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A jury for the Circuit Court for Baltimore County convicted Walter Duff Kissinger of attempted robbery with a deadly weapon, for which he received a sentence of fifteen years' imprisonment. At the close of the trial, the court (Cadigan, J.), without a request from appellant, issued an "anti-inference" instruction to the members of the jury, advising them of the defendant's

constitutional right not to testify and that no adverse inference should be drawn from his election to remain silent. Appellant has

noted this appeal and alleged that the giving of that instruction without his request constitutes error. Questions Presented 1. Did counsel for appellant object to the antiinference instruction so as to preserve the issue for appellate review? Did the trial court err in giving an antiinference instruction without the defendant's request? Factual Background According to the testimony of the witnesses at trial, the victim, William S. Naylor, was visiting with some friends in the parking lot of a WaWa Store on North Point Boulevard, when When

2.

appellant approached him and asked for some directions.

Naylor stated that he could assist him, appellant requested that Naylor accompany him to his car, which was parked nearby at Donovan's Lounge, so that he could get paper and pencil to write down the directions. When they reached Donovan's Lounge, appellant

motioned Naylor toward some steps, at the top of which he claimed

he would be able to find a pen and a piece of paper.

Naylor

described the steps as being enclosed on both sides, making it difficult for Naylor's friends to watch him ascend to the top. As

they reached the top of the stairs, Naylor testified that appellant pulled out a gun, pointed it at Naylor's chest, and said, "Give me your money or . . . something is going to happen . . ." Instead of complying, Naylor grabbed the gun with one hand and appellant's throat with his other and wrestled appellant to the foot of the steps. A friend of Naylor's, Dennis Nugent, saw the

struggle and quickly approached from the WaWa Store to see what was happening. In the meantime, appellant succeeded in releasing Both

Naylor's hold on the gun and told Nugent to "back off."

Naylor and Nugent managed to flee, and Naylor went to a fire station in the vicinity, where he called the police. Officer

Charles Hornbarger arrived at the scene first, interviewed Naylor, and, as a result of other information, he arrested appellant at a home of one of his friends who resided nearby. Appellant did not testify at trial. During instructions to

the jury at the close of the case, the trial court issued an instruction as follows: The Defendant did not testify in this case. The Defendant has an absolute constitutional right not to testify. The fact that the Defendant did not testify must not be held against the Defendant. It must not be considered by you in any way or even be discussed by you.

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The court did not advise appellant's counsel of his intention to give that instruction prior to addressing the jury. instructions, appellant's counsel remarked to the court: Your honor, I want to make an exception to one of your instructions that wasn't requested and you gave and I am not going to argue it, but I am going to make my exception. You instructed the Jury about inferences with respect to someone testifying. That was not an instruction that anybody requested and it's an instruction that I never requested. The court replied, "Okay. You have your exception." After

Appellant has noted a timely appeal to this Court. I. Legal Analysis Preliminarily, we must determine if appellant objected to the instruction and properly preserved the issue for our review. Objections to jury instructions must comply with Maryland Rule 4325(e), which states, in pertinent part: 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 ground for the objection. The State contends that the language used and the exchange do not make clear the ground for the objection and, as a consequence, the issue is unpreserved. We disagree. Although the objection to

the instruction may not appear to be "distinct," it is clear that counsel, as well as the court, were referring to that which

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informed the jury not to draw any inferences from the defendant's failure to testify. To conclude otherwise would require us to find

in the court's instructions to the jury some other statement about inferences and testimony. There is no such other instruction.

It is clear to us, as indeed it appears that it was clear to the court, that appellant's counsel was referring to the no adverse inference instruction about which appellant complains on appeal, and the court, by saying, "Okay. You have your exception."

succeeded in making the objection distinct and in compliance with the rule. Appellee directs us to Bowman v. State, 337 Md. 65, 650 A.2d 954 (1994), in which Chief Judge Robert Murphy, in sustaining the conviction, held that an objection to an instruction in that case did not satisfy the requirements of the Rule. But, in that

opinion, Judge Murphy pointed out that Bowman's counsel did not give his reasons for the dissatisfaction. Here, counsel told the

court that he had not requested the instruction, which is the only reason he could give to the court for his objection. The

instruction was not erroneous and, consequently,

there was nothing

that the court could do at that point to overcome appellant's objection. Further elaboration and objection would have been We hold, therefore, that, by his objection,

futile and useless.

