# Bruce v. State

> Court of Appeals of Maryland · February 27, 1990 · 318 Md. 706

URL: https://www.frixlaw.com/law-library/cases/9704752

## Case

- **Full name:** Kirk BRUCE v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** February 27, 1990
- **Citations:** 318 Md. 706; 569 A.2d 1254; 1990 Md. LEXIS 34
- **Precedential status:** Published
- **Opinion:** Concurring in part by McAULIFFE
- **Judges:** Chasanow, McAuliffe
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704752

## How later opinions describe it (automated extraction)

- stating that "if the State is aware of prior inconsistent statements made by a witness to a police officer, it may have an obligation to produce this information under the duty to furnish exculpatory evidence. Maryland Rule 4-263(a)(1)."
- finding that inadvertent viewing by jury of handcuffs being removed from defendant as jury was being led into courtroom did not prejudice defendant’s right to fair trial

## Opinion text

McAULIFFE, Judge,
concurring in part and dissenting in part.
I agree that the convictions should be affirmed. I do not agree that the trial judge committed reversible error when he refused to give the defendant’s requested instruction 10A, which dealt with the possible determination of life imprisonment without the possibility of parole. The defendant asked for this instruction:
I instruct you that the term “life imprisonment without possibility of parole” means imprisonment for the natural life of the Defendant. If your judgment is that Mr. Bruce should be sentenced to life imprisonment without possibility of parole, he will not be eligible for parole consideration, nor can he be granted parole at any time during his natural life.
The State objected — not to that portion of the instruction that explained the obvious, i.e., that life imprisonment without parole means that the defendant will not be eligible for, and cannot be granted, parole during his lifetime — but to that portion which stated that “ ‘life imprisonment without the possibility of parole’ means imprisonment for the natural life of the Defendant.” The State argued that a correct statement of the law would have to include the possibility that the Governor could at any time exercise the right to commute the sentence, in whole or in part. Md. Const. Art. II, § 20; Maryland Code (1957, 1986 Repl.Vol.) Art. 41, § 4-603. The prosecutor expressed his concern to the trial judge that:
They intend to get up and argue this man is never going to get out if you give him life without parole. That is not going to be correct.
Judge Levin did not give the requested instruction. Instead, referring to the Findings and Sentencing Determination form that each juror had been given, he told the jury:
*737 As you can see by Section V ... if you have answered life imprisonment in Section V, you have to make a determination in Section VI whether the sentence should be life imprisonment without the possibility of parole. If you are in unanimous agreement that the defendant should serve his sentence of life imprisonment without the possibility of parole, answer “yes” in Section VI. Unless all of you agree that the defendant should be denied the possibility of parole, answer “no” to this question.
Section VI of the form, to which Judge Levin referred, provided:
SECTION VI
If “Life Imprisonment” is entered in Section V, answer the following question:
Based upon the evidence, does the Jury unanimously determine that the sentence of life imprisonment previously entered shall be without the possibility of parole?
yes no
The better course would have been for the trial judge to give that portion of the defendant’s requested instruction that clearly and unequivocally stated that a sentence of life imprisonment without the possibility of parole would be just that — the defendant could not be given parole if that sentence were imposed. That would have required only slight editing of the defendant’s proposed instruction.
The failure to pursue the better course does not, however, mean that there was error, or that if there was error, it required reversal.
In the first place, the term “life imprisonment without the possibility of parole” needs no explanation. It is self-explanatory. The situation that existed here is entirely different from that the Court faced in Doering v. State, 313 Md. 384, 407-12 , 545 A.2d 1281 (1988). That case dealt with the defendant’s attempt to provide the jury with accurate factu *738 al and legal information in order to avoid the significant potential for misunderstanding that otherwise would exist because of widespread confusion and misunderstanding among lay persons concerning the practical effect of a “life” sentence. The defendant’s concerns in Doering were very real. As I noted in Harris v. State, 312 Md. 225, 263 , 539 A.2d 637 (1988) (McAuliffe, J. concurring):
I believe the average juror is unaware of the intricacies of parole eligibility law, and is more likely to have been exposed to the generally apocryphal stories concerning murderers who were released on parole within a year or two of their convictions.
Ordinarily, we are not reluctant about sharing with the jury the true state of the law, and we should have no reticence in this area.
This Court thereafter concluded in Doering, supra, 313 Md. at 411-12 , 545 A.2d 1281 that:
[A] jury seeking to determine the appropriateness of a life sentence will be aided by information correctly describing the legal and practical effects of such a sentence, and ... the existence of an appropriate alternative sentence must certainly be considered a relevant mitigating circumstance.
Here, we deal not with the effect of a “life” sentence, but with the effect of a sentence of life imprisonment without possibility of parole. I am not aware that there exists any popular misunderstanding or misconception concerning the sentence of life without possibility of parole. The meaning of the term is self-evident, and particularly so when it is presented to the jury as an alternative to the sentence of life imprisonment. The considerations that properly impelled the Court to reverse the sentence in Doering are simply not present here. 1
*739 In the second place, if there were any need to inform the jury of the actual effect of a sentence of “life imprisonment without parole,” Judge Levin’s instruction fulfilled that need. He told them that the imposition of that sentence meant that the defendant would be denied the possibility of parole.
If you are in unanimous agreement that the defendant should serve his sentence of life imprisonment without the possibility of parole, answer “yes” in Section VI. Unless all of you agree that the defendant should be denied the possibility of parole, answer “no” to this question, (emphasis added).
The prosecutor did not argue to the contrary. He did not address the effect of either life sentence. Defendant’s attorney twice argued, without objection, concerning the meaning of a sentence of life imprisonment without the possibility of parole. Near the beginning of his closing argument, he said:
If you determine that he lives, you are then called upon at the end of the form to decide whether he is sentenced to life, or whether he is sentenced to life without parole, meaning life without the chance of being paroled at a future time, (emphasis added).
That argument was entirely consistent with the instruction earlier given by Judge Levin. Again, at the conclusion of defense counsel’s argument, he said:
I think the great doubt that exists there, coupled with the great amount of mitigating circumstances, justifies you in returning a verdict of life imprisonment. If you feel that that is not severe enough — and that is the second most severe penalty that can be imposed under our law for a person to be caged and housed in the penitentiary for the *740 rest of his natural life — if that is not severe enough you can attach “without the possibility of parole.”
I cannot agree that the trial judge erred in instructing the jury as he did on the possible sentence of “life without possibility of parole.” Alternatively, if there was error, that error was harmless beyond any reasonable doubt. I would affirm the sentence of death.
MURPHY, C.J., and RODOWSKY, J., join in this opinion.
. Bruce did submit proposed instructions dealing with the effect of a life sentence. He did not, however, object to the failure of the trial judge to give those instructions, and the matter is not preserved for appellate review unless this Court concludes there was plain error *739 material to the rights of the defendant. Maryland Rule 4-325(e). In view of the fact that the jurors rejected the more stringent sentence of life without parole, it is immaterial that they were not fully instructed concerning the minimum eligibility of the defendant for parole under a life sentence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704752. Public record. Not legal advice.