Squire v. State

• Decision Date: 23 July 1976
• Docket Number: No. 1171,1171
• Citation: 32 Md.App. 307,360 A.2d 443
• Parties: John Henry SQUIRE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 307

32 Md.App. 307

360 A.2d 443

John Henry SQUIRE v. STATE of Maryland.

No. 1171.

Court of Special Appeals of Maryland.

July 23, 1976.

Certiorari Granted Oct. 27, 1976.

David B. Allen, Baltimore, with whom was Michael Bowen Mitchell, Baltimore, on the brief, for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., Baltimore City and Roy W. Breslow, Asst. State's Atty., Baltimore City, on the brief, for appellee.

Argued before ROBERT C. MURPHY, ^* C. J., and ROBERT E. CLAPP ^** and ROBERT L. KARWACKI, ^*** JJ.

ROBERT C. MURPHY, Chief Judge.

The appellant was found guilty by a jury in the Criminal Court of Baltimore of assault with intent to murder and of the unlawful use of a handgun in the commission of a crime of violence; he was sentenced to eight years' imprisonment. He contends on appeal that the lower court, in its jury instructions, erroneously imposed upon him the burden of proving self-defense, thereby violating the due process clause of the fourteenth amendment by relieving the State of its burden of proving, beyond a reasonable doubt, every fact necessary to constitute the crime charged. He relies on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

The pertinent portion of the jury instructions is as follows:

'Moreover, the burden of proof of proving self-defense is on the defendant, not upon the State, although this burden by the Defendant may be fulfilled by a preponderance of the credible evidence; in other words, the Defendant is not obliged to prove a valid self-defense beyond a reasonable doubt. Naturally, in every criminal case, the burden is always upon the State to establish proof of every element of the crimes that are charged against the Defendant beyond a reasonable doubt.'

The appellant argues that this instruction violated the principles of Mullaney since it shifted the burden to him to prove that the homicide was justifiable or excusable in contravention of our holding in Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), aff'd, State of Maryland v. Evans, Md., 362 A.2d 629 (1976). While he acknowledges that no exceptions were taken to the instructions, the appellant urges that the error was plain and material and that we should take cognizance of it on our motion under Maryland Rule 756g. He contends that 'the full scope of Mullaney was not realized' at the time of his trial, and that it was not until we decided Evans v. State, supra, on November 26, 1975, five months after his trial, that the implications of Mullaney, and its applicability to self-defense, were made clear.

The State, while agreeing that there was legally sufficient evidence to raise the issue of self-defense, and also agreeing that the instruction violated the principles announced in Mullaney, contends that '(s)ince the trial of this case occurred after the Mullaney decision was handed down, . . . the question is not one of plain error (in the instructions), but one of waiver,'

The Supreme Court decided Mullaney on June 9, 1975. The appellant's trial took place on June 13, 1975. Maryland Rule 756g provides that upon appeal a party assigning error in the jury instructions may not do so of right unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of the objection were stated at that time. The rule provides that 'ordinarily' no other error will be considered on appeal, but it permits appellate courts to 'take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to . . ..' As we noted in Brown v. State, 14 Md.App. 415, 287 A.2d 62 (1972), even if an error in jury instructions is plain, its consideration on appeal is not a matter of right; the rule is couched in permissive terms and necessarily leaves its exercise to the discretion of the appellate court. 14 Md.App. at 418, 287 A.2d 62. That the error may have been of constitutional dimension does not per se raise it to the level of 'plain error' under the rule, State v. Evans, supra, since even constitutional rights may be waived in the course of a trial, Dimery v. State, 274 Md. 661, 338 A.2d 56 (1975).

In Canter v. State, 220 Md. 615, 155 A.2d 498 (1959), it was held that Rule 756g was designed to afford the trial judge an opportunity to correct inadvertent omissions or...