Watts v. State

• Court: Court of Special Appeals of Maryland
• Citation: 179 A.3d 929,457 Md. 419
• Docket Number: No. 17, September Term, 2017,17, September Term, 2017
• Parties: Barrington Dean WATTS v. STATE of Maryland
• Decision Date: 20 February 2018

457 Md. 419
179 A.3d 929

Barrington Dean WATTS
v.
STATE of Maryland

No. 17, September Term, 2017

Court of Appeals of Maryland.

February 20, 2018

ARGUED BY Webster Beary (Douglas Baruch, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC) on brief, FOR PETITIONER/CROSS-RESPONDENT.

ARGUED BY Jer Welter, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD) on brief, FOR RESPONDENT/CROSS-PETITIONER.

ARGUED BEFORE: Greene, Adkins, McDonald, Watts, Hotten, Getty, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned) JJ.

Greene, J.

457 Md. 422

We are asked in this case to review the definition of second degree assault. Specifically, the question this case presents is whether the revised and consolidated assault statute, contained in Section 3–201(b) of the Criminal Law Article of the Maryland Code (2002, 2012 Repl. Vol.), contemplates different crimes, or whether the acts constitute second degree assault. Petitioner Barrington Dean Watts was convicted in the Circuit Court for Montgomery County of two counts of first degree assault.

179 A.3d 931

Over Petitioner's objection, the jury heard instructions on two different variations of second degree assault, battery and intent to frighten, but was not instructed to reach a unanimous decision about which iteration occurred here. Petitioner appealed his convictions to the Court of Special Appeals, which affirmed in an unreported opinion. First, we determine that the objection made by Petitioner preserved the issue of whether the jury should hear a unanimity instruction after hearing instructions for both forms of assault. We next determine that the assault statute contemplates different modalities of committing the singular crime of second degree assault as opposed to different crimes. Thus, we affirm the judgment of the Court of Special Appeals.

457 Md. 423

I.

Based on the evidence at trial, the jury could have found that on November 9, 2014, Petitioner, Barrington Dean Watts, entered the apartment of Lavasha Harding, pointed a gun at one of the occupants of the apartment, Andre French, and demanded money. An altercation transpired, during which Petitioner fired three shots. One bullet struck a different occupant, Antonio Woods. After a brief struggle, one of the men involved gained possession of the gun and then detained Petitioner until the police arrived shortly thereafter. Petitioner was charged with seven crimes,¹ including two counts of first degree assault.

Before the trial judge instructed the jury, the prosecutor and Petitioner's counsel reviewed the jury instructions with the judge. During those discussions, Petitioner's counsel objected to the State's request for instructions on accomplice liability, conspiracy, and a special instruction related to the castle doctrine.² Thereafter, the trial judge instructed the jury on the law, particularly as it pertained to second degree assault:

Second degree assault. There are two ways that you can commit a second degree assault. One is, intent to frighten. Assault is intentionally frightening another person with the threat of immediate offensive physical contact or physical harm. In order to convict the defendant of assault, the State must prove, number one, that the defendant committed an act with the intent to place Andre French and/or Antonio

457 Md. 424

Woods in fear of immediate offensive physical contact or physical harm. That the defendant had the apparent ability at that time to bring about the offensive physical contact or physical harm. And three, that Andre French and/or Antonio Woods reasonably feared immediate offensive physical contact or physical harm and that the defendant's actions were not legally justified.

Battery. Assault is also causing offensive physical contact to another person. In order to convict the defendant of assault under [a] battery theory, the State must prove that the defendant caused offensive physical contact or physical harm to Andre French and/or Antonio Woods. That the contact [was] the result of an

179 A.3d 932

intentional or reckless act of the defendant and was not accidental. And three, that the contact was not consented to by Andre French and/or Antonio Woods.³

At the conclusion of the reading of the jury instructions, the judge called the attorneys to the bench and asked if they took "any exception to the court." The prosecutor took no exceptions. Petitioner's attorney renewed the previous objections as well as noted a new exception to the assault instruction, and the following exchange occurred:

[DEFENSE COUNSEL]: The defense would now like to reiterate our previous objections and object to the alternative instruction on assault and that it's possible that six jurors could go with one theory, six could go with another, and there would not be a unanimous verdict for him.

THE COURT: Six could go with one and six could go with the other?

[DEFENSE COUNSEL]: Or some other division of jurors.

THE COURT: Okay. All right. Thank you.

[DEFENSE COUNSEL]: Thank you, Your Honor.

457 Md. 425

THE COURT: Exceptions noted.

After deliberations, the jury found Petitioner guilty of two counts of first degree assault as well as the remaining counts against him.

Petitioner appealed his conviction and sentence to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the Circuit Court. We granted certiorari on the following question, slightly rephrased from the question submitted to this Court:

Are intent to frighten and battery separate assault crimes, thus requiring individualized jury unanimity?⁴

Watts v. State , 453 Md. 358, 162 A.3d 838 (2017). Additionally, the State filed a conditional cross-petition, presenting us with the following question:

Is Watts's claim of error unpreserved where Watts did not ask for the unanimity instruction he now claims was mandatory?

Id. Because we determine that the jury instruction issue was preserved, we reach the substance of the assault issue.

II.

The threshold issue we must address is whether Petitioner has preserved for our review the alleged jury instruction error. The State contends that Petitioner's claim of error with the jury instructions issued by the trial judge was not raised at trial. The State points to the record as evidence that Petitioner never requested a curative instruction.

Petitioner submits that his counsel's discussion during the bench conference was sufficient to preserve an objection to the alleged error. After the trial judge had instructed the jury, Petitioner's counsel explained at a bench conference that the jury could possibly split its decision with regard to the assault

457 Md. 426

crime, with half of the jury believing that Petitioner had committed a battery and the other half believing Petitioner had intentionally frightened the occupants.

179 A.3d 933

Thus, there would be a lack of jury unanimity.

Maryland Rule 4–325(e) governs the preservation of error in jury instructions and states, in pertinent part, the following:

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.

We have explained that the purpose of Rule 4–325(e) is "to give the trial court an opportunity to correct its charge if it deems correction necessary." Gore v. State , 309 Md. 203, 209, 522 A.2d 1338, 1340 (1987) (citing Bennett v. State , 230 Md. 562, 568, 188 A.2d 142, 144 (1963) ). This Court in Gore explicated the requirements for preserving an alleged jury instruction error: "[T]here must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless." Id.

This Court has consistently repeated that the failure to object to an instructional error prevents a party on appeal from raising the issue under Rule 4–325(e). See, e.g., Grandison v. State , 425 Md. 34, 70–71, 38 A.3d 352, 373–74 (2012) ("Grandison's failure to raise his objection to the jury instruction in a timely fashion, combined with his failure to even address the waiver argument before this Court, persuades us to affirm the dismissal of his motion on this question."); Savoy v. State , 420 Md. 232, 243, 22 A.3d 845, 852 (2011) ("Petitioner was required, but failed, to make a timely objection to the instruction. He therefore has no right to automatic appellate review of it."); Miller v. State , 380 Md. 1, 29, 843 A.2d 803, 820 (2004)...