LOWE, J., delivered the opinion of the Court. MOYLAN, J., concurs and filed a concurring opinion at page 207 infra.
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
Judgments affirmed; costs to be paid by appellant.
Moylan, J., 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
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 point 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:
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.
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 insight. 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
From time to time, we may be influenced by the probable impact of an error upon the fortunes of the convict. Here we are not concerned with an attenuated or finely spun theory that an erroneous instruction may have contributed to a guilty verdict. The tilt is diametrical to that whereby we measure "harmless error" where the point has been preserved for appellate review. There we must be convinced beyond a reasonable doubt that the error did not contribute to the guilty verdict before we may overlook it. Here we are more inclined to take notice only when we are persuaded that the error probably did have a crucial bearing upon the verdict. Again, it is difficult to make precise the imprecise: While we might choose not to notice an erroneous
From time to time, we may be influenced, at least peripherally, by what we perceive to be the degree of dereliction of the attorney in not lodging timely objection to an erroneous instruction. Within the broad category of professional diligence, lawyerly astuteness in being on top of changing constitutional developments may have some characteristics of its own, although the newsworthiness of the Supreme Court would seem to facilitate a sensitivity to its oscillations that would not attend where less dramatic changes in the law have been wrought by state courts, state legislatures and local rule-making bodies. Nonetheless, we can sympathize with the attorney who fails to anticipate a Mapp v. Ohio, a Miranda v. Arizona, a Wade-Gilbert-Stovall trilogy, or, of more recent impact, a Mullaney v. Wilbur. We are not so sympathetic, however, to the attorney who remains unaware of these decisions once they have been handed down. The diminution of sympathy runs in direct proportion to the passage of time from the date of promulgation of the new decision.
With regard to the impact of this lawyerly dereliction upon the question of the discretionary notice of "plain error," Chief Judge Murphy, specially assigned, articulated intelligent and cogent guidelines in Squire v. State, 32 Md.App. 307, 360 A.2d 443. He there took the date of decision of a major Supreme Court case — June 9, 1975, in the case of Mullaney v. Wilbur — as the date on which lawyers are charged with notice of the decision. Acknowledging a degree
In Squire, the trial took place on June 13, 1975, four days after the Supreme Court decision in Mullaney v. Wilbur. Largely on that basis, this Court, speaking through Chief Judge Murphy, declined to notice "plain error" under Rule 756 g. In the case now before us, the trial took place on October 6, 7 and 8, 1975, a full four months after the Supreme Court decision in Mullaney v. Wilbur. In declining to notice "plain error" here, we are guided in part by the teaching of Squire v. State. A word is in order, however, about the effect of Squire. The State urges upon us that we must follow it as a matter of law. We cannot so read that decision or so interpret the law. Our ultimate discretion flows in both directions: just as we are never compelled to exercise it, so too we are never precluded from exercising it. The opinion in Squire intelligently enunciated the consideration that motivated the exercise of discretion in that case. After stating its concerns, the Court there concluded "we decline to invoke the provisions of the rule in this case." "Decline" is a verb unmistakably connoting volition and not compulsion. Squire did not establish an
All else being equal, the Squire guideline is one that will probably influence us in the future. Since the question is ultimately one of discretion, however, we could always choose to notice "plain error" of a Mullaney v. Wilbur variety even where it occurred after June 9, 1975, in a rare case where the erroneous instruction may have been egregious in the extreme, where the error may have been pivotal in subjecting an innocent to an unjust fate or where the legal issue involved is a fresh one so as to make the case a desired vehicle for pronouncements of anticipated precedential significance and interest. Conversely, we are by no means constrained to notice "plain error" even where such occurred prior to the June 9, 1975, promulgation of Mullaney v. Wilbur. Indeed, in the Evans v. State case itself, after pointing out that the errors there were of commission, were irremedial, were plain and were material to the rights of the appellant, we nonetheless pointed out that it was still in our ultimate discretion whether to notice the error or not. The fact that the lawyer there could not have anticipated Mullaney v. Wilbur was only of peripheral significance in our decision to notice the "plain error" even in that case. We said, at 28 Md.App. 650:
Our primary concern in noticing "plain error" in Evans and in roughly a score of cases following hard upon Evans was not forebearance because lawyers could not have anticipated
From time to time, we may be influenced by the opportunity which the notice of "plain error" affords to illuminate some theretofore murky recess of the law. The interpreting and molding of the common law is as weighty a consideration in appellate councils as is the correction of error in individual cases. Indeed, it was this consideration which was our primary motivation in choosing to notice the "plain error" in Evans and in the progeny of Evans. In announcing that we were choosing to notice the error in Evans, we attempted to make our purpose as clear as we possibly could, saying at 28 Md.App. 650-651:
We note that in the case now before us, the legal issue involved lies in a field that has already been thoroughly ploughed. The case has no value as a vehicle. The utility of
One tangential comment is in order. Resourceful advocates frequently urge upon us the desirability of noticing "plain error," notwithstanding the lack of proper objection below, as a needed sanction and healthy therapy against erring judges who neglect to state the law with full accuracy and precision. That argument overlooks the concomitant and complementary desirability of forebearing to notice "plain error" and of holding fast to the requirement of Rule 756 f as a needed sanction and healthy therapy against erring lawyers who neglect to see the issues except in hindsight, who neglect to focus the attention of the judge upon a question so that he may make deliberate judgment thereon and who neglect to make the proper record for appellate review. They, for their part, must never be lulled into the sense of false security that the notice of "plain error" is routinely available to pull neglected chestnuts out of the fire. The sanction cuts both ways.
The calculus, the chemistry, the subtle and at times even subconscious interplay of these and other unnamed considerations defies precise analysis. We have not set forth rules for we cannot; this concurrence has hopefully provided some insight into the decisional process. It is anticipated that the exceptions to Rule 756 g will be rare; in all events, the granting of dispensation from the primary command of the rule is ultimately a discretionary act of grace. As with the royal prerogative to dispense residuary justice, whence judicial discretion anciently sprang, we act in the last analysis because we deem it appropriate to act. The only hard and fast rule is that there are no hard and fast rules.