Williams v. State

• Citation: 366 A.2d 399,34 Md.App. 206
• Decision Date: 09 December 1976
• Docket Number: No. 46,46
• Parties: Buck WILLIAMS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 206

34 Md.App. 206

366 A.2d 399

Buck WILLIAMS v. STATE of Maryland.

No. 46.

Court of Special Appeals of Maryland.

Dec. 9, 1976.

Victoria A. Salner, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Charles A. Chiapparelli, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MOYLAN, MENCHINE and LOWE, JJ.

LOWE, Judge.

The appellant, Buck Williams, was convicted by a Baltimore City jury, presided over by Judge Sol Friedman, of first-degree murder and of carrying a deadly weapon with intent to injure. Upon this appeal, he raises the single contention that the jury instructions erroneously allocated to him the burden of proof on the issue of self-defense in contravention of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The appellant acknowledges that he made no objection to the instruction as given as is required by Maryland Rule 756 f. Notwithstanding the fact that under Rule 756 g there is nothing preserved for appellate review as a matter of right, he asks us in the exercise of our discretion 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 provided by section f of this Rule.' Without any reasons needing to be assigned, we, in the exercise of our unfettered discretion, decline to do so. This is dispositive of the present appeal.

JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.

MOYLAN, Judge (concurring).

I concur completely in the result in this case. I further concur wholeheartedly in the assertion that when we decline to exercise our option to notice 'plain error' under Rule 756 g, no reasons need be assigned. Without necessarily speaking for any other member of the Court, I nonetheless choose to comment further upon this one occasion, confidently expecting that it will not soon again be necessary to do so. I do this not because this exercise of discretion not to notice, or any future exercise of discretion not to notice, requires further elaboration but rather because of a shared alarm at the increasingly promiscuous resort to the 'plain error' exception to Rule 756 g. The exception has threatened of late to swallow its rule. As Judge Powers noted for this Court in Brown v. State, 14 Md.App. 415, 418, 287 A.2d 62, the 'plain error' exception to the rule 'leaves slightly ajar the door to appellate relief.' Whenever a door is left slightly ajar, there is irresistible temptation on the part of bar, and sometimes even bench, ever to widen the breach. The process is gradual and each progressive nudge imperceptible when viewed alone. What began, however, as a door almost, though not quite, closed is suddenly perceived to be a door almost, though not quite, wide open. Periodically, we must return to the starting point of Rule 756 g to set the disarranged appellate house once again in order. In this regard, we deem it desirable to provide some insight into the types of considerations which may from time to time influence the exercise of discretion.

Let it be noted at the outset that we are not discussing Mullaney v. Wilbur; we are discussing Maryland Rule 756 g. Although the spate of cases generated by Mullaney v. Wilbur has been significant and although that subgroup has, therefore, taken on some identity as a subgroup, instructional errors under Mullaney v. Wilbur do not call for any special treatment. They are in the last analysis simply a series of specific instances of a broader phenomenon. That general phenomenon consists of instructions to the jury on the state of the law, the necessity for objecting to an instruction in order to preserve a joint for appellate review and the utility of the 'plain error' exception to the otherwise foreclosing effect of nonobjection.

In dealing with this general phenomenon, and with all specific instances thereunder, we begin and end with the clear text of Maryland Rule 756 g:

'Upon appeal a party assigning error in the instructions may not assign as of right an error 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 objection were stated at that time. Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own motion or upon the suggestions of a party may 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 provided by section f of this Rule.'

The quintessential thrust of the rule is that an objection unmistakably articulated before the trial judge, giving him the opportunity to rule thereon, is the sine qua non of appellate review. The salutary purpose of such a rule was expressed trenchantly by Judge Powers in Braun v. Ford Motor Co., 32 Md.App. 545, 363 A.2d 562. He drove home the oft-neglected truth that an appellate court is not some omnipresent, omniscient and omnipotent ombudsman ready, willing and able to set aright all the ills of the world. He remainded us that an appellate court sits rather in more limited judgment upon the rulings of a trial judge when he has been called upon to rule, saying at 32 Md.App. 548-549, 363 A.2d at 564:

'Perhaps the relative functions of appellate courts and trial courts in our system of justice should be more clearly understood. In trial courts, it is the function of the judge to preside over the trial, to direct the course of the proceedings, and to make all rulings on legal questions raised before him at any stage of the case. . . .

. . . (E)rror in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.

This philosophy finds expression throughout the appellate process and specifically in Maryland Rules 885 and 1085, which provide that the appellate courts will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court. . . .'

The preeminent good sense of such a rule has been spelled out again and again by the Court of Appeals. Briley v. State, 212 Md. 445, 129 A.2d 689; Giles v. State, 229 Md. 370, 183 A.2d 359; Jones v. State, 229 Md. 472, 184 A.2d 809; Bennett v State, 230 Md. 562, 188 A.2d 142; Cropper v. State, 233 Md. 384, 197 A.2d 112. We have ourselves pointed out the soundness of such a rule on frequent occasions. White v. State, 8 Md.App. 51, 258 A.2d 50; Young v. State, 14 Md.App. 538, 288 A.2d 198; Cooper v. State, 14 Md.App. 106, 286 A.2d 579; James v. State, 14 Md.App. 689, 288 A.2d 644; Mason v. State, 18 Md.App. 130, 305 A.2d 492; Law v. State, 21 Md.App. 13, 318 A.2d 859; Walker v. State, 21 Md.App. 666, 321 A.2d 170; Patterson v. State, 22 Md.App. 13, 321 A.2d 544.

Rule 756 g, however, is not couched in absolute terms. This too makes preeminently good sense. In permitting sufficient discretion to notice some errors, even absent objection, the rule provides that residual breathing space that protects against 'hard cases making bad law.' This discretion ameliorates the rigidity that once so plagued the common law as to give rise to the extraordinary recourse of going over the head of the law to the prerogative grace of the king and his chancellor-a recourse that gave birth to an independent legal system known as equity. Building some discretionary freedom of movement into the system itself-providing some flexibility at the joints-guarantees the pliability that will not break against hard cases.

As with any extraordinary relief, however, the exception should be resorted to only under exceptional circumstances for exceptionally compelling reasons. What must be curbed is the carelessly excessive invocation of the exception almost as a matter of course. With an eye toward curbing such excess, we point out, as guideposts, some of the more typical considerations that from time to time illuminate our exercise of discretion. It is by no means an exhaustive catalogue. The considerations that may influence us are infinite and unforeseeable and unsusceptible to mathematical measurement. We are not laying down rules but simply providing inslight. The touchstone remains, as it always has been, ultimate and unfettered discretion.

From time to time, we may be influenced by the egregiousness of an error in instructions. We are not talking about mere misstatements of the law. Rule 756 g contemplates erroneous instructions on the law, error above the level of harmless error and at times of constitutional dimensions, and yet still commands that a vigilant attorney make timely objection before such error will be preserved for appellate review. Absent such objection, the error will never be noticed as a matter of right. Ordinarily, it will not even be noticed in the exercise of discretion. Were defense attorneys correct in their anguished lamentations that all harmful error in instruction is 'plain error' crying out for discretionary notice, the exception would indeed have swallowed its rule. Even granted harmful and material error of constitutional dimensions, notice thereof is still the exception and not the rule. It is difficult to make precise the imprecise: While we might choose not to notice some inartful or garbled definition of that indefinable abstraction called 'proof beyond a reasonable doubt,' we should almost certainly...