Evans v. State

487 If аnything, compounds such evidence the difficulty in assessing would have the witness’s The trustworthiness. Supreme Michigan People Court v. 390 Rappuhun, 266, 273, 205, (1973) Mich. 212 N.W.2d stated the proposition succinctly: rather

“It prior is the conduct undertaken the accused not the ensuing punishment, which is relevant. More- over, sentences the same vary tribunal offense from judge judge.” [Quoting to tribunal and court’s lower 35, 39-40, opinion, Mich.App. 181 N.W.2d 805-06.] [Emphasis supplied.] sentence, length

The the conditions under which served and so on are ... not defendant’s conduct but an sequel. uncertain It is defendant’s conduct that is rele- and by vant which his credibility may be tested. cites majority Maryland several cases in support of

its position decided at the turn of the In century. my opinion none of these cases can withstand critical analysis present under law.'

499 A.2d 1261 EVANS, Vernon Lee Jr. Maryland.

STATE of 66, 98, Term, Sept. Nos. 1984. Appeals

Court Maryland. Nov. 1985. Burns, Jr., E. Asst. Public George S. Offutt Gary Defender, brief), Murrell, on (Alan H. Public Defenders Baltimore, for appellant. H. Rosenblatt, (Stephen Atty. Asst. Gen.

Richard B. Baltimore, Gen., brief), appellee. Sachs, on Atty. ELDRIDGE, SMITH, MURPHY, C.J., Argued before McAULIFFE, JJ., AL- and W. COLE, and RODOWSKY MENCHINE, Judge Spe- of the Court Associate BERT Assigned. (retired), Specially Appeals cial ELDRIDGE, Judge. Evans, Jr., Lee was defendant-appellant,

The Vernon offenses by murder and related degree of first guilty found with County, for Worcester in the Circuit Court jury The same determined Judge presiding. Dale Cathell this appeal, death. On sentence was appropriate a multitude of and sentence on challenges the verdict Evans grounds none of these conclude that grounds. As we error, affirm. we shall involve reversible According to of the case are as follows. The facts basic evidence, Anthony the defendant Evans the State’s whereby Evans would agreement entered into an Grandison wife, Cheryl, and his because kill Piechowicz David Scott in a testify against Grandison couple were scheduled District in the United States Court pending narcotics case receive Evans was to Maryland. the District of for murders. $9,000.00 performing for from Grandison Piechowicz were em- Cheryl Piechowicz and David Scott County. Motel in Baltimore House ployed at Warren 28, 1983, Cheryl the sister of Kennedy, Susan April On Piechowicz, in working place was at the Cheryl Warren House Motel. The to prove evidence sufficient beyond that, 28th, on April a reasonable doubt Evans went to the and, not knowing Piechowiczs, motel shot David Scott Kennedy Piechowicz Susan with a MAC-11 machine victims, Nineteen pistol. bullets were fired at the who died multiple frоm the gunshot wounds.

A two count indictment was filed Evans against in the Grandison United States District They Court. were charged with violating rights Piechowiczs’ civil inter- with their to be in fering right judicial proceed- witnesses ing, in violation of 18 U.S.C. and with witness tam- § in pering, violation of 18 U.S.C. 1512.

Subsequently present began case awith four count in the indictment Circuit Court for County, charg- Baltimore Evans and ing Grandison each with counts of two first murder, degree murder, one count commit conspiracy to of a handgun and use the commission of a felony or of violence. requests crime the defendants’ Upon for re- moval, Grandison’s trial was to the transferred Circuit for County Court Somerset and Evans’s trial was transfer- red to Circuit County. Court Worcester case, to the Prior trial the instant Evans was convicted on federal charges plus and sentenced to life years ten imprisonment. pretrial He then filed a motion to dismiss charges on grounds. this case double jeopardy motion was denied trial by judge, the and this Court af firmed. Evans 45, (1984), Md. 481 A.2d 1135 — denied, U.S.-, cert. 1411, S.Ct. 84 L.Ed.2d 795 (1985). in present

