Plain Error

• Jurisdiction: Maryland

XI. Plain error

A. General considerations

1. Plain error is within the appellate court's discretion

Under the "plain error doctrine," appellate courts recognize plain error only in circumstances that are "compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." State v. Hutchinson, 287 Md. 198, 203 (1980) (discussing the predecessor to Md. Rule 4-325(f), which provides that an appellate court may "take cognizance of any plain error in the [jury] instructions, material to the rights of the defendant, despite a failure to object"). See also Perry v. State, 150 Md. App. 403, 436 (2002); Cook v. State, 118 Md. App. 404, 411-12 (1997).

In Puckett v. United States, the Supreme Court summarized the plain error review process, which was expressly adopted by the Court of Appeals in State v. Rich, 415 Md. 567, 578-79 (2010).

[P]lain-error review involves four steps, or prongs. First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the [defendant]. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the [defendant's] substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the [trial] court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Puckett v. United States, 556 U.S. 129, 135 (2009).

It is always within an appellate court's discretion to address an issue that was not preserved for appellate review. Perry, 150 Md. App. at 435. See also Morris v. State, 153 Md. App. 480, 507 (2003). There is a presumption against the recognition of plain error because, otherwise, the preservation requirement would be rendered meaningless. Perry, 150 Md. App. at 435. Plain error review "is a discretion that appellate courts should rarely exercise[.]" Chaney v. State, 397 Md. 460, 468 (2007).

Consequently, defense counsel should zealously protect the record. Id. at 437. In Austin v. State, 90 Md. App. 254 (1992), the Court of Special Appeals stated that counsel "must never be lulled into the sense of false security that the notice of 'plain error' is routinely available to pull neglected chestnuts out of the fire." Id. at 271.

2. No precedential value in the recognition of plain error

Due to the discretionary nature of the plain error doctrine, it difficult to predict when an appellate court will recognize plain error. In the words of Judge Moylan, "[w]hen all is said and done about an appellate court's discretionary option to indulge the 'plain error' exemption from the preservation requirement, the only hard and fast rule is that there are no hard and fast rules." Morris, 153 Md. App. at 524.

Simply because an appellate court recognizes plain error in one case does not mean that the court will recognize plain error in another case, even if identical or substantially similar. Id. at 517-18. In fact, the earlier recognition of plain error may even be a factor against recognizing plain error in the latter scenario. In Stockton v. State, 107 Md. App. 395 (1995), the Court of Special Appeals rejected plain error, stating:

On the appellate shore . . . there is, with each passing year, noticeable erosion of the preservation requirement and the dike is in need of constant repair.
The [defendant] leans heavily on Himple v. State, 101 Md. App. 579 [] (1994), an occasion on which we opted to notice plain error with respect to an instruction on the subject of reasonable doubt. An exercise of discretion by an appellate court, however, unlike a ruling of law, is unique and unreviewable and is not, therefore, precedent for the next occasion when an exercise of discretion is requested, even on the same subject matter under similar circumstances. Indeed, an earlier discretionary notice of plain error actually argues against its repetition. One of the reasons we sometimes elect to overlook non-preservation has nothing to do with the fortunes of the [defendant]. We may choose to notice plain error simply to seize the occasion as a vehicle to communicate a desired message to bench and bar that might otherwise go unsent. Once having delivered a message, as in Himple, there is self-evidently less urgency to send it again, by way of redundant repetition.

Id. at 396-97 (citations omitted).

3. When is an appellate court more likely to recognize plain error?

Appellate courts are more likely to recognize plain error where the unpreserved issue has been thoroughly briefed and argued and: (a) there is a close question as to whether the issue was preserved; (b) the issue presented is one of first impression; (c) the issue presented is one that the appellate court has not re-visited in years; (d) the case is being reversed and remanded for other reasons, and the appellate court believes that guidance should be provided to the trial court for remand; (e) the defendant's right to effective assistance of counsel was so egregiously denied that a new trial will likely be granted if the defendant seeks post conviction relief; (f) the defendant's right to a fair trial was severely denied; or (g) addressing the issue would promote the orderly administration of justice. Md. Rule 8-131(a); Robinson v. State, 410 Md. 91, 111 (2009); Jones v. State, 379 Md. 704, 714-15 (2004); Conyers v. State, 354 Md. 132, 151 (1999); Rubin v. State, 325 Md. 552, 588 (1992); Hutchinson, 287 Md. at 205; Squire v. State, 280 Md. 132, 134-35 (1977); Olson v. State, 208 Md. App. 309, 363 (2012); Claggett v. State, 108 Md. App. 32, 40 (1996).

4. Prejudice to the defendant is a factor

In determining whether a "plain error" was prejudicial, the error must be viewed in the context of the entire record. In Lawson v. State, 389 Md. 570 (2005), the Court of Appeals stated:

Once error is

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