Lawrence Michael BORCHARDT v. STATE of Maryland.
No. 55, Sept. Term, 2000.
Court of Appeals of Maryland.
Dec. 13, 2001.
Reconsideration Denied Jan. 4, 2002.
786 A.2d 631
WILNER, Judge.
Argued by Fred Warren Bennett (Michael E. Lawlor of
Argued by Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore for appellee.
Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.
In May, 2000, appellant, Lawrence Borchardt, Sr. was convicted by a jury in the Circuit Court for Anne Arundel County of two counts each of premeditated first degree murder, first degree felony murder, and robbery with a deadly weapon. Those convictions emanated from the murder and robbery of Joseph and Bernice Ohler in their home in Baltimore County on November 26, 1998.1 After a separate sentencing hearing, the jury imposed sentences of death for the murders of Mr. and Ms. Ohler. The court added a consecutive 20-year sentence for the armed robbery of Joseph Ohler and a concurrent 20-year sentence for the armed robbery of Bernice Ohler. In this appeal, Borchardt makes 10 complaints. We perceive no reversible error and shall therefore affirm the judgments of the Circuit Court.
BACKGROUND
The evidence presented at trial was largely uncontradicted and was more than adequate to show that, in the course of a robbery, Borchardt murdered Mr. and Ms. Ohler. Borchardt and his girlfriend, Jeanne Cascio, lived about a mile from the Ohlers, along with Borchardt‘s son and the son‘s girlfriend, Tammy Ent. In order to help
Mr. Ohler‘s body was discovered in his backyard on Thanksgiving night, November 26, by a neighbor. When the police arrived, they found Ms. Ohler‘s body inside the house. Both had died of multiple stab wounds. Also found in the house was a promissory note for $60 from Borchardt to Mr. Ohler, a social security card and a State welfare card in the name of Cascio, the handle of a knife, and jewelry scattered on the floor. A block away, the police found Mr. Ohler‘s wallet, along with keys, business and credit cards, a bloody coat, and bloody leather gloves, the left one showing a slice on the ring finger. After visiting Borchardt‘s apartment and speaking with his son, the police obtained arrest warrants for Borchardt and Cascio and a search warrant for Borchardt‘s
Borchardt and Cascio were arrested the next day, November 27. Borchardt had a cut on his left ring finger that corresponded to the slice found on the glove. He declined to talk with the police that day, claiming that he was suffering from drug withdrawal, but said that he would call them when he was ready to talk. He did so on December 9-twelve days later-at which time, after being advised of his rights, he gave a seven-page written statement confessing to the murders. In that statement, Borchardt acknowledged that he needed money to buy drugs, that he went to the Ohler home and was admitted inside by Ms. Ohler, thаt he asked for $40 and was refused, that he then asked Ms. Ohler for some water and, while she was in the kitchen getting it, he took out his folding knife and stabbed Mr. Ohler five times, three times in the stomach and twice in the chest, that Ohler tried to escape but Borchardt knew he would not get far because of the way he was cut-his intestines were hanging out, that Borchardt then opened the desk in the hallway where he knew Mr. Ohler kept his wallet, that Ms. Ohler ran in and said that she had called the police, whereupon he stabbed her three times, aiming for the heart, that Mr. Ohler managed to get out of the door, and that Borchardt then left with the wallet, took $11 from it, and discarded the cards and keys. Borchardt added that, though wearing his fur-lined leather gloves, he had cut his finger with the knife and that he discarded the gloves as well. In addition to the written statement, Borchardt told the detectives that “he has a taste of blood now and he wants to keep killing whether it be inside or outside jail.”
Borchardt‘s son confirmed that his father was unemployed and got money by asking for donations, using a collection box with Cascio‘s picture. He stated that, on Thanksgiving Day, Borchardt and Cascio left their home together, to “hustle money for some more [drugs],” and that they returned about 20 minutes later. After Cascio bandaged Borchardt‘s finger, they left the apartment because, according to Borchardt, he “had to stab a couple of people.” The son identified the knife handle found in the Ohler home as part of one of Borchardt‘s knives. Several of the Ohlers’ neighbors identified Borchardt as having come to their homes soliciting money on behalf of a woman needing treatment for cancer. Finally, DNA testing disclosed that Joseph Ohler could not be excluded as the source of blood found on Borchardt‘s jacket and shoes, although Borchardt, Cascio, and Ms. Ohler were excluded as the source. Borchardt, on the other hand, could not be excluded as the source of blood on the gloves found a block from the Ohler home, whereas the Ohlers and Cascio were excluded as sources. One fingerprint found at the scene of the murders that was suitable for comparison was identified as that of Borchardt.
We shall recite other relevant facts in our discussion of the issues raised by Borchardt.
DISCUSSION
Constitutionality of Death Penalty Law in Light of Apprendi v. New Jersey2
(1) The Maryland Capital Punishment Law
Maryland Code, Article 27,
(2) Apprendi and its Antecedents
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) was a five-four decision that produced five separate opinions and a great deal of controversy. See, for example, Apprendi Symposium, 38 AM. CRIM. L. REV. 241 (2001). It was not a death penalty case, it did not involve a capital punishment sentencing scheme, and the five Justices forming the majority made clear their view that the rulings enunciated in the case did not serve to invalidate any capital punishment laws. Borchardt nonetheless urges that the case has precisely that effect.
Ultimately, of course, it is the Supreme Court that will have to determine the impact of its Apprendi decision on the various capital punishment laws enacted by Congress and the States. We can do no more than examine what the Court said, in the context of the issue before it and the earlier decisions that it cited and discussed. That examination convinces us that Apprendi does not render
To appreciate the import of Apprendi, we need to begin with several earlier cases, the first being In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Winship Court made clear that the reasonable doubt standard for determining guilt in a criminal (or juvenile delinquency) case, long established under common law tradition, was required also as an aspect of Constitutional due process. The Court explained that the reasonable doubt standard “is a prime instrument for reducing the risk of convictions resting on factual error” and that it “provides concrete substance for the presumption of innocence....” Id. at 363, 90 S.Ct. at 1072, 25 L.Ed.2d at 375 (emphasis added). Its express holding was that the due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375 (emphasis added).
In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court dispelled some of the suppositions that lower courts had drawn from Mullaney and sustained, against an attack based on Winship and Mullaney, a requirement of New York law that a statutory affirmative defense to the crime of second degree murder be established by the defendant, by a preponderance of the evidence. The attack, essentially, was on any scheme that required the defendant to prove a fact that would lessen or mitigate criminality, that relieved the State of having to negate the existence of that fact beyond a reasonable doubt. Limiting the breadth of Mullaney, the Court declined to adopt as a constitutional imperative “that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused,” leaving it, rather, to the State legislatures to allocate the burden of establishing such defenses. Id. at 210, 97 S.Ct. at 2327, 53 L.Ed.2d at 292. The Court concluded that, subject to some undefined Constitutional limits, if the State “chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty.” Id. at 209, 97 S.Ct. at 2326, 53 L.Ed.2d at 291. It declined to read Mullaney as holding “that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact ... beyond a reasonable doubt.” Id. at 214-15, 97 S.Ct. at 2329, 53 L.Ed.2d at 294-95.
Patterson was a prelude to McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which was cited extensively in Apprendi. In McMillan, the Court found no Constitutional defect in a Pennsylvania statute that subjected a person convicted of certain felonies to a mandatory minimum prison sentence of five years if the sentencing judge found, by a preponderance of evidence, that the defendant “visibly possessed a firearm” during the commission of the offense. McMillan‘s argument was that visible possession of a firearm was an element of the offense itself and, under Winship and Mullaney, had to be proved beyond a reasonable doubt.
The statute in question specifically provided that visible possession of a firearm was not an element of the underlying offense, and the Court was content to accept that legislative judgment. The Court noted that the statute before it neither altered
The next important case in the chain leading to Apprendi is Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), a case of special significance because it did involve an attack on a capital punishment law and was the product of much discussion in the Apprendi opinions. Under Arizona law, after a defendant was convicted of first degree murder, a separate sentencing proceeding was held before a judge to determine whether the sentence should be death or life imprisonment. The judge was directed to determine the existence or non-existence of any of the aggravating or mitigating circumstances set forth in the statute. The burden of proving an aggravating factor was on the State; the burden of proving a mitigating factor was on the defendant. The judge was directed to return a special verdict setting forth his or her findings as to aggravating and mitigating circumstances and then impose a sentence of death if the judge found one or more aggravating circumstances “and that there are no mitigating circumstances sufficiently substantial to call for leniency.” Id. at 644, 110 S.Ct. at 3052, 111 L.Ed.2d at 522. Upon the imposition of the death penalty, the Arizona Supreme Court was required to conduct an independent review of the sentence to ensure that aggravating factors were proven beyond a reasonable doubt and all appropriate mitigation was considered.
Among the arguments made by Walton, who was convicted and sentenced to death pursuant to that procedure, was “that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge.” Id. at 647, 110 S.Ct. at 3054, 111 L.Ed.2d at 524. The Court noted that, in prior decisions, it had “soundly rejected” the argument “that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence.” Id. (quoting Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725, 736 (1990) and citing as well Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), and Proffitt v. Florida, supra). The Court found no persuasive distinction between the Florida approach, where the jury merely recommended a sentence to the judge but made no specific factual findings with regard to the existence of aggravating or mitigating circumstances, and the Arizona law. Nor did the Court find merit in Walton‘s contention that, under the Arizona approach, aggravating circumstances constituted elements of the offense rather than sentencing considerations. In that regard, the Court iterated its statement from Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123, 132-33 (1986):
“Aggravating circumstances are not separate penalties or offenses, but are ‘standards to guide the making of [the] choice’ between the alternative verdicts of death and life imprisonment. Thus, under Arizona‘s capital sentencing scheme, the judge‘s finding of any particular aggravating circumstance does not of itself ‘convict’ a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not ‘acquit’ a defendant (i.e., preclude the death penalty).”
Walton, 497 U.S. at 648, 110 S.Ct. at 3054, 111 L.Ed.2d at 525.
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court considered the interplay between two provisions in a Federal statute-one,
The Court turned, then, to whether, under Winship and Mullaney, it was an element as a matter of Constitutional law. Winship the Court found irrelevant and, to the extent language in Mullaney might support the defendant‘s position, it had been circumscribed in Patterson, which the Court regarded as requiring “scarcely any sentencing factors” to be treated as elements of the offense. Id. at 241, 118 S.Ct. at 1229, 140 L.Ed.2d at 366. Though noting a distinction between the case at hand, where the second statute increased a maximum penalty, and McMillan, where the statute under attack created a mandatory minimum sentence, the Court regarded that distinction as favorable to the defendant and therefore not requiring a different result. In closing, the Court noted that, because the defendant had conceded his prior conviction for an aggravated felony, he made no separate argument concerning the standard of proof applicable to the aggravating factor, and it therefore expressed no view on “whether some heightened standard of proof might apply to sentencing determinations that bear significantly
The common issue in these cases was whether, from a Constitutional perspective, a fact that, if shown to exist or not exist, might or would increase or decrease either the degree of criminality or punishment, constituted an element of the offense charged. That issue was dealt with in four different, though obviously related, contexts: who had the burden of persuasion in the matter, the standard of proof applicable to establishing the fact, whether a dispute over the fact was for the trier of fact to resolve or could be resolved by the judge alone as a sentencing factor, and whether the fact had to be alleged in the charging document. Those contexts came together in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the most pertinent precursor to Apprendi.
