noting that an alibi defense is not an affirmative defense and “the defendant, himself, need not introduce alibi evidence in order to generate the basis for an instruction on the issue.”
How later courts described this case
- noting that an alibi defense is not an affirmative defense and “the defendant, himself, need not introduce alibi evidence in order to generate the basis for an instruction on the issue.”
- Maryland follows federal court principles that “a defendant is entitled to have the judge instruct the jury on his theory of defense provided that it is supported by law and has some foundation in the evidence.”
- “Because an 17 alibi is not an affirmative defense, a specific alibi instruction eliminates the 18 possibility that the jury will place the burden of proof on the defense with respect to 19 that issue.”
- “Because an alibi is not an affirmative defense, a specific alibi instruction eliminates the possibility that the jury will place the burden of proof on the defense with respect to that issue.”
Written by the judges who cited it.
The opinion
JAMES S. GETTY, Judge,
Specially Assigned, dissenting.
Respectfully, I dissent.
I agree fully that it is incumbent on the court, when requested in a criminal case, to instruct the jury on every essential question or point of law supported by the evidence. This case is, I would hold, clearly distinguishable from Pulley v. State, 38 Md.App. 682, 688-91 , 382 A.2d 621 (1978), which my colleagues correctly recognize as being the prevailing rule throughout the United States relating to an alibi instruction.
In Pulley , the accused testified in his own defense. He accounted for his activities on the day of the murder and his testimony was fully corroborated by two witnesses. Pellucidly, an alibi instruction was generated by the evidence.
Factually, the case sub judice is completely foreign to Pulley . Appellant did not testify, neither did he produce any alibi testimony from others. I recognize that he was not required to mount a defense because an alibi is not an affirmative defense placing a burden of persuasion on the accused. If, however, the accused made no effort whatever to generate an alibi (he could have offered his exculpatory statement through Sgt. Coppinger), I would hold that the court’s failure to include the precise language of Criminal Pattern Jury Instruction No. 5:00 (Alibi) is, if error, harmless.
The pattern instruction states:
Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. *389 Thus, in order to convict the defendant, the State must prove beyond a reasonable doubt, that the crime was committed and the defendant committed it.
Elsewhere in the instructions, the jury was instructed on the State’s burden to prove the guilt of the accused beyond a reasonable doubt; that the accused is presumed to be innocent; and that he has the right to remain silent. The instructions, taken as a whole, clearly impress upon the jury its obligation to consider all of the evidence before rendering a verdict. There is not a scintilla of evidence that they failed to do so.
The jury had the testimony of Sgt. Coppinger detailing appellant’s initial claim that he was not present when the crime was committed, and two separate admissions by appellant, given to undercover police officers, that he committed the murder, and including the details thereof. In the details of the crime, he told his undercover cell mates where he had thrown the murder weapon into the river. A gun, purportedly the murder weapon, was recovered from the area described by appellant.
Would it have been preferable if the trial court had supplemented the standard instructions on burden of proof, reasonable doubt, and presumption of innocence by adding the innocuous words of instruction No. 5:00: “Evidence was introduced that the defendant was not there when the crime was committed. You should consider this evidence along with other evidence in this case....”? The obvious answer to that question is “Yes.”
Pertinent to this case is the question whether the appellant’s right to a fair trial has been impinged, or whether the jurors would have been more fully aware of their solemn duty to consider all of the evidence if the proposed instruction had been included by the court. I submit the realistic answer is “No.”
I find it difficult, if not impossible, to accept that a defendant who presents no evidence of an alibi is relying upon an alibi defense. His so-called defense is nothing more than an *390 argument of counsel. As I understand the majority opinion, his defense was that the other suitor vying for the newly rich widow’s attention was the shooter.
My learned colleagues suggest that any time there is some evidence in the record to support the position that the defendant was elsewhere when the crime occurred a court must give an alibi instruction when requested. If true, we may end up with inmates yelling, “I was not there,” as they are being escorted to their prison cells. Without any other evidence, an alibi instruction will be given because an untold number of inmates can be produced at trial attesting that they heard the defendant’s fervent denial that he was not present when the victim, who had gone fishing, was executed for a share of a $10,000 life insurance policy. 5
. Hoc quidem perquam durum est, sed ita lex scripta est. (This indeed is very hard, but such is the written law.)