Thereafter the trial the case proceeded. Among the offering significant witnesses incriminating evi- against dence Moore, the defendant Evans were Janet Char- Sparrow Harper. Moore, lene and Calvin Grandison’s girl- friend, Grandison, had been by contacted in who was then Jail, the Baltimore to City making assist arrangements for the murder of the Sparrow witnesses. was Evans’s testimony most about damaging and offered the

girlfriend to According as the killer. the defendant’s involvement the defendant and Moore accompanied she had Sparrow, the latter two visited Grandi- City the Baltimore Jail where shooting, inspected reception the days son two before Hotel, reported House and desk area of the Warren there and concerning people working defendant features. testified security Sparrow of presence absence funds, that, defendant and his she request at the with motel, the defendant a room at the was with obtained shooting, at the time of the lobby immediate area of handed to smoking pistol MAC-11 machine wiped down shooting. after the She immediately her the defendant by he receive that the defendant told her that would related $9,000.00 Harper’s "if of them off.” he knocked both 28, 1983, 27 and testimony April involved activities acquisition of the defendant’s description and included a from as well as pistol Rodney Kelly, the machine gun. that he liked the defendant’s statement arguments, the defendant’s essen- We shall now addrеss set forth in his brief. tially the order

I. relate to arguments The defendant’s first two Calvin testified that'he was with Harper’s testimony. Harper trial 28, 1983, friend, during April 27 and Rodney Kelly, him a machine April Kelly pistol and that on 26th showed to him at trial. pistol like the machine shown MAC-11 27th, introduced April Kelly further testified that on Harper Evans, the name calling him to the defendant Evans “Shorty.” Harper testify concerning Shorty’s went on the machine approval acquisition pistol. testimony, attorneys the defendant’s Following Harper’s earlier transcript Harper’s testimony were furnished a reading transcript grand jury, upon before a state Harper discovered that had earlier identified attorneys during grand jury proceeding, the defendant Evans single photograph when shown a of Evans.1 Defense coun- that, sel contended as promptly a result of the circumstanc- surrounding identification, es the earlier the in-court identi- fication should not permitted, have been and counsel moved for a mistrial. The trial judge grant mistrial, declined to but he allowed a motion to suppress the in-court identifica- promptly tion and held a hearing on that motion out of the presence of jury.

In connection suppression with the hearing, the State stipulated to the introduction of grand jury transcript, made available to defense counsel for interview the Assist- ant State’s Attorney questioned who had Harper before the grand jury, arranged for the return Harper from Anne, Princess where he had been taken to testify against Grandison the latter’s trial. The record discloses that the identification grand before the jury occurred the follow- ing manner:

“Q. PROSECUTING ATTORNEY: As you were playing games Rodney bar, with a fellow the name in, comes Shorty calls Rodney, and Rodney Shorty go outside, is that right?

“A. HARPER: Right. “Q. Now, PROSECUTING I ATTORNEY: show you a Baltimore Police County photograph No. 126237. It is a shot, mug and next to that are the number numbers 6/08/83, indicating the date. Is Shorty this the that you saw?

“A. HARPER: That is him. 1. Evans had earlier represented learned from counsel who had him in Harper the federal case that had made an identification of him when single photograph. shown a relayed Evans had this information to case, trial brought counsel in this who in turn it to the attention of the However, Harper court and the State before testified. the informa- point tion at garbled, had become allegation somewhat and the agents was that FBI photograph Harper. had shown a The State knowledge had showing, no Harper such а denied recollection any such event. record,

“PROSECUTING ATTORNEY: For the that is a Evans, photograph of Vernon Junior.” At the suppression hearing, Harper concerning testified the 27th, April time was with Evans on and he stated that he he making photographic did not recall identification before court, grand The trial at the conclusion of the jury. hearing, suppress. denied the motion to

(a) The defendant’s initial contention is due process required suppression Harper’s of in-court identification ground by on the that it was tainted the allegedly sugges tive and identification pre-trial procedure. unreliable

The determining criteria for such a due claim process Brathwaite, Manson v. 98, in developed were 432 97 U.S. 2243, (1977); Neil v. S.Ct. 53 L.Ed.2d 140 Biggers, 409 U.S. 188, 375, Simmons v. (1972); 93 S.Ct. 34 L.Ed.2d 401 States, United 377, 967, 390 U.S. 88 S.Ct. 19 L.Ed.2d 1247 Denno, Stovall v. (1968); 293, 388 87 U.S. S.Ct. (1967). 18 L.Ed.2d principles The set forth in these cases were recently analyzed by Judge reviewed Orth Webster 581, 599-602, this Court 299 Md. (1984). 474 A.2d 1305

The initial determination to be made is the identi- whether fication procedure was It impermissibly suggestive. clear in this case that it was. The of showing single record, photograph, under the circumstances shown suggestive, and the seriously State does not argue the contrary. There were no exigent circumstances justify- ing presentation single of a rather photograph than an appropriate array.

