Booth v. State

608 A.2d 162 Marvin John BOOTH a/k/a Maryland. STATE Term, Sept. No. 1991. Appeals Maryland.

Court of June 1992. L. Bernhardt, Defender and John Asst. Public Doyle Julia Harris, Public E. (Stephen Defender Asst. Public Kopolow, Baltimore, brief), appellant. for Defender, on all Curran, (J. Joseph Jr., Atty. Asst. Gen. Kinsey, X. Gwynn Gen., Atty. Asst. Gen., Brockmeyer, C. Jr., Cathleen Atty. Baltimore, brief), appellee. all ELDRIDGE, C.J., MURPHY, Argued before CHASANOW, McAULIFFE, KARWACKI RODOWSKY, BELL, M. JJ. ROBERT and

RODOWSKY, Judge. been (Booth), having previously Booth John Appellant, 1983, Bronstein Irvin and Rose murdering of guilty found in the jury which a death sentence from the appeals now time has for the third City Baltimore Circuit Court of of the murder perpetrator him as the direct on imposed of findings the underlying The evidence Irvin Bronstein.1 172, State, 507 A.2d 306 Md. v. Booth guilt reviewed issues directed at raises fourteen (1986). Here Booth 1098 prosecu- appeal in the to this Court matter is the fourth 1. The instant 1, State, In v. 301 Md. murders. Booth for the Bronstein tion of Booth I), (1984) (Booth Booth’s the denial of we affirmed A.2d 505 481 motion, mistrial, on double following to dismiss the indictments a 172, (1986) State, Md. 507 A.2d 1098 grounds. v. 306 jeopardy Booth imposition II) finding guilt the (Booth both the affirmed by Judge Angeletti in presided Edward J. penalty by jury over a death by Supreme the was vacated That death sentence the fall of 1984. 2529, 496, L.Ed.2d 107 S.Ct. Maryland, 482 U.S. in Booth v. Court (1987), impact was admitted at sentenc- evidence because victim again sentencing proceeding Booth was ing. new At a for error in vacated the sentence This Court sentenced to death. State, v. 316 Md. excluding Booth. Booth evidence offered III). (1989) (Booth appeal from the The instant arises A.2d 1205 following mandate. See also Booth resentencing conducted murder), (1986) (different aff’g 62 Md. 508 A.2d 976 Md.App. 488 A.2d 195 recent We shall state his most death sentence. additional necessary consider con- separate facts as when we Booth’s tentions.

I Modified Allen Charge by giving trial court erred Booth submits that the modified Allen jury inability the an charge reported after result principalship. on his This obtains agree first-degree sentencing which, relating capital special under rules a nonverdict verdict. argues, render the time assembled The facts are these. From the venire the jury, proceeding case to this until submission testimony seven of eleven days, consumed In its presented. charge were arguments evidence, gave a modified of all court conclusion the defense. requested by in the form Allen instruction his summa- approximately half of Defense counsel devoted not a in the first principal Booth was arguing tion to the Irvin Bronstein murder. degree at 3:00 and was dis began p.m. The deliberations at 7:15 day deliberations missed for first calendar court, counsel, next with considered morning p.m. response from In the court advised requests jury. four a and that dictionary could not have they jurors the of the have to on their best recollections rely would they witness, (“Judy”) of a state’s Jewell testimony principal its instructions on repeated Booth. court also The Edwards of the evidence.2 At doubt and preponderance reasonable Lunch orders jurors the resumed deliberations. 9:17 a.m. of day At on the second calendar p.m. taken. 2:25 were jury: this from the message the received court deliberations explanation preponderance of jury’s request the a further of 2. The jury to infer was consider- led Booth’s counsel that the evidence trial ing mitigating factors. 1. are Question Section We split We are “Statement: agreement on that statement.” to an to come unable issue on the sentenc- following referred to the This note Rule pursuant Maryland the jury form furnished ing 4-343(e): evidence, find that unanimously we upon

“Based the has ‘proven’ marked following of the statements each and A DOUBT proven BEYOND REASONABLE been has proven’ ‘not statements marked that each of those A DOUBT. BEYOND REASONABLE proven not been degree first a the principal “1. defendant was to the murder. proven”

proven implementa is an Rules provision Maryland That “per “defendant” and definition the terms tion penalty death statutes wherein Maryland under the son” first only principal “include quoted terms (1957, 1992 murders. Md.Code except in contract degree,” 413(e)(1).3 Art. Repl.Vol.), § message, learning counsel, upon jury’s Booth’s sen- impose dismiss the jury that the court moved aon predicated The motion was imprisonment. of life tence which, murders, read: at the time statutory provision time, agree is not able to “If the a reasonable jury, within sentence, shall dismiss the the court as for life.” imprisonment sentence of impose a 413(k)(2). (1957, Repl.Vol.), Art. Md.Code Booth’s motion and instructed The court overruled as follows: so on the law you charge “I am reread to going to responsibilities are your as to you are clear what that area. statutory references are Md.Code indicated all

3. Unless otherwise (1957, Repl.Vol.), Art. 27. requires “The law that in order for you to conclude a beyond reasonable doubt that the State has proven degree

Mr. Booth was a first in principal the murder of Bronstein, Mr. all of must you agree within a reasonable time, your verdict must be unanimous.

“If of cannot you conclude that the State has a proven beyond reasonable doubt that Mr. Booth is a in principal Bronstein, the murder of Mr. then must you mark ‘not proven’ the form and enter the words ‘life imprisonment’ Section 6. decision,

“In arriving your must consult with you one reaching another and deliberate with a view to an agreement, if can do so you your without violence judgment. individual you

“Each of must decide the case for but yourself, you only impartial must do so after an consideration of the During evidence with your jurors. your fellow delibera- tions, to re-examine your do hesitate own views. You if change opinion wrong, should convinced are your you do not your weight but surrender honest belief as to the or effect of the because of only opinions your evidence jurors, purpose reaching fellow or for the mere verdict. understand that instruction? you

“Do “THE Yes. JURY:

“THE Then I ask Very you go COURT: well. will deliberations, jury your back to the room and continue please.”

At 5:50 on the second calendar p.m. day deliberations jury message judge advising sent a that two of its feeling members were not well. The asked to be excused to return the next evening, morning motion, continue deliberations. The defense renewed at time, was denied. the third calendar day On deliberations the assem- at 9:00 a.m. and returned with its verdict at 2:25 p.m. bled doubt, Unanimously, beyond a reasonable the jury principal degree found Booth the first aby preponderance Unanimously, murder. recog- statutorily the seven evidence, the found that jury were no exist and that there did not mitigating factors nized found Thus, having unanimously mitigating factors. other death. the was robbery, sentence factor of aggravating the sentencing proceed- in capital of a a hung jury The result former from in other cases. Under differs that ing in result instant matter would 413(k)(2) hung a in the jury § life sentence. imposing a the dismissing jury the court’s cases, result a civil the criminal and types In other as its has argument a Booth’s is mistrial. hung jury capital difference, a that, jury a because of that premise a statement as a verdict proceeding may return sentencing is premise A to that corollary to agree. that it is unable it is conclusive agree that cannot jury’s the statement that Applying has been reached. determining point when that here, jury’s the to facts Booth views concepts the these agree, to inability the as a verdict message to court event, Booth In requiring any a life sentence. thereby given cannot be charge that a modified Allen submits is one inability agree to permissible the verdict because to allowed reach without jury must be unanimity. the court attempt by produce to A of some Although capital procedures Booth, Booth’s by fashion advocated states function principal- on the contrary procedure position Maryland 413(k)(2)in former Calhoun v. issue. We considered ship denied, (1983), Md. A.2d 45 cert. State, 297 (1984), where 993, 104 S.Ct. 80 L.Ed.2d U.S. judge error for the trial argued that it was Calhoun would be instruct life sentence jury refuse to reasonable agree not within a jury if the could imposed contention, Rejecting A.2d at 59. time. Id. said: we deliberation jury before

“Giving instruction more to hold out a bit than prompt just someone could a reasonable time to insure that the death penalty It imposed. not likewise could cause a to rush through being its called deliberations avoid back court and told that because a time passed reasonable had without a verdict the sentence would life imprison- be court, ment. The statute is a mandate directed to the As the here reached its jury. decision within a time, required.” reasonable no instruction was Thus, in Id. at 468 A.2d at 60. it is the Maryland, court’s the jury’s function determine whether total delib- beyond erations have extended time. reasonable Conse- determination, made that quently, having after it is the court which “shall dismiss the and a sentence jury impose 413(k)(7)(iii) imprisonment for life.” and former § 413(k)(2). The trial Maryland judge presiding over a § sentencing a capital proceeding jury basically before retains determining the traditional role of whether the is jury hung. The complexities by require created a unanimity questions jury might ment for all of the which a required be capital sentencing proceeding to answer in a were fully in exposed majority dissenting opinions and in Mills v. 33, (1987), vacated, 310 Md. 527 A.2d 3 sentence 367, 108 1860, 100 U.S. S.Ct. L.Ed.2d 384 This Court in opinion filed its Mills on June 1987. On July Court, measure, emergency adopted this as an amendments is, Maryland Md.Reg. to Rule 4-343. 1854. Rule 4-343 in addition of this being to an exercise Court’s constitutional Const, IV, Md. rule-making authority, response art. a § 413(1) legislative to invitation which reads: § Appeals may adopt “The Court of rules of procedure govern sentencing conduct of a proceeding conducted section, to this forms to pursuant including any be used the court or by jury making findings its written of sentence.” determinations form, I capital sentencing

Section of the verdict as adopted in 1987 and in effect at the time of the subject sentencing, resolves the earlier princi- debate over whether palship degree in the first is decided at the or sentenc- guilt requires explicitly I of the form also ing stage. Section degree principalship that first finding for a unanimity jury a beyond reasonable proven has not been has or either There is no verdict ground. middle is no There doubt. whereby jurors form some I the Rule 4-343 under § proven.” “not some conclude “proven” conclude as first unanimity to whether requiring The reason is proven either has or has not been degree principalship at the conclusion directions found the rule-mandated is “marked on principalship I If the issue of the form. VI and enter is to Section proceed proven/ ‘not to] [the ” may the jury a verdict. But That is Imprisonment.’ ‘Life declaring sentencing by automatically terminate agree principalship. it is unable to verdict form the capital IV of Comparing § IV stated above. Section the conclusion highlights I§ recog- statutorily As each mitigating factors. deals with factor, mitigating additional and as to mitigating nized findings: three factors, possible indicate one of of the (a) by preponderance find unanimously We “O circumstance exists. the above evidence n preponderance find (b) unanimously We does not exist. above circumstance

evidence that the deliberation, or n one (c) period a After reasonable 12, find a us, preponder- all more of but fewer than ex- circumstance evidence that the above ance of the ists.” capital for cases is form

No section other circumstances section. similarly mitigating structured “a in effect to conclude that the permits jury IV Section as a miti- expired has of deliberation” period reasonable (c) that circum- circumstance, option to check as to gating hand, I, on other the stance, on. In the and to move § in its conclu- It be unanimous options. must only has two unanimity, achieve either, and, if the cannot sion as whether a reason- court, the decides jury, rather than has period expired, able time so that a sentence of death may imposed. not be argument—that

Booth’s agree inability is a verdict—is Rush v. inspired by (Del.1985) 491 A.2d 439 and by Hunt, v. State N.J. 558 A.2d 1259 special verdict form in Rush asked questions, two whether the jury found an unanimously aggravating circumstance and, so, if the jury whether unanimously recommended death. A “yes” or “no” answer supplied be to each question.4 Id. at 449 n. 12. After approximately two hours deliberation, the jurors, who had already signed the form, advised the court that they could not reach a unani mous decision on the question, second asked an instruction how to fill in the special verdict form. It was in that context that the court Delaware stated:

“In unequivocal view announcement that jury was unable to reach unanimous agreement as to the sentence, that, death we hold under all of the circum- stances, constituted, such announcement by necessary implication, having verdict the same force and effect as ‘No’ written answer to No. 2.” Interrogatory Id. at 454. Hunt,

In judge a trial received a note from a jury saying cannot find a unanimous mitigat- decision “[w]e ing outweighing aggravating factor factor.” 558 [sic] that, A.2d at 1283. The Supreme Court of New held Jersey rather than send the immediately jury back for further deliberations, the trial judge should have asked “whether the note stated or jury’s] verdict whether the jury [the Id.; more time to compare State wanted deliberate.” respect question phrased 4. In this Rush deals with a like in V of form, Maryland reading: unanimously proven by “We find that the State has A PREPON- aggravating DERANCEOF THE EVIDENCEthat the circumstances 'proven’ outweigh mitigating in Section III marked circum- stances in Section IV.

yes no 157 For (1987). A.2d 279-80 Ramseur, 524 106 N.J. in from a leaps logic major some which involve reasons the follow- “likelihood,” to the court announced “concern” result: ing it might question, the right asked

“If the trial court had result- a final had reached verdict jury have learned the con- areWe rather than death. ing imprisonment error, ‘not there was trial court’s that absent the cerned likeli- a substantial but possibility a theoretical merely have been would hood,’ non-unanimous verdict that a likelihood, we cannot with returned. Confronted jury a different run the risk that require defendant remand, may defendant die. he should On might decide penalty.” the death again subjected be omitted). (citation 558 A.2d at Georgia Supreme Court argued to Rusk was (1986), cert. State, 350 S.E.2d 256 Ga. Romine v. 1912, L.Ed.2d 517 denied, 107 S.Ct. U.S. said: Georgia Court of Supreme of a that, consequences not follow because the does “[I]t differ from sentence hung question on the jury guilt, on the hung jury question of a consequences must be deadlocked truly is decision of whether judge of the trial and discretion from the sound taken jury. to the given law, codified in Delaware policy

“In contrast review Georgia expected law a under or unanimity way reach ‘one to endeavor to evidence and and, if sentence, possible, question the other’ on death recommend either unanimously and affirmatively mercy.” or 450.

