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Cirincione v. State2/2/1998
38. Since intent was a contested issue under the facts of Franklin, but not in Walker's trial, the Court ruled that the "circumstances" of the two trials were "totally different" and that the "error in the jury instruction concerning intent clearly did not deprive Walker of a fair trial." Id. at 650, 684 A.2d at 439. Although the Court spoke in terms of "circumstances," it apparently declined to excuse the waiver of this jury instruction claim based solely on the fact that Walker had not met the standards of plain error review. Finally, in Hunt, the petitioner failed to challenge his jury instruction on reasonable doubt at trial, on two rounds of direct appeal, or in a prior petition for post conviction relief. His only argument in favor of excusing the waiver was that the intervening case of Wills v. State, 329 Md. 370, 620 A.2d 295 (1993), had imposed a new rule he could not have known about at trial. Even assuming the correctness of his reading of Wills, however, the Court pointed out that Wills was decided prior to Hunt's first petition for post conviction relief and that "Hunt has not directed us to a reason why he did not bring that decision to the circuit court's attention in a timely fashion." Hunt, 345 Md. at 152, 691 A.2d at 1269. This may be read as indicating that Hunt's arguments for excusing his jury instruction waiver failed for want of any special circumstances, without reaching the standards of the plain error rule.
Turning to appellant's claim of error in his jury instruction on reasonable doubt, we find there are no special circumstances present to warrant excusing the waiver. The only argument appellant presents is that he could not have known to object at trial since the "new legal standard" set forth in Wills was not announced until almost six years after his trial. The Court of Appeals, however, has squarely rejected the premise that Wills altered the existing legal standards. Hunt, 345 Md. at 152, 691 A.2d at 1269; see (supra) note 5. Since this argument is without merit and no other special circumstances are alleged, the waiver is not excused. We do not reach the jury instruction issue.
In sum, we find no error in the lower court's denial of post conviction relief. We have found no merit to appellant's numerous claims based on his right to effective assistance of counsel, and appellant has waived any claim he may have had that the jury instructions were constitutionally deficient. The denial of the petition is thereby affirmed.
JUDGMENT AFFIRMED `COSTS TO BE PAID BY APPELLANT.
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