Moran, 393 F.3d 1, 13 (1st Cir., 2004) (quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir.1987)).

In assessing whether to note, and perhaps to correct, an unpreserved issue, "[t]he touchstone remains our discretion." Williams, supra, 34 Md.App. at 212, 366 A.2d 399; see also, e.g., Claggett v. State, 108 Md.App. 32, 40, 670 A.2d 1002 (1996)

; Stockton v. State, 107 Md.App. 395, 396-98, 668 A.2d 936 (1995); Austin v. State, 90 Md.App. 254, 268, 600 A.2d 1142 (1992).

Indeed, this Court recently iterated that "even the likelihood of reversible error is no more than a trigger for the exercise of discretion and not a necessarily dispositive factor." Morris v. State, 153 Md.App. 480, 513, 837 A.2d 248 (2003), cert. denied, 380 Md. 618, 846 A.2d 402 (2004). Reversible error "is assumed, as a given, before the purely discretionary decision of whether to notice it even comes into play." Perry v. State, 150 Md.App. 403, 436, 822 A.2d 434 (2002).

To underscore the discretionary nature of plain error review in most instances, even where this court has exercised its discretion to do so in another case, Judge Moylan emphasized in Morris that

the discretionary decision of an appellate panel to notice plain error is totally ad hoc and a decision by one particular panel on one particular occasion to notice plain error is by no means precedentially binding on subsequent panels on subsequent occasions, even when similar subject matter seems to be involved. A particular exercise of discretion may be inspired by any number of reasons, some of which have nothing to do with the subject matter of the jury instruction in question.

Morris, 153 Md.App. at 517-18, 837 A.2d 248; see also, e.g., Evans v. State, 28 Md. App. 640, 650-51, 349 A.2d 300 (1975)

(exercise of discretion prudent in view of importance of issue beyond confines of that appeal), aff'd, 278 Md. 197, 362 A.2d 629 (1976).

Maryland Rule 4-325(e) governs appellate review of unpreserved error in the context of allegedly improper jury instructions, and provides:

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. Upon request of any party, the court shall receive objections out of the hearing of the jury. 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 have pointed out that the Rule's salutary function is to provide the trial "court an opportunity to correct the instruction before the jury starts to deliberate." Allen v. State, 157 Md.App. 177, 183, 850 A.2d 365 (2004).

The Court of Appeals has "defined `plain error' in a jury instruction as `error which vitally affects a defendant's right to a fair and impartial trial' and [we] have limited our review under the plain error doctrine to circumstances which are `compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.'" Miller v. State, 380 Md. 1, 29, 843 A.2d 803 (2004) (quoting State v. Hutchinson, supra, 287 Md. at 203, 411 A.2d 1035) (further citations omitted).

"`Maryland cases abound with instances where the plain error doctrine was advanced for a failure to instruct and [the Maryland Courts] subsequently denied review.'" Conyers v. State, 354 Md. 132, 171 & n. 6, 729 A.2d 910 (quoting Hall v. State, 292 Md. 683, 691 n. 3, 441 A.2d 708 (1982)), cert. denied, 528 U.S. 910, 120 S.Ct. 258, 145 L.Ed.2d 216 (1999). We agree with the First Circuit that "`[t]he plain error hurdle, high in all events, nowhere looms larger than in the context of alleged instructional errors.'" United States v. Sabetta, 373 F.3d 75, 80 (1st Cir.) (emphasis added) (quoting United States v....