A Maryland appellate court will ordinarily entertain a challenge concerning a jury instruction only if counsel objected promptly after the trial judge instructed the jury, clearly stating the grounds for the objection. Requiring counsel to make a prompt and clear objection gives the trial judge an opportunity to consider the objection and make any changes he or she deems necessary. But what happens when trial counsel makes an imprecise objection, which is followed by a quick discussion that indicates that the trial judge understands the objection and the point trial counsel is trying to make? That was the situation facing the Court of Appeals in Watts v. State, No. 17, Sept. Term 2017 (February 20, 2018).

Barrington Watts was charged with seven crimes, including two counts of first degree assault pursuant to Md. Code Ann., Crim. Law §3-201(b). At trial, there was evidence that he entered Lavasha Harding’s apartment, pointed a gun at Andre French, and demanded money. Watts fired three shots, one of which hit Antonio Woods. One of the men in the apartment disarmed Watts, who was then held until the police arrived.

At the end of trial, defense counsel and the prosecutor conferred with the trial judge before he instructed the jury. During that conference, defense counsel objected to three instructions requested by the State. The judge then instructed the jury, explaining “[t]here are two ways you can commit a second degree assault. One is, intent to frighten.” Slip Op. at 2. The judge instructed that “[a]ssault is intentionally frightening another person with the threat of immediate offensive physical contact or physical harm,” and further elaborated on what that means. Id. The judge then explained the second way an assault can occur, which is a battery, i.e. “causing offensive physical contact to another person.”[i] Again, the trial judge elaborated further for the jury. Thus, the jurors were told there were two ways they could find Watts guilty of second degree assault.

After instructing the jury, the trial judge called counsel to the bench and asked if they had any exceptions. Defense counsel renewed the objections raised earlier and also raised a new objection to the assault instruction, prompting the following dialogue:

[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 would go with one and 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.

THE COURT: Exceptions noted.

Id. at 3.

The jury found Watts guilty on all counts, and the Court of Special Appeals affirmed the convictions in an unreported opinion. The Court of Appeals granted Watts’s petition for certiorari, agreeing to address this question: “Are intent to frighten and battery separate assault crimes, thus requiring individualized jury unanimity?” Id. at 4. The Court also granted the State’s conditional cross-petition, which presented this question: “Is Watts’s claim of error unpreserved where Watts did not ask for the unanimity instruction he now claims was mandatory?” Id. Here, I will focus on the State’s preservation issue.

In a unanimous decision authored by Judge Clayton Greene, the Court held that Watts had preserved the jury unanimity issue. But that proved a pyrrhic victory, as the Court ruled against Watts on the merits of the issue. Judge Greene began his analysis by quoting Md. Rule 4-325(e), which states: “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.” Slip Op. at 5.[ii] As Judge Greene said, the Court has previously explained that Rule 4-325(e) is intended “to give the trial court an opportunity to correct its charge if it deems necessary.” Id. (internal quotation marks omitted) (quoting Gore v. State, 309 Md. 203, 209 (1987), which cited Bennett v. State, 230 Md. 562, 568 (1963)). And “the failure to object to an instructional error prevents a party on appeal from raising the issue under Rule 4-325(e).” Id. (citations omitted).

If a lawyer’s objection does not precisely adhere to Rule 4-325(e)’s requirements, however, all is not necessarily lost. “Although strict compliance (based upon the record developed at trial) is preferred, an objection that falls short of that mark may survive nonetheless if it substantially complies with Rule 4-325(e).” Id. at 6 (citing Bennett v. State, 230 Md. 562, 569 (1963)). An objection is not preserved if the record contains “only a vague comment” that lacks a basis for the objection.” Id. (citing Bowman v. State, 337 Md. 65, 68 (1994)). Nor is an issue preserved for appellate review when the objection raised in the trial court differs from the one raised on appeal. Id. at 7 (citing State v. Smullen, 380 Md. 233, 276 (2004)).[iii] But where the trial judge understands, acknowledges, and considers counsel’s objection, the purpose underlying the rule is met and the error preserved. Id. at 7-8 (citing Sergeant Co. v. Pickett, 283 Md. 284 (1978) and Bennett, 230 Md. at 568). That is exactly what happened at Watts’s trial:

During the bench conference after the delivery of jury instructions, Petitioner’s counsel engaged in a brief back-and-forth with the trial judge at which time Petitioner’s counsel renewed an earlier objection and noted a new objection, stating as the basis that the jury might not have a unanimous verdict for assault because “six jurors could go with one theory, six could go with another.” If the trial judge lacked clarity about counsel’s objection, the record does not reflect it. As a matter of course, the trial judge noted the exception on the record. Consistent with both Sergeant Co. and Bennett, this Court holds that the assault jury instruction issue was properly preserved for appellate review. That Petitioner’s counsel did not request a specific unanimous jury instruction on the assault charges at the time of the objection does not foreclose preservation of the alleged error. The Maryland Rules do not require that a party request a curative jury instruction, and we decline at this time the State’s invitation to impose such a requirement to preserve the issue of error.

Id. at 8-9 (footnote omitted).