350 S.E.2d at hung matter, jury whether the In the instant should form, whether a mistrial I of the the issue were, like imposed, a life sentence have been declared for the trial court to sentence, questions on the Georgia law Ark. also Fretwell v. in its discretion. See decide 158 630, Chester,

91, (1986); 708 633 Commonwealth v. S.W.2d — 578, 1367, 1379-81, denied, 526 Pa. 587 A.2d cert. U.S. -, -, 152, 422, 112 117, S.Ct. (1991); L.Ed.2d Montoya v. 160, 166 S.W.2d (Tex.Crim.App.1989), — denied, cert. U.S. -, 112 S.Ct. 116 L.Ed.2d 446 (1991).5

B Closely related to Booth’s non-unanimous verdict premise is the modified Allen charge given argument Booth’s that in this case was coercive. The ultimate paragraph Judge modified Allen Angeletti’s charge in substantially the struction Supreme which the United States Court found not in capital punishment be coercive case of Lowenfield Phelps, 231, 108 484 U.S. S.Ct. L.Ed.2d 568 was a capital prosecution, Louisiana murder

Lowenfield denied, State v. Lowenfield, cert. (La.1985), 495 So.2d 1245 (1986), 476 U.S. 106 S.Ct. 90 L.Ed.2d 704 came to the court after the denial of corpus federal habeas Circuit, (1987), had been affirmed the Fifth 817 F.2d 285 over a dissent. The Supreme Court held:

“Louisiana that if provides jury hangs, law the court shall impose imprisonment. sentence of life Petitioner naturally urges this difference charge makes the here impermissible under the Due Process Clause and the Eighth Amendment. The difference between the division of function between the in jury judge this case and the division in Allen in obviously weighs the constitution- calculus, al but we do not find it dispositive. The State in a capital sentencing has proceeding strong interest having jury ‘express the conscience of the community on the question ultimate of life or death.’ if Surely 4-343, 5. Under Calhoun v. State and current Rule it was not correct any juror agree principal- for the court to instruct that if did not doubt, ship degree proven beyond in the first had been a reasonable proven.” then the should check "not Under the form that response unanimity point, would indicate on the when that was not departure prejudicial the case. This from the rule was not to Booth. only one after from its deliberations had returned failed to achieve that it had the court hour and informed ballot, incontest- the court would first unanimity deliberate they to insist that authority have had the ably as such this cases capital is true even further. This mindful Allen, naturally we though are one and even death difference between ‘qualitative such cases that the degree reliability greater for a calls penalties and other ” imposed.’ is when the death sentence 551, L.Ed.2d at 577-78 238-39, 108 at 98 484 at S.Ct. U.S. (citations omitted). that, in a

Rush, Lowenfield, had held prior decided unanimity per se “in which lack of hearing death penalty modified imprisonment, of life in a sentence results [a coercive.” 491 being overly is fatal as Allen ] instruction parte in Ex on 453. Rush point followed this A.2d at 1089, (Ala.1987), which was also Giles, 554 So.2d 1093 prior decided to Lowenfield.

Here, inability agree that its jury advised issue, That is an principalship. to the first related unanimity. seeks Maryland procedure issue on which gave minority. did not focus charge which the court proceeding involved simply It was not coercive because State, v. Graham capital sentencing. Compare potential 131, (1992) (modified 398, 412-13, 601 A.2d 137-38 325 Md. se coercive even if the reveals per Allen charge State, 624, Md. Mayfield v. division) the numerical Nor, 687, (1985) (same). 631-32, 691-92 consider 490 A.2d and the seriousness of matter Booth ing the evidence discretion in did the court abuse its community, and to the Allen-type instruction. repeating

II Trifurcation sentencing proceeding, that his al Booth moved proceeding, be further ready the second half a bifurcated initially would decide whether so that bifurcated first-degree principal was a before addressing other issues. The judge trial denied the motion. Booth claims that the trial judge evidence, erred because such as the pre-sentence investigation report listing numer crimes, ous prior prejudiced his hearing on principalship. brief, however, After Booth filed his this Court decided v. 551, Wiggins 324 Md. cert. (1991), A.2d 1359 — denied, -, 1765, U.S. S.Ct. 118 L.Ed.2d 427 (1992), held that it was not error for a judge trial refuse to order separate hearing on the principalship Id. at 578, issue. Indeed, A.2d 1372. well before Wiggins this permissible Court decided that it was to con together sider the issue principalship aggravation with the Colvin, and mitigation State issues. 314 Md. 17 n. 548 A.2d 514 n. 5 We reaffirm those holdings, both of which relied on Rule 4-343. argues

Booth also judge a trial has discretion to principalship bifurcate the issue from the other issues in a sentencing proceeding, question left unanswered Wig- gins. 324 Md. at 597 A.2d at 1372. Because the trial denied judge ground that, bifurcation on the 4- under Rule 343, “this court is grant motion,” without to authority the Booth submits that there was error requiring reversal.

The trial judge did have discretion to bifurcate the sentencing proceeding in order separate to out the 4-343, issue. principalship Rule and the sentencing form it incorporates, binding. are The rule makes princi clear that and palship sentencing-related the other issues are resolved in a unitary sentencing proceeding. The applies rule “whenever a sentence of death is sought under ... 413.” 4-343(a). Rule 4-343(e) Under Rule the sentencing form is followed, to except provided (f). be as in section The form plainly contemplates jury that one will complete the form in one proceeding. Policy reasons advanced by Booth for the separating principalship issue from other sentencing issues were considered and in our rejected rule-making when Rule 4-343 capacity adopted. They were recon- dissent in Colvin was argument the sidered when rejected. to would further that refusal bifurcate suggests is an principalship because eighth the amendment

violate and penalty, Gregg than an issue guilt, issue rather 2909, 2933-34, 49 153, 190-91, 96 S.Ct. 428 U.S. Georgia, issues should be (1976),suggested guilt that L.Ed.2d But Booth proceeding. in a bifurcated separately decided degree first before of murder the guilty had found been proceeding began. sentencing Ill Mitigating Evidence A refusal to list judge’s that trial contends Appellant on the sen- circumstances mitigating certain nonstatutory Specifically, error. form constituted reversible tencing mitigating factors to eleven additional Booth asked have dependen- and form, including alcohol chemical added to the his and “emotion- parents, abuse cy, verbal physical acknowledges 55. Booth Appellant’s Brief at al trouble.” question a catch-all that that form includes mitigating factors. nonstatutory consider jury allows assumes, however, that failed to consider his jury He mitigation—an assumption apparently evidence offered in finding that there from the unanimous solely jury’s derived From assumption circumstances. mitigating were no list the the “court’s failure to nonstat- Booth concludes that made simply instruct utory properly factors would fail consider “relevant likely” it more it more and made difficult obtain mitigating evidence” Brief Reply at 9. Appellant’s review. appellate effective that, in this an unconstitutional barrier way, Booth asserts mitigating evidence. to consideration erected cases does not a defendant these We have held that form on furnished right have listed have mitigating potentially issues of a nonstatutory to the jury 162

nature that generated have been by the II, evidence. Booth 220-22, 306 Md. at 507 A.2d at Nevertheless, 1122-23. Booth argues that subsequent opinions by United States Supreme Court under the eighth amendment of the United States Constitution have altered this rule of Booth II. He cites Mills 367, v. 486 Maryland, 1860, U.S. 108 S.Ct. 100 L.Ed.2d (1988), 384 Hitchcock 393, 481 Dugger, U.S. 107 1821, S.Ct. 95 (1987), L.Ed.2d 347 and Skipper v. South Carolina, 1, 476 1669, U.S. 106 (1986). S.Ct. 1 L.Ed.2d agree State, however,

We with the that Boyde v. Califor- nia, 370, 1190, U.S. 110 S.Ct. (1990), L.Ed.2d 316 more directly point than the trio of cases cited by Booth, and that Boyde effectively precludes the argument asserted Booth. Boyde argued that the sentencing form then used by California courts did not allow the consider his background and character because the “unadorned ver- “ sion” of the mitigation catch-all instruction read: ‘Any other circumstance which extenuates the gravity of the ” crime though even it is legal not a excuse for the crime.’ 374, Id. 110 S.Ct. at 1194.

The constitutional standard for reviewing an alleg edly ambiguous jury instruction is “whether there is a reasonable likelihood that the jury has applied the chal lenged instruction in a way prevents the consideration of constitutionally relevant evidence.” Id. at 110 S.Ct. at 1198. The Court held that there was no such reasonable likelihood in because, Boyde, part out of all of the admitted, evidence most of it related to the defendant’s background character, and because jury was “[t]he instructed that it ‘shall consider all the evidence which ” has been received during any part of the trial of this case.’ Id. at 110 S.Ct. at 1199. See also Bell, State v. (S.C.1991) S.E.2d (following Boyde), cert. de —nied, U.S. -, 112 S.Ct. 116 L.Ed.2d 791 makes clear

Boyde that there is no constitutional requirement potential that every mitigating circumstance be listed on the sentencing clear, form. It is also on the other

163 considering from not be barred hand, may jury that the 374-75, evidence, Mills, 486 U.S. at constitutionally relevant 110, 104, Oklahoma, 455 U.S. 1865; v. Eddings 108 S.Ct. Ohio, 1, (1982); Lockett v. L.Ed.2d 102 S.Ct. L.Ed.2d 973 2954, 2964-65, 57 586, 604, 98 S.Ct. 438 U.S. their retain the states although opinion), (1978) (plurality that evidence determining how discretion traditional — U.S. -, Tennessee, considered, v. Payne should be (1991); v. Walton 2597, 2608, 115 L.Ed.2d 111 S.Ct. 3055, 111 L.Ed.2d 511 639, 110 Arizona, S.Ct. 497 U.S. 484, 490, Parks, 494 U.S. (1990) opinion); (plurality Saffle In case this 1257, 1261, L.Ed.2d 415 110 S.Ct. jury applied likelihood that there is no reasonable rel constitutionally consideration prevent instructions to evant evidence. form 8(a) IV, Question

Section by find unanimously stated: “We jury to Booth’s submitted following addition the evidence that preponderance 8(b) read: Question exist.” mitigating circumstances al aby all find us, than but fewer or more “One additional following that the of the evidence preponderance of the sentenc V exist.” Section mitigating circumstances ing provided: form aggravating weigh shall juror

“Each individual against to exist unanimously found circumstances exist, as unanimously found mitigating circumstances found circumstances mitigating against any as well to exist. juror individual A proven by has that the State find unanimously “We ag- that the THE EVIDENCE OF PREPONDERANCE III Section ‘proven’ marked circumstances gravating IV. Section circumstances mitigating outweigh the or No]” [Yes on how instructions unambiguous gave judge

The trial He instruct- questions. these to resolve evidence apply the sympathy to feel causing you factor “[a]ny ed the to be by you considered may be Mr. mercy toward or circumstance____”6 presumed mitigating have considered the those instructions and to have followed evidence. presented himself Booth

Through other than witnesses childhood, problems his on his troubled extensive evidence Sever- problems. his emotional drugs, alcohol and with nonstatutory, about principally al of his witnesses testified in- judge’s The trial mitigating circumstances. potentially found to such evidence could be structions were clear that one sentencing provided any form mitigating. be mitigating factors nonstatutory find jurors any or more to There was weighing process. them in the and to consider persuade Booth could not simply because judicial no error mitigation. any to find by preponderance a any juror B right present to that his constitutional argues Booth also ruling the trial infringed by judge’s mitigating evidence was cross-examina- open” to “wide exposed that Booth would be if Booth limited his testimo- to even testify, tion if he chose mitigation. ruling This potential direct to ny on Maryland Guy law. See long-established with accord (1899). 29, 32-33, According to A. 90 Md. however, mitigation Booth, principalship the fact that unconstitutionally proceeding in the same were decided testimony, mitigating his own presenting him from impeded him exposed to the latter would have present to because merit to this former. There is no on the cross-examination argument. judge given by also directed considera- the trial

6. Other instructions stated, "Now, judge point what mitigating At one evidence. tion of is a law, any it is fact or factor about mitigating circumstance? In imposition of a life which would make the or his crimes defendant sentence penalty.” imposition appropriate than the of the death more crime, another, the evidence about the must review all of At “You background, if other his Booth and about Mr. determine by previously proven listed has been mitigating not circumstance evidence.” preponderance of the / law, is As a matter constitutional it settled right against fifth amendment self-incrimination from cross-examination a criminal defen protect does States, dant who chooses to Brown v. United testify. See 148, 154-55, 622, 626-27, 2 356 U.S. 78 S.Ct. L.Ed.2d 589 sentencing No different rule in the applies phase because, Lockett, capital simply case under the defendant has a constitutional evidence. right present mitigating alternative, Maryland pointedly provides law an of which 4- purpose Booth availed himself. “The obvious of Rule 343(d) penalty eligible, afford the death convicted murderer the an opportunity to make unsworn statement mitigation of the death without penalty being subject II, cross-examination.” 306 Md. at 507 A.2d at 1111. “is not Although testimony allocution the conven sense,” tional it may be considered au thority. Id.

Moreover, ruling presentation did not bar the mitigating through right evidence Booth. Booth still had a testify, subject to cross-examination. He made a tactical so, decision not to do after probably considering right his and considering potential mitiga- allocution that evidence of presented tion would be other through witnesses.

