Montgomery v. State

• Decision Date: 04 December 1981
• Docket Number: No. 35,35
• Citation: 292 Md. 84,437 A.2d 654
• Parties: Herbert Benjamin MONTGOMERY, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 84

292 Md. 84

437 A.2d 654

Herbert Benjamin MONTGOMERY, Jr. v. STATE of Maryland.

No. 35.

Court of Appeals of Maryland.

Dec. 4, 1981.

Louis P. Willemin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Martha Weisheit, Asst. Public Defender, Baltimore, on the brief), for appellant.

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

Argued before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

We are asked to decide two issues in this case: (1) whether the trial judge erred in instructing the jury that his instructions were advisory and that they could pay absolutely no attention to what he told them about the law; (2) whether the trial judge erred in refusing to define the concept of reasonable doubt to the jury.

For the purposes of our decision it is only necessary to relate the basic facts. A group of men hailed a taxicab. One of them walked up to the taxicab, looked in, and then walked over to another man who approached the taxicab, stuck a gun through the window at the driver and said, "Let me have it." The driver sped away, hearing a shot as he left the scene. The driver made a photographic and in-court identification of Herbert Benjamin Montgomery as the man who had first approached the taxicab.

Montgomery was tried by a jury in the Circuit Court for Prince George's County and found guilty of assault with intent to rob and the use of a handgun in the commission of a felony. He was sentenced to two concurrent five year terms of imprisonment. The Court of Special Appeals affirmed the convictions in an unreported per curiam opinion, Montgomery v. State, No. 853, September Term, 1979, filed April 7, 1980. We granted certiorari to consider whether the trial judge committed reversible error in two of his instructions which we shall discuss separately.

I

Montgomery claims the first error occurred when the trial judge instructed the jury as follows:

In our State, unlike most of the other states in our country, in a criminal case you as a jury sit not only as what we call the triers of the facts, but you will also sit as the judges of the law. And what this means, in essence, is simply this: The facts will be as you find them to be in this case, and the law will be as you find it to be in this case. And because you serve in that function, anything that I now tell you about the facts and anything that I will now tell you about the law will be, accordingly, advisory. And because it is advisory, you may pay absolutely no attention to what I tell you about the facts, and you may pay absolutely no attention to what I tell you about the law with one admonition concerning the law, and that is, you are not to apply the law as you think it ought to be, in this case, or what it should be, but what it, in fact, is in this particular case. And because you are the judges of the law, the attorneys, Mr. Shockley and Mr. Feisner, may tell you in their closing arguments what they think the law is and how you should apply it in this case. I, therefore, instruct you in an advisory capacity that in any criminal case that you will sit on that the law places the burden on the proof of-the law places the burden on the State of Maryland to prove that a defendant is guilty beyond what we call a reasonable doubt. (Emphasis supplied).

Montgomery contends that when the trial judge instructed the jury that they could pay absolutely no attention to the instructions on the law he misstated the law. He maintains that even though Article 23 of the Md. Declaration of Rights provides that in "the trial of all criminal cases, the jury shall be Judges of law, as well as of fact" this does not mean that the jury may ignore everything the judge tells them. The State counters by contending that the judge's instruction must be viewed as a whole and when so examined it is clear that the "pay no attention" language referred to the application of existing law. The only qualification upon this application, the State contends, was that the lawyers would be allowed to present their interpretation of the law in their respective arguments. Montgomery retorts that instructing the jury that they are not bound by any of the judge's instructions on the law does not comport with Article 23 and he further argues that if this is a correct application of Article 23 then such application in this case is unconstitutional.

This Court recently upheld the constitutionality of Article 23 in Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980). Judge Digges in explaining how this provision would be applied first noted that

the jury was not granted, by Article 23 the power to decide all matters that may be correctly included under the generic label-"law." Rather, its authority is limited to deciding "the law of the crime," Wheeler v. The State, 42 Md. 563, 570 (1875), or "the definition of the crime," as well as "the legal effect of the evidence before (the jury)." Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889) .... (And) it (is) quite evident that the jury's role in judging the law under Article 23 is confined "to resolv(ing) conflicting interpretations of the law (of the crime) and to decid(ing) whether th(at) law should be applied in dubious factual situations," and nothing more. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976) (emphasis in original) (289 Md. at 178-79, 423 A.2d 558).

He further explained that

(b)ecause of this division of the law-judging function between judge and jury, it is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive "law of the crime," as well as the "legal effect of the evidence," and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e. g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury's pale, and that the judge's comments on these matters are binding upon that body. In other words, the jury should not be informed that all of the court's instructions are merely advisory; rather only that portion of the charge addressed to the former areas of "law" may be regarded as non-binding by it, and it is only these aspects of the "law" which counsel may dispute in their respective arguments to the jury. On the other hand, the jury should be informed that the judge's charge with regard to any other legal matter is binding and may not be disregarded by it. (289 Md. at 179-80, 423 A.2d 558 (footnote omitted)). ¹

As we see it, then, an instruction on the law of the crime must contain a definition or explanation of the offense charged in language setting forth the essential elements thereof, along with such additional explanation of the law pertaining to the criminal agency of the accused as may be necessary. Furthermore, we wish to make clear that, under Article 27 of the Md. Declaration of Rights, the application of Md. Rule 757b, which provides, in part, that

(i)n every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court's instructions are advisory only

is limited to those instances when the jury is the final arbiter of the law of the crime. Such instances arise when an instruction culminates in a dispute as to the proper interpretation of the law of the crime for which there is a sound basis. Under such circumstances, counsel are granted leave to argue contrary to the court's instruction on the law of the crime and this is the occasion when Article 23 and Rule 757 b require the court's instruction to be advisory. Even here, counsel may not in their arguments attempt to persuade the jury to enact new law or repeal or ignore existing law. However, in those circumstances where there is no dispute nor a sound basis for a dispute as to the law of the crime, the court's instructions are binding on the jury and counsel as well.

In this case the trial judge's instructions explaining the elements of the crime of assault with intent to rob and use of a handgun in the commission of a felony were essentially correct. In addition, because the facts indicated that Montgomery was not the gunman, it was not inappropriate for the judge to explain the difference between a principal in the first and second degree, so that the jury could determine if Montgomery and the gunman were working in concert to rob the taxidriver. However, since there was no dispute between the State and Montgomery as to the law of the crime, the trial judge's instruction thereon was binding and counsel should not have been allowed to argue to the contrary. Thus, it was error to instruct the jury that his instructions were advisory and that the jury could pay absolutely no attention to his instructions.

Moreover, this error was compounded when the trial judge punctuated his charge with the admonition that all of his instructions were advisory. For example:

And I instruct you in an advisory capacity that in regards to these statements, that the statements were admitted not for the proof or the substance of the statements, but merely to impeach or discredit the testimony of Mr. Montgomery. And you will accordingly accept them for that purpose at this time.

I, therefore, instruct you in an advisory capacity that in any criminal case you will sit on that ... the law places the burden on the State of Maryland to prove that a defendant is guilty beyond what we call a reasonable doubt.

The law does not require any defendant in a criminal case to prove that he is innocent. Accordingly, you will assume in this case that Mr. Montgomery is innocent unless you are convinced from all the evidence that you have heard in this case that he is guilty.

I further instruct you in...