Jones involved the Federal carjacking statute,
After analyzing the text and structure of the statute and considering both its legislative history and how Congress had treated the consequence of serious injury or death in other statutes, the Court concluded, as a matter of statutory construction, that the intent of Congress was to create separate offenses and not to make serious injury or death merely sentencing considerations. In support of that conclusion, the Court observed that a contrary construction would raise serious Constitutional issues and that it was obliged to construe the statute to avoid that problem.
The significance of Jones, in contrast to Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (reaching a similar conclusion based solely on statutory construction regarding
The Court‘s discussion of Constitutional issues, as noted, was solely in the context of its statutory construction analysis, and it took pains to announce that its decision did “not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century.” Id. at 251 n. 11, 119 S.Ct. at 1228 n. 11, 143 L.Ed.2d at 331 n. 11. It nonetheless restated its view, from the earlier cases, that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guaranteеs of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6 (emphasis added).
Having ventured into the Constitutional realm, the Court expressly noted several cases dealing with fact-finding in capital punishment cases that permitted a level of fact-finding to be made by the judge, rather than the jury, but did not regard them as pertinent. In Walton, it said, “[t]he Court ... characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available.” Id. at 251, 119 S.Ct. at 1228, 143 L.Ed.2d at 331 (emphasis added). That point was made as well in the concurring opinions of Justices Stevens and Scalia, both of whom noted their Constitutional concern over removing from the jury the assessment of facts that increase “the prescribed range of penalties to which a criminal defendant is exposed.” Id. at 252, 119 S.Ct. at 1228, 143 L.Ed.2d at 332 (concurring opinion by Stevens, J.) and at 253, 119 S.Ct. at 1229, 143 L.Ed.2d at 332 (concurring opinion by Scalia, J.).
This brings us to Apprendi, in which the defendant was convicted, on a plea of guilty, of using a firearm for an unlawful purpose, a second-degree offense under New Jersey law that carried a sentence range of five to ten years in prison. There was evidence, which Apprendi disputed, that his offense was racially motivated—that he fired shots into the home of an African-American family because he did not want them as neighbors. New Jersey had a separate “hate crime” statute that increased the punishment for a second-degree offense to a prison term of 10 to 20 years if the judge found, by a preponderance of the evidence, that the defendant committed the underlying offense with a purpose to intimidate an individual or group because of race, color, gender, handicap, religion, sexual orientation, or ethnicity. Apprendi was not charged under the hate crime law, and, though pleading guilty to the underlying offense, he objected to the sentence enhancement under that law. The judge rejected the challenge and sentenced Apprendi to 12 years.
The Supreme Court believed that the case was controlled by the footnote statement made in Jones—that under the
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones]: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ 526 U.S. at 252-53, 119 S.Ct. 1215 (opinion of STEVENS, J.); see also 526 U.S. at 253, 119 S.Ct. 1215 (opinion of SCALIA, J.).”
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455 (emphasis added).
Against that standard, the Court determined that the enhanced pеnalty imposed by the hate crime statute was not merely a sentencing consideration but effectively “turn[ed] a second-degree offense into a first-degree offense, under the State‘s own criminal code” (id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457) and therefore constituted “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Id. at 497, 120 S.Ct. at 2366, 147 L.Ed.2d at 459. The Court made clear, however, that it was not impermissible “for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute” and noted that judges have long “exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449 (emphasis in original).
The impact of the argument made by Apprendi on capital sentencing laws—at least those that allow the judge to determine and weigh aggravating and mitigating factors—was clearly of concern to both the litigants and the Court. Amicus briefs filed by the United States and the Anti-Defamation League cited Walton and the cases approving the Florida capital punishment scheme as authority for treating the racial motive as a sentencing consideration properly determined by a judge, and the issue was raised by several of the Justices at oral argument.
In response, the Court, citing Walton, expressly noted in its opinion that it “has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.” Id. at 496, 120 S.Ct. at 2366, 147 L.Ed.2d at 459. In explanation of why the capital cases were not controlling on the issue before it, the Court, quoting from the dissenting opinion filed by Justice Scalia in Almendarez-Torres v. United States, 523 U.S. 224, 257 n. 2, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), stated that those cases do not permit a judge “to determine the existence of a factor which makes a crime a capital offense” but hold only that “once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty
(3) Post-Apprendi Cases
Not surprisingly, despite the Supreme Court‘s unambiguous attempt to distance its death penalty jurisprudence from the rulings enunciated in Jones and Apprendi, efforts have been made throughout the country to use those cases—Apprendi in particular—to impale capital punishment laws. All such efforts, to date, have been unsuccessful.
In Burch v. Corcoran, 273 F.3d 577 (4th Cir.2001), the U.S. Court of Appeals for the Fourth Circuit had before it the very issue raised here by Borchardt—whether the preponderance of evidence standard mandated by
“[e]ven if we could address the merits of Burch‘s claim that Apprendi renders Maryland‘s capital punishment sentencing provisions unconstitutional, his contention would fail. In explaining the basis and reach of Apprendi, Justice Stevens rejected the notion that Apprendi rendered state death-penalty statutes unconstitutiоnal [citation omitted].
Burch was convicted of two counts of first-degree murder at the guilt phase of his state court trial in Maryland. Each element of those capital crimes was proven to the jury beyond a reasonable doubt. When the sentencing jury, pursuant to the provisions of section 413(h) of the Maryland Code, determined by a preponderance of the evidence that the aggravating circumstances outweighed the mitigating circumstances and that therefore a death sentence was warranted, it was simply selecting the appropriate sentence from a range of penalties that already included the death penalty. As such, Burch‘s sentence of death did not violate Apprendi because every fact necessary to the capital murder charges already had been ‘submitted to a jury, and proved beyond a reasonable doubt.‘”
Id. at 584 n. 6 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2363, 147 L.Ed.2d 435, 455 (2000)).
In State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000), cert. denied, U.S., 122 S.Ct. 386, 151 L.Ed.2d 294 (2001), the defendant contended that the Arizona death penalty law was unconstitutional because it eliminated jury consideration in the sentencing process. The court dismissed the challenge on the basis of Walton. It indicated its awareness of Apprendi, Castillo, and Jones, but observed that none of them involved capital punishment and concluded that it would continue to follow Walton until such time as the Supreme Court expressly overruled it. See also State v. Ring, 200 Ariz. 267, 25 P.3d 1139, 1150-52 (2001), petition for cert. filed, Sept. 18, 2001 (holding to the same effect); People v. Ochoa, 26 Cal.4th 398, 110 Cal.Rptr.2d 324, 28 P.3d 78, 86-87 (2001) (applying Walton and specifically rejecting application of Apprendi in capital cases). In People v. Anderson, 25 Cal.4th 543, 106 Cal.Rptr.2d 575, 22 P.3d 347 (2001), the defendant made two complaints implicating Apprendi, one being precisely the argument made here by Borchardt. Anderson argued that the California death penalty law was unconstitutional because it did not require “(3) findings that aggravation
“[U]nder the California death penalty scheme, once the defendant has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, death is no more than the prescribed statutory maximum for the offense; the only alternative is life imprisonment without possibility of parole.... Hence, facts which bear upon, but do not necessarily determine, which of these two alternative penalties is appropriate do not come within the holding of Apprendi.”
Id. 106 Cal.Rptr.2d 575, 22 P.3d at 378 n. 14 (citation omitted).
In Weeks v. State, 761 A.2d 804 (Del.2000), the defendant, in a post conviction proceeding, claimed that Delaware‘s capital punishment law was unconstitutional under Apprendi because it allowed the judge to find a statutory aggravating factor without being bound by a jury verdict on allegedly underlying issues of fact. Quoting from Apprendi, itself, the court responded that it was “not persuaded that Apprendi‘s reach extends to ‘state capital sentencing schemes’ in which judges are required to find ‘specific aggravating factors before imposing a sentence of death.‘” Weeks, 761 A.2d at 806 (quoting Apprendi, 530 U.S. at 496, 120 S.Ct. at 2366, 147 L.Ed.2d at 459).
A similar holding was made in Mills v. Moore, 786 So.2d 532 (Fla.), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001). There, too, a defendant who received the death penalty challenged, in a habeas corpus proceeding, the constitutionаlity of the Florida statute to the extent that it allowed a judge to find specific aggravating factors. The court observed that “[n]o court has extended Apprendi to capital sentencing schemes, and the plain language of Apprendi indicates that the case is not intended to apply to capital schemes.” Id. at 537. Relying on comments made in Justice O‘Connor‘s dissenting opinion and Justice Thomas‘s concurring opinion in Apprendi, Mills urged that Apprendi had, indeed, overruled Walton, to which the Florida court responded that the majority had not overruled Walton and, citing Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391, 423 (1997), made clear that it was not for the Florida court to do so. The court held that the majority opinion in Apprendi “preserves the constitutionality of capital sentencing schemes like Florida‘s.” Mills, 786 So.2d at 537.
In North Carolina, the State is not obliged to inform the defendant prior to trial of the aggravating circumstances upon which it intends to rely. In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 and 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed.2d 305 (2001), a defendant sentenced to death complained that the failure to allege those aggravating factors in the indictment made the law unconstitutional under Apprendi. The court rejected that complaint, holding that Apprendi did not affect its prior holdings that those factors did not need to be alleged in the indictment. See also State v. Braxton, 352 N.C. 158, 531 S.E.2d 428, 438 (2000), cert. denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001) (rejecting argument that short-form indictment for murder authorized under North Carolina law was unconstitutional under Apprendi and Jones because it did not specifically allege premeditation, deliberation, and intent to kill), and State v. King, 353 N.C. 457, 546 S.E.2d 575, 585 (2001) (same).
The Missouri Supreme Court rejected an Apprendi challenge in State v. Storey, 40 S.W.3d 898 (Mo.), cert. denied, U.S., 122 S.Ct. 272, 151 L.Ed.2d 199 (2001). Storey, whose previous death sentences had been set aside, averred that, in one of the earlier proceedings, the jury had failed to find the aggravating factor that the murder was committed for pecuniary gain, and he complained, on double jeopardy grounds, about the submission of that factor in the proceeding on remand. Although in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the Supreme Court had rejected that kind of argument, Storey contended that Jones and Apprendi suggested that the Court had begun to reexamine the application of double jeopardy to sentencing. The court disposed of that argument with the statement that “[t]o the contrary, the Apprendi Court specifically rejected the contention that its ruling had any effect on the finding of aggravating factors in capital cases.” Id. at 915. Accord Ochoa, 110 Cal.Rptr.2d 324, 28 P.3d at 86-87.