IV Life Option Without Parole The next claimed error is that the trial judge improperly refused to submit to the addition to life jury, imprison- death, ment or sentencing option third of life imprison- possibility parole. ment without murder, At the time of Irvin Bronstein’s there was no such sentence. The Assembly General added the third option to death sentencings by Chapter 237 of the Acts of 1987. 237 also Chapter required give the State to written notice to the thirty days defendant before trial of intent

166 412(b)(2). See § life 237 parole.7 Chapter seek without 1, 1987. 237, ch. In took effect 1987 Md.Laws 2. July — denied, 1, v. cert. 269, Md. A.2d Collins 318 568 U.S. -, (1990), 111 L.Ed.2d 805 held 110 we S.Ct. parole option only “the is that life without occurring after the date of available for offenses effective Id. 1, 1987.” at at 15. provision, A.2d July argument that lack of the third Collins also rejected under Beck v. unconstitutionally limited the option Alabama, 65 L.Ed.2d 392 447 U.S. S.Ct. 298, 568 15. (1980). 318 A.2d at Md. that Collins is argued distinguish-

At Booth sentencing, Col- an really was not issue “principalship able because lins.” Before this Court nominally Booth has revived He contends that the failure the State argument. sentencing option eighth offer a third violated to the federal under fourteenth amendments constitution Alabama, v. not supra. Beck Beck held that states could death-eligible murder and force a to decide between an on a the evidence warranted instruction acquittal when hand, On other lesser included offense. California Ramos, 3446, 3456-57, 992, 1007-09, U.S. S.Ct. Beck (1983), held rule of L.Ed.2d 1171 phase capital of a case. Booth applicable penalty in the distinguishable Booth’s sen- Ramos argues that because an tencing jury guilt—principalship—and decided issue of to Beck Ramos. is closer than We therefore this case cases argument Maryland capital this because reject issue it is issue of guilt; is not an an principalship Part supra See sentencing. II. argument, more he on a second concentrates time, claiming this Court the first

makes before parole the life 1989 amendments made without § any requirement notice and defenses based Booth waives both the 7. laws, might prohibitions against post as relate ex insofar both on facto parole sentence in this case. Because of our resolu- to a life without validity no to consider the and effect tion of this issue we have reason of those waivers. capital to his offense. option applicable Chapter 677 of the imposition Acts of 1989 disallowed of the death on penalty any person who was retarded at the time of the mentally See 412(f)(1).8 murder. This was the only substantive § change by Chapter made 677. Section § made “this legislative apply bill Act to indi retrospectively awaiting viduals who are trial or sentencing by the courts 1, of this State on 1989 and July prospectively any individual sentenced on or after July 1989.” Booth Chapter 8. 677 of the Acts of 1989 amended 412. Section 1 of the § (a), (b), (c), (d) changes bill made no in subsections of 412. Set remaining provisions Chapter (capitals forth below are the existing indicate new matter added to then duced, law in bill as intro- capitals existing underlined indicate new matter added to law passage, amendments to the bill in the course of and brackets law). existing indicate matter deleted from then section, "(e)(1) [‘imprisonment] In this THE FOLLOWING TERMS HAVE THE MEANINGS INDICATED. (2) possibility parole’ ‘IMPRISONMENT for life without imprisonment means for the natural life of an inmate under the institution, custody including of a correctional the Patuxent Institu- tion. (3) ‘MENTALLY RETARDED’ MEANS THE INDIVIDUAL HAS SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING QUOTIENT AS EVIDENCED BY AN INTELLIGENCE OF 70 OR BELOW ON AN INDIVIDUALLY ADMINISTERED INTELLIGENCE BEHAVIOR, QUOTIENT TEST AND IMPAIRMENT IN ADAPTIVE AND THE MENTAL RETARDATION IS MANIFESTED BEFORE THE INDIVIDUAL ATTAINS THE AGE OF 22. (f)(1) was, person guilty If a degree found of murder in the first COMMITTED, AT THE TIME THE MURDER WAS less than 18 years old the time the [at committed] murder was OR IF THE PERSON ESTABLISHES BY A PREPONDERANCE OF THE EVI- WAS, DENCE THAT THE PERSON AT THE TIME THE MURDER COMMITTED, RETARDED, WAS person MENTALLY shall be imprisonment imprisonment sentenced to for life or for life without possibility parole may not be sentenced to death. (2) imprisonment The sentence shall be for life unless the State person writing days prior notified the at least 30 to trial that the imprisonment State intended to seek a sentence of for life without possibility parole under this section or § 413 of this article. ENACTED, SECTION 2. AND BE IT provi- FURTHER That the apply retrospectively sions of this Act to individuals who are await- ing sentencing by trial or July the courts of this State 1989 and prospectively July individual sentenced on or after 1989. ENACTED, SECTION 3. AND BE IT FURTHER That this Act July shall take effect 1989.” 168

argues that 2 has changed Section result Collins and parole provisions made the life without § § apply retrospectively. this argument

Failure to raise below is a basis for reject- 8-131(a). it. Rule ing Maryland Using See our discretion 8-131(a), however, Rule argu- under we shall address the ment.

There no in Chapter legisla is indication 677 or its history Assembly tive the General intended to make other anything retroactive than the defense of mental retar dation. The life parole option, without unlike the mental defense, retardation governed by as well as 412. § § In it is 413 that for the particular, provides specific § 413(k). sentencing options. Legislature See Had § parole retroactive, intended to make the life without option it would also made the rele undoubtedly have retroactive in Chapter vant subsections of somewhere § its express retrospectivity limited statement to “the of this Act.” 1989 Md. ch. provisions Laws 2.§ Y Ex Post Facto Law 18, 1983, murder, the date of the May death-eligible On statutory mitigating circumstances included:

“The murder committed whilé the capacity appreciate criminality defendant to of his conduct or requirements conform his conduct law was as a result of mental substantially impaired incapacity, disorder, disturbance, mental emotional or intoxication.” (1982 added). RepLVol.), 413(g)(4)(emphasis By Md.Code § signed by approximately an Act the Governor one week 1, 1983, the July after the murder and effective General 413 to intoxication as an enu- Assembly changed remove mitigating Chapter merated circumstance. 296 of the Acts argues change of 1983. Booth violates federal and constitutional Maryland prohibitions against ex post facto laws.9 second, i.e., 1988,

At his sentencing hearing, Booth moved to have diminished as a capacity result of intoxication included as an explicit mitigating circumstance on the sen- tencing form submitted to the The court denied the jury. here, motion. At sentencing at proceeding issue Booth’s counsel adopt[ed] for the Court’s de “renew[ed] novo consideration all motions previously filed on his behalf in connection with his for the murder of Irvin Bronstein.” The trial court ruled on previous all motions by entering, novo, its prior rulings. de

Booth’s complaint change is that the in Maryland’s stat ute has made more burdensome a murderer’s use of intoxi cation as a mitigating circumstance. Prior to the 1983 enactment the burden was prove on the murderer to aby preponderance of the evidence capacity diminished as a result If fact, of intoxication. the jury found that then the statute determined that that circumstance mitigating was and that it was to in weighing be considered whether the aggravating circumstance outweighed intoxication and any other mitigating circumstances. After change, the mur derer has the burden of proving by a preponderance of the evidence both the fact of capacity diminished due intoxi to cation and that that fact is a mitigating circumstance. See State, 387, 437, 218, Hunt v. 321 Md. (1990), 583 A.2d 242 — denied, U.S. -, 117, cert. 112 S.Ct. 116 L.Ed.2d 86 (1991); 439, 482, 1236, Foster v. 304 Md. 499 A.2d (1985), denied, 1258 1010, 3310, cert. 478 U.S. 106 S.Ct. 92 (1986). L.Ed.2d 723 Both before and after the 1983 amend ment, the weight given amount of be intoxication as a Const, I, provisions 9. Maryland The are U.S. art. 1 § cl. and Const. Maryland prohibition Decl. of Rts. art. 17. The been has viewed as having meaning Department the same as the federal. Anderson v. 217, 223, Hygiene, (1987), Health & Mental 310 Md. 528 A.2d denied, (1988). cert. 485 U.S. 108 S.Ct. 99 L.Ed.2d 247 turned on the of each judgment circumstance mitigating juror.10 individual is de against

The ex laws prohibition post facto categories. Youngblood, historic Collins v. fined three 2715, 2721, 111 37, 110 L.Ed.2d 497 U.S. S.Ct. previous crime an act punishes as a “[A]ny statute which done; committed, innocent when which was ly crime, for a punishment more makes burdensome commission, charged one with deprives its or which after at the according law crime of defense available any committed, is as ex prohibited post act time when the facto.” Ohio, 269 at -, Beazell v. (quoting at 2719

Id. S.Ct. 68, 68, (1925)). L.Ed. 216 167, 169-70, 46 S.Ct. U.S. Booth of defense change deprive 413 did the time that was available crime of murder at the only procedures change, The which involves murder. trial, in of the other does not fit either sentencing phase of categories. post ex facto had conse appellate procedure in trial or

Changes to the defendant than disadvantageous far more quences held not to 413 have been change Maryland’s the Collins; Dobbert v. clause. See post offend ex facto (1977); 2290, 53 L.Ed.2d 344 Florida, 432 97 S.Ct. U.S. (4th Cir.1989), 117 cert. 881 F.2d Thompson, Evans v. — 3255, 111 L.Ed.2d 764 -, denied, S.Ct. U.S. (4th Cir.1986), Mest, F.2d 1069 (1990); States v. United 846, 107 93 L.Ed.2d denied, S.Ct. 479 U.S. cert. in Texas law change a (1986). Collins, example, In for reviewing a permitted cases noncapital jury deleting punish a by verdict improper reform an court to whereas, at the under the law law permitted by ment not was intoxicated example, juror finds that the defendant a who 10. For considered as a intoxication is to be is instructed that and who personally believes that intoxication mitigating but who circumstance conduct, very give will little responsibility for one’s not excuse does honoring a balancing process when weight to intoxication in the mitigating circumstance. statutory is a declaration that it offense, the result of improper sentencing time of the an Applying change trial. this on review of verdict was new improperly imposed prior change a sentence was an post ex violation. facto significance

Of more here is that overruled Kring Collins Missouri, 107 U.S. S.Ct. 27 L.Ed. 506 In prosecutor accepted and trial court a defen- Kring, which, dant’s murder under plea guilty second-degree homicide, an operated state law at the time of the as murder acquittal companion first-degree charge. however, sentence, defendant, The and the appealed Supreme Court of Missouri reversed and remanded. The crime, relevant after the but before changed state law had his retrial plea. Kring defendant entered On murder, his prosecuted first-degree objection, over In the United Kring was sentenced to death. States Su- In preme overruling Kring, points Court reversed. Collins changed out that “Missouri had not of the elements of murder, might pleaded the crime of or the matters be as an excuse or for the conduct justification underlying changed respecting such a it had its the effect charge; law of a a lesser included offense.” 110 guilty plea to S.Ct. 2723. Dobbert,

In a death case recommended penalty imprisonment life a ten-to-two The trial majority. judge a sentence of death. imposed overruled Under murders, the law effect at the time of the a jury’s binding recommendation was on the trial Under the judge. at the time trial the jury’s advisory. law view was violation, found no Supreme post Court ex because facto new statute altered the in simply employed methods “[t]he determining imposed; whether the death was to be penalty in change quantum punishment there was no the of at- 293-94, tached to the crime.” 432 U.S. at 97 S.Ct. at 2298. in Thompson change Virginia’s Evans v. involved a death-sentencing permitted law Commonwealth again to seek the death pro- a new penalty sentence, ceeding after a death had previously imposed, for vacated when reviewed error. Under the law been murder, of a death vacating effect at the time the sentence of automatically error effected a sentence procedural The noted in the imprisonment. change life Court that the procedures “does more than the Virginia change statute no imposition the of the death When surrounding penalty____ committed, was an offense for which the offense was [it] imposed. warning pun- death Fair of penalty could be at 120 petitioner.” thus afforded F.2d ishment was omitted). (citations in a insanity an defense

United Mest involved States to murder committed prosecution. prior murder The was Comprehensive Crime by Congress the enactment Insanity included Defense Act of Control n. 1. The statute 1984. F.2d Reform Act of Evidence, the result that changed the Federal Rules of with stat- from psychiatric expert prohibited the defendant’s could “discern the opinion an whether the defendant ing his to con- wrongfulness capacity behavior had he of the law should requirements form his behavior The Court reasoned that the so Id. at 1071. have chosen.” change in the Rules Evidence testimony or different order “does not receive less rather, but, changes style convict the offender can be used to establish both and answer that question Every thereto. actual fact the offense and defense of the defendant present- the mental condition concerning or, matter, for that psychiatrist the defense’s able as is still as admissible and psychiatrist government’s change, ... as the enactment before. required after rather, categories of these of witness- either is whether its findings fact ... as to what can the trier of es instruct which the wit- questions on the factual about should be now testify.” and can ness could before omitted). (footnote at 1071-72 Id. defen- change Maryland in the statute the

Following the evidence producing continues to have the burden dant possible as as persuading many jurors intoxication and of The find as a fact that the defendant was intoxicated. change only procedure determining affects the whether fact, found, if mitigating. absolutely is It is clear that potential amended 413 does not remove intoxication as a § circumstance in death The mitigating penalty proceedings. to the preamble amending act declares: Supreme “The General Assembly aware has held that the intoxication of a Court evidence of involving defendant in a case the death must be penalty mitigation. as a factor in allowed considered mitigating General further believes that such Assembly eighth mitigating factor should considered under the be highlighted appear factor and not so as to specifically more as than as one of the factors that justification many mitigation. striking as In may possible be considered factor, mitigating intoxication from fourth word eliminating is not the consideration of Assembly General altering the indi- emphasis presently intoxication but cated____” matter, 296 of the Acts of 1983.11 In the instant

