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HEADNOTE: Chaz Kinichi Bazzle v. State of Maryland, No. 89, September Term, 2011 CRIMINAL LAW--VOLUNTARY INTOXICATION: A defendant is not entitled to an instruction on voluntary intoxication unless he can point to some evidence that would allow a jury to rationally conclude that his intoxication made him incapable of forming the intent necessary to constitute the crime. The trial court did not abuse its discretion in declining to grant such an instruction under the facts of this case. EVIDENCE--PRESERVATION OF OBJECTIONS FOR APPEAL: When the trial court offers to hear grounds for an objection and says that without grounds, the objection will be overruled, the objection is not preserved for appeal, under Maryland Rules 5-103(a) and 4323, unless grounds are provided.

Circuit Court for Howard County Case No. 13-K-08-048572

IN THE COURT OF APPEALS OF MARYLAND No. 89 September Term, 2011

CHAZ KINICHI BAZZLE v. STATE OF MARYLAND

Bell, C.J., Harrell Battaglia Greene Adkins Barbera McDonald,

JJ.

Opinion by Adkins, J. Harrell, Barbera, and McDonald, JJ., Dissent.

Filed: May 22, 2012

In this case, we address the required evidentiary showing for an instruction on voluntary intoxication. Secondarily, we decide what constitutes a request for grounds of an objection within the meaning of Maryland Rules 5-103(a) and 4-323. After his convictions for attempted second-degree murder, attempted armed carjacking, and first-degree assault, Petitioner Chaz K. Bazzle appealed, arguing that the trial court had committed reversible error by (1) failing to instruct the jury on voluntary intoxication and (2) allowing a witness to testify as to the certainty of his eyewitness identification. The Court of Special Appeals affirmed, and Petitioner filed a petition for certiorari, which we granted. Bazzle v. State, 423 Md. 450, 31 A.2d 19 (2011). For the reasons described below, we shall affirm the judgment of the Court of Special Appeals and hold that (1) the evidence did not generate an instruction on voluntary intoxication because it was insufficient to allow a jury to rationally conclude that Petitioner was so intoxicated that he was unable to form the intent necessary to constitute his crimes; and (2) Petitioner failed to preserve his objection to the witness's testimony because the trial court, by stating that it would overrule the objection unless grounds were provided, triggered the requirement, under Maryland Rules 5-103(a) and 4-323, that Petitioner provide grounds or lose the opportunity to raise the objection on appeal. Facts and Legal Proceedings On June 29, 2008, Petitioner Chaz K. Bazzle got drunk with his friends. According to Petitioner, he consumed at least three 40-ounce containers of beer in an apartment complex, went to a mall in Columbia, and drank more alcohol. He left the mall and was

walking to meet his friend Lakita Butler when he was attacked and stabbed six or seven times. He ran to Butler's house, arriving around 11 p.m. Butler testified that Petitioner was "bleeding" and "almost about to pass out" when he arrived. She called 911, and Petitioner was taken to a hospital, where his blood alcohol content was measured at .157, and then again at .137. At the hospital, Petitioner spoke with Detective Donald Guevara, telling him that he had been attacked by one man and one woman "on the footbridge that goes across Little Patuxent Parkway from the waterfront towards the mall." Petitioner was asleep in a hospital bed when Kohlya Eggleston, who was also being treated for stab wounds suffered that evening, recognized Petitioner as his attacker. According to Eggleston's testimony, earlier that evening he had been sitting in a truck in a gas station when a man approached, opened the door, and said, "Get out of the motherfucking car." The man then stabbed him multiple times with a weapon before he could exit. Eggleston could not tell what kind of weapon was used because the man had wrapped a shirt around his hand to conceal it. The man had also been wearing a bandana to cover his face, but it slipped down during the encounter, allowing Eggleston to recognize him as Petitioner, whom he already knew as an acquaintance. Asked how certain he was that Petitioner was his attacker, Eggleston testified: "very certain." Petitioner testified in his own defense, denying that he had attacked Eggleston. He also said that he was unable to recall some of his own behavior on the night he was attacked. He objected to the question about Eggleston's certainty, but was overruled. He also