Several Federal courts have reached a similar conclusion. In United States v. Allen, 247 F.3d 741, 759 n. 5 (8th Cir.2001), the court rejected a number of Apprendi challenges to the Federal Death Penalty Act, including complaints that statutory and non-statutory aggravating factors should have been presented to the grand jury and alleged in the indictment. The court‘s response was that those aggravating factors were not elements of the offense and did not serve to increase the penalty beyond the statutory maximum. See also United States v. Bin Laden, 126 F.Supp.2d 290, 296 n. 6 (S.D.N.Y. 2001) and United States v. Nichols, 132 F.Supp.2d 931 (D.Colo.), aff‘d by unreported opinion, No. 99-1438, 2000 WL 1846225, 2000 U.S.App. Lexis 33183 (10th Cir.), cert. denied, 532 U.S. 985, 121 S.Ct. 1632, 149 L.Ed.2d 493 (2001).
The Court of Appeals for the Ninth Circuit, in a Federal habeas corpus proceeding, dealt with the same issue presented to the Florida court in Mills, 786 So.2d 532, and arrived at the same conclusion—that the Idaho capital punishment law was not unconstitutional under Apprendi because it allowed the judge to determine the existence of aggravating circumstances. See Hoffman v. Arave, 236 F.3d 523 (9th Cir.), cert. denied, U.S., 122 S.Ct. 323, 151 L.Ed.2d 241 (2001). Though noting the Apprendi dissenters’ concern that the ruling may have implicitly overruled Walton, the court observed that “[t]he Supreme Court has specifically directed lower courts to ‘leav[e] to this Court the prerogative of overruling its own decisions‘” and that it was not the court of appeals‘s place “to engаge in anticipatory overruling.” Id. at 542 (quoting Agostini, 521 U.S. at 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391, 423).
In the face of this solid block of cases, from six State Supreme Courts and three Federal appellate courts, Borchardt urges us to follow the decision of an intermediate appellate court panel in Illinois that did not involve the death penalty. In People v. Nitz, 319 Ill.App.3d 949, 254 Ill.Dec. 281, 747 N.E.2d 38 (2001), the defendant was charged with non-capital murder under a statute that provided a maximum penalty
(3) Analysis
The issue of whether
Perhaps the easiest answer lies in the unequivocal statement by the Apprendi majority that its decision did not render invalid State capital sentencing schemes, such as approved in Walton, that allowed the judge, not sitting as the trier of fact, to find and weigh specific aggravating factors. If it is permissible under Apprendi for the law to remove that fact-finding and fact-weighing process entirely from the jury and leave it to the judge as a legitimate sentencing factor, without specifying a reasonable doubt standard, it can hardly be impermissible for a jury that has found the prerequisite aggravating factors beyond a reasonable doubt to apply a preponderance standard in weighing them against any mitigating circumstances. The Walton scheme, in other words, is in far greater direct conflict with the underpinning of Apprendi than the Maryland approach. Thus, if the aggravating circumstances do not constitute elements of the offense or serve to increase the maximum punishment for the offense in the Walton context, they cannot reasonably be found to have that status under the Maryland law. If Apprendi renders the Maryland law unconstitutional, then, perforce, it likely renders most of the capital punishment laws in the country unconstitutional.4 We cannot conceive that the Supreme Court, especially in light of its contrary statement, intended such a dramatic result to flow from a case that did not even involve a capital punishment law.5
As noted, Maryland law makes death the maximum penalty for first degree murder. Under
That is simply not the case. Although there are some variations in nearly all of the death penalty statutes, in terms of the Apprendi issue now before us the others around the country are substantially similar to the one in Maryland. No statute of which we are aware allows the death penalty to be imposed merely upon conviction of a death-eligible crime. Every one of them treats capital punishment as the high end of a range of permissible sentences and requires additional findings to be made, either by the jury (as in Maryland) or by the judge, in order for that sentence to be imposed. In that critical sense, there is nothing unique about the Maryland approach.
Citing Johnson v. State, 362 Md. 525, 766 A.2d 93 (2001), a case never mentioned by Borchardt, notwithstanding that it was filed three months before oral argument in this case, the dissent urges that life without parole and death are, indeed, “enhanced” sentences and therefore must follow at least some of Apprendi‘s dictates. Borchardt was quite correct in ignoring Johnson, for it has nothing whatever to do with the matter before us. The issue in Johnson was whether life without parole was a permissible sentence for one convicted of conspiracy to commit first degree murder. Under
The issue was purely one of statutory construction—whether the Legislature could possibly have intended to make life without parole an available sentence upon a conviction of conspiracy—and we found nothing in the language or the legislative history of either
Noting that the greater sentences of life without parole and death “cannot be imposed unless certain special conditions are met,” id. at 529, 766 A.2d at 95, we characterized those sentences as “enhanced” sentences for first degree murder and concluded, on the basis of well-established Maryland law that, “for purposes of this limitation on the sentences for conspiracy and attempt, the reference to the maximum sentence for substantive or target offenses means the basic maximum sentence and does not include any enhanced penalty provisions.” Id. at 530, 766 A.2d at 96.
The dissent seizes on that characterization of life without parole and death as “enhanced” punishments as a basis for applying Apprendi, ignoring, of course, the entirely different context in which the statement was made, the clearly stated view of the Apprendi majority that their decision did not affect death penalty statutes, the unanimous view of all post-Apprendi courts to that same effect, and, indeed, the language in the Apprendi opinion itself. Life without parole and death obviously are enhanced punishments, just as, in sentencing for any crime, the highest penalty allowed is an enhancement over a lesser penalty allowed—20 years is an enhancement over 10 years, one year is an enhancement over a fine or probation. The point missed by the dissent is that both life without parole and death are part of the sentencing range authorized by the Legislature for the crime of first degree murder. Unlike the situation in Apprendi, the death sentence is not in excess of the maximum statutory penalty for the offense. We made clear in Gary v. State, 341 Md. 513, 517-18, 671 A.2d 495, 497 (1996), cited in Johnson, that “a sentence of life imprisonment for conspiracy to commit first degree murder is the lowest of the statutory penalties for first degree murder.” (Emphasis added). The dissent turns Gary on its head by effectively treating life imprisonment not just as the lowest of the statutory penalties for first degree murder, but also as the highest. Under Johnson and Gary, life without parole and death are within the range of penalties allowed by the Legislature upon a conviction for first degree murder.
That is precisely the point made by the Apprendi majority in quoting from Justice Scalia‘s dissent in Almendarez-Torres—that once the jury has found the defendant guilty of all of the elements of an offense that carries as its maximum penalty the sentence of death, the determination of whether to impose that penalty, as opposed to a lesser one also within the statutory range, is properly a sentencing factor not subject to the Apprendi strictures. It follows as well from the concepts and holdings in Winship (requiring “every fact necessary to constitute the crime with which [the defendant] is charged” to be proved by the State bеyond a reasonable doubt, to reduce the risk of “convictions resting on factual errors“), Mullaney (expressing concern over States redefining elements that constitute different crimes as factors bearing only on punishment), Patterson (allowing State to permit severity of punishment authorized for an offense to depend on identified facts without assuming burden of proving presence or absence of those facts beyond reasonable doubt), and, of course, Jones.
The incongruity of applying Apprendi to this process is particularly apparent with respect to the requirement that, if the determination that aggravating circumstances outweigh mitigating circumstances is treated as an element that must be proved by the State beyond a reasonable doubt, it also must be sufficiently alleged in the indictment. Borchardt has made that argument under both Federal due process and Article 21 of the Maryland Declaration of Rights. No case, to our knowledge, has required that aggravating circumstances, mitigating circumstances, or a weighing of them be set forth in the indictment, yet, if Apprendi and Jones are applicable, that clearly would be so under Federal due process and likely would be so as well under Article 21.6
As individual judges, we might well entertain the personal belief that it would be more fair, or better public policy, for the jury to apply a reasonable doubt standard in determin-7
ing that aggravating circumstances outweigh mitigators—to be that convinced before sentencing a person to death. That is a judgment for the Legislature to make, however, and, unlike its counterparts in other States, which have legislatively imposed a reasonable doubt standard, the Maryland General Assembly has chosen a different approach—one that we have consistently upheld as Constitutional. To apply Apprendi as Borchardt urges would be nothing less than a substitution of our judgment of what the law ought to be for what the Legislature has said it is. That is not our function.
Prior Consistent Statement of Tammy Ent
Borchardt‘s son testified as a State‘s witness. He stated that, on the day of the murders, he and Tammy Ent, his then-girlfriend, were living in a two-bedroom apartment with his father and Jeanne Cascio. That evening, Borchardt said that he had got some “bad stuff,” meaning heroin, and that he and Cascio had to go out “and hustle money for some more.” When they returned about 20 minutes later, the son saw Cascio bandaging his father‘s finger and Borchardt said to him that he and Cascio would have to leave for a while because he “had to stab a couple of people.” Borchardt also instructed his son that “[i]f anybody comes looking for me, tell uhm you haven‘t seen me for a week.”
When asked what Borchardt and Cascio were wearing when they first left the
The next witness was Tammy Ent. She confirmed the living arrangements, that Borchardt and Cascio left the apartment and returned together, and that, upon their return, she heard Borchardt tell his son that “if anybody came looking for him, they hadn‘t been there in a week.” On direct examination, she said that, when they left again, Cascio was wearing black leggings, a red sweater, and a black wool sport coat with white speckles, and that Borchardt had on jeans, a short-sleeve button-up shirt, and a leather coat. She said that he “could have” been wearing a red, white, and blue windbreaker that she identified. She also identified a sweater and leggings that she said Cascio was wearing.
On cross-examination, Ent said that she did not recall the color of Cascio‘s jeans or of Borchardt‘s shirt, although she thought it was blue. Counsel called her attention to a statement she had given to the police the day after the murders, in which she said that Borchardt was wearing a red and white shirt. She admitted that she had not actually seen Borchardt wearing the red, white, and blue windbreaker and that she had told the police he was wearing a black leather jacket. On redirect examination, Ms. Ent identified the statement she gave to the police and acknowledged that her memory was better when she gave that statement than it was on the day of trial. At that point, over a general objection, the full statement was admitted into evidence and read to the jury. Included in that document, in addition to her description of the clothing worn by Cascio and Borchardt, was the statement that, after Borchardt and Cascio left the second time, the son told her that Borchardt and Cascio were leaving for a few days and that, when she asked why, “he told me that his father had stabbed one or more people, possibly killed them,” and, when she again asked why, “he said probably to get a drug.”
Borchardt regards that part of the written statement as inadmissible and “grossly prejudicial” hearsay that warrants a reversal of the judgments against him. The statement was multiple hearsay—the witness‘s recounting of what her boyfriend told her his father had told him—and was collateral to the matter brought up on cross-examination, which dealt only with the clothes Borchardt and Cascio were wearing. Although acknowledging the dreadfully inculpatory statement Borchardt himself gave to the police, he urges that the voluntariness of that statement was contested and that Ms. Ent‘s statement could not, therefore, be regarded as harmless
error. The State contends that the issue was not preserved, that the statement was admissible as a prior consistent statement, and that any error was, indeed, harmless.