Chapter as circumstance potential mitigating intoxication was The trial instructed: presented jury. judge properly consider, I consider repeat, you “You are not to are drugs mitigating alcohol or circum intoxication from however, may, stance 4. You consider that Number 8, if choose.” mitigating you circumstance Number so change The amendment to 413 did not fact that first-degree during murder commission of a robbery death, a fact of which punishable by pre-existing Maryland Dobbert, 432 gave law Booth clear notice. See U.S. at 297- (death at 2300 in effect at time of penalty S.Ct. law found unconstitutional murders later nevertheless “clearly severity indicated Florida’s view the of murder degree punishment legislature and of the which the 685, 754, impose”); wished to 305 Md. Grandison Legislature may giving appearance 11. The have desired to avoid equating voluntary involuntary with mental intoxication illness. (change specifying statements impact A.2d to in capital of murder victims used families be from “quantum sentencing change punishment did not of denied, 873,107 cert. crime”), 479 S.Ct. U.S. attached II, 222, 507 (1986); 174 306 Md. at 38, 93 L.Ed.2d v. 695, 737, Tichnell (same); 1123-24 Md. A.2d at 287 830, (1980) (even 852 if statute were Maryland A.2d 415 in mitigation before addition catch-all unconstitutional as to the struction, warning statute defendant “fair gave act of to the degree Maryland ascribes culpability Evans, The did not murder”); F.2d at 120. amendment 881 finding in factors consideration any jury’s remove from previously mitigation; nor did it make inadmissible Mest, 789 F.2d at States v. See United evidence. admissible Collins, 110 also n. 3. see 1071-72; S.Ct. at 2719 post ex prohibition against of the purposes None prohibition by applying laws would served be facto Graham, 960, 24, In 450 U.S. 101 S.Ct. Weaver here. Court, (1981), involving case Supreme in a L.Ed.2d the time of prescribed additional to that at punishment af- offense, protections the clause principal identified two First, legislative sought “the Framers assure that fords. their effect individuals warning permit Acts fair and give 450 U.S. meaning explicitly changed.” on their until rely out, 28-29, pointed As have already 101 S.Ct. at 964. we in the fair murder gave warning first-degree § potentially punishable of a was robbery commission in discussion of To Professor Tribe his paraphrase death. Dobbert, interest the benefits reliance [on “[Booth’s] men- deserves hardly intoxicated while he being murdered] Tribe, American Constitu- L. See tion, respect.” alone let Law 10-3, (2d 1988). ed. tional at 640 governmental power by Second, restricts ban also “[t]he legislation.” restraining potentially and vindictive arbitrary 29, “are at 964. Even murderers 450 U.S. at S.Ct. a legislative lynching.” than something entitled better Dobbert, case, in this supra, Tribe, But as L. at 640. 62, Bill legislative abuse. House no actual risk of there was 296 of the Acts of Chapter which later became was legislative the 1983 session. bill was intro- pre-filed in the House of on 1983. It Delegates January duced the House on March 23 on passed April and the Senate Attorney approved 1983. The General the bill for constitu- on 1983. The Bron- tionality legal sufficiency May May steins were murdered on 18. The action taken only the bill after the murders its the Governor. signing by have, not, could did contem- Plainly Legislature not as plate express John Booth when it deleted intoxication an mitigating circumstance on the form. See also Tribe, (speculating legislation L. at 640 n. 26 supra, adding response an circumstance in aggravating events of a still particular might murder violate the ex if “in post ban the amendment were drawn terms facto enough encompass just particular broad the individu- specific killing al who is convicted of the at issue ultimately criteria”). but else meets similar anyone who that, cases, argues notwithstanding the federal this procedural Court has twice decided that changes violated Sutton, the ex He post ban. relies Gluckstern v. facto — 634, 898, denied, U.S. -, 319 Md. 574 A.2d 111 cert. 369, (1990), 112 331 S.Ct. L.Ed.2d and Anderson v. Depart ment Health & Mental 310 Md. Hygiene, A.2d of (1987), denied, cert. 485 U.S. 108 S.Ct. L.Ed.2d 247 Neither case dealt procedural with changes the criminal trial at which the sentence was imposed—the of type changes with which we are here Rather, they concerned. dealt with which changes had the effect of more “mak[ing] punishment burdensome the for a Collins, at -, crime.” 497 U.S. at S.Ct. 2719. who, Anderson concerned a defendant as a consequence having of guilty first-degree been found not of murder by reason was committed to a mental insanity, institution under an earlier sought statute. When Anderson an admin- release, statute, istrative a circuit court ruled that the new placed proving the burden of on the competency inmate, applied. This held that Court Anderson’s commit- in the portion judgment ‘disposition’ ment was “the case,” implicat- clause post so that the ex was criminal facto 224-25, at 528 A.2d at 908. United States ed. 310 Md. reviewed, including Court decisions were Weaver Supreme disadvantageous change Graham, holding that supra, applied to a good time credits which was calculating change, the committed before convict crime was whose concluded: clause. Anderson post violated the ex facto passed after the indicate that law opinions “These act, rights, affecting substantial commission of a criminal having committed consequences changing disadvantageous in a way criminal act ex facto defendant, post prohibition.” falls within added). “Be- (emphasis at 909 528 A.2d 310 Md. operate[d] concededly in the law change cause the release disadvantage” respect possible with Anderson’s confinement, post we held that ex from criminal facto 230, 528 A.2d at 911. offended. Id. at prohibition added a disad- Gluckstem, change the relevant law In Institu- for an inmate at Patuxent requirement vantageous In the Institu- approval addition parole. tion to obtain Review, serving life sentences were inmates tional Board Sutton, Governor. approval to obtain required plus years, life twelve imprisonment sentenced to who was of the Board of Review but approval was able to obtain that the could not We held State not that of the Governor. recom- if Board of Review alone the prevent parole his mended it. Dobbert, 282, 432 U.S. 97 S.Ct. distinguished

Gluckstem Gluckstem, ground in on the 2290, on the State relied procedure in trial whereas change a that “Dobbert involved change parole requirements.” case involves present case, course, Booth’s 670, A.2d at 916. 319 Md. at procedure. in trial change involves reasons, changes 413 do violate these For all prohibitions. post ex facto

VI Allocution Booth asserts that the trial court’s instruction on allocution, coupled part with of the prosecutor’s rebuttal argument, unfairly denigrated Booth’s allocution. Cited in State, support of Harris v. argument 312 Md. V). (1988) 539 A.2d There is no error because {Harris Booth, counsel, through consented to the In instruction. event, Harris V is inapplicable.

In Harris the V defendant allocuted after the last sworn witness had testified in the defendant’s case at sentencing. There was no rebuttal so that the jury instructions followed the close of the defense presentation. Harris v. No. Term, 1987, Sept. Joint Record Extract Vol. at 740-50.

In Harris V the court instructed the jury concerning allocution as follows: “ ‘A Defendant has a right allocution, common law

i.e., to address the sentencing body mitigation of pun- ishment, however, his statement in allocution is not evi- dence or testimony. During allocution the Defendant is oath, not under and thus not subject to the penalties of perjury and to cross-examination.

“Any statement Jackie Harris makes you should not regarded be as evidence but rather as his statement ” mitigation of punishment.’ V,

Harris 312 Md. at But, 539 A.2d at 651. in that same charge court had instructed the jury “that it was ” ‘to decide the case Id. only ... evidence.’ saidWe that, circumstances, under those above-quoted instruc- tion “in effect told the jury that it should disregard any allocution, facts stated during because those facts were not evidence or testimony.” Id.

The case before us does not present problem occurred in Harris V Here, Booth did not during allocute the testimony phase of the sentencing proceeding. Here, after the testimony phase counsel and the court discussed the instructions court proposed give and which

had been furnished in writing to counsel. Those instruc- nothing allocution, tions contained because, about as coun- advised, sel expressly were the trial court intended to instructing reserve on allocution until Booth elected wheth- er or not to allocute.

In the general, introductory phase of its instructions the court told the that it must jury evidence, consider only exhibits, that evidence included testimony, and stipulations, indictment, but did not include the matters ruled inadmissi- stricken, ble or questions, objections, arguments counsel. jury The was cautioned not to be influenced by questions or comments from the during court the course of the proceedings. Then the court instructed that “[o]pening closing arguments statements and of the lawyers are not evidence in this case.”

Following charge, court’s argued. State At the conclusion of that in argument, the course of a bench conference on scheduling, defense counsel mentioned that Booth would allocute the middle of the defense closing argument. scheduling When the arrangements were re- solved, the court asked for language allocution “for me to add to my final instructions.” The State asked that the jury evidence, be told that allocution is not oath, not under cross-examination, not subject and “is presented at this phase purpose, trial for whatever if any, jurors] [the find appropriate.” then specifically asked defense if counsel he court that,”

had “any objection to to which defense counsel re- plied: “Actually, no. We would not have objection that.”

Before defense counsel his began summation the court told jury during the course of argument permitted would be to address allocution, that it evidence, not testimony, oath, was and not under but that it genre the “same as the arguments of coun- sel.” The court told that it use “may allocu- [the deem purpose you appropriate____” for whatever tion] charge. to this objection supplemental no There was arguing the opened the summation Defense counsel allocuted, issue, then Booth and first-degree principalship Booth read mitigation arguments. counsel concluded with statement, in he denied prepared which his allocution from and in he Mr. or Mrs. Bronstein which stabbing either others had personal history much of the which confirmed mitigation. of possible testified for purposes rebuttal, the jury In of its the State reminded the course evidence, calling strange hybrid not it “a that allocution is information, false, argument.” it true or be [of] the defense to that character- objection by There was no ization. problem demonstrates that the

This factual review State, Harris V Hunt v. in presented recently more cert. 438-41, 218, (1990), 583 A.2d 243-44 321 Md. — U.S. -, denied, (1991), 116 L.Ed.2d 86 S.Ct. instructs the jury is not found here. When the court consider and that allocution is not evi only evidence allocution, dence, after the has heard both evidence and jury led to jury may there is the obvious risk that be potentially from its consideration of eliminate allocution Hunt we com inwhy circumstances. That is mitigating jury mented that “the court should not have told the ” testimony.’ is not evidence or 321 Md. at ‘allocution A.2d at 244. That risk is not here. When presented case that the should consider charged jury the court this evidence, the jury there was no allocution before only and, indeed, did not there the court know whether would be Then, charge after the and after the allocution. State’s when the court learned that there would summation-in-chief allocution, judge gave supplemental instruction be Although limited to allocution. the court solely that was evidence, specifi it also instructed that allocution was “may it use for cally told the [the allocution] In it purpose you appropriate.” deem the context whatever clear that sufficiently supplemental instruction rule, allocution, special peculiarly applicable dealt with a discretion, under its jury, could use allocution purpose appropriate. deemed Further, general even if the instructions could reasonably special given allocution, read into the instruction later be argument Booth’s on the allocution instructions does not analysis. Compare Franklin v. error require plain even a 116, 126, 319 Md. 571 A.2d 1212-13 here This is because there is more than the lack of simple objection given. an to the instruction as Here defense counsel advised the court that there no affirmatively was the instruction the court objection immediately Error, if gave jury. any, thereafter has been waived. State, Mills v. 33, 40, 3, (1987) See 310 Md. 527 A.2d 6 (defense counsel’s statement that acceptable waives vacated on other process), claimed error voir dire 367, 1860, grounds, 486 108 100 384 U.S. S.Ct. L.Ed.2d II, 185, (1988); (same); 306 Md. at 507 A.2d at 1105 State, Thomas v. 294, 310, 6, (1984) 14 301 Md. 483 A.2d denied, 1088, 1856, cert. (same), 470 U.S. 105 85 S.Ct. State, White v. (1985); 719, 729-31, L.Ed.2d 153 Md. denied, 201, (1984) (same), cert. 481 A.2d 205-07 U.S. 1779, (1985); Calhoun v. 105 S.Ct. 84 L.Ed.2d 837 563, 579-80, (1983) (same), Md. 468 A.2d denied, cert. 466 U.S. 104 S.Ct. 80 L.Ed.2d 846 if the could Finally, jurors reasonably incorporated have general special instructions into the instruction on allo- cution, on Booth’s counsel object then it was incumbent request complete or to a more instruction under which the done, further. That matter would be clarified but deprive the failure to do so did not Booth of a fair trial. Franklin, supra. See of the matters in substance referred Booth in had in mitigation by general allocution covered other defense witnesses. been

YII Question Hypothetical Karl, Booth called Dr. Norman hearing theAt he adminis- testified that had who psychologist, a licensed Booth and had tests to psychological battery tered a from things, that Booth suffered determined, among other Dr. Karl testified that disorder.” personality a “borderline he on the test results and opinion entirely his he based regarding information Booth. On other ignored purposely following occurred: cross-examination, colloquy find, back surprise you itWould “PROSECUTOR: after— shortly 1984 or Objection.

“DEFENSE COUNSEL: “THE COURT: Overruled. 15— During allocution, page

“PROSECUTOR: Honor. Objection, Your “DEFENSE COUNSEL: “THE COURT: Overruled. as Defendant described himself —the

“PROSECUTOR: wrong nothing I do not think there is ‘I am not insane. me, I normal anti-social behavior except that have with patterns.’ Objection.

“DEFENSE COUNSEL: “THE Overruled. COURT: can make that KARL: I don’t think Mr. Booth “DR. diagnosis.” question hypothetical, as a

Characterizing prosecutor’s the assumed impermissibly the argues prosecutor Booth that of a rule created by not in contravention facts evidence prior our cases. Goodman, v.

Booth relies on Commonwealth Bank 128 464, 1005, (1916) (“Questions asked an 452, 97 A. 1010 Md. facts ought upon on cross-examination to be based expert there is no not to assume facts which proved ought Independent Russian Ortho- Holy Trinity evidence.”) Comm’n, 406, 414, v. Roads 249 Md. dox Church State (1968) (not to exclude judge error for trial A.2d foun- expert proper to without question cross-examination dation or proffer). Compare Thomas v. Fidelity & Casu- 299, 317, (1907) Co., (“The 106 Md. 67 A. alty rule question expert that a to an hypothetical witness must be case, upon proved based facts the does not apply cross- examination.”).

Resolution of this seemingly conflicting language in our cases is not to decide the required issue here. The question party propounding hypothetical may include time, therein facts are in evidence at that or which which at a later time in party prove party’s able Critzer, case. See State ex rel. 230 Md. Stickley 290, 186 A.2d Here the matter incorporated question into State’s was statement the party That statement opponent, clearly proved Booth. could be through the of Booth’s allocution at transcript prior sentencing. transcript part That is a of the of the records Circuit Court for Baltimore this criminal cause. City very Thus, analyzing ground the issue on the assigns general objection sentencing, here for the made at the trial did not abuse his discretion judge by allowing incorporate prior Booth’s statement of his prosecutor question mental condition. The included the reference own page in the of the transcript prior proceeding where statement, Booth’s quoted, State could be found. This counsel customary courtesy gave between defense verify counsel the opportunity accuracy quota tion. It became for the State later to introduce unnecessary transcript prior of Booth’s statement because Dr. Karl And, instructed, did not take the bait. as the court incorporated question factual material into the was evidence.

