State v. Hutchinson

411 A.2d 1035, 287 Md. 198, 1980 Md. LEXIS 149

• Court: Court of Appeals of Maryland
• Decided: February 25, 1980
• Docket: [No. 27, September Term, 1979.]
• Status: Published

Opinions

Cole, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith, J., dissent. Smith, J., filed a dissenting opinion at page 209 infra, in which Murphy, C. J., concurs.

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 Grst 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:

Count 1—Guilty of Rape in the First Degree -

Count 2—Guilty of Rape in the Second Degree -

Not Guilty -

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, 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. 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 made by counsel. Clearly, such an error could have been corrected had it been brought to the judge’s attention. Nevertheless, the Court of Special Appeals, speaking through then Chief Judge Murphy, now Chief Judge of this Court, granted a new trial stating that

[w]hile appellant’s trial counsel did not make proper objection to the court’s instructions ... we are permitted by Maryland Rule 756 g [predecessor of 757 h] to "take cognizance of and correct any plain error in the instructions, material to the rights of the accused,” even though there was no objection to the instructions. [7 Md. App. 264 (footnote omitted)].

In Barnhart v. State, 5 Md. App. 222, 246 A.2d 280 (1968) the issue was the voluntariness of the confession. The trial judge properly conducted a hearing out of the presence of the jury and determined that the confession was admissible. He then informed the jury that it had a duty to independently determine that the confession was voluntary beyond a reasonable doubt; however, in so doing he informed the jury that the court had already made a determination that "the testimony conclusively shows that it was freely and voluntarily given.” The Court of Special Appeals held that the trial judge failed to inform the jury that the standard which it was to apply (beyond a reasonable doubt) was different and more stringent than his prima facie determination. This too was the kind of omission which could have been corrected by appropriate objection and clarification.

Thus, the appellate courts of this State have often recognized error in the trial judge’s instructions, even when there has been no objection, if the error was likely to unduly influence the jury and thereby deprive the defendant of a fair trial. The premise for such appellate action is that a jury is able to follow the court’s instructions when articulated fairly and impartially. It follows, therefore, that when the instructions are lacking in some vital detail or convey some prejudicial or confusing message, however inadvertently, the ability of the jury to discharge its duty of returning a true verdict based on the evidence is impaired. The responsibility for avoiding such circumstance rests with the trial judge who must advise the jury on every matter stemming from the evidence which is vital to its determination of the issues before them. We hold that included in such advice should be all possible verdicts which it may return.

The error complained of by the defendant in the instant case is that the jury was not instructed that he could be found not guilty. We have examined the record and reviewed the entire charge of the trial judge to the jury and we conclude that the defendant is correct. While the trial judge instructed the jury that the State had the burden of proving every element of the crime charged, that the defendant was presumed innocent until proven guilty beyond a reasonable doubt and that no inference of guilt could be drawn from the defendant’s failure to testify, nowhere in his instructions did the trial judge tell the jury that it could find the defendant not guilty. The State’s retort that the defendant did not object is to no avail. If a defendant is entitled to have a jury instructed as to all possible verdicts arising from the evidence, it seems manifest to us that he would have the right to have the jury told that it may find him not guilty.² We can envision no right more fundamental to the defendant in a criminal jury trial.

The State counters by contending that the verdict sheet contained all three possible verdicts, that the jury knew it could return a not guilty verdict, and hence the misstatement by the trial judge as to possible verdicts created no plain error material to the rights of the defendant. We disagree.

The State’s contention fails to take into account the influence of the trial judge on the jury. The trial judge is the central figure at the trial, having the chief responsibility of steering the jury through the maze of evidence. In such role, the trial judge may influence the jury by the inflection of his voice, his words, his conduct and his assessment of the evidence, if revealed. Thus, the trial judge must remain ever vigilant in order to avoid conveying any idea as to what he thinks the jury’s verdict should be or suggesting the slightest partiality.