We believe that the issue was preserved by the general objection, that the challenged part of the statement, on its face, was double-level hearsay and, as such, was inadmissible, and that it was not rendered admissible as a prior consistent statement offered to rehabilitate the witness following impeachment. Without belaboring the matter, it is not at all clear that Ms. Ent was impeached, and thus in need of rehabilitation, by anything she said on cross-examination. We are unable to find anything she said on cross-examination that was substantially inconsistent with her direct testimony or that otherwise put her credibility into doubt. Even if
The admission of that one passage in the police statement was error, but, on this record, it was, beyond any reasonable doubt, harmless. See Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976). Apart from Borchardt‘s own statement that was in evidence, in which he admitted not only the stabbings but having told his son that he “had done something stupid and stabbed somebody,” Ms. Ent‘s recitation of what Borchardt‘s son told her came immediately after the same testimony, without objection, was given from the son, whom Borchardt made no attempt to impeach. Coupled with the overwhelming physical evidence tying Borchardt to the killings, this one corroborative hearsay statement from Ms. Ent could not possibly have influenced the verdicts.
Other Crimes Evidence
Borchardt complains about the admission, during both his trial as to guilt or innocence and at the sentencing proceeding, of part of the statement he gave to the police following his arrest and about two other statements attributed to him—one relayed by officials at the Baltimore County Detention Center and the other by his son and former wife—that were included in the pre-sentence investigation report presented at his sentencing hearing. All three statements, he avers, constituted inadmissible “other crimes” evidence, the prejudice of which outweighed any probative value they might have. The State responds that these complaints were not properly preserved and that, in any event, they have no merit.
The first statement came into evidence through the testimony of Detective West who, after giving Borchardt his Miranda warnings, took a statement from him, in which Borchardt described in some detail how he had killed the Ohlers. The statement was dictated by Borchardt and written down by Detective Landsman, following which Borchardt reviewed the document and signed and dated each page. After reading the statement into evidence, Detective West was asked whether Borchardt said anything else that evening, to which, over objection, West responded:
“Mr. Borchardt told us that he has a taste of blood now and he wants to keep killing, whether it be inside or outside of jail. For the past several weeks he‘s been wanting to hurt somebody. He had his friend, Paul sharpen his knife.”
Borchardt had moved, unsuccessfully, to suppress his entire statement to the police, including this passage, on the ground that it was involuntary, and, when this additional response was presented at trial, he made a general objection to it. The State‘s non-preservation argument is based on Borchardt‘s omission to make a specific objection that the challenged passage constitutes impermissible other crimes evidence. We believe that the issue was preserved.7
Borchardt cites Snyder v. State, 361 Md. 580, 762 A.2d 125 (2000) in support of his complaint, and, to that extent, it would appear that he is seeking to invoke the declaration of
Over a general objection, all evidence presented at the guilt-innocence trial was admitted, in bulk, at the sentencing proceeding, including that part of his statement to the police. The only complaint Borchardt makes in that regard is that the admission of the statement at the guilt-innocence stage “also infected the sentencing hearing.” He does not tell us, and we are unable to discern, how it “infected” the sentencing proceeding. Certainly, the statement that Borchardt had tasted blood and would kill again is highly relevant to (1) whether Borchardt was a principal in the first degree, and (2) the mitigating circumstance under
Also admitted at the sentencing proceeding was a pre-sentence investigation report prepared by the Department of Public Safety and Correctional Services Division of Parole and Probation. Such a report, by statute, is admissible. See
“1/11/99 Incident Report reveals that, while being moved to suicide watch on 2-C, the defendant threatened nurse Linda Keyser, telling her he would cut out her eyes and her heart if he got the chance. He also reported he would look her up in the phone book and kill her. This incident reportedly occurred after he refused to take his insulin. As a result of the incident, he was placed in a restraint chair, due to lack of space. Found guilty of the charges, he was issued a verbal warning.”
Under the part dealing with Personal History was a report from Borchardt‘s former wife that “he was making threatening comments should he not get his girlfriend‘s furniture,” and a report from his son about similar threats regarding the furniture, including a threat to send some one over “to fuck us up because we did him wrong.”
Borchardt complains that these notes also constitute inadmissible “other crimes” evidence that were grossly prejudicial to him. Even assuming that they do constitute “other crimes” evidence, which is not at all clear, they were directly relevant to the issues then before the jury. When so relevant, other crimes evidence, bad act evidence, and evidence of a defendant‘s institutional adjustment are generally admissible in a capital sentencing proceeding. See Hunt v. State, 321 Md. 387, 431-33, 583 A.2d 218, 239-40 (1990); Conyers v. State, 354 Md. 132, 182-83, 729 A.2d 910, 937 (1999), cert. denied, 528 U.S. 910, 120 S.Ct. 258, 145 L.Ed.2d 216 (1999).
Adequacy of Voir Dire Examination
The voir dire examination of prospective jurors was conducted in two phases. After certain introductory comments, the court first asked the entire panel a series of questions designed to elicit ability to serve and bias. No complaint is made about that part of the process. Following that group examination, the court asked each remaining prospective juror, individually, five questions regarding his or her views about capital punishment:
- whether the juror had strong feelings either that the death penalty should be imposed in every case of first degree murder, regardless of the facts and circumstances, or that it should never be imposed regardless of the facts and circumstances;
- whether any feelings that the juror had about the death penalty would prevent or substantially impair him or her from making an impartial decision about Borchardt‘s guilt or innocence;
- whether any such feelings would prevent or substantially impair the juror in sentencing Borchardt in accordance with the evidence and the law;
- whether, after listening to the evidence and applying the law, if convinced that the appropriate sentence should be death, the juror would be able to vote for the death penalty; and
- whether, after listening to the evidence and applying the law, if not convinced that the appropriate sentence should be death but convinced that the appropriate sentence should be life imprisonment, the juror would vote for life imprisonment.
If any juror, in response to those questions, expressed a position about the death penalty, one way or the other, individual follow-up questions were allowed.
Defense counsel had prepared a far more extensive list of voir dire questions, including 43, some of which were multi-part, dealing with the death penalty. Some of those questions were included in the ones asked by the court; many were
Borchardt contends that the court‘s refusal to propound those questions—to “address the role of mitigating and aggravating factors” and “explain to the jury in any detail ... how the Maryland sentencing scheme operated“—constituted a violation of the mandate of the Supreme Court in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). He urges, as well, that the voir dire was insufficient under this Court‘s holding in Dingle v. State, 361 Md. 1, 759 A.2d 819 (2000). We disagree with both assertions.
As we explained in Evans v. State, 333 Md. 660, 672, 637 A.2d 117, 123 (1994), cert. denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994), the Morgan Court had before it whether a “reverse Witherspoon” question was required on voir dire in a death penalty case. At the State‘s request, and in conformance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the trial court had asked prospective jurors whether any of them had moral or religious principles so strong that they could not impose the death penalty regardless of the facts. The court refused to ask the converse, however—whether, if they found Morgan guilty, they would automatically vote to impose the death penalty, regardless of the facts. The court asked, instead, whether the jurors could be impartial, give both sides a fair trial, and follow the court‘s instructions on the law even if they disagreed with those instructions, and the State urged that those instructions were sufficient.
The Supreme Court disagreed. The point at issue, it said, was the defendant‘s ability to exercise intelligently his right to challenge for cause “those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt,” and its response was that, if voir dire were not available to support the foundation for a “challenge for cause against those prospective jurors who would always impose death following conviction,” the defendant‘s right not to be tried by such jurors would be rendered nugatory. Morgan, 504 U.S. at 733-34. General questions as to fairness, impartiality, or ability to follow instructions, the Court held, did not suffice, for, in its view, any juror who would impose the death penalty regardless of the facts and circumstances “cannot follow the dictates of law.” Id. at 735. It may well be, the Court continued, “that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so.” Id.
The issue presented here by
Jurors do not need to be instructed about the details of the sentencing procedure or questioned as to how they might feel about particular aggravating or mitigating factors that may or may not be established in the case in order to determine whether they have a pre-conceived, fixed, and unshakable bias for or against the death penalty. As we pointed out in Burch v. State, 346 Md. 253, 295, 696 A.2d 443, 464 (1997), cert. denied, 522 U.S. 1001, 118 S.Ct. 571, 139 L.Ed.2d 410 (1997), “[a] defendant has no right to question prospective jurors, under the guise of searching for disqualifying bias, to see who might be receptive to any of the myriad of potential mitigating factors he or she may choose to present.” None of the cases cited by Borchardt in his brief hold to the contrary.
Nor does Dingle provide any relief. The problem addressed in that case was the asking of compound questions that did not suffice to elicit potentially disqualifying information—whether, for example, the juror or family member or close friend belonged to a victim‘s rights group and, if the answer was “yes,” whether that would interfere with the juror‘s ability to be fair and impartial. The evil that the Court found with that approach is that a juror would not respond affirmatively just to the first part of the question, thereby eliminating the prospect of further questions regarding the attachment or affinity and how it might affect the juror. It left to the jurors themselves, and thus removed from the court, the assessment of whether they could be fair and impartial. See Dingle, supra, 361 Md. 1, 21, 759 A.2d 819, 830. None of the questions objected to by Borchardt were of that character.
Inconsistency in Sentencing Verdicts
In accordance with our direction in Burch v. State, supra, 346 Md. 253, 290, 696 A.2d at 461-62, the court presented to the jury at the sentencing hearing two sentencing forms, as prescribed by
“Dysfunctional family (emotional, physical + sexual abuse)
Life w/out parole is severe enough
Health Problems”
The jurors also unanimously found, in Section IV, “that the aggravating circumstances marked ‘proven’ in Section II outweigh the mitigating circumstances in
Borchardt urges that “[t]he finding by at least one juror that ‘Life w/out parole is severe enough’ leads to the conclusion that the death sentence here was arbitrarily imposed and must be vacated.” He contends that that statement creates an ambiguity or inconsistency in the verdict and cites a number of cases for the proposition that, when a death penalty verdict is internally ambiguous or inconsistent, it must be stricken. The problem, for Borchardt, is that there is no fatal inconsistency or ambiguity. He overlooks the fact that the listing of something that one or more jurors believes to be a mitigating factor is merely a subordinate step in the process. It is the weighing of those factors against the aggravating factors that guides the jury in determining the sentence. One or more jurors obviously believed that life without parole is ordinarily a severe enough sentence for first degree murder, but those same jurors, just as obviously, did not believe that to hold true when balanced against the two aggravating circumstances they found to exist in this case. We perceive no ambiguity, no inconsistency, and no arbitrariness.
Court‘s Alleged Failure to Impose Sentences on Murder Convictions
When the jury returned with its verdicts, the forelady passed the two completed sentencing forms to the court and then announced, in open court, each finding the jury had made. Consistently with the written forms, she stated, with respect to each victim, that the jury determined the sentence to be death. Each juror was then polled and confirmed those verdicts, following which the jury was discharged. The State then presented to the court a warrant of execution and a stay of execution which, in accordance with
Because the record does not reflect that the judge ever uttered the words, “I hereby sentence you to death,” Borchardt contends that no such sentence was ever imposed. He treats that omission as equivalent to a suspension of sentence on the murder counts and urges that it is now too late to correct that omission or modify the suspension. He asks us to remand the case to the Circuit Court with instructions to strike the sentences of death and enter an amended judgment suspending sentence on the murder counts. We shall decline that invitation, for there is no basis for it.