Nor Booth’s statement or unduly preju- irrelevant dicial. The that Booth had jury already previously knew tried and of the Bronstein murders. Dr. been convicted that he diagnosed Karl had testified Booth with a borderline disorder, and even hinted at mild personality damage, brain Booth. The entitled to interviewing without ever State was

183 Dr. gauging by opinion perspective that attempt place ex- opinion contradictory seemingly to a reaction Karl’s time of nearer the much himself the defendant pressed 426-28, 583 State, 321 Md. at murders. See Hunt at 237-38. A.2d

VIII Principalship Evidence Sufficiency that the evidence sufficiency Here we consider to the murder degree first in the principal was a Booth because the an issue Principalship was Bronstein. Irvin Willie person, a second presence disclosed the evidence Compare Wig- scene. (Reid), at the crime Reid “Sweetsie” At the 570-72, A.2d at 1368-69. 324 Md. at gins, Reid, or accomplice, his Booth contended hearing, Bronsteins. stabbed both person, some other possibly Bronstein Mr. Booth stabbed was that theory The State’s Mrs. Bronstein. Reid stabbed A as a whole was the evidence argues that Booth reasonable doubt. theory beyond prove insufficient “whether, viewing the after of review The standard prosecution, to the most favorable light in the evidence ele found the essential fact could have trier of rational doubt.” Jackson v. a reasonable beyond of the crime ments 2789, 2781, 61 L.Ed.2d 99 S.Ct. 443 U.S. Virginia, 695, 717, Md. Tichnell v. (1979); met. (1980). That standard was A.2d Booth, testimony of Jewell presented the The State murders. weeks after the the defendant a few married who she had following conversation Booth testified Mrs. after the murders: shortly with I After, many how times I don’t know BOOTH: “MRS. I might I think have questions. him the different asked another, constantly back one after asking them been just out and right I came unfolding the bed. him. He was I asked him again happened what had to the people, did ‘No,’ he He know. said and I said ‘Are you sure? Did you kill those people? they Were dead?’ something like that, and he said that he—at first know, he said he didn’t said, then he when I him asked ‘Did kill you or people’ something that, ‘Well, like he said yeah. Sure. Sure I Sweetsie,’ did. sure, I am not too I but think he said Sweetsie killed the woman and he killed the man and then he went into this ridiculous statement grand- about his mother.

“PROSECUTOR: What your reaction to John’s statement that he killed the man and that Sweetsie killed the woman?

“MRS. I and, see, BOOTH: looked at him he was—it was so stupid, because he had brought up—I looked at him like he was crazy because of what he had said to me.” presented

The State also prior recorded testimony Veronda Mazyck, girlfriend of Reid. She had asked Booth why “you all”—referring to both Booth and Reid— killed the Bronsteins. Mazyck said that replied, Booth they “because me and my nephew.” Smith, knew Eddie acquainted who was Booth, with both Reid and testified that Reid told him in Booth’s presence shortly after the murders that “we [referring to Reid and or he Booth] [referring to just killed a mother couple fuckers.” Booth] Smith was unsure about the subject Reid’s sentence. said, Smith did not think that Reid had “I just killed a couple MFs.”

The State also presented circumstantial evidence on Booth’s principalship. There was evidence that the wound patterns on the different, two bodies were substantially which tended to separate show that two people did the killings. There showing was evidence that the Bronsteins Reid, knew and could identify Booth but not suggest- which greater ed that Booth had the motivation for murdering the was, couple. course, There substantial evidence that Booth in the robbery was involved of the Bronsteins’ home. argument principalship—other of Booth’s on

The essence against witnesses credibility on the than attacks clues ignored forensic him—was that State various not do the stab- proved that Booth did might have instance, a former medical presented bing; For perform did not police testified that the examiner who the knives at found one of relatively test on blood simple so, have they might done they the murder scene. Had knife was used that the same suggesting found evidence that the presumably, was The suggestion, both murders. investigation they lest limited their prosecutors and police first-degree princi- a that Booth was not develop proof clear record, however, re- of the independent Our review pal. have concluded trier fact could veals that a reasonable first-degree a that Booth was a reasonable doubt beyond principal.

B Booth an that Jewell theory Booth constructs elaborate Because the State accomplice his in the murders. was Booth solely testimony on her allegedly principalship proved first- being “convicted” says improperly that he was of an testimony on the uncorroborated degree principal State, 452 A.2d 416 294 Md. accomplice. Turner v. See A. State, 116 Md. 81 681 (1982); Luery v. Booth, Mrs. returned to when Booth According Booth, Reid, several Mazyck with Bronstein home in looting and participated the murders hours after in the accomplice robbery she became an premises, for robbery, Her liability Booth was convicted. contends, her for the murders under also made liable We not consider doctrine. need felony-murder need we reach problems theory, with this nor logical requirement appli- the corroboration question of whether out, sentencing proceeding. enough point It is in a cable subsection, that Mrs. Booth’s preceding in the as we did Collins, was corroborated. See principalship testimony (“Not in way much Md. 568 A.2d at evidence corroborative the accomplice’s testimony has required cases.”) been State, by our Brown v. (quoting 241, 244, Md. 378 A.2d (1977)).

IX Instruction Principals on Joint Giving following instruction is challenged. “A principal in degree, again, the first is the immediate perpetrator of the crime principal while a in the second degree is one who did not commit the crime with his own hands, present but was aiding abetting the perpetra- tor. law, Maryland

“Under only principal the first degree may be sentenced to death.

“You are further instructed that if you find from the evidence people wound, that two inflicted the fatal you may they find that are joint principals the first de- gree.”

Booth concedes that this is a law; correct statement of nonetheless, he it says “applicable light See Johnson v. evidence before the jury.” 303 Md. denied, 487, 512, cert. (1985), 495 A.2d 474 U.S. (1986); 106 S.Ct. 88 L.Ed.2d 907 Sergeant Co. v. Pickett, 186, 194, 285 Md. 401 A.2d generated evidence,

The instruction was by most of which witness, elicited the through was defendant’s Dr. William Brownlee, a former medical deputy examiner for the Dis- trict of Columbia. Dr. Brownlee testified that the wounds on inflicted Mrs. Bronstein were consistent with their hav-

ing made aby been certain bent knife found under or next to her There body. was a nick on the blade that knife. The witness also testified that the wounds to Mr. Bronstein having were consistent with made by been the same bent questioning prosecutor knife. Under by court, and the Dr. Brownlee said that the nick on that knife was caused by metallic, something possibly a knife. The fact that Dr. Brownlee himself opinion did not hold the that the nick was He acknowl- another knife is not determinative. by

created nick that the was would a edged hypothesis” that be “[i]t time knife “at the same striking another caused sufficient there other evidence Because perpetration.” Bronstein, were there Booth Mr. that stabbed show per- Dr. Brownlee’s evidence inferences from sufficient finding, if effect legal mit on the instructing Mr. Bronstein. jointly and stabbed any, that Booth another X Expert Witnesses Qualifying experts at four witnesses as Booth called Donald R. here with three: Dr. are concerned hearing. We as an on Jasinski, expert a medical doctor who was offered Karl, a psy- Dr. Norman J. licensed dependence; chemical expert psychological as on the who was offered an chologist worker Booth; Alphonso, Ms. Cessi social and state “psychosocial an assessments expert offered as on who was immedi- person’s family of a immediate impact and the development.” psychosocial on his or her ate environment on of the direct cross-examinations At the conclusion defense offered qualifications, each of these witness’s he that would rule responded an The expert. judge each as argues that be- they asked. Booth questions as were unqualifiedly it the court did not announce cause court experts, improperly as accepted these witnesses in the weight eyes of their testimony diminished the and, the judg- should reverse presumably, we jurors, is devoid of merit. argument ment on that basis. gave length. All Each three witnesses testified that was question propounded evidence to each opinion evidence, arguable with opinion excep designed elicit point does not Significantly, one question. tion of from the kept by of evidence that was proffer the experts. accept the witnesses as alleged the refusal to ruling essence, technique trial of on individ- judge’s In the judge from a ordinarily does not differ what questions ual does ruling after “qualified” a witness is expert. as an Even then the court must rule on objections involving the scope the expertise. State, witness’s See Evans v. 24, 34, Md. (1991) (trial 585 A.2d 208-09 judge not required permit expert to a qualified opinion to an express on any field); matter within the expert’s Simmons 33, 42, (1988) Md. 542 A.2d (“even though a trial judge has ruled to an expert testify general allow to in terms, the trial judge engage must a separate evaluation of the admissibility expert opinion”). of an

Booth refers to one instance where trial judge ruled, conference, in a sidebar that Ms. Alphonso could not diagram show the detailed family Booth’s tree prepared which she had advance trial. cites following judge’s statement from an ruling as example of his Alphonso failure Ms. as qualify expert: an

“I also have some having concerns about someone offered as an after not expert being prepare told a written report. It looks as if it done for was the express purpose of preventing the knowing State from what the witness going say, was and I not going am her to permit an testify expert, as Counsel.” This statement is taken out context Booth. The by judge’s ruling substance of the point this that the diagram was written of an report expert, and since the defense had made it available State defense would the diagram. not be allowed to use Maryland See 4-263(d)(2). Rule This a ruling Alphonso was not that Ms. expert. was not an it was a Implicitly ruling that she was an expert because the was in purpose colloquy part to decide diagram expert’s whether the constituted an re- port. Later in See id. this same colloquy judge made ruling clear his on Ms. Alphonso’s qualifications as an expert: Alphonso

“Ms. has been offered defense as an expert witness this case and Court not accepted has expert her as an at this point. The Court will rule on it is or not asked, as to whether as it is question each or appropriate. proper to and her expert permit her

“I as an certify will not opin- her question, give any further simply, without just in going probably permitted to be Her opinion ion. others, upon may depending not instances and some question____” each individual how concerning give opinion on to an Alphonso Ms. went him.12 had affected life and environment Booth’s family XI Testimony of Narrative Control examination, Alphonso mentioned her Ms. During direct counsel a child. Defense stealing by Booth as truancy Ms. caught. had been When asked whether Booth ever asked, had, could you “And that he counsel Alphonso said “Well, then, replied, Ms. Alphonso us what happened?” tell became, got caught and eventually truant. He he he was Village, he was then in the where placed Boys’ he was general objec The sustained raped.” prosecutor’s court to strike, telling jurors his motion granted tion and unresponsive.” being totally remark as “disregard that last ruling that was reversible Booth now claims court’s it was expert’s responsive error because the answer admissible evidence.13 important, constituted reason, arguing read as that the this even if Booth’s brief is 12. For erroneous, 4-263(d)(2) Maryland the error is application of Rule was beyond a reasonable doubt. harmless typical problem presented here converse of more The is the 13. nonquestioning party appeals denial from the situation which strike, unresponsive, portion a a witness’s as all or of a motion to Baldwin, 321, 325, Equip. Corp. Md. answer. In Gas Standard rule, (1927), it a matter of we said that is not "[a]s 136 A. responsive, right if otherwise to have stricken out because answers except questioner.” also L. unobjectionable, at the instance of the See 611.2, McLain, questioning supra, ("Only ... has the at 131 counsel § solely object ground an is nonre- right sponsive.”); Murphy, supra, answer on the ("If both at 10 the answer is J. court the instant explained matter for its basis ruling limited the unresponsiveness of a portion of the given answer in relation to the question that had been asked. Nothing prevented counsel for from Booth asking narrowly more question tailored to elicit the de sired answer from Ms. Alphonso, or calling from testify based on personal knowledge. Thus, error, the if Moore, has waived. See Dietz v. any, been 1, 9, 277 Md. 428, 351 A.2d 433 (1976) (parties hardly “can urge appeal on what they elicit.”). themselves failed to

Further, error, if the is any, beyond harmless a reason able In Alphonso’s doubt. Ms. field of expertise she forms opinions based on information obtained from interviewing the subject of inquiry the and persons who know the subject of inquiry. the The information obtained was when hearsay into admitted evidence Ms. through Alphonso. Presumably the trial court was this permitting hearsay to be admitted ground the it was information relied reasonably upon by experts in the field. See Consolidated Mechanical Ball, Contractors v. 328, 336, 154, 263 Md. 283 A.2d 158 (1971). Under that rule hearsay admitted, is not as proof underlying facts, of but as the simply basis for the opinion Maryland Dep’t expert. Re Human sources v. Bo Peep Day Nursery, 573, 317 Md. 589, 565 denied, 1015, 1023 (1989), cert. A.2d 1067, 110 494 U.S. S.Ct. 1784, 108 (1990); L.Ed.2d 786 Ellsworth v. Sherne Linge Inc., rie, 581, 303 603, 348, Md. 495 (1985); A.2d Attorney Nothstein, Grievance Comm’n 300 Md. (1984). Here, 480 A.2d has Booth not shown any opinion Alphonso Ms. prepared was express was excluded from of evidence because the exclu sion, unresponsive, as hearsay concerning rape argument Booth. The is weight that the of Ms. Alphonso’s was opinion reduced because one factor of its foundations inadmissible, nonresponsive and otherwise may counsel move strike.”). Wigmore See also 3 on Evidence (Chadbourn § 1970). rev. here, claim of ephemeral so facts missing. On the was speculative. prejudice

XII Opinion Exclusion Character Reid, one of was girlfriend the former Mazyck, after the home loot the Bronstein persons who returned to prosecu- for the person Mazyck had testified murders. unavail- Because Mazyck trial. tion at Booth’s second here, prosecu- at issue sentencing proceeding able for the into evidence. prior testimony tors read her (Smith), agent, probation called Pamela Booth Smith character. Mazyck’s probation history testify about personal opinion for her counsel asked Smith When Booth’s the prosecutor’s sustained veracity, judge Mazyck’s should opinion that Smith’s argues now objections. (1974, RepLVol.), Md.Code admitted under have been Proceedings Article and 9-115 of the Courts and Judicial part 9-115 in relevant Section prior under our decisions. provides: relevant is otherwise

“Where character evidence as a witness who person no offered character proceeding, as to forming an adequate opinion for has an basis excluded character shall hereafter be person’s another personal prove on opinion evidence giving from character____” based Booth did not preserved. of error not been The claim has prepared if the witness was proffer opinion, any, what state. preserved, if of error our

Even the claim were whether judge that the trial decides have made clear cases opinion has an basis” before “adequate the witness the trial court’s will not disturb appellate An court stated. Hunt v. abuse discretion. except a clear decision Durkin 235; State, 321 Md. at 423, A.2d at no 600, (1979). There was A.2d 284 Md. of discretion here. abuse

Mazyck was convicted of accessory after the fact to the Bronstein murders and sentenced to fifteen years sus pended and five years probation. Smith, assigned as Ma zyck’s probation agent, first met with Mazyck or after November 1984. Smith testified that she had not seen Mazyck since October 1985. There is no indication of how frequently Smith and Mazyck met during period or long how their meetings lasted. There is no particular indication of what they discussed.

