Calhoun-El v. State, 150 A.3d 886

Background

In 1981 James A. Calhoun-El was convicted by a Montgomery County jury of multiple counts including two murders; he was initially sentenced to death for killing an officer, later reduced to life after resentencing. Convictions were affirmed on direct appeal.
At trial the judge instructed the jury that constitutional instructions (e.g., presumption of innocence, proof beyond a reasonable doubt) were binding, but that instructions as to the specific offenses were "advisory" and the jury could reject them.
Calhoun-El did not object at trial to the advisory-nature instructions. He later litigated post-conviction claims over many years; his 1985 post-conviction challenge to advisory instructions was rejected as waived.
In 2012 Calhoun-El filed a Motion to Reopen Post-Conviction Relief based on the Court of Appeals’ later decisions (notably Unger, Waine) holding that advisory-only instructions that encompass constitutional protections constitute structural error and may not be waived if the law changed.
The circuit court denied the motion without a hearing; Calhoun-El appealed. The Court of Special Appeals affirmed, concluding his claim was waived because his trial occurred after Stevenson and before Montgomery, so Stevenson put counsel on notice and ordinary waiver principles apply.
The court declined to invoke discretionary review of the waived claim (Rule 8-131) citing timing of Stevenson, prejudice to the State after many years, and extensive prior litigation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instructions calling offense-law instructions “advisory” (and saying jury may disregard them) were reversible error under Unger/Waine	Calhoun-El: advisory instructions that permit disregarding instructions on offenses (and by implication core protections) are erroneous and structural; Unger/Waine entitle him to relief	State: trial judge separated constitutional (binding) instructions from offense instructions; given timing and content, instructions were not reviewable or reversible now	Court assumed possible error but did not reach merits because claim was waived; affirmed denial of motion to reopen
Whether failure to object at trial constitutes waiver post-Unger	Calhoun-El: his trial fell in a transitional period; failure to object should not be treated as waiver because Montgomery/Stevenson together created new standard	State: Stevenson (issued before his trial) already set the Article 23 rule; ordinary waiver principles apply when trial occurred after Stevenson	Held waived: trial occurred after Stevenson, so failure to object constituted waiver and post-conviction plain-error review is unavailable
Whether court should excuse waiver under Rule 8-131(a) and reopen post-conviction proceedings	Calhoun-El: appellate discretion should be exercised given the constitutional magnitude of the instructions and subsequent case law	State: exercising discretion now would be unfairly prejudicial and litigation over advisory instructions has been extensive	Court declined to excuse waiver under discretionary authority; affirmed denial of motion to reopen
Whether advisory-only instructions that implicate presumption of innocence and burden of proof are structural error requiring automatic reversal	Calhoun-El: Unger/Waine/Adams-Bey hold such instructions are structural error not subject to harmless error	State: argued for case-by-case harmlessness or that instructions here distinguished binding constitutional instruction	Court did not reach or change precedent: acknowledged Waine/Adams-Bey holdings but resolved case on waiver/discretion grounds

Key Cases Cited

Stevenson v. State, 289 Md. 167 (1980) (interpreted Article 23: jury may judge law of the crime but judge's instructions on other legal matters are binding)
Montgomery v. State, 292 Md. 84 (1981) (held instructions stating all court law instructions were advisory were erroneous; reaffirmed Stevenson)
Calhoun v. State, 297 Md. 563 (1983) (direct appeal affirming Calhoun-El’s convictions)
Unger v. State, 427 Md. 383 (2012) (overruled portions of Adams; held Stevenson established a new state constitutional standard and that failure to object prior to Stevenson is not waiver)
State v. Waine, 444 Md. 692 (2015) (held advisory-only instructions that include presumption of innocence/burden of proof constitute structural error)
State v. Adams, 406 Md. 240 (2008) (applied Stevenson and treated failure to object to advisory instructions as waiver)
State v. Adams-Bey, 449 Md. 690 (2016) (reaffirmed Waine: advisory instructions implicating core protections are structural error entitling defendant to new trial)