When a defendant facing the death penalty chooses a jury as the sentencing tribunal, it is the jury that determines the sentence.
Merger of the Robbery Convictions
At the conclusion of the trial on guilt/innocence, the jury returned a verdict on four counts. It found Borchardt guilty of robbery with a deadly weapon of Joseph and Bernice Ohler (Counts 1 and 4), and felony and premeditated murder of Joseph and Bernice Ohler (Counts 2 and 5). Both forms of murder were specified in the verdicts, and both rendered Borchardt eligible for the death penalty. It was not necessary for the jury, in carrying out its sentencing function, to distinguish between them or to deal with one, rather than the other, and, when the issue of sentence was presented to the jury, no distinction was made. The sentencing form, following the form prescribed by
That is not the case. In Newton, we concluded that felony murder and the underlying felony must be treated as one offense for double jeopardy purposes and that, for sentencing, the underlying felony must merge into the murder. That is because felony murder contains every element contained in the underlying felony and therefore does not present the situation in which each offense contains an element not found in the other. We also made clear, however, that if a first degree murder conviction is based on independent proof of premeditatiоn and deliberation, the murder, even if committed in the course of a felony, would not be deemed the same offense as the felony and there would therefore be no merger. In Frye, we held that, whether a merger is required depends on the basis for the jury‘s verdict on the murder count: “The convictions and sentences for the underlying felonies ... are supportable if the juries found wilful, deliberate and premeditated killings but are not supportable if the murder verdicts rested upon the felony murder theory.” Frye, 283 Md. at 722, 393 A.2d at 1379. In the two cases consolidated before us in Frye, the defendants were charged under both theories, but the juries were not instructed to specify in their verdicts which
The critical determination is the verdict. Merger in this kind of setting is mandated only when, for double jeopardy purposes, the two offenses are the same—when all elements required for the lesser offense are also required for the greater and only one has an element not found in the other. When the trier of fact returns a guilty verdict of premeditated murder, that is not the case, for both the underlying felony and the murder in that situation contain an element not required in the other. As noted, that was the case here. There was no ambiguity in the verdicts. The armed robbery convictions did not, therefore, merge into the premeditated murder convictions, regardless of the form of murder for which the death sentence was imposed, and the imposition of separate sentences for the robberies was permissible.
Robbery of Ms. Ohler—Sufficiency of Evidence
Borchardt makes two arguments with respect to Count 4 of the indictment, charging him with the armed robbery of Bernice Ohler. First, he contends that the evidence was legally insufficient to support that conviction and that his motion for judgment of acquittal on that count should therefore have been granted. Second, given that he was also convicted under Count 1 of the armed robbery of Joseph Ohler, he argues that his conviction and sentence for robbing Bernice violated his right against double jeopardy. We disagree.
Count 4 of the indictment charged that Borchardt, using a deadly weapon, “feloniously ... did rob Bernice Ohler and violently did steal from her a wallet, current money of the United States and personal papers....” Count 1 was identical, except that it named Joseph Ohler as the victim. The evidence relating to the robbery showed that Borchardt removed a wallet, which contained $11 in cash and various cards, from a chest or desk in the hallway, that he took the wallet and its contents from the house, and that the wallet, cash, and cards belonged to Joseph Ohler. That, indeed, is the basis of the first prong of Borchardt‘s challenge to the conviction—that the property taken did not belong to Bernice and that it was not taken from her person.8
The State acknowledges that the wallet, money, and cards belonged to Joseph, and not Bernice, but that is not dispositive of the issue. We made clear in State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988) that a robbery conviction may be sustained even if the victim of the force is not the owner of the property taken and is not in the immediate presence of the property when it is taken. We pointed out that
As we said, the wallet was taken from a desk or chest in the Ohler home, not directly from Mr. Ohler‘s person. Although Mr. Ohler may have been the owner of the wallet, there is a fair inference that Ms. Ohler had equivalent possession of the desk or chest and thus of the wallet in the chest. Moreover, she offered active resistance to Borchardt‘s taking the item by confronting him and informing him that she had called the police. Had Ms. Ohler been alone in the house and stabbed while attempting to prevent Borchardt from removing the wallet, there clearly would have been a robbery; it makes her no less the victim of a robbery that her husband was also present and offered resistance.
The second prong of Borchardt‘s argument is that the court erred in allowing a double conviction for the “single criminal transaction” in which he took Mr. Ohler‘s wallet. As we pointed out in Richmond v. State, 326 Md. 257, 261, 604 A.2d 483, 485 (1992), whether, for double jeopardy purposes, “a particular course of conduct constitutes one or more violations of a single statutory offense” depends upon “the appropriate unit of prosecution of the offense and this is ordinarily determined by reference to legislative intent.” In the case of theft, which is a crime against property, we have adopted the “single larceny doctrine,” which treats as one offense the stealing of separate items of property at one time, whether they belong to the same owner or to different owners. State v. White, 348 Md. 179, 702 A.2d 1263 (1997). At the time the crimes here were committed, robbery was a common law offense in Maryland, so a resort to legislative intent is not possible.9 We have defined the crime as “the felonious taking and carrying away of the personal property of another from his person by the use of violence or by putting in fear.” Metheny v. State, 359 Md. 576, 605, 755 A.2d 1088, 1104 (2000) (quoting Williams v. State, 302 Md. 787, 792, 490 A.2d 1277, 1280 (1985)). The crime thus embodies elements of both larceny and assault.
Decisions are split around the country on whether a defendant may be convicted of more than one robbery when, in a single incident, he or she takes money or other property from the possession or presence of more than one person. Those holding that the individual victim is the unit of prosecution and that multiple convictions are valid stress the assaultive, rather than the larcenous, nature of the crime; those holding otherwise tend to emphasize the theft element. See Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928, 931 (1982) (offense of robbery is against the person assaulted, not the owner of the
Compare State v. Collins, 174 W.Va. 767, 329 S.E.2d 839 (1984) (treating robbery as “an aggravated form of larceny” and applying single larceny doctrine to attempted armed robbery); Allen v. State, 428 N.E.2d 1237, 1240 (Ind.1981); People v. Nicks, 23 Ill.App.3d 435, 319 N.E.2d 531, 535-36 (1974), rev‘d in part, 62 Ill.2d 350, 342 N.E.2d 360 (1976); State v. Potter, 285 N.C. 238, 204 S.E.2d 649, 658-59 (1974).
In Novak v. State, 139 Md. 538, 115 A. 853 (1921), we necessarily adopted the person assaulted as the unit of prosecution for robbery. The defendant was charged with hijacking 250 cases of liquor from a truck that had broken down. In one prosecution, he was charged with robbing one of the two men in the truck and was acquitted. Subsequently, he was charged with robbing the other man, who was equally in charge of the load, and convicted. Against a double jeopardy claim of autrefois acquit, we rejected the argument that the robbery was “a single transaction involving the same persons and property and constituting but one offense against the State.” Id. at 540, 115 A. at 854. Had the charge been limited to larceny, we said, the argument would have greater force, but the defendant was charged with “feloniously assaulting a named individual and taking the whiskey from him against his will,” and it was “no answer to such a charge to say that he had been previously acquitted of having taken the whiskey from another person on the same occasion.” Id. at 541, 115 A. at 854. We implicitly confirmed that view in Brown v. State, 311 Md. 426, 535 A.2d 485 (1988) where, although our focus was on the unit of prosecution for use of a handgun in the commission of a crime of violence, we noted without critical comment that the defendant had also been convicted, in each of two cases, of two counts of robbery with a deadly weapon when he broke into a house, assembled the two occupants at gunpoint, and took property belonging to them.
On this authority, we hold that the unit of prosecution for the crime of robbery
Other Arguments of Unconstitutionality of Maryland Statute
Borchardt claims that the Maryland Death Penalty Statute is unconstitutional (1) as applied because it makes a death sentence mandatory, and (2) on its face because it requires the defendant to establish (i) any enumerated mitigating circumstances and (ii) that any non-enumerated circumstances are, in fact, mitigating. He acknowledges that we have previously rejected those very complaints, and indeed we have. His first argument was most recently considered and rejected in Conyers v. State, supra, 354 Md. 132, 197-98, 729 A.2d 910, 945-46, cert. denied, 528 U.S. 910 (1999). See also Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). His second argument was most recently considered and rejected in Ware v. State, 360 Md. 650, 712-13, 759 A.2d 764, 797 (2000).
Cumulative Effect of Errors
Finally, Borchardt contends that the “cumulative effect” of the various errors he has alleged require the grant of a new trial or a new sentencing hearing. The most cogent response to this complaint is that we have found only one error in the entire proceeding—the admission of one of Ms. Ent‘s statements to the police—and we declared that to be harmless beyond any reasonable doubt. There were no cumulative errors requiring remedy.
Section 414(e) Review
We have reviewed the sentence pursuant to
JUDGMENT AFFIRMED, WITH COSTS.
Dissenting opinion by RAKER, J., in which BELL, C.J., and ELDRIDGE, J., join.
RAKER, J., dissenting:
I would hold that, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in the framework of the Maryland death penalty statute, the sentencing authority must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt and not by a mere preponderance of the evidence.1 I
Summary of Argument
In Maryland, the maximum sentence for first degree murder is life imprisonment, unless certain circumstances are present and certain requirements are met. Death and life imprisonment without the possibility of parole are enhanced penalties; life imprisonment is the default penalty. Under the Maryland death penalty statute, the sentencing authority is required to make additional findings beyond that of guilt before a sentence of death may be imposed.
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, forms the backdrop for this appeal. In Apprendi, the Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. Apprendi has attracted much attention in the legal community “and has important implications for the conduct of criminal trials and sentencing.” In Re Turner, 267 F.3d 225, 227 (3d Cir.2001).
Under the Maryland death penalty statute, before a sentence of death may be imposed, the jury must find that the State has proven at least one aggravating factor beyond a
reasonable doubt. The jury also must find, beyond a reasonable doubt, that the defendant was a principal in the first degree. The third factor that the sentencing authority must find is that the aggravating factors outweigh the mitigating factors. In my view, Apprendi mandates that this last factor also be found beyond a reasonable doubt.
I. Maryland‘s Statutory Scheme
The Maryland death penalty statute prescribes that “a person found guilty of murder in the first degree shall be sentenced to death, imprisonment for life, or imprisonment for life without the possibility of parole. The sentence shall be imprisonment fоr life unless . . . a sentence of death is imposed in accordance with
II. Federal Due Process
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court applied the rule announced in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that every fact necessary to the crime charged must be proven beyond a reasonable doubt, to a Maine homicide statute that required a defendant to prove heat of passion on sudden provocation in order to negate the element of malice and reduce a charge of murder to manslaughter. In so doing, the Court held that the Winship rule was not limited only to those facts that constituted a crime as defined by state law because of the significance of the consequences to the defendant depending on whether the fact of provocation could be proven. See Wilbur, 421 U.S. at 698, 95 S.Ct. at 1889, 44 L.Ed.2d 508; cf. maj. op. at 104. The Court explained that the rationale of Winship “requires an analysis that looks to the ‘operation and effect of the law as applied and enforced by the state. . . .‘” Wilbur, 421 U.S. at 699, 95 S.Ct. at 1890, 44 L.Ed.2d 508.
