Smith v. State
| Decision Date | 28 April 2017 |
| Docket Number | No. 987, Sept. Term, 2016,987, Sept. Term, 2016 |
| Citation | 232 Md.App. 583,158 A.3d 1154 |
| Parties | Daniel Nicholas SMITH v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Krystal E. Quinlan (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.
Argued by: Virginia S. Hovermill (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.
Panel: Deborah S. Eyler, Wright, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
This appeal arises out of the criminal charges, jury trial, and guilty verdict that resulted from events which took place on August 13, 2015.
Appellant, Daniel Smith, appeared before District Court Commissioner Marie Ann Caron in Washington County following Smith's arrest on a warrant. Caron imposed money bail as a condition of Smith's release. Smith became angry and shouted at Caron. As a result, Smith was charged with threatening a State or local official.
On June 27, 2016, a jury trial was held in the Circuit Court for Washington County. Smith was convicted by the jury and sentenced to three years' incarceration, all suspended, with nine months to be served in home detention, followed by a period of probation.
Smith timely appealed, asking:
On August 13, 2015, Caron met with Smith following his arrest (the "Initial Appearance"). Caron testified that after she set money bail, Smith became furious. Caron testified that Smith Caron testified that Smith also shouted, "I'm going to find you," and "You better find another job." Caron further testified that Smith put his finger up, made eye contact with her, and said, "I'm going to find you" while thrusting his finger into the glass.
The guards then came to take him away. Deputy John Hinman of the Washington County Detention Center testified that, as Smith started to leave the room, "he turned back around and spit towards the Commissioner."
In a pretrial motion in limine, defense counsel moved to exclude any mention of why Smith had been arrested, citing Maryland Rule § 5–404(b), which generally prohibits admission of evidence of the defendant's prior bad acts, outside of the crime charged. The prosecutor and defense counsel agreed that there would be no mention of the arrest warrant or Smith's criminal history. Rather, they agreed to stipulate to the jury that Smith had been at the Initial Appearance to be given information about his rights, and that the case for which he was coming in was subsequently dismissed.
Defense counsel also moved to exclude any testimony that Smith spat in the direction of Caron at the conclusion of the meeting. The spitting occurred out of Caron's view. The circuit court denied the motion, finding that the testimony about the spitting was admissible to provide context to Smith's words. Defense counsel objected when Deputy Hinman testified that Smith spat in the direction of Caron.
Before the circuit court instructed the jury, defense counsel renewed a motion for judgment of acquittal. Defense counsel noted that the charging document in this case narrowed the charge by alleging that Smith threatened to create bodily injury to a State official, while omitting mention of other modes of threatening. That motion was denied.
Additional facts will be provided as they become relevant to our discussion, below.
Smith avers that the circuit court committed plain error, which requires reversal, by failing to require the jury to find that Smith intended to threaten Caron.
Smith relies on Elonis v. United States, ––– U.S. ––––, 135 S.Ct. 2001, 2012, 192 L.Ed.2d 1 (2015), where the Supreme Court held that 18 U.S.C § 875(c), the federal threats statute, did not apply to negligent conduct. According to the Supreme Court, the pattern jury instruction requiring the government to prove only that a reasonable person would regard the communication as a threat was erroneous and, thus, it reversed the conviction. Id. Smith asserts that the jury instruction in Elonis is "substantially similar to the instruction propounded in the instance case" and, therefore, employs a negligence standard of intent.
The State responds by distinguishing the law under which Smith was convicted, Md. Code , § 3–708(b) of the Criminal Law Article ("CL"), which includes an intent element, from the federal threats statute, which did not include an intent element. The State also avers that the jury instructions adequately addressed the intent requirement.
Smith recognizes that this issue was unpreserved for appeal because defense counsel did not object at the time of the jury instruction. However, Smith asks that we exercise our discretion to recognize plain error under Maryland Rules 4–325(e) and 8–131. "Plain error is ‘error which vitally affects a defendant's right to a fair trial.’ " Richmond v. State, 330 Md. 223, 236, 623 A.2d 630 (1993) (quoting State v. Daughton, 321 Md. 206, 211, 582 A.2d 521 (1990) ). It is error that is "compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." Id. (quoting State v. Hutchinson, 287 Md. 198, 203, 411 A.2d 1035 (1980) ).
The factors to be considered by an appellate court in deciding whether to review jury instructions for plain error include the opportunity to use the unpreserved issue to illuminate an area of the law, the egregiousness of the error, the likely impact of the alleged error on the defendant, and the degree of lawyerly diligence or dereliction. See , Austin v. State, 90 Md.App. 254, 268–72, 600 A.2d 1142 (1992). In Austin, we stated:
On rarer occasions, we might even be influenced by the opportunity that the notice of "plain error" might afford to illuminate a murky recess of the law. The interpreting and molding of the law is as weighty a consideration in appellate councils as is the correction of error in individual cases.
Smith asks that we exercise our discretion to review for plain error here. He argues that each of the factors weigh strongly in his favor, most notably that this is an issue of first impression since this is the first time the question has been raised since Elonis . He also asserts that it would afford this Court an opportunity to address the question of if a jury must be instructed to determine whether the defendant intended to threaten as an element of the crime. For these reasons, we accept Smith's invitation to review for plain error.
We conclude that intent to threaten is indeed an element of the crime which must be included in jury instructions, but hold that the jury was adequately instructed on this element in the present case.
In Elonis, the petitioner was charged under 18 U.S.C. § 8 –75(c)1 , and the jury instructions were as follows:
A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.
135 S.Ct. at 2007 (internal citations omitted). The Court held that requiring the prosecution to prove only that a "reasonable person" would regard the communication as a threat meant that the conduct was determined by a negligence standard.
Id. at 2011. The "reasonable person" standard "is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing." Id. (internal quotation marks and citations omitted). The Court held that the prosecution must prove the defendant's subjective intent to threaten. Id.
In the present case, Smith was charged under CL § 3–708(b) which imposes an intent requirement that 18 U.S.C. § 8 –75(c) lacks. CL § 3–708(b) provides that, "A person may not knowingly and willfully make a threat to take the life of, kidnap, or cause physical injury to a State official, a local official, a Deputy State's Attorney, an Assistant State's Attorney, or an Assistant Public Defender."
Smith correctly states in his brief that the jury instruction was as follows:
A statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement would understand it as a serious expression of an intent to physically injure a State Official. In deciding whether the Defendant made a threat you may consider among other circumstances the language the Defendant used and whether a reasonable person hearing or reading the words and knowing all of the circumstances would have considered the words to be a threat.
Smith asks that we read this instruction, derived from the Maryland Criminal Pattern Jury Instruction 4:12.2, as substantially similar to the instruction in Elonis and, therefore, requiring reversal.
Smith fails to recognize that this is merely an excerpt of the jury instruction. On appeal, "instructions are reviewed in their entirety to determine if reversal is required." Fleming v. State, 373 Md. 426, 433, 818 A.2d 1117 (2003).
Additional relevant jury instructions were as follows:
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