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requested a jury instruction on voluntary intoxication, but his request was denied. A jury found Petitioner guilty of attempted second-degree murder, attempted armed carjacking, and first-degree assault. Petitioner appealed, arguing, among other things, that the trial court erred by denying his request for an instruction on voluntary intoxication and admitting Eggleston's testimony about his certainty. The Court of Special Appeals affirmed, and Petitioner filed a petition for certiorari, asking: 1. Where, during the same evening that Petitioner was alleged to have committed specific-intent offenses, hospital personnel measured his blood alcohol level at .157 and .137, Petitioner testified that he drank heavily throughout the evening, and a witness described him as "bleeding" and "almost about to pass out," did the trial court err in refusing to instruct the jury upon the defense theory of voluntary intoxication? 2. In a prosecution in which the identity of the perpetrator is at issue, is it appropriate to admit into evidence the level of certainty of the complaining witness? Voluntary Intoxication Instruction In an unreported opinion, the Court of Special Appeals held that Petitioner had not presented enough evidence to entitle him to an instruction on voluntary intoxication. To be entitled to such an instruction, the court held, a defendant must show "some evidence of the great intoxication required to negate a specific intent crime." The court held that, although there was evidence that Petitioner was intoxicated, there was no evidence that his intoxication was so severe that he could not form a specific intent, did not appreciate what he was doing, or was robbed of his mental faculties. Thus, it held that an instruction on

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voluntary intoxication was not generated by the evidence. Petitioner disagrees, arguing that a voluntary intoxication instruction was relevant and generated by the evidence. The instruction was relevant, he says, because it provides that intoxication can negate the specific intent element of a crime, and his

convictions--attempted second-degree murder, attempted armed carjacking, and first-degree assault--each contained a specific intent element.1 The instruction was generated by the evidence, he says, because four pieces of evidence show that he was "so intoxicated, at the time of the act, that he was unable to form" a specific intent: (1) his elevated blood alcohol content; (2) his memory loss; (3) the "senseless manner" in which the assault was committed; and (4) witness testimony describing him as "almost about to pass out" on the night of the crime. The State responds that Petitioner has not produced enough evidence to generate the instruction because, although there was evidence of intoxication, there was no evidence that he was "so intoxicated when he committed the crimes that he could not form the necessary legal intent." The State asks that we adopt the reasoning of the Court of Special Appeals in Lewis v. State, 79 Md. App. 1, 13 n.4, 555 A.2d 509, 515 n.4 (1989), which held that,

See Maryland Criminal Pattern Jury Instruction 3:31.1 ("[W]hen charged with an offense requiring a specific intent, the defendant cannot be guilty if [he] [she] was so intoxicated, at the time of the act, that [he] [she] was unable to form the necessary intent.") State v. Brady, 393 Md. 502, 513, 903 A.2d 870, 876 (2006) ("In Maryland, criminal attempt requires a specific intent to commit the crime attempted."); Dixon v. State, 364 Md. 209, 239, 772 A.2d 283, 301 (2001) ("[F]irst degree assault . . . requires the specific intent to cause, or attempt to cause, serious physical injury."). 4

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without more, mere evidence that a defendant consumed alcohol, even in an "inordinate amount," is not sufficient to raise the issue of whether the defendant was so intoxicated that he could not form a specific intent. Maryland Rule 4-325(c) provides: "The court may, and at the request of any party shall, instruct the jury as to the applicable law[.]" We review "a trial court's refusal or giving of a jury instruction under the abuse of discretion standard." Stabb v. State, 423 Md. 454, 465, 31 A.3d 922, 928 (2011). In doing so, we keep in mind: Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order [of the trial court] is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Id. (quoting In re Don Mc., 344 Md. 194, 201, 686 A.2d 269, 272 (1996)). In evaluating whether an abuse of discretion occurred: We consider the following factors when deciding whether a trial court abused its discretion in deciding whether to grant or deny a request for a particular jury instruction: (1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given. Id. at 465, 31 A.3d at 928

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