The Court applied the Winship rule again in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), to a Pennsylvania statute that created a mandatory minimum sentence of five years imprisonment for certain enumerated offenses if the sentencing judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of the offense. Citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Supreme Court emphasized that “in determining what facts must be proved beyond a reasonable doubt the state legislature‘s definition of the elements of the offense is usually dispositive. . . .” McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d 67. The Court concluded that visible firearm possession was a sentencing factor, not an element of the substantive offense, and therefore did not have to be proven beyond a reasonable doubt. As the majority recognizes, see maj. op. at 106-107, this was so because visible possession merely limited the sentencing court‘s discretion in selecting a penalty within the existing range of permissible sentences; it did not alter the maximum sentence for the crime committed or expose the defendant to greater potential punishment. See McMillan, 477 U.S. at 86-88, 106 S.Ct. at 2416-17, 91 L.Ed.2d 67.
In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court limited its earlier holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (permitting an increased maximum sentence for recidivist offenders based on a prior conviction that was not specifically pleaded in the indictment because it was not an element of the offense), solely to recidivism as a sentencing factor. See Jones, 526 U.S. at 249, 119 S.Ct. at 1227, 143 L.Ed.2d 311. In reaching that conclusion, the Court set the stage for its decision in Apprendi, remarking in a footnote that: “under the Due Process Clause of the Fifth Amendment . . . , any fact (other than prior conviction) that increases the maximum penalty for a crime must be . . . proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d 311 (emphasis added). The Court explained that these constitutional safeguards “concern not the identity of the elements defining criminal liability but only the required procedures for finding the fаcts that determine the maximum permissible punishment: these are the safeguards
It was against this backdrop that the Supreme Court decided Apprendi. The Apprendi Court began by tracing the common law development of the definition of elements of offenses for the purpose of the guarantees of due process and trial by jury, which entitle a defendant to have every element of the crime charged proven to a jury beyond a reasonable doubt. The Court noted that “facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Apprendi, 530 U.S. at 482 n. 10, 120 S.Ct. at 2359 n. 10, 147 L.Ed.2d 435 (emphasis added). The Court found that ”Winship‘s due process associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant‘s guilt or innocence, but simply to the length of the sentence.‘” Id. at 484, 120 S.Ct. at 2359, 147 L.Ed.2d 435 (alteration in original) (emphasis added) (citations omitted). The Court made clear that McMillan‘s holding was limited to “cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury‘s verdict. . . .” Id. at 487 n. 13, 120 S.Ct. at 2361 n. 13, 147 L.Ed.2d 435.
Prior to Jones and Apprendi, the Supreme Court‘s due process jurisprudence had relied heavily on the formalistic, but often blurry, distinction between “elements” and “sentencing factors.” In Apprendi, the Court provided a clear method for distinguishing sentencing factors from elements of an offense, explaining that: “the relevant inquiry is not one of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d 435. The Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d 435 (emphasis added). In doing so, the Court discussed the important distinction between facts in aggravation of punishment and facts in mitigation, emphasizing that mitigating circumstances do not need to be proven beyond a reasonable doubt because, unlike aggravating circumstances, they do not expose a defendant to increased potential punishment. See id. at 490 n. 16, 120 S.Ct. at 2363, n. 16, 147 L.Ed.2d 435.
I believe that a finding that aggravating circumstances outweigh mitigating circumstances increases the penalty beyond the prescribed statutory maximum. Under
The majority asserts that “Maryland law makes death the maximum penalty for first degree murder.” Maj. op. at 123. I believe that the majority is wrong. This Court, in an unanimous opinion, recently held that the maximum penalty for first degree murder is life imprisonment and that “death or life imprisonment without the possibility of parole are ‘enhanced’ sentences for first degree murder, and are dependent upon special circumstances.” Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 96 (2001).
In Johnson, we addressed the question of whether Maryland law authorized the imposition of a sentence of life imprisonment without the possibility of parole for a conviction for conspiracy to commit first degree murder. See id. at 528, 766 A.2d at 94. The State argued that the maximum penalty for conspiracy to commit murder was life without parole. We rejected the State‘s argument and held that, for the purposes of the limitation on sentences for inchoate offenses, the maximum sentence for murder was its “basic maximum sentence,” not including “any enhanced penalty provisions.” Id. at 530, 766 A.2d at 96. In reaching that conclusion, we reasoned:
“As shown by the language of Art. 27 § 412(b), the basic sentence for first degree murder ‘shall be imprisonment for life . . . .’ The greater sentences of death or imprisonment for life without the possibility of parole cannot be imposed unless certain special conditions are met. In addition to the notice requirements set forth in § 412(b), there are special conditions for the imposition of death or life without the possibility of parole contained in other statutory provisions.”
Id. at 529, 766 A.2d at 95 (citations omitted).4 Cf. Gary v. State, 341 Md. 513, 671 A.2d 495 (1996) (holding that life imprisonment was not an illegal sentence for conspiracy to commit murder because it was the maximum penalty for the substantive crime of first degree murder).
In light of the structure of the Maryland statute governing imposition of the death penalty, and consistent with the language in Johnson, the finding that the aggravating circumstances outweigh the mitigating circumstances, pursuant to
In keeping with McMillan‘s deference to the legislative determination of the elements of a particular crime, it is the particular structure of the Maryland statutes and rules governing imposition of the death penalty that guides the analysis of the requirements of due process under Apprendi. In enacting
While ordinarily, the broad deference accorded to state legislatures in defining the elements of offenses under Winship and its progeny results in state statutes being upheld against the minimal requirements of due process, in the present case, the way that the Maryland General Assembly has chosen to define the death penalty procedures is precisely what implicates and offends the strictures of the Due Process Clause. The fact that the General Assembly prescribed a burden of proof for the weighing process of
The majority finds Apprendi inapplicable, reasoning that:
“It was not a death penalty case, it did not involve a capital punishment sentencing scheme, and the five Justices forming the majority made clear their view that the rulings enunciated in the case did not serve to invalidate any capital punishment laws.”
Maj. op. at 104. The majority may be correct that Apprendi does not require the invalidation of all state capital punishment schemes. Unfortunately, the majority views the instant challenge to the Maryland statute as occupying the crossroads between the Supreme Court‘s due process jurisprudence under Winship, Apprendi, et al. and the Court‘s death penalty sentencing jurisprudence under Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and its progeny. I disagree with that analysis.
Analytically, it is possible to find Maryland‘s death penalty statute violative of the guarantees of due process without offending in the slightest the holding or analysis in Walton and other Supreme Court capital sentencing cases. Walton sheds very little light on the question before this Court today. Walton merely held that it did not violate due process to require a defendant to shoulder the burden to prove mitigating circumstances as long as the State was required to prove the existence of aggravating circumstances. See id. at 650, 110 S.Ct. at 3055, 111 L.Ed.2d 511; see also Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (holding that the specific findings authorizing the imposition of a death sentence did not have to be made by a jury because the existence of aggravating factors was not an element of the offense but merely a “sentencing factor“).
Maryland‘s death penalty statute also requires the defendant to prove the existence of mitigating circumstances, and appellant does not challenge that section of the statute here. Unlike the Arizona statute at issue in Walton,5 however, Maryland‘s
More importantly, unlike the Arizona death penalty statute at issue in Walton,6 the Maryland death penalty statute establishes life imprisonment as the basic, default maximum penalty for murder, a characteristic that makes Maryland unique among American death penalty jurisdictions. See Johnson, 362 Md. at 529, 766 A.2d at 96. In most states, a defendant essentially becomes “death eligible” upon conviction of a potentially capital crime, and the sentencing proceeding is merely a vehicle through which the sentencing authority selects from within a potential range of sentences, usually between life imprisonment and death. In Maryland, however, a defendant is not eligible to receive a death sentence after being convicted of first degree murder. Rather, certain additional conditions must be met, including a finding by the sentencing authority that the aggravating circumstances outweigh the mitigating circumstances. See id. at 529, 766 A.2d at 96. As a result, in Maryland, the finding that aggravators outweigh mitigators is much more akin to the finding that aggravating circumstances exist, which must be proven beyond a reasonable doubt, than it is to a finding that there are mitigating circumstances to be considered. Within the holding of Apprendi, therefore, due process requires that it be made beyond a reasonable doubt.
In addition, the majority overstates the continued authority of Walton by referring to what it characterizes as the “unequivocal statement by the Apprendi majority that its decision did not render invalid State capital sentencing schemes, such as approved in Walton, that allowed the judge, not sitting as the trier of fact, to find and weigh specific aggravating factors.” Maj. op. at 121. Apprendi did not have a clear majority on the issue of whether Walton survived Apprendi. The four judge plurality attempted to distinguish Apprendi from Walton. See Apprendi, 530 U.S. at 496-97, 120 S.Ct. at 2366, 147 L.Ed.2d 435.7 Justice Thomas, in his concurring opinion, acknowledged the tension between Apprendi and Walton, but ultimately concluded that Walton‘s continued viability was “a question for another day.” Id. at 523, 120 S.Ct. at 2380, 147 L.Ed.2d 435 (Thomas, J., concurring).
Furthermore, the Apprendi plurality‘s reasoning for why it did not conflict with Walton, if anything, supports my view. The Court reasoned that Apprendi did not conflict with Walton, with respect to capital sentencing schemes, because, under the Arizona death penalty scheme at issue in Walton, once the jury had found the defendant guilty of all of the elements of first degree murder, the defendant was death-eligible, leaving to the sentencing judge only the determination of what penalty to impose within a range of penalties for which the maximum sentence had already been established. See id. at 496-97, 120 S.Ct. at 2366, 147 L.Ed.2d 435. That is not the case under the Maryland death penalty statute. See Johnson, 362 Md. at 529, 766 A.2d at 96.
The majority emphasizes the Supreme Court‘s statement in Walton that aggravating facts falling within the traditional scope of capital sentencing merely guide a choice between a greater and lesser penalty, but do not raise the ceiling of the available sentencing range. See maj. op. at 112. The majority also repeatedly stresses that Apprendi does not forbid a judge to exercise sentencing discretion within a statutory range of punishments. See maj. op. at 113-114. I do not dispute either of these propositions.
Nonetheless, it bears repeating that appellant‘s challenge is not to all capital sentencing statutes, but to Maryland‘s particular statutory scheme.