As Professor McLain pointed has out: “The preferable means for demonstrating before the jury that the witness has sufficient knowledge of the individual to form a worth- opinion while would merely be proof elicit long how and how well the witness has known the individual.” L. McLain, supra, 405.3. The fact that Smith once Mazyck’s probation agent and currently had access to her file did not require the trial court to find that Smith had an adequate expressing basis for an opinion on Mazyck’s ve- racity.

Smith did testify extensively about various documents and events recorded in Mazyck’s file: a violation of proba- tion hearing, a failure to complete her required community service, subsequent arrest, burglary and continuing prob- drug lems with and alcohol abuse. personal Smith’s knowl- edge of these events was never established; indeed, many of them did not occur during the time assigned Smith was to Mazyck. Testimony and documentation on Mazyck’s transgressions were admitted into evidence without objec- tion, however, and jurors were entitled to consider it in deciding whether to credit Mazyck’s testimony. Absent proffer that opinion Smith’s would be based on anything other than Mazyck’s poor probation record, error, if any, beyond harmless a reasonable doubt.

XIII Closing Argument Booth argues that by comments made the prosecu tor the rebuttal phase of the State’s closing argument

193 unsuccessfully reversal. Where defense counsel require an of discretion standard. “The objected, apply we abuse closing is a matter left to the permissible scope argument of the trial The exercise of that sound discretion court. clearly error unless discretion will constitute reversible II, 306 Md. prejudicial abused to the accused.” Booth 210-11, State, 1118; v. 301 Md. 507 A.2d at see Thomas 294, 316, 6, denied, 1088, (1984), 483 A.2d 470 U.S. cert. 1856, (1985). no objection 105 S.Ct. 85 L.Ed.2d 153 Where case, recently has been in a the rule was capital made 569, 580-81, 743, State, stated in 530 A.2d Jones v. 310 Md. 1050, (1987), 748-49 vacated on other U.S. grounds, (1988). 108 S.Ct. 100 L.Ed.2d 916 prosecutor fact that a remark made mere “[T]he jury improper necessarily require does not conviction set aside. is only required to be Reversal appears prosecutor where it the remarks of the or to have misled or actually likely misled were influenced of the accused. prejudice Wil- State, 404, 415-16, helm Md. 326 A.2d [v. 643, 652, (1974)]; 316[, v. 192 Md. 65 A.2d Wood rule, Supreme Consistent with this Court 320] required prosecu- has held that reversal is where the only focused, unambiguous strong, tion’s remarks were specific right go and so that to them to prejudiced allow uncorrected would accused of fundamental deprive the fairness. 472 U.S. Mississippi, Caldwell S.Ct. (1985).” 86 L.Ed.2d 231 omitted.) (Additional citations

A initial takes us point To understand Booth’s back into the witness, Sergeant of a Lamartina. testimony prosecution cross-examination defense counsel asked if it were true On police investigation that the learned the course their Booth had admitted Mr. stabbing that someone other than out of the house and on the running vomiting Bronstein and lawn. The said: “That Darrall may you front witness be are talking about. That is the only person other that was indicated----” Defense counsel then unsuccessfully sought to refresh the witness’s recollection one page with of a question interview, answer form of in which neither the person nor interrogating person answering were identified. Sergeant Lamartina explained that person being interrogated “gave information he had over- heard. This information was never actually corrobo- rated---- It is not from the defendant himself or another suspect.”

In closing argument defense, by counsel's opening theme was failure of the State to prove principalship beyond a A major part reasonable doubt. argument that criticized police investigation. Counsel recalled that it cross-examination, “came out on during that the investiga- tion police] developed information that someone else [the had admitted stabbing Bronstein, Mr. ... and the State did not bring that out to you.” vein,

In the same criticizing while the “absence of foren- evidence,” sic and scientific defense argued counsel that hairs, fibers, there were “No no no fingerprints, no blood---- No eyewitness.” course, jurors, knew that Reid eyewitness. was an

Against background, the State in rebuttal said: It’s

“PROSECUTOR: different being prosecutor than it is a defense see, You attorney. even a hearing like this, are bound rules of evidence— we

“DEFENSE COUNSEL: Objection, Your Honor. “THE COURT: Overruled. I “PROSECUTOR: can’t come in here and tell you

. what else had anybody say about this crime except John Booth. Mr. Hill would have take you into considera- tion the famous consideration; Sweetsie his he would have take into you consideration the nephew, Defendant’s Darrall Brooks. I can’t come here and show you against evidence them. I can’t you tell everything that Mr. against I the evidence say. just present had to they in good I it faith.” present Booth and sug- improperly argues prosecutor incorrectly proved he could have evidence that gesting played and defense prosecution that the informing the defense. rules that favored the different by The State was was rebuttal. argument proper The directed proof case focused on its was explaining Booth, generate hypotheses could while the defense toward attempt the evidence an consistent with generally Further, telling the was doubt. State create a reasonable terms, could not introduce generally that it lay jurors, the party opponents. were not persons who the statements B counsel said: closing, In the defense factor, and Gentle- Ladies aggravating is not an “What crime, severity men, heinousness of the is the fact, simple crime. Just the crime, brutality fact, during was committed fact, that the murder sad consider as an may That robbery. you of a course or the brutality heinousness or the factor the aggravating as makes no difference horror the twelve stab wounds as the law is concerned.” far of the State’s State, immediately following portion XIII.A, supra, responded: in Part quoted rebuttal I do everything “I the law. will speak you will about Hill, closing in his Mr. you. I can not to misle[a]d outrageous, one egregious, made one argument you, that you of the law. He said misstatement one absolute brutality, into consideration the not allowed to take are of the crime cruelty heinousness and the the Defendant— are you Objection. “DEFENSE COUNSEL: “THE Overruled. COURT: Gentlemen,

“PROSECUTOR: Ladies and is one no, hundred percent, that is one thousand percent ridic- ulous____”

Although the sole aggravating factor in this case robbery, defense argument glided counsel’s from that technically correct statement telling into the jury that “the horror of the twelve stab wounds makes no difference as far as the law is concerned.” That was not correct. The jurors were entitled to consider the circumstances of the murder when weighing aggravating against factor mitigating factors. The State was entitled to disabuse the jurors of any possible misconception that score generat ed the defense comments.

C under the Recycled label of improper denigration by the State in argument of the defendant’s right to allocu contention, tion is the VI, answered in Part involving supra, the court’s instruction on allocution. There was no objec defense, tion argument and the deprive did not Booth of a fair trial. It is simply an argument the jury should not accept what Booth had said in allocution. That proper argument. Hunt, See 321 Md. at 583 A.2d 241-42; at II, 306 Md. at 507 A.2d at 1112. The court fully had instructed the jury what it could and consider, could not and the supplemental instructions made plain that allocution could be considered for whatever use chose to VI, make of it. Part See supra.

D The final complaint with the prosecutor’s argu- rebuttal ment involves comments made parents. about Booth’s The picture which the painted defense had parents Booth’s illustrated by following passage:

“This is tragic ... a of a story tragic family and a tragic childhood. An Booth, absentee father for John there, almost never an alcoholic when there. An alcoholic mother. Parents fought who continuously when they together, mean, were verbally cursing, ugly, physically hitting other, each in punching front of the children.” In rebuttal argued: State “Had met you Sparrow June you would [Booth’s mother] have realized that she is not the person horrible she is described— Objection.

“DEFENSE COUNSEL: “THE COURT: Overruled.

“PROSECUTOR: Had met you John Booth [Booth’s father], you who, would have seen that he is someone all faults, of his provides a fabulous male role model for this defendant and did his young, years formative time, could have if that is what the defendant wanted.”

Neither of Booth’s parents testified at the hear- ing; most of the testimony about them came in through Ms. Alphonso, the social worker. Booth argues that the prose- cutor was commenting upon facts evidence or stating what he could proved. have

The trial court did not abuse its discretion. Basical ly the State was presenting argumentative an fashion the concept that parents Booth’s were not the caricatures which the defense had sought to create. This was fair rebuttal. had heard information that Booth’s father had served in the Navy. During that period Booth and two of his siblings were born. When the father was discharged, parents married, the father became one of the first African-American fighters fire in Baltimore City, and the couple purchased a home. The jury had also that, been told while the father was in the Navy, the mother worked as a domestic six or week, seven a days long hours each day. Ms. Alphonso father, described Booth’s at the time of her meeting him, with as “sensitive, a intelligent, highly educat ed man.” One of Booth’s sisters said that Booth’s father held degrees in mechanical engineering and theology. 198

XIV Recusal Judge Angelet- to have sought a motion Booth By pretrial denied, denial is and that recuse himself. The motion was ti appeal. on this for Booth’s final contentions the basis should have recused Judge Angeletti Booth submits (A) reversed twice before he had been himself because: the defendant case; (B) he had described this same (C) indicated that he would “amoral”; and he counsel as in the in the motions pretrial rule on refiled None of sentencing. prior had ruled a way same as he merit. has arguments these

A statutory provi or a constitutional absence “[I]n at the trial of a presided who contrary, judge sion for a and remanded new appeal is reversed case which Medi the case.” Board retry disqualified trial is not 248, Steward, 203 Md. 574, 583, 102 A.2d v. Examiners cal Superintendent, v. 204 Md. (1954); see also Thanos 252 Miles v. 926, (1954); 88 665, 667-68, 104 A.2d denied, 94, Md. cert. 360, 594 A.2d Md.App. Maryland 3C of the (1991). Booth relies on Canon A.2d 447 decision in Conduct, after our adopted well of Judicial Code 3C Steward, statutory provision. Canon contrary as that: states in a participate proceeding

“(1) A should judge ques- might reasonably be impartiality the judge’s to instances where: tioned, not limited including but concern- prejudice or (a) personal has a bias judge disputed evidentia- knowledge ing party, personal or concerning proceeding.” ry facts prior “four corners” of a from the Knowledge gained knowledge disputed of a “personal not the proceeding State, 321 Md. v. Boyd to in the canon. See fact” referred Fader, Md. 355- Doering (1990); A.2d 1 733, 735-36 558 A.2d

199 that, is prior Booth’s view because of two reversals case, Angeletti in this Judge has a stake” in the “personal outcome of the to “engage case will be moved in self- vindication.” a Appellant per Brief at 133. As se rule argument Fader, this in holdings contradicts our Boyd, Steward, and Thanos.

On the facts case argument of this frivolous. The first long reversal in this litigation was five-four decision of the Court of the States in Supreme United Booth 496, 2529, v. Maryland, 482 U.S. 107 S.Ct. 96 L.Ed.2d 440 (1987), after judgment this Court had affirmed the rendered in Judge Angeletti’s court. The Court’s Supreme Booth held, time, for the first impact victim statements were inadmissible in capital sentencing proceedings. A few (after later years below), the sentencing proceedings Supreme Court its Payne Tennessee, overruled Booth. v. — -, U.S. (1991). 111 S.Ct. L.Ed.2d 115 720

The second reversal resulted from our decision that trial courts, at request, defendant’s must admit evidence relating to in parole eligibility sentencings. capital Doering 411-12, 313 Md. 545 A.2d Doering Judge was decided after Angeletti presided had the resentencing over involved second reversal. resentencing That was conducted according to existing II, then law. Maryland See Booth 306 Md. at 217- 18, 507 A.2d at 1121. Booth had raised the issue in Doering his appeal from the resentencing and therefore we vacated Booth’s death sentence a summary III, order. Booth Md. 1205. A.2d Trial have no judges need to vindicate for lacking themselves precognition.

