Maryland Attorney Preserves Issue of Improper Jury Instruction for Appeal

August 22, 2011
By Brassel, Alexander & Rice, LLC on August 22, 2011 3:52 PM |

court of appeals.jpgThe Court of Appeals ruled in Atkins v. State that a Court's instruction concerning the evidence presented by the State unfairly commented on the evidence. As a result, the Court of Appeals reversed the Defendant's conviction. One notable aspect of its opinion, however, was the necessity of the Defendant's attorney to preserve the issue of the impropriety of the instruction for appeal.

A Maryland defense attorney with years of experience in preserving arguments at the trial level is vital to an individual facing criminal charges. Through the preservation of potential appellate arguments, a defendant retains all available chances to preserve his or her freedom.

In Atkins, the Defendant admittedly used a knife in a fight, but his assertion was that it was in self defense, and the knife he used was only a pocket knife. The State, in an effort to make the crime appear more serious than if a small pocket knife was used, argued that the knife used was a 12-inch knife that was recovered in Defendant's bedroom. Notably, there was no link between the 12-inch knife and the victims' wounds, but the pocket knife was not available at the time of trial because the Defendant said that he had thrown it into a lake following the incident.

At trial, the defense attorney extensively cross-examined the police detective about the fact that there was no blood visible on the knife the State alleged was used in the stabbing, and that no tests were performed on the knife to determine if there were any substances on the knife that could link it to the stabbing. The defense attorney was able to get the detective to acknowledge that the State had various tests available to it that could have been used to test the knife for any evidence linking it to the alleged crime scene.

At the conclusion of the trial, the Court provided the following instruction, which the Defendant's attorney objected to:

During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.

On appeal, Atkins claimed that, in the italicized section of the instruction above, the Court "improperly commented on the evidence [and] directly contradict[ed] an appropriate defense argument." The Court of Appeals agreed with Atkins, and reversed his conviction. The Court noted that "it is improper for a trial judge to 'comment on a question of fact which the jury is to pass on' because such commentary invades the province of the jury." The Defendant in a criminal matter has the right to argue to the jury that he or she should be found not guilty because of the lack of evidence presented by the State. In conclusion, the Court found that "the instruction as worded effectively undermined the defense theory of self defense, and relieved the State of its burden to prove guilt beyond a reasonable doubt."

Notably, the Court distinguished this case from a prior Court of Special Appeals case, Evans v. State, in which the defense attorney failed to object to a similar jury instruction. In part because the attorney failed to object, the conviction in Evans was upheld on appeal. The contrast between the Atkins and Evans cases shows how important it is to have a Maryland defense attorney that is experienced at protecting a defendant's rights.