Kissinger did comply with Rule 4-325(e) and preserve the issue for appellate review. Nevertheless, as we will point out below,

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compliance with that rule is not the means by which defendants must exert the tactical right to avoid having the court give an

undesired, but correct, instruction about the law. II. The Supreme Court, in Lakeside v. Oregon, 435 U.S. 33 (1978), held that giving a "no adverse inference" instruction over

defendant's objection does not violate a defendant's constitutional rights. not to The Court stated that "it may be wise for a trial judge give such a cautionary instruction over defendant's

objection.

And each state is, of course, free to forbid its trial

judges from doing so as a matter of state law." Id. at 340. Maryland is a state that has held, as a part of our common law, that the giving of the instruction over objection is error and requires reversal. The instruction, See Hardaway v. State, although designed to 317 Md. 160 (1989). the defendant,

benefit

regardless how favorably or accurately worded, nevertheless may inadvertently cause the jurors to consider inferences that would not otherwise have entered their minds. It is clearly the

defendant's option to exercise.

In effect, the Court of Appeals

has held that the right must be waived by the defendant, just like the right to have a unanimous jury verdict. Hardaway, at 167.

This case, however, raises the issue whether, with no notice to the defendant in advance of instructing the jury, the giving of the no adverse inference instruction constitutes error. We hold

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that it does not.

Hardaway did not overrule an earlier case,

Lambert v. State, 197 Md. 22 (1950), which upheld a conviction when the court, on its own, without request from the defendant, gave an instruction similar to that which the court gave in this case. Judge Eldridge, in Hardaway, explicitly noted the distinction: In Lambert v. State, . . . where it does not appear that the defendant requested beforehand that the instruction not be given, the Court held that it was not error for a trial judge to instruct the jury not to infer guilt from the defendant's failure to testify. Nevertheless, Lambert is distinguishable from the instant case in which the defendant clearly indicated prior to the giving of the instruction that he did not want it given. Hardaway, at 163. We believe that Lambert is still controlling. The defendants

in criminal trials in this State must exercise the option before the judge instructs the jury. Objecting after instruction affords There is no

the court no opportunity to correct the "error."

possible way that the court, when uninformed in advance of the defendant's tactical wish not to call attention to his failure to testify, can "unring the bell" by giving a curative instruction. For us to interpret Hardaway otherwise, so as to require that the court notify the defendant in advance and obtain permission from the defendant, would mean that the only time the court could give such an instruction would be upon the request of the defendant. Stated another way, we hold that appellant's failure to request an anti-inference instruction is not the equivalent of a request that 6

it not be given.

This is in accord with Judge Eldridge's statement

in Hardaway, at 169, that there may be "special circumstances when giving the `no inference' instruction over defendant's objection may be appropriate . . ." for the advance Our decision makes clear the requirement

defendant to take the step of informing the court in of instruction correct not to cover the undesired The but,

nevertheless,

constitutional

principle.

tactical

right, after all, is bottomed on our common law and not on the Fifth and Fourteenth Amendments of the United States Constitution and, as such, can be conditioned upon the necessity to exercise the right in conformance with State rules and procedures. We hold, therefore, that, since the defendant in this case did not exercise his option and notify the court before the court instructed the jury, there was no error in the giving of the instruction, and we affirm.

JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1703 September Term, 1996 ___________________________________

WALTER DUFF KISSINGER

v.

STATE OF MARYLAND

___________________________________

Cathell, Sonner, Murphy, Robert C., (retired, specially assigned) JJ. ___________________________________ Opinion by Sonner, J.

___________________________________ Filed: September 25, 1997

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Walter Duff Kissinger v. State of Maryland, No. 1703, September Term, 1996. CRIMINAL LAW - JURY INSTRUCTIONS - Counsel, by informing the court that he did not request an anti-inference instruction, objected to the instruction and properly preserved the issue for appellate review. CRIMINAL LAW - JURY INSTRUCTIONS - A trial court's delivery of an anti-inference instruction, without the request of the defendant, does not constitute reversible error. The defendant must take the initiative in informing the court prior to instruction not to cover the undesired principle.



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