B For subject proceedings new team assigned of attorneys as trial counsel Booth. The motion for recusal avers that a chambers conference with Judge Angeletti, Booth, held before new had met counsel Judge Angeletti them told or they might would find of the remark Booth to be “amoral.” Neither version “1 moral recusal. “Amoral” means a: neither nor required ethically neutral.” Third New immoral ... Webster’s [2]b: hearing 72 At on the Dictionary International Judge told counsel: “I am somewhat Angeletti motion I English language, if wished literate in the use of the and someone, I to do referring to know how pejorative to be [in] case, in that, under circum that was not done this and stances.” foregoing, clinically antisep- accept if do not

Even we been that the innuendo have tic definition and consider does not demonstrate a lacking morality, Booth was Having presided prior over recusal. personal requiring bias privy to Judge Angeletti was resentencing proceedings, in 1969 begins as adult record. His record an Booth’s for inter- sentences of incarceration convictions and reflects officer, use, robbery, police a unauthorized fering with maim, possession marijuana, rob- intent to assault with officer, exposure, interfering police a indecent bery, with maim, escape, assault, with intent shoplifting, assault a victim other than the robbery armed murder and the Bron- robberies of Bronsteins, the murders and armed record, counsel for this steins, escape. Faced with called as a sentencing had prior proceeding Booth at professor of Christian ethics an associate defense witness that jury That witness told Seminary. a Roman Catholic “ as a child makes decisions much ‘basically that Booth at 1119. Md. at 507 A.2d II, would.’” substance is little difference between There by by supported an made one 14. was affidavit motion recusal in the motion attorneys. That affidavit is referred to new Booth’s hearing by participants at the on the motion to referred to and was extract; affidavit, however, is not in the record The actual recuse. attorney original An state’s it record. assistant nor we find in the do hearing court on the present at told the at the who the conference was statement, from which he had recollection of the that he no motion made, that, particularly could not have been notewor- if it concluded recollection, hearing, expressed Angeletti’s at the thy. Judge best "might" find Booth to be amoral. might that counsel have said he Judge defense-initiated statement the ethician and Ange- letti’s comment to counsel. addition,

In Booth stood convicted of murder and that finding guilt Likewise, had Judge Ange been affirmed. letti was not the authority; jury was. These distinguish facts Nordstrom, this case from State v. (1979), R.I. Booth, A.2d 601 relied on by where the trial judge, guilt innocence, the course of trial on or “ ” referred to the defendants as ‘bad bastards.’ 408 A.2d Judge Angeletti’s at 602. Nor is comment at all compara ble to that of the judge Arkansas trial should who have recused presiding himself from a resentencing over in a case, capital as reported Lockhart, Walker v. 763 F.2d (8th Cir.1985), denied, cert. 478 U.S. 106 S.Ct. (1986), 92 L.Ed.2d 738 and by cited Booth. After granting the request go defendant’s to church to be baptized, judge “had instructed the deputy sheriff that[,] if down, ‘made a him move[,] to shoot [the defendant] because he didn’t him brought want back to him because he ” intended to the anyway.’ burn S.O.B. Id. at 946. United Womack, (5th Cir.1972), States v. 454 F.2d 1337 which cites, is also factually distinguishable. There the trial, judge, that, before told counsel based on the evidence co-defendant, in the trial of a the court was convinced the defendant was and guilty that the only way the defendant would receive favorable treatment would by saving be the government the expense of a trial.

C Booth’s claim that the trial judge stated that he would rulings issue the same on all pretrial motions as he had prior proceedings the mischaracterizes judge what the actu- ally stated. Booth has not referred us to of any part indicating record that the trial judge comment, made such a nor have been find we able to Booth does any. refer us to the motion to recuse and that motion refers to the missing affidavit, see n. 14. supra Whatever that affidavit may stated, have of transcript the motions hearing indicates that, open had an ruling, judge at the time of clearly motions. subjects prior mind on the the court wishes to address is the “The first motion which Previously of all Filed Motions and Adoption Notice of refers to assuming every that that motion the court is the new granting filed prior motion that was reference to sentencing in this case with hearing on the sentencing. held court previously by motions were ruled on the Court “None of those reversing one-page in their ... order Appeals, naturally, matter____ prior in the the sentence “So, Counsel, any subsequent I to hear prepared am The court is thor- of those motions. argument on them, all of having familiar with all of reviewed oughly have, course, their motion them, counsel and, I they filed motions believe adopted previously all The court has done term de novo consideration. used the that.” argue declined the court’s offer to further

Defense counsel out that prosecutor pointed motions. The then prior granted had and some prior some of the motions been denied, might rulings create some conflict with the pending. judge issued on the motions then about be decided, the court intends to do is to “What agreed, filed motions until we ruling previously on those reserve hearings on the motions presently concluded all of the have crossed, filed, that are can then any so that if there are we discussions, are further any whether there determine consistent.” ruling then make a which would be not to make a case for recusal. begin This record does

XV 27, 414(e), Art. we find that duty Pursuant to our under § imposed death not under the influence the sentence of was factor. This is arbitrary or other passion, prejudice, single mitigating could find a juror a case in which not one find that the sentence of death is circumstance. We further not excessive or disproportionate imposed penalty cases, similar considering both the crime and the defendant. The most similar cases are the two prior sentencings Thus, for the murder of Mr. Bronstein. the instant matter marks the third separate jury to have found a death appropriate sentence for that murder.

JUDGMENT THE OF CIRCUIT BALTI- COURT FOR MORE CITY AFFIRMED.

Dissenting opinion BELL, by ROBERT M. J. BELL,

ROBERT M. Judge, dissenting. Maryland (1957, Code 1982 Repl.Vol.), Art. 413(h)(2),1in effect at the time of the for murders § petitioner convicted, provided:

If time, within a jury, reasonable is not agree able to sentence, as to the court shall dismiss impose a sentence of imprisonment for life.

Having for hours,2 deliberated more than nine the jury informed the trial court that it was “split” and “unable to come agreement” to an on the first issue I under § capital form furnished to it pursuant to Mary 4-343(e). land Rule That issue was: evidence, Based upon the we find unanimously that each of the following “proven” statements marked has been proven BEYOND A REASONABLE DOUBT and that each of those statements marked proven” “not has not proven been A BEYOND REASONABLE DOUBT. (1957, Maryland 27, 413(k)(2)

1. Repl.Vol.), Code provides: Art. time, jury, "If agree within a reasonable is not able to as to whether imposed, a sentence of death may shall be the court impose a sentence of death.” began p.m. 2. The day deliberations at 3:00 on the first and ended at p.m. a.m., day’s began 7:15 ing The second deliberations issues raised at 9:17 follow- and, concerning instructions jury, pur- issue, poses of p.m., this terminated at 2:25 the time when the statement at issue was delivered to the court. a in the degree 1. The defendant was first principal the murder. Not Proven

Proven Art. that, with motion consistent former petitioner's and a 413(k)(2), the be dismissed life sentence § court, Instead, the repeating the entered was denied. I,3 given it had as to advised the charge earlier a unanimously petitioner either decide that it must or, degree, first less than unanimous principal not, must be that he was which decision agreement, decide charge time. The included reached within a reasonable following charge: Allen4 modified decision, must one arriving you

In consult with your reaching agree- an another and deliberate with a view ment, you your if do so without individual can violence judgment. yourself, you decide case for but you

Each of must an impartial must do so after consideration only During jurors. your fellow delibera- your evidence with tions, own You your do not hesitate to re-examine views. wrong, opinion you if convinced are change your should weight as your do not surrender honest belief but opinions of your effect of evidence because only or reaching purpose or for the mere jurors, fellow verdict. The Court instructed:

3. you beyond a requires that in order for to conclude The law reasonable doubt that proven Booth was a State has Mr. Bronstein, you degree of Mr. all of principal in the murder first must unanimous. time, your agree be a reasonable verdict must within proven beyond you State has If cannot conclude that the principal in of Mr. Mr. Booth is a the murder reasonable doubt that Bronstein, you proven” mark in the form and enter then must “not imprisonment” in Section 6.

the words "life (1896). States, 164U.S. 17 S.Ct. L.Ed. 528 4. Allen v. United Md. A.2d 663 See Burnette v. modified Allen Notwithstanding charge the same had included in the sentencing been instructions at the petition- request, er’s in so I doing, believe the court erred. Addressing a related issue—the petitioner’s argument the trial has judge discretion to order the capital sentencing hearing so that the principalship bifurcated issue issues, can decided separately sentencing be from the other including weighing process contemplated by V of the § sentencing form5—the asserts: majority judge

The trial did not have discretion to bifurcate the sentencing proceeding in separate order to out the princi 4-343, issue. palship sentencing Rule and the form it incorporates, binding. are The rule makes clear that principalship and the other sentencing-related issues are resolved a unitary sentencing proceeding. The rule applies a sentence of sought “whenever death is under 4-343(a). ... 413.” Rule 4-343(e) Under Rule § followed, form sentencing is to be except provided as (f). section The form plainly contemplates that one jury complete will the form in one proceeding. Policy reasons advanced Booth for separating the principalship issue from other issues were considered and reject ed in our rule-making capacity when Rule 4-343 was adopted. They were argument reconsidered when the the dissent in Colvin rejected.[6] was capital sentencing prescribed by 4-323(e) 5. The present form Rule has sections, addressing each princi- a different I§ issue: addresses the issue; palship II§ addresses the capacity; defendant’s mental III§ circumstances; aggravating addresses the existence IV§ addresses circumstances; mitigating the existence of V addresses the § balance circumstances; aggravating mitigating of the VI and VII §§ address the sentence. The form petitioner in use when the murders for which the was dealing convicted did not contain a capacity. section with his mental Colvin, 6. State v. major 314 Md. 548 A.2d 506 The dissent’s premise principalship was properly part that the issue was not a of the because, sentencing proceeding 413(c)(1), under Art. the defini- "person” only tion of principal "defendant" and "include in the first Thus, degree.” 314 Md. at "person 548 A.2d at 519. or defen- subject separate penalty dant is not sentencing proceeding to a death [Maj. op. Responding, however, petition- 160-161]. er’s argument modified Allen giving that the charge case, improper this takes majority a somewhat different purpose, tack. For this other than the require- ment that the same in one jury, proceeding, will answer form, questions and complete the treats the majority as a series of “unitary proceeding” separate, though relat- ed, issues, be, are, be, which not but only may and must considerations, using resolved different requirements and standards; a separate each threshold issue is issue to be considered, resolved, “verdict,” rendition by the of a utilizing agreement whatever standard is prescribed by the Legislature, prior moving to on to the next issue on the form.

All but one of the threshold making up determinations the “unitary proceeding” require agreement unanimous not, IV, the jury. The one that does dealing mitigat- with § factors, ing recognizes itself, that lack of unanimity may, be a decision on that The issue. answers to all of the thresh- which, old may prompt weighing process, issues a even see majority agree, seems to at 156 n. is maj. op. certainly to subject provision inability agree results life imprisonment. position simple. is Section I of the majority’s sen-

tencing form

explicitly requires jury unanimity finding for a that first degree principalship either has or has not proven been beyond a reasonable doubt. There is no middle ground. I There is no verdict under of the Rule 4-343 form § some conclude and some whereby jurors “proven” con- proven.” clude “not occurs, A verdict on the issue

[Maj. op. says, it 155]. in the principalship degree when first has been unanimously “proven” found either to have been or “not It is proven.” 413(a) (or she) by directed Art. unless he is determined to be a § principal degree. prior in the first That determination must be made penalty sentencing proceeding, proceeding to the death otherwise no (Blackwell, by Id. dissenting). is authorized the statute.” J. and, indeed, enough, jury is insufficient for the to fail to for this is agree way Support position one or the other. form, gleaned sentencing dealing from IV of the with § section, after a mitigating period factors. Under that reasonable, it determines to the jury deliberations which be us, may answer that “one or more of but fewer than all twelve, find a of the evidence that the preponderance compara above circumstance exists.” Because there is no I, provision ble maintains that the failure majority § not, to achieve on the I issue is unanimity by § itself, verdict; rather, it is the court that must decide when a reasonable of deliberations has occurred and period whether, therefore, significant is deadlocked. It is I majority that the issue is one as to which the Legislature contemplated agreement. unanimous As to issues, such it is for the appropriate try court to break the modified Allen deadlock and to do so by giving charge as was done in this case.7 verdict,

One and one verdict only, permitted be returned in each sentencing procedure. That verdict re- ultimate, unanimous, flects jury’s disposition of the case, i.e., that the defendant be sentenced to death or to life with, without, or imprisonment, possibility parole. are, sure, reveals, There be as the form threshold issues that the must jury decide. The resolution issues, however, verdicts; of those are not they findings are motion, ruling petitioner’s judge 7. In on the the trial relied on the fact petitioner’s request sentencing proceed- that the for instructions in the ings charge, gave. included the modified Allen which he That counsel received, initially may requested, sought have and the instruction does bound, times, by request not mean that counsel is for all that no circumstances, and, therefore, matter the what must in this case acquiesce supplemental attorney to its use as a instruction. An is not required perpetuate may an error he or she have made earlier in proceedings, request the and I believe that the for such an instruction may was error. Nor the court force him or her to so. do In event, petitioner’s abundantly object- the counsel made it clear that he any supplemental being given, preferring ed to instructions to have period the court whether determine a reasonable of deliberations had occurred. which, fact, given our findings in the nature of of without scheme, rendered. As the no could be statutory verdict IV, out, of the exception the all majority points with § IV findings require unanimity. options Two § however, is option totally the third require unanimity; itself, it to determine not requiring controlled the jury made, but also when a reasonable only findings the to be Notwithstanding has occurred. period of deliberation IV, of that findings respect made section form § Nor, matter, for that does do not constitute verdicts. incorporate and finding Only V. VI VII required by §§ § verdict.8 jury’s imprison death and life verdicts both Jury rendered unanimous possible jury’s ment are and desirable. not a the first principal that the defendant finding see (1957, Art. Repl.Vol.), Code degree, Maryland form, I, Rule 4- 413(e)(1); Maryland capital § § of life Sen 343(e),9 imprisonment. results in a verdict jury find, form, VI(1). Similarly, jury should the tencing § prov circumstances were aggravating that no unanimously, outweigh mitigating do not en or that those that were found, calling have rendered a verdict circumstances it will hand, for, On the other when again, imprisonment. life principal the defendant was a unanimously finds jury factor, aggravating at least one degree in the first circumstances found to outweighs any mitigating for a exist, calling a verdict will have returned jury death sentence. imprisonment. Section only options death and life

8. The verdict are possibility of life with the between a sentence VII differentiates parole. Consequently, is a refinement of the parole without it and life verdict. statute, finding present a unanimous version of the 9. In the age mentally would likewise retarded or under the defendant was Maryland imprisonment. Code of life See result in a verdict also, Mary- (1957, 413(g)(4) Repl.Vol.), See Art. form, 4-343(e), sentencing capital section II. land Rule When, notwithstanding the of requirement unanimity, of jury agree, period unable to after a reasonable deliber- ation, issues, on one of the threshold I-IV of the sen- §§ form, course, tencing taking sequence, them of or the balance, form, of the sentencing jury V will not have § Nevertheless, event, returned a verdict. in that former 413(k)(2)would mandate “a sentence of imprisonment § life,” 413(k)(2) present prohibit imposition would of a § death present sentence. It is true that both former and 413(k)(2) speak jury being agree unable “to as to § sentence,” rather than the jury’s inability agree as to issue, ones; however, including one the threshold when the resolution of an issue is to a decision necessary as sentence, inability agree on it is an necessarily inability agree “to as to Jury inability agree sentence.” unani- was, not, mously that the defendant or principal was the first is no degree agree less a failure to as to sentence if having than the jury, every sentencing resolved other issue, agreement is unable to achieve on the V balance. § There is no rational reaching basis for a different result depending upon whether the issue is a threshold one or involves the actual balancing mitigating aggravating circumstances. That one determination is more directly related to the sentence than another is not a sufficient basis to render the “unitary proceeding,” non-unitary.

