State v. Hutchinson, 27

Citation411 A.2d 1035,287 Md. 198
Decision Date25 February 1980
Docket NumberNo. 27,27
PartiesSTATE of Maryland v. Frederick Jerome HUTCHINSON.
CourtCourt of Appeals of Maryland

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.


COLE, Judge.

In this case we are asked to decide whether the Court of Special Appeals erred in concluding that the instructions on permissible verdicts contained plain error material to the rights of the defendant.

Frederick Jerome Hutchinson, defendant, was convicted by a jury in the Criminal Court of Baltimore for the crime of second degree rape. He was sentenced to serve a term of imprisonment of twenty years. On appeal to the Court of Special Appeals, the judgment was reversed and a new trial granted. Hutchinson v. State, 41 Md.App. 569, 398 A.2d 451 (1979). We granted the State's petition for certiorari to consider the important question presented.

The facts adduced at defendant's trial may be set forth succinctly. The prosecuting witness testified that the defendant (a boy friend of her sister) forcibly had sexual intercourse with her during a period when she was babysitting at the house of her mother's friend. The defendant did not testify at his trial but offered evidence through two witnesses to show that he and the prosecuting witness had previously engaged in sexual intercourse and that on this occasion the prosecuting witness had also consented. He also, through his counsel, cross examined the State's witnesses in an effort to establish that the prosecuting witness had an ulterior motive in prosecuting him.

The trial judge informed counsel in advance what instructions he proposed to give. Aside from a request for a missing witness instruction, counsel voiced no objection. We set forth the relevant portions of those instructions to place the issue in proper focus:

You should not assume that the defendant is guilty merely because he is being prosecuted, because charges have been preferred against him. The burden of proof is on the State to prove every element of the crime charged against the defendant, and the defendant is presumed innocent until proved guilty beyond a reasonable doubt. That presumption attends the defendant throughout the trial until or unless overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty.

While the burden is upon the State of establishing every fact material to the guilt of the defendant, including every circumstance that enters into the crime charged, beyond a reasonable doubt, that does not mean that the State must prove the defendant guilty to an absolute or mathematical certainty. It means such evidence that you would act upon in a matter involving important affairs in your life, or your business, or with regard to your property. If the evidence is such that you would act upon it in a very important matter in your own lives, then it is sufficient to convict in a criminal case.

Evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent individual of the truth of the proposition with such force that he or she would act upon that conviction in his own or her own important affairs.

It is a privilege of the defendant in a criminal case not to testify, and you may not entertain any inference against him because of his absence from the stand. You must base your verdicts in this case solely on the evidence, and all of the evidence you have seen and heard during the trial, and the inferences which may reasonably and fairly be drawn from that evidence.

The Court will provide you with a verdict sheet to facilitate your rendering a verdict, and, if you wish, the exhibits you may take them with you as you go into the jury room.

You may now retire to deliberate your verdicts.

Ladies and gentlemen, one moment. Now, the verdict sheet which I will be giving you will show two possible verdicts, Count One guilty of rape in the first degree and Count Two guilty of rape in the second degree. . . . If you find the defendant not guilty of rape in the first degree, then you consider rape in the second degree. If you find the defendant guilty of rape in the first degree, then, of course, you need not consider rape in the second degree. (emphasis added).

The jury was then supplied with the verdict sheet in the following form:

On appeal the defendant complained that the trial court had committed reversible error in failing to instruct the jury that they could return a verdict of not guilty. The State contended that because the defendant did not object, even if there was such omission, the trial judge committed no error which was cognizable by the intermediate appellate court. However, the Court of Special Appeals disagreed and held that the omission constituted plain error requiring reversal and a new trial. We agree.

Ordinarily appellate courts will not address claims of error which have not been raised and decided in the trial court. Md.Rules 885 and 1085; Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977). Nor will appellate review of jury instructions ordinarily be permitted under our rules unless the complaining party has objected seasonably so as to allow the trial judge an opportunity to correct the deficiency before the jury retires to deliberate.

Md.Rule 757 f provides that

(i)f a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make the objection on the record before the jury retires to consider its verdict and shall state distinctly the matter or omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.

However, § h of Rule 757 provides that an appellate court may, in its discretion, "take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f."

The rule clearly anticipates circumstances giving rise to error which may justify an appellate court's intervention. However, the discretion conferred by § h is not exercised as a matter of course. It presupposes some inquiry by the reviewing court to determine whether the error is material to the rights of the accused, i. e., vitally affecting his right to a fair and impartial trial.

While we do not propose to set forth any fixed formula for determining when discretion should be exercised, we do expect that the appellate court would review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention. We enumerate these factors because we feel they are ordinarily inconsistent with circumstances justifying an appellate court's intervention under § h. In our cases we have characterized instances when an appellate court should take cognizance of unobjected to error as compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.

The State urges us to interpret the rule to mean that, if the error was not objected to and could have been and probably would have been corrected if called to the trial judge's attention, no review will follow. It further suggests that our prior decisions dictate such an approach. We believe that such an absolute approach is the antithesis of the discretion authorized by the rule.

Moreover, we believe that recent opinions of this Court and the Court of Special Appeals clearly state our position in consonance with the rule. In Squire v. State, 280 Md. 132, 368 A.2d 1019, the trial judge gave an instruction which placed the burden of proving self-defense on the defendant. Defense counsel did not object. The Court of Special Appeals affirmed, declining to take cognizance of the plain error because the error could have been corrected had it been called to the attention of the trial judge. This Court reversed and ordered a new trial concluding that the instructions were prejudicially erroneous under the then very recent decisions in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and State v. Evans, 278 Md. 197, 362 A.2d 629 (1976). The Court explained that because at the time of appellant's trial Mullaney was only several days old, the trial counsel could not be faulted for not bringing the case to the Court's attention. Moreover, the court declared that it was highly speculative that the trial judge would have granted the instructions had the case been brought to his attention for the ramifications of Mullaney were not then recognized.

In Dempsey v. State, 277 Md. 134, 355 A.2d 455 (1976), in

his instructions to the jury, the trial judge advised that he had determined the defendant's confession to be voluntary. No objection was made at trial. The Court of Special Appeals nevertheless took cognizance of the error pursuant to Rule 756 g (predecessor to Rule 757 h). This Court stated that "an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court." 277 Md. at 142, 355 A.2d at 459. However, the Court then declined to consider whether the Court of Special Appeals had abused its discretion in this case because the State had failed to properly raise its claim that appellant's contentions were not reviewable. 1

In Fowler v. State, 7 Md.App. 264, 254 A.2d 715 (1969), the trial judge incorrectly informed the jury that they could consider appellant's criminal record for purposes of determining whether he was guilty of the crime charged. No objection was...

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