That was a fair and sensible result, which was consistent with both the purpose of the preservation requirement and case precedent. For example, in Bennett, defense counsel had submitted to the trial court written requested jury instructions. The judge discussed those instructions in chambers with the prosecutor and defense counsel, and the record showed that the judge “was fully aware of the particular instruction the defendant desired the court to give,” because the judge stated his reason for denying the request. Bennett, 230 Md. at 568. Defense counsel objected in chambers, but did not object again after the instructions were read to the jury. The failure to repeat the objections did not scuttle the defendant’s right to pursue the issue on appeal. The Court of Appeals observed that “while no further exceptions were made to the prepared charge after it had been read to the jury, there was in this case no reason to repeat in the court room what had already been said and recorded by the reporter in chambers.” Id. at 568-69. Defendant’s objection “was substantial compliance with the requirements of the rule,” and was enough to preserve the issue for appellate review. Id. at 569.

A similar result occurred in Sergeant Co. v. Pickett. There, defense counsel in a civil case also submitted requested jury instructions in writing. At a bench conference after the jury had been charged, defense counsel objected to the court’s failure to give one of the requested instructions, referring to “ten, avoidable (sic) consequences.” Sergeant Co., 283 Md. at 287 (internal quotation marks omitted). The judge replied, “I don’t think it is applicable to this one. I will give six.” Id. (internal quotation marks omitted). In an unreported opinion, the Court of Special Appeals held that the defendant failed to preserve the issue, noting that under Belt’s Wharf v. Int’l Corp., 213 Md. 585, 591-92 (1957), an objection concerning a jury instruction is not preserved by simply referring to the instruction by number. But the Court of Appeals reversed, noting that the purpose of the preservation rule is to bring the nature and grounds of an objection to the attention of the trial judge and opposing counsel, so that the objection can be addressed. That purpose was met; “appellants did not confine their objection to a simple reference to the prayer by number,” but instead counsel “mentioned ‘unavoidable (sic) consequences,’ which, when coupled with a mere cursory reading of the proffered instruction, was sufficient to identify for the trial judge the nature and ground of the objection.” Id. at 289. The Court saw “further exposition” by trial counsel as “both fruitless and unnecessary,” because “[o]nce the trial court had signified that it comprehended the precise point being asserted, but nevertheless rejected it out-of-hand, the requirements of the rule had been met.” Id. The issue was preserved for appellate review.[iv]

Despite Watts’s victory on the preservation issue, however, his joy was short lived. Having held that Watts had preserved the issue, the Court addressed the merits of that issue:

We turn now to the substance of the issue raised by Petitioner: whether battery and intent to frighten are different crimes, or whether they are simply different modalities of carrying out second degree assault. Petitioner contends that the trial court erred when it failed to instruct the jury that it must unanimously agree to the means of committing second degree assault. Petitioner urges this Court to conclude that assault and battery are distinct and separate crimes, and therefore the jury instruction should have required a unanimous consensus as to whether the defendant committed assault by battery or intent to frighten.

Slip Op. at 9. After a comprehensive analysis of the statute, its legislative history, and the case law surrounding the crime of assault – and especially the decision of the Court of Special Appeals in Lamb v. State, 93 Md. App. 422 (1992) cert. denied, 329 Md. 110 (1993) – the Court rejected Watts’s contention, holding “that when a defendant is charged with assault, a jury need not agree unanimously as to the means of the violation. So long as the jury unanimously agrees that the defendant has committed a modality of assault, the jury need not agree as to how the assault was committed.” Id. at 21. Although Watts won the preservation battle, he lost the substantive war.

[i] As the Court of Appeals noted, “there is a third modality of committing an assault. An assault may be committed in the form of an attempted battery.” Id. at 3 n.3 (citing Lamb v. State, 93 Md. App. 422, 428 (1992) cert. denied, 329 Md. 110 (1993)).

[ii] The civil version of that rule is Md. Rule 2-520(e).

[iii]In a criminal case, where the defendant has neither strictly nor substantially complied with Rule 4-325(e), the last resort is reliance on the plain error doctrine. Id. at 8 (citing Newton v. State, 455 Md. 341, 364 (2017)). Only errors that are compelling, extraordinary, exceptional, or fundamental to a defendant’s right to a fair trial may be reviewed under the plain error doctrine, and plain error review is rare. Newton, 455 Md. at 365.

[iv] Similar principles have been applied to evidentiary objections. In Watson v. State, 311 Md. 370, 372 n.1 (1988), the trial court denied a motion in limineto exclude evidence of the defendant’s attempted rape conviction. Pursuant to the Court’s decision in Prout v. State, 311 Md. 348 (1988) – decided the same day as Watson – the denial of the motion was not by itself enough to preserve the issue; an objection was required when the evidence was offered. Watson’s counsel failed to object when Watson was asked during cross-examination about that prior conviction. Yet the issue was preserved:

Thus, standing alone, Watson’s objection to the trial court’s pretrial ruling would be insufficient to preserve his objection for our review. However, the trial judge reiterated his ruling immediately prior to the State’s cross-examination of Watson. It was during this cross-examination that the State elicited Watson’s prior convictions. As we see it, requiring Watson to make yet another objection only a short time after the court’s ruling to admit the evidence would be to exalt form over substance.

Id.; accord Clemons v. State, 392 Md. 339, 361-63 (2006).

This article originally appeared in the Maryland Appellate Blog.