The majority asserts that “[i]f it is permissible under Apprendi for the law to remove [the] fact-finding and fact-weighing process entirely from the jury and leave it to the judge as a legitimate sentencing factor, without specifying a reasonable doubt standard, it can hardly be impermissible for a jury that has found the prerequisite aggravating factors beyond a reasonable doubt to apply a preponderance standard in weighing them against any mitigating circumstances.” Maj. op. at 121-122.8 The majority concludes: “The Walton scheme . . . is in far greater direct
Unlike most states that establish a punishment range of life imprisonment to death for first degree murder and then delegate to the sentencing authority the choice between the two based upon a normative judgment, the Maryland statute prescribes that the penalty for first degree murder is life imprisonment, unless a series of additional conditions are met, including the weighing of aggravating and mitigating circumstances mandated by
First, this interpretation of the Maryland death penalty statute is in direct contravention of the plain language and structure of the statute. Second, this conclusion relies on a cursory interpretation of what the Apprendi majority meant when it discussed “factual findings” that expose a defendant to greater punishment. The purpose of Apprendi‘s functional, rather than purely formal, definition of elements of an offense was to make clear that courts should look beyond the textual, theoretical maximum penalties available for a predefined crime to the more fundamental inquiry of whether additional findings are necessary to increase the penalty for that crime. Third, the fact that the ultimate determination of the balance of aggravating and mitigating circumstances in a capital sentencing proceeding is not entirely like any other determination
“In no proceeding is it more imperative to bе assured that the outcome is fair than in [the determination that the aggravating factors outweigh the mitigating factors]. . . . We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of ‘beyond a reasonable doubt,’ and therefore appropriately applicable to fact-finding, the weighing process really is not fact-finding at all but a judgmental determination by the jury, based on conflicting values, of whether defendant should live or die. . . . If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here.”
Id. at 156 (citations omitted).
The majority makes a point to emphasize that Apprendi “did not involve a capital punishment sentencing scheme. . . .” Maj. op. at 104. Nonetheless, Apprendi‘s logic is equally applicable to the operation of the Maryland death penalty statute at issue in this case. The fact that the definition of the offense of capital murder occurs within the context of a capital sentencing statute, rather than a hate crimes or carjacking statute, is not dispositive of the due process issue. Such analysis is precisely the type of mere “formalism” against which the Court warned in Wilbur. See Wilbur, 421 U.S. at 700, 95 S.Ct. at 1890, 44 L.Ed.2d 508.
The United States Supreme Court repeatedly has stated that death is different. The reason why death is different is reiterated throughout the Court‘s death penalty jurisprudence. See e.g., Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The Court has recognized “that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983). The Court has noted the obvious: that death is different because it is irreversible. This aspect of the difference between death and other penalties merits particularly careful review of the fairness of the trial, the accuracy of the fact-finding process, and the fairness of the sentencing procedure imposing the death penalty. Even a cursory review of Supreme Court death penalty jurisprudence leads to the inescapable conclusion that capital sentencing proceedings are to be subjected to a heightened degree of scrutiny out of concern for the reliability of their outcomes. See Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); Woodson, 428 U.S. at 305, 96 S.Ct. at 2991, 49 L.Ed.2d 944 (“Death in its finality, differs from life imprisonment more than a hundred-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.“). As the Court explained in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988):
“The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination
that death is the appropriate penalty in a particular case.”
Id. at 383-84, 108 S.Ct. at 1870, 100 L.Ed.2d 384. As Chief Justice Quinn of the Colorado Supreme Court explained in State v. Tenneson, 788 P.2d 786 (Colo. 1990):
“The elevated standard of reliability applicable to a capital sentencing proceeding is nothing less than constitutional acknowledgment that there is a qualitative difference between death and other forms of punishment and that this qualitative difference necessitates a ‘corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.‘”
Id. at 804 (Quinn, C.J., concurring in part and dissenting in part) (quoting Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1988)). The majority turns this concern with heightened reliability on its head by suggesting that capital sentencing procedures should somehow constitute an exception to the values of fairness protected by the Due Process Clause.
The majority also devotes a great deal of time to discussing post-Apprendi challenges to other states’ death penalty statutes. To a great extent, however, those cases are not persuasive because, as indicated in discussion supra pp. 104-109, they involve death penalty statutes that are significantly different in structure and application than the Maryland statute.
The majority begins with a discussion of State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000), claiming that, despite its awareness of Apprendi, the Arizona Supreme Court dismissed the challenge on the basis of Walton. See maj. op. at 116-117. In that case, the court dealt with the relationship between Walton and Apprendi in a footnote only, stating specifically that the precise issue had not been raised, briefed, or argued in Hoskins, so that the court remained bound by Walton‘s holding that a judge could constitutionally determine the presence of aggravating circumstances “until the Arizona death penalty statutes are fully analyzed under Apprendi and a final determination is made by the Supreme Court. . . .” Hoskins, 14 P.3d at 1016 n. 5. In addition, the Arizona death penalty statute (which was upheld in Walton) is structured significantly differently than the Maryland statute for the purposes of due process analysis. The Arizona statute provides that a person guilty of first degree murder shall suffer death or life imprisonment at the discretion of the sentencing authority. See
The California statute at issue in People v. Anderson, 25 Cal. 4th 543, 106 Cal. Rptr. 2d 575, 22 P.3d 347 (2001), cited by the majority, is also structured like the Arizona statute upheld in Walton and Hoskins, not like the Maryland statute. The California death penalty statute provides that the trier of fact choose between possible sentences of death or life imprisonment and that, in doing so, the trier of fact shall simply “consider, take into account and be guided by the aggravating and mitigating circumstances” and “impose a sentence of death if . . . the aggravating circumstances outweigh the mitigating circumstances.”
The weighing provision of the statute at issue in Weeks v. State, 761 A.2d 804 (Del. 2000) is perhaps the closest in similarity to the Maryland death penalty, in that it requires the sentencing authority to find that the aggravating circumstances outweigh the mitigating circumstances by a preponderance of the evidence. See
The reasoning in United States v. Allen, 247 F.3d 741 (8th Cir. 2001), also cited by the majority, if anything, supports the position that I take in this dissent. In that case, the United States Court of Appeals for the Eighth Circuit dealt with the question of whether Apprendi required that the mental culpability factors and statutory aggravating factors on which the government relied in seeking the death penalty be charged in an indictment and submitted to a Grand Jury under the Fifth Amendment‘s Indictment Clause. See
“The fact-finding barrier that exists between a jury verdict that a defendant is guilty of a capital crime for which one punishment is known to be death and a court‘s ability to impose that capital punishment, id., acts to protect the defendant from an automatic death sentence. Because of the unique context of this scheme, and because the statutes of conviction authorize a penalty of death, we hold that failure to allege the mental culpability and statutory aggravating factors in a capital defendant‘s original indictment does nоt violate the Fifth Amendment‘s Indictment Clause.”
Id. at 763-64 (emphasis added). This reasoning cannot control our decision regarding the Maryland death penalty statute because this Court specifically held in Johnson that the basic maximum sentence for murder under
The Florida Supreme Court applied reasoning in its decision in Mills v. Moore, 786 So.2d 532 (2001), that was similarly inapplicable to the Maryland death penalty statute given this Court‘s decision in Johnson. In that case, the court found Apprendi inapplicable to Florida‘s death penalty statute because “[t]he plain language of [the statute] is clear that the maximum penalty available for a person convicted of a capital felony is death.” Id. at 538 (emphasis added). In so doing, the court relied specifically on the plain meaning of the language of “capital felony” employed in its statute,9 concluding that “a ‘capital felony’ is by definition a felony that may be punishable by death. The maximum possible penalty described in the capital sentencing scheme is clearly death.” Id. This reasoning is in direct contrast to Maryland law, under which life imprisonment is the maximum sentence for first degree murder, absent a sentencing enhancement based on special circumstances. The Florida Supreme Court also relied on the fact that the United States Supreme Court had not overruled Walton or Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in which Florida‘s sentencing scheme was upheld. See Mills, 786 So.2d at 537. Unfortunately, however, the court did so, in part, by relying inappropriately on the fact that the Supreme Court had denied certiorari in several state supreme court cases finding Apprendi inapplicable to their capital sentencing schemes, finding that “[t]he Supreme Court‘s denial of certiorari indicates that the Court meant what it said when it held that Apprendi was not intended to affect capital sentencing schemes.” Id. See Bethley v. Louisiana, 520 U.S. 1259, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997) (explaining that it is well settled that the Supreme Court‘s decision to deny certiorari “does not in any sense constitute a ruling on the merits of the case in which
State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), is also inapposite. Golphin dealt with the issue of whether due process required that an indictment include aggravating circumstances, concluding that it did not. The court found that the notice of intent to seek the death penalty was sufficient. See id. at 193. The court based its conclusion on the holding that aggravating circumstances are not elements under Apprendi. See id. at 193-94. Once again, the North Carolina death penalty statute is fundamentally different from the Maryland scheme. The North Carolina statute provides that, once a defendant has been convicted of “a capital felony,” a sentencing proceeding is conducted to determine whether the defendant should be sentenced to death or life imprisonment. See
The Missouri Supreme Court‘s decision in State v. Storey, 40 S.W.3d 898 (Mo. 2001), is particularly inapposite to the issue in this case, in that it dealt with the application of the Double Jeopardy Clause to a capital sentencing proceeding in which the court submitted to the sentencing jury an aggravating factor that a prior sentencing jury had failed to find. See id. at 914. The court held that the submission of the aggravаting circumstance at the subsequent sentencing hearing did not violate double jeopardy, under Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), and that Apprendi did not affect Poland. That holding in no way sheds light on the question of whether Apprendi requires that the finding that aggravating circumstances outweigh mitigating circumstances under the Maryland statute must be done beyond a reasonable doubt.
Hoffman did not deal with the precise Apprendi challenge at issue in this case, a challenge to the weighing portion of Idaho‘s death penalty statute, but rather involved a challenge to the portion of the statute that mandates that a judge, rather than a jury, determine the presence of an aggravating circumstance in order for a defendant to be eligible for a death sentence. See
“Under Idaho‘s death penalty scheme, a defendant is not actually ‘death-eligible’ after a jury convicts him of first degree murder. Rather, at the conclusion of the first degree murder conviction, the defendant is only eligible for a sentence of life imprisonment.
Idaho Code § 19-2515(c) . The defendant is not death-eligible until the trial judge finds the presence of an aggravating circumstance.Id. If the trial judge finds an aggravating circumstance, the judge then has the task of weighing the statutory aggravating circumstance against all of the mitigating evidence to determine if the defendant should receive life in prison or the death penalty.Id. “Just as the presence of the hate crime enhancement transformed a second degree offense sentence into a first degree offense sentence under the New Jersey hate crime statute, the presence of an aggravating circumstance here transforms a life sentence into a potential death sentence under the Idaho death penalty statute. There can be no doubt that a death sentence is an increased penalty beyond life imprisonment. It is equally clear that the presence or absence of an aggravating circumstance is a factual determination. I would therefore conclude that the determination of the presence or absence of an aggravating circumstance in a capital case is a factual determination that increases the potential sentence from life imprisonment to capital punishment, and thus must be submitted to the jury under Apprendi.”