In People v. Glass, 266 Cal. App. 2d 222, 71 Cal. Rptr. 858 (Ct. App. 1968), the judge first furnished complete1 instructions. The jury retired and then returned to the courtroom for clarification. The judge then instructed that there were three possible verdicts: (1) felony manslaughter involving gross negligence; (2) misdemeanor manslaughter; (3) not guilty. In these oral instructions, the judge omitted the possibility of a finding of guilty of the offense of manslaughter with gross negligence and recommending punishment by imprisonment in the county jail (a misdemeanor). Even though the form supplied to the jury contained all four alternatives, the appellate court reversed declaring "the oral instructions of the court, in effect, eliminated the use of the form recommending imprisonment in the county jail.” Id. at 862. The court in Glass recognized that the words of the judge were likely to be of the utmost significance in the minds of the jurors and that even though the judge did not expressly tell the jurors that they could not find according to the fourth possible verdict, its omission from his oral instructions had an immeasurable effect.

In Commonwealth v. Edwards, 394 Pa. 335, 147 A.2d 313 (1959) the defendant admitted that he killed the victim but asserted a defense of insanity. In his charge to the jury, the judge omitted the simple verdict of not guilty. Counsel did not object. The Pennsylvania Supreme Court reversed although the judge had informed the jury that it had to find guilt beyond a reasonable doubt. The court’s stinging language is apposite to the instant case:

To say that a judge need not charge on an indispensable requirement in the law because the defendant is assuredly guilty is to hang the accused first and indict him afterwards.

It is not for the Commonwealth or for the Trial Court to decide whether a basic and elementary feature of a charge should be omitted on the basis of prophetic certainty that the jury will return a verdict of guilty because of facts which seemingly are not in dispute. The law of the Commonwealth places in the hands of the jury the exclusive responsibility of deciding guilt, and the Court may not restrict the jury’s possible conclusions to a number which excludes the very important one of not guilty.

Responding to the State’s contention that the instructions considered as a whole were not erroneous, a contention similarly made by the State here, the court answered:

The jury could only regard with relief the final words of the Court which charged them in words of the utmost clarity as to what they were to do. What went before merged into this absolute directive. The Judge himself practically cancelled out what he had previously said about a possible verdict of not guilty. [Id. at 316-318].

Other courts have also reversed and granted a new trial where there had been a similar failure to include a simple "not guilty” charge, notwithstanding trial counsel’s failure to object. United States v. Skinner, 437 F.2d 164 (5th Cir. 1971); People v. Stockwell, 52 Mich. App. 394, 217 N.W.2d 413 (Ct. App. 1974); People v. Way, 22 Mich. App. 473, 177 N.W.2d 729 (Ct. App. 1970); Newman v. State, 239 So. 2d 913 (Miss. 1970); cf. People v. Gibbs, 50 Mich. App. 517, 213 N.W.2d 586 (Ct. App. 1973) (charge effectively precluded not guilty verdict); State v. Woodson, 229 S.E.2d 254 (Ct. App. 1976) (failure to include alternative of not guilty by reason of self-defense).

In the instant case we find nothing in the record to suggest that the trial judge intended to impair the defendant’s right to a fair trial; however, the omission in the instructions was an oversight material to the rights of the defendant and incapable of being cured by the verdict sheet. While it may appear absurd to some to suggest that the jurors were unaware that a not guilty verdict was a possible verdict, we have no way of knowing what effect the trial judge’s omission had upon them. The erroneous instructions and the verdict sheet may well have placed the jury in such a quandary that it was unsure what its obligation to the defendant was. We cannot speculate that it rejected the infirm instruction and followed the verdict sheet which accorded the defendant the right to a not guilty verdict.

We do know that the trial judge’s influence upon the jury is profound. Here, his final words which the jurors carried with them into their deliberations were that there were two possible verdicts and a not guilty verdict was not one of them. The defendant was entitled to more.

The Court of Special Appeals did not abuse its discretion in recognizing this omission as plain error.

Judgment affirmed; Mayor and City Council of Baltimore to pay the costs.

1 . We perceive circumstances where the intermediate appellate court may recognize as error under Md. Rule 757 h what this Court if reviewing for the first time would conclude does not amount to error material to the rights of the accused. However, unless upon our review that court has clearly abused its discretion under the rule, we will not substitute our judgment for theirs.

2 . See Cool v. United States, 409 U.S. 100, 103, n.4, 93 S. Ct. 354, 34 L. Ed. 2d 338 (1972).