The majority significant finds it the issue about 1(1), split which the was as to which unanimity is § contemplated. that, Aside from the fact in order to arrive verdict, at a each of the sections of the sentencing form, IV, exception with the which has the third option, contemplates a unanimous decision jury, issues, failure to arrive at unanimity, even threshold has implications for the jury’s ability to determine the proper disagreement sentence. Whether the jury occurs at the last, question first or the rather than what the legislative aim was when it formulated that particular question, it is the ramifications of the agree failure to on the process must be considered. Carrying majority’s conclusion, position logical to its we must view each thresh- issue, verdict, will, if as component part you old each of the verdicts, as to differ- being separate separate, even ent, admonitions, encouragements, might apply. or There- fore, could occur attempt jury an to break a deadlock at stage, exception weighing process, the of the possible with and, multiple stages sentencing proceed- of the perhaps, ing. process a construction of the renders Art. Such 413(k)(2) indeed. quite impotent, §

In it is to instruct the Maryland, inappropriate jury with 413(k)(2), respect requirements present whether § former, of, anticipation, or in and in of a deadlock. advance State, 563, 593-95, See Calhoun 297 Md. 468 A.2d 58- denied, cert. (1983), 466 U.S. 104 S.Ct. 413(k)(2) interpret L.Ed.2d 846 Former has been § court, which, ed as an instruction to the trial as tradition trials, al must determine when deliberations have continued hence, and, for a jury truly a reasonable time whether is not, not, mean, however, Id. hung. This does and can that 413(k)(2) in connection the play has no role to with various § during sentencing that must made determinations be 413(k)(2)is addressed to the proceeding. Simply because § therefore, court, and not the and the is jury, jury, trial as to its contents or does not operation, never instructed sentencing be treated as if proceeding may mean that outcome; prerequisite up of a valid that unanimity were to, until, the trial court determines that the finally jury need not told of the effect of a hung, jury only is be believing misled into agree actually may failure but be must agree way that it one or the other. inability agree unanimously, way one or the jury’s

other, capital in a case tried in this as to sentence clear, 413(k)(2) former makes results in necessarily impo- § sentencing procedure, sition of a life sentence. To treat the if an including component parts, unanimity its as were 413(k)(2), notwithstanding former prerequisite, absolute § actively and to so instruct is to mislead it. As unanimity required noted while is for the already, verdict, render a recognizes and thus contemplates law Thus, although by jury may not render a verdict. terms, unanimity, its I of the form seeks fact, point absolutely required. is not That unanimity verdict; therefore, is only component part section has the extent that a reasonable time deliberations is passed, notwithstanding only that it the first and issue reached, the imposition lack of must result unanimity a modified Allen of a Giving charge, life sentence. the only deadlock, purpose of which is to break a is a clear statement must be achieved. That to the jury unanimity not the case. clearly

The rationale for the prohibiting giving a modified Allen charge in a death was well sentencing proceeding Supreme Court of Delaware Rush v. stated the 491 A.2d (Del.Super.1985). 439 The Delaware death penalty prohibited imposition statute of the death penalty unless a unanimous jury found at least one statutory aggravating circumstance and recommended death. When the jury “ death, ‘cannot recommend unanimously the Court shall sentence the defendant to life imprisonment without benefit ” of probation parole.’ or 491 A.2d at (quoting Rush, 4209(d)(3)). Del.C. In the jury deliberated for “ about informing two hours before ‘they bailiff that cannot reach a unanimous decision and that those who are ” opposed feel strongly they agreement.’ cannot reach an 491 A.2d court, at 450. to a Responding question from the the foreman explained: mind,

... There are—most of the jurors open have an can other; be convinced one or way there are at least jurors opposing viewpoints say that cannot they have their viewpoint changed under any circumstances. There- fore, you we wish instruct us what we should do about the form. signed,

It’s the exception with or “no” “yes” awaiting your instruction.

491 A.2d at 451.

Only the second question, regarding whether there was unanimous agreement recommend the death penalty, was the trial court objection, defense’s not answered. Over the instruction, contained a modified which gave supplemental a instructions, supplemental charge. Addressing Allen said: Court Delaware Supreme supplemental instructions opinion are of the We case the instant Judge gave the Trial which effect, had no constituted, Allen-type charge an proceeding. proper place penalty phase in this § instruc- charge supplemental is a typical Allen-type in a case judge tion the trial to a deadlocked given by Generally, unanimous verdict. requires the law where of a during guilt phase arises charge the Allen-type urging prevent hung jury by It designed trial. hope further deadlocked to deliberate with jurors guilt a unanimous verdict of or will return ultimately they innocence____ deliberations, a further By suggesting retrials with the prevent unnecessary court attempts expense by of time and expenditures resultant additional omitted) (Citations all concerned. its scheme and reviewing statutory A.2d at 452. After the court concluded criticizing Allen-type charges,

cases where “lack of una- sentencing proceeding that in a death imprisonment, in a sentence of life se results nimity per [the coercive.” being overly instruction is fatal as Allen-type] 491 A.2d at 453. Jersey the New expressed by sentiments were

Similar Hunt, 115 558 A.2d in N.J. Supreme Court State There, a note to the trial jury the sent 1286 “ a deci- indicating that it could not ‘find unanimous judge outweighing aggravat- the mitigating sion on the factor[s] ” Responding, A.2d at 1283. the trial ing 558 factor[s].’ recog- instructions which failed to gave supplemental court a obligations by returning “fulfill its right nize the jury’s 558 A.2d at 1285. Revers- final non-unanimous verdict.” commented: ing, Supreme the Court case, criminal ordinary prosecution, In unlike the capital a Thus, a need not reach a unanimous verdict. jurors outcome, agree legally acceptable not to is a decision verdict____ mistrial, results in a in not a final but reason, For this not in charge trial courts should juries penalty phase the on the importance reaching a unani- verdict____ long mous As as one juror believes that the aggravating do outweigh mitigating factors not the factors, not the jury impose must death penalty____ Ramseur, As we admonished in [State v.] N.J. [106 A.2d (1987)], “juries capital in cases be [must] of, informed exercise, and free to their statutory option final, a return non-unanimous verdict resulting impris- if, deliberations, onment after a reasonable period they (Some are unable to agree. A.2d citations [at 284]. omitted.) A.2d 1286. Ramseur, which Hunt principally

In upon relied, the case Supreme Court previously purpose noted Allen-type charge and its effect a criminal proceeding: singular vice of the Allen-type coercive is charge its purpose

actual and effect to “undo jury a deadlock.” ... In trial, the ordinary criminal where deadlock results a hung jury mistrial, and hence a the remedy Czachor[, 82 N.J. [State v.] 413 A.2d 593 (1980) violation is reversal of the defendant’s conviction ]

and a new trial. But we such a believe to be remedy wholly inadequate and in a inappropriate capital In case. trial, a capital unlike the prosecution, criminal ordinary need reach jurors verdict; a unanimous a true deadlock results not in a mistrial but in a final Allen verdict. Thus the evil charge capital in a murder trial infinitely worse and significantly more prejudicial than in an criminal In ordinary case. latter, is deprived defendant a deadlock that would trial; given have him a new the former he deprived of a deadlock that (Citations would have saved his life. omitted)

214 524 A.2d at 284-85.10 State, See also Fretwell v. 289 Ark. 91, 630, 708 (1986) (error S.W.2d 633 give Allen-type charge capital sentencing proceeding); Rose v. So.2d Giles, Ex Parte (Fla.1983) (same); 524-25 (Ala.1987) (same). So.2d Whether, not, or a mistrial should have been declared failed, when the jury within a reasonable time to reach a verdict, is, as Calhoun, see held, we have previously supra, question addressed to the trial court and the exercise of its sound discretion. Although nine hours spent deliberat- ing issue, on a indeed, threshold first very present- one resolution,, ed for the jury’s strong is rather evidence of a Hunt, 10. The statute at issue in both State v. 115 N.J. A.2d (1989) Ramseur, (1987) and State v. 106 N.J. 524 A.2d 188 provided: jury, jury, or if there is no special court shall return a setting verdict writing forth in the existence or non-existence of aggravating mitigating each of the para- and factors set forth in (4) (5) graphs any aggravating of this subsection. If factor is exist, found to the verdict shall also state whether it is or is not outweighed by any mitigating one or more factors. (a) jury If the or aggravating the court finds that factor exists outweighed by factors, mitigating and is not one or more the court shall sentence the defendant to death. (b) jury exist, If or aggravating the court finds that no factors or any aggravating outweighed by factors which exist are one or factors, mitigating more the court shall sentence the defendant pursuant to subsection b. (c) verdict, jury If the is unable to reach a unanimous the court pursuant shall sentence the defendant to subsection b. Justice, 2C:ll-3c(3). The Code of Criminal N.J.S.A. Ramseur, In the court found no abuse of discretion when the trial court, receiving stating, “(jlury after a note unable to reach a unani- Suggestions please[,]" mous required decision. to continue court, however, deliberations. 524 A.2d at 278. That did hold that charge was, fact, inappropriately given the Allen reversible because, held, error contemplated as it also Legislature it was "clear that the possible three capital final verdicts in a case: a unani- imprisonment, mous verdict that results in a unanimous verdict that death, results in imprison- a non-unanimous verdict that results in ment.” Id. Maryland, Jersey permits Unlike New to be told that it need arguments concerning reach a unanimous verdict and to hear effect of non-unanimous recommendation as well as to be instructed deadlock, jury perhaps persons disagree. reasonable may Perhaps the the by requiring jury court did not err deliberating. continue court, however, when, error

Clear was committed the by in requiring deliberating, addition to the to continue it instructions, an gave In its Allen-type charge. initial the I, trial court jury, concerning instructed the that it must § time, unanimously “agree,” within a reasonable that the petitioner was a in the first principal degree order to conclude that his principalship proven, has been but that unanimity required was not to find that it has not been addition, In proven. at the petitioner’s request a modified charge given. Allen the jury When indicated its inabil- ity agree as to the petitioner’s principalship the first degree, the court reiterated its charge point both on the the modified charge, Allen this time over the petitioner’s very strenuous objections.

Despite 413(k)(2), former could not be told § what the effect of its failure to reach a agree- unanimous hand, ment as to a sentencing issue was. the other On repetition of the charge as to I and the modified Allen § charge inaccurate, sends the clear and misleading, hence message that unanimity required to be achieved on that issue at all costs. And sending message that unanimity once, is required more than shortly after the particularly, jury has indicated that it is “split” and cannot reach a decision, But, unanimous exacerbates the situation. far requiring 413(k)(2) from unanimity, provides former § the lack of juror unanimity. Nor is the fact petitioner requested the modified charge Allen and did not I initially complain about the instruction a waiver of the petitioner’s right object to the giving supple- court’s mental instruction.

Addressing argument by petitioner that the Al- coercive, len-type charge is the majority refers to Lowen- Hunt, possible the court as to the verdicts. See State v. A.2d 1285. V. Phelps, U.S. 108 S.Ct. 98 L.Ed.2d 568 field (1988), pointing that, out capital case, Supreme Court of the United States found an Allen-type charge substantially identical to the one given here to be non-coercive. The majority great also takes pains point out that several of upon the cases which the petitioner relies were prior decided decision. Lowenfield

There are significant differences between Lowenfield the case sub In judice. both the initial instruc- Lowenfield tions and the challenged reinstruction “charged jury the if it were unable to reach a unanimous recommenda- tion, the court impose would a sentence of life imprisonment without the possibility probation, parole, or suspension of sentence.” 484 at U.S. 108 S.Ct. at 98 L.Ed.2d at Moreover, there, 575. the defendant's counsel not ob- did ject to the polling jury concerning the extent of its inability agree supplemental nor the charge, omissions Supreme that the important Court found as indicative “that the potential for coercion argued now was not apparent to (Footnote one on spot.” the omitted). U.S.

S.Ct. at 98 L.Ed.2d at 579. contrast, In here, in the case consistent with this Court’s teachings, Calhoun, see jury the was not told what effect its failure to agree Moreover, on a verdict would have. the petitioner’s counsel objected strenuously both to the re- quirement that the jury continue giv- deliberations and the ing of Indeed, the modified charge. seen, Allen as we have the supplemental charge emphasized that to reach the con- petitioner clusion that the principal was a in the first degree, the issue presented by I of the sentencing form, the had to unanimously agree. contrast, By the same charge told the jury that to conclude that principalship in degree the first had proven not been did require not una- nimity.

As to the latter majority error, the opines that it was but not prejudicial. error, It may have been it but also was prejudicial. The finding as to which unanimity was said to required be i.e., was death penalty eligibility finding, finding, imposed. without the a death sentence could be hand, as to which the non-unani- finding On other made, would, if life im- agreement implicate mous related treat- disparate Given the instruction’s prisonment only. findings, coupled giving ment of these with the deadlock, charge modified to break the it is clear to Allen and, me that clear resulted. The intended effect prejudice indeed, only plausible result of the modified Allen that made charge, agreement finding was to foster operating death a outcome. Rather than possible equally other, jury’s way influence the decision one or the charge operated modified Allen this case to influence the finding only to make a unanimous that is consistent of the death sentence. This demonstrates imposition with in this case very graphically why reinstruction coercive.

I dissent.

Case Details

Case Name: Booth v. State

Court Name: Court of Appeals of Maryland

Date Published: Jun 24, 1992

Citation: 608 A.2d 162

Docket Number: 20, September Term, 1991

Court Abbreviation: Md.