Id. at 546-47 (Pregerson, J., concurring in result) (internal footnote omitted).11
Finally, the majority takes comfort in the recent decision by the United States Court of Appeals for the Fourth Circuit, in Burch v. Corcoran, 273 F.3d 577 (4th Cir.2001). See maj. op. at 115. At the outset, it is important to note that the United States District Court for the District of Maryland held that the appellant‘s Apprendi claim was barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Brief for Appellant at 19 n. 4, Burch v. Corcoran, 273 F.3d 577 (4th Cir. 2001) (citing Burch v. Kavanagh, No. MJG-98-4054 (D.Md. Aug. 18, 2000) (unpublished Memorandum of Decision denying habeas corpus relief)). The court of appeals agreed, holding that “[b]ecause his judgment of conviction was final well before the [Supreme] Court‘s decision in Apprendi, and because Apprendi does not apply retroactively to cases pending on collateral review, Burch cannot obtain any federal habeas corpus relief under Apprendi.” Burch, 273 F.3d at 584. As the majority concedes, see maj. op. at 115-116, the court of appeals did not reach the merits of the appellant‘s Apprendi challenge, finding it to be precluded by retroactivity doctrine.12 See Burch, 273 F.3d at 584. Nonetheless, the court, in dicta, in a
The majority and I agree on at least one point, namely, that the State need not charge in the indictment that the aggravating circumstances that it alleges outweigh any mitigating circumstances. I do not agree, however, with the majority‘s view that the “incongruity of applying Apprendi to this process is particularly apparent with respect to the requirement that, if the determination that aggravating circumstances outweigh mitigating circumstances is treated as an element that must be proved by the State beyond a reasonable doubt, it also must be sufficiently alleged in the indictment.” Maj. op. at 127. There is no need to allege intent to seek the death penalty in an indictment, or to include aggravating factors and mitigating factors in an indictment, because the
“Justice is the objective of Maryland‘s judicial process. The process reaches for this objective by seeking the truth. It seeks the truth by means of a fair trial.” Jackson v. State, 322 Md. 117, 119, 586 A.2d 6, 6 (1991).
The relevant portion of
Tenneson, 788 P.2d at 794 (“These considerations [of fairness] assume profoundly greater importance in the process of determining whether a person convicted of murder shall be sentenced to death.“); Wood, 648 P.2d at 81 (“Nowhere in the law is the interplay of procedural rules and substantive standards more critical than in the penalty phase of a capital case.“).
In Wadlow v. State, 335 Md. 122, 642 A.2d 213 (1994), prior to the Supreme Court‘s decisions in Jones and Apprendi, we explained that, despite the fact that federal courts had uniformly held that predicate facts required for imposition of enhanced sentences did not have to be found by a jury beyond a reasonable doubt, Maryland had generally drawn a distinction between sentence enhancement
Long before the Supreme Court decided Jones and Apprendi, these Maryland cases established the principle, under Maryland law, that any fact relating to the circumstance of an offense that exposed a defendant to enhanced punishment had to be determined by the trier of fact beyond a reasonable doubt. Thus,
Allowing a jury to sentence a defendant to death based on only a preponderance of the evidence that the aggravating circumstances outweigh the mitigating circumstances offends the same principles of fundamental fairness articulated in our jurisprudence.
One purpose that is served by requiring the jury to find that aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt is “to communicate to the jurors the degree of certainty that they must possess ... before arriving at the ultimate judgment that death is the appropriate penalty.” Tenneson, 788 P.2d at 794 (emphasis added). In that way, “the beyond a reasonable doubt standard as applied to the weighing of aggravating and mitigating factors serves to assure the degree of reliability necessary to support a verdict of death in a sentencing proceeding.” Id. (emphasis added). As the Utah Supreme Court explained: “The reasonable doubt standard ..., which is only used when the most basic interests of the individual are at stake, ... conveys to the decision maker a sense of the solemnity of the task and the necessity for a high degree of certitude, given the nature of the value to be weighed, in imposing the death sentence.” Wood, 648 P.2d at 84.
Several state supreme courts have found, on independent state law grounds, prior to the Supreme Court‘s decision in Apprendi, that considerations of fundamental fairness require that the ultimate
Several states require, in their capital punishment statutes, that the determination that aggravators outweigh mitigators be made beyond a reasonable doubt. See
I have a hard time reconciling the fact that a utility must prove nonpayment by clear and convincing evidence in order to shut off a consumer‘s gas and electric service, while the determination of the imposition of the ultimate penalty of death can be made by a preponderance of the evidence, with the basic notions of justice at the core of our fundamental fairness jurisprudence.
As Justice Stewart of the Utah Supreme Court eloquently opined in his concurring opinion in State v. Brown, 607 P.2d 261 (Utah 1980):
“The ‘beyond a reasonable doubt’ standard may, of course, be considered similar in its function to proof by a preponderance of evidence, i.e., both standards are used to resolve factual disputes. However, the term ‘beyond a reasonable doubt’ is something more than a standard for evaluating conflicting facts and inferences; in the context of a penalty hearing, it also convеys to the jury the concept that the values upon which the criminal justice system is built do not permit the ultimate sanction to be imposed unless the conclusion is free of substantial doubt.”
Id. at 275. I could not agree more.
There are only two states in this country that permit the imposition of the death penalty based on a preponderance of the evidence standard. Evolving standards of decency cry out that, if a society is to impose death as a penalty, it should do so on no less a standard than beyond a reasonable doubt that the sentence is fitting and appropriate for the particular offender.
IV. Severability
Although I find that the preponderance of the evidence standard in
The other basic test for severability under our cases is “that ‘[w]hen the dominant purpose of an enactment may largely be carried out notwithstanding the [enactment‘s] partial invalidity, courts will generally hold the valid provisions severable and enforce them.‘” Smallwood, 327 Md. at 246, 608 A.2d at 1235 (quoting O.C. Taxpayers v. Ocean City, 280 Md. 585, 601, 375 A.2d 541, 550 (1977)).
Clearly, the Maryland death penalty statute is complete and capable of being enforced with the preponderance of the evidence standard severed from
Thus, I would sever the preponderance of the evidence standard from
Accordingly, I respectfully dissent from the majority‘s decision holding that
Chief Judge BELL and Judge ELDRIDGE join in this dissenting opinion.
Notes
It appears that, under the Illinois law applied in Ford, a person convicted of murder in the first degree was subject to a penalty ranging from 20 years in prison to death. Absent a finding of aggravating circumstance, the penalty was from 20 to 60 years. If the trier of fact found at least one aggravating factor, an “extended” sentence оf up to 100 years was permissible. The death sentence was permissible only if an aggravating factor was found beyond a reasonable doubt and was not outweighed by any mitigating factors. In Ford, after the defendant was convicted of murder in the first degree, the trial judge found, beyond a reasonable doubt, two aggravating factors that made him death-eligible. The judge found a number of mitigating factors, however, and, as a result, declined to impose the death sentence. By a preponderance, he found a different aggravating factor—that the crime was accompanied by wanton cruelty—and, on that basis, imposed the “extended” term of 100 years.
As did Nitz, Ford argued that the 100-year sentence was unlawful under Apprendi because the predicate finding of wanton cruelty was made on a mere preponderance. The Illinois Supreme Court affirmed, holding that the fact that the critical finding was not made beyond a reasonable doubt was “immaterial,” and that ”Apprendi requires only those facts that increase the penalty for a crime beyond the prescribed statutory maximum be proved beyond a reasonable doubt.” Id. at 73, 260 Ill.Dec. 552, 761 N.E.2d 735 (emphasis in original).
There would seem to be two possible bases on which the court reached its conclusion sustaining the 100-year sentence—one that Apprendi was inapplicable and the other that Apprendi was applicable but satisfied—but the opinion does not make entirely clear which one the court used. The court may tacitly have treated the trial judge‘s decision not to impose the death sentence, based on the mitigating factors, as returning Ford to a maximum 60-year sentence and concluded, nonetheless, that Apprendi did not require that the additional aggravating circumstance justifying the 100-year sentence be established beyond a reasonable doubt, or it may have believed that the 100-year sentence could be sustained on the ground that Ford had already been found eligible for the death sentence beyond a reasonable doubt and that Apprendi, though applicable, was satisfied. The language it used suggests the former approach. The Ford case, itself, probably has no further precedential value in Illinois as the Illinois legislature amended the “extended term” provisions of the statute to require aggravating factors to be found beyond a reasonable doubt. See
Nine States that employ a weighing process use a reasonable doubt standard with respect to the weighing—seven by statute, two by judicial construction. See
In response, the dissent urges that Maryland‘s “death penalty jurisprudence [is] unique among American death penalty jurisdictions,” and therefore our assertion of the potential unconstitutionality of most death penalty statutes is an overstatement. Dissenting op. at p. 158. The dissent contends that, “[i]n most states, a defendant essentially becomes ‘death eligible’ upon conviction of a potentially capital crime, and the sentencing proceeding is merely a vehicle through which the sentencing authority selects from within a potential rangе of sentences, usually between life imprisonment and death,” as opposed to Maryland where a defendant is not “death eligible” unless certain additional conditions are met, namely that aggravating circumstances outweigh mitigating circumstances. Id. at pp. 158-159. (citing Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 96 (2001)).
The Arizona capital sentencing statute requires only that the sentencing judge consider aggravating and mitigating circumstances; it does not require that the sentencing authority make a factual finding as to the relative weight of the two. SeeThe dissent agrees that the
There is a fatal flaw in that conclusion, however. If, as the dissent argues, Apprendi applies and requires a different burden of proof under Article 24, then the weighing process is no longer a sentencing factor and is transformed into an essential element of the crime of first degree murder, at least where the death penalty is sought. If that is so, Article 21 of the Maryland Declaration of Rights must be applicable as well.
The Arizona death penalty statute states only that: “[a] person guilty of first degree murder . . . shall suffer death or imprisonment . . . for life as determined and in accordance with the procedures provided. . . .”Article 21, in pertinent part, states, “That in all criminal prosecutions, every man hath a right to be informed of the accusation against him;....” We have long held that for constitutional purposes, a criminal information or indictment must contain the essential elements of a crime charged. See State v. Mulkey, 316 Md. 475, 481, 560 A.2d 24, 27 (1989); State v. Canova, 278 Md. 483, 498, 365 A.2d 988, 997 (1976) (“‘[A] criminal charge must so characterize the crime and describe the particular offense so as to give the accused notice of what he is called upon to defend and to prevent a future prosecution for the same offense.‘” (quoting Corbin v. State, 237 Md. 486, 490, 206 A.2d 809, 811 (1965))). Further, the constitutional purposes for Article 21‘s requirements are:
“(1) putting the accused on notice of what he is called upon to defend ...; (2) protecting the accused from a future prosecution for the same offense; (3) enabling the accused to prepare for his trial; (4) providing a basis for the court to consider the legal sufficiency of the charging document; and (5) informing the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case.”
Mulkey, supra, 316 Md. at 481, 560 A.2d at 27 (emphasis added). Following the dissent‘s application of Apprendi under independent State grounds, to be constitutionally sound, Article 21 must apply and would require the indictment or information to specifically set forth the weighing process to facilitate the accused in preparing a defense and the court in pronouncing the sentence “in accordance with the right of the case.” This is a task that can never practically be attained.
Unlike the practice in Federal court and the courts of other States, the rule in Maryland is that, “[i]f neither the court nor a rule requires otherwise, a general objection is sufficient to preserve all grounds of objection which may exist.” Grier v. State, 351 Md. 241, 250, 718 A.2d 211, 216 (1998); Ali v. State, 314 Md. 295, 305-06, 550 A.2d 925, 930 (1988);“A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence . . . results in finding by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.”