Therefore, whether, we next consider under totality circumstances, of the the identification was reliable. Braithwaite, pertinent factors were listed Manson v. supra, 432 U.S. at at S.Ct. 2253 as follows:

“We therefore conclude that reliability is the linchpin determining the of admissibility identification testimo- ny.... The factors to be considered include ... opportunity of the witness to view the criminal at the crime, attention, degree time the witness’ criminal, accuracy prior description of his of the the level confrontation, demonstrated at the certainty and the time between the crime and the confrontation. Against weighed these factors is to corrupting effect suggestive identification itself.” bar, Harper

In the case at was in the presence immediate him person “Shorty” known to as for four daylight hours, and him face viewed to face on more than one occasion. His to this opportunity person view was there- fore excellent and It is a fair inference protracted. that degree paid by Harper of attention to more “Shorty” was They specifically than casual. were introduced to one an- other; they together period were for a substantial of time in a of group persons; three and the fact that only “Shorty” of inspected expressed approval gun and a machine that had to him friend by Harper’s reasonably been shown could to expected Harper’s acquain- focus attention on this new tance. Harper’s description “Shorty” given to the inves- tigators prior photographic to the identification was unre- short, His description markable but accurate. was of a male, in height. black between 5'4" 5'5" The record does not reflect hesitation on the any part Harper identifying photograph. the defendant’s case,

Considering totality circumstances in this balancing degree the nature and of suggestiveness present in the photographic against identification the factors re- above, persuaded viewed we are not that there awas substantial likelihood of irreparable misidentification. Rather, find sufficient we evidence that the identification question was reliable to make that a for the jury. The fact he at trial Harper, when testified some ten months following grand jury appearance, his did not having recall defendant, been photograph shown is consistent with our the impact determination that of the identification

procedure to an unlikely produce irreparable misidenti- fication.

(b) mentioned, As earlier defense counsel moved for a upon mistrial learning there had been a previous photo In graphic by Harper. identification Court defend pursuant ant contends that he was entitled to a mistrial 4-263, Rule Maryland that he was prejudiced by the denial the motion. Rule 4-263 provides, pertinent part, as follows:

“(a) Without the of a necessity request, state’s attorney shall furnish the defendant:

“(2) or Any relevant material information regarding pretrial ... identification of the defendant a witness for the State.

[*] Sfc ^{[*] [*] [*] [*]} “(i) If at time any during ... proceedings court finds that a has party failed to this Rule comply with Rule, an order issued pursuant to this the court may order that party permit discovery of matters disclosed, not previously strike the to which testimony relates, undisclosed grant matter a continu- reasonable ance, prohibit the party from in introducing evidence the disclosed, not grant mistrial, matter a any or enter other order under appropriate the circumstances.” We held 162, 173, Warrick v. 302 Md. 486 A.2d 189 (1985), that the question of whether any sanction is to be for imposed discovery violation, a if sanction, and so what in the first instance the committed to discretion trial and judge, that the exercise of that discretion includes evaluating whether the prejudiced violation the defendant. argues Evans he has been prejudiced because he would have known of photographic the identification trial. before Specifically, he contends that he a suppres- would have filed motion, sion had more time prepare to for hearing the on statement, and his motion, opening changed his that altered cross-examination. the to inform the defendant of

The failure of the State 4-263(a). a of Rule was violation identification photographic inadvertent, have appears the State’s failure been While may require of the rule the an unintentional violation even if it has irreparably prejudiced of mistrial granting however, that the persuaded, not viola- defendant. We are Evans, to the defendant prejudice tion resulted any an appropri- denial of the motion was conclude that the we The judge’s right trial discretion. ate exercise the lost, not the trial challenge the identification was because suppress, counsel’s motion to entertained defense judge the dis- hearing a full on motion. record conducted necessary proper for the considera- closes that all evidence court, the and we placed of the motion was before tion al- to the defendant because of the prejudice no perceive hearing. lack of the We likewise leged prepare time to merit in that defense counsel would suggestion find no his statement and his cross-examina- opening altered have compliance if had full with tion of the witness there been had Harper knew that identified the rule. Defense counsel prosecution, the federal “Shorty” the defendant as begin this trial with belief that every he had reason to he re- make that identification. Had Harper again would information he would have filed discovery ceived the earlier earlier, disposition of that suppress a motion to but same, namely permit motion would have been Thus, position the defendant’s in-court identification. to the regard cross-ex- have been no different. With would trial the defend- Harper, judge permitted amination of concerning recаll for full cross-examination Harper ant to pretrial identification. display photograph any having the judge received benefit The defendant also being recalled Harper instruct because indicating had been received subsequent information or “may erroneously inaccurately.” testified Harper have perceive We no of abuse discretion in the denial a mistrial.

II. The arguments defendant’s next relate to the competency Harper of Calvin Sparrow and Charlene to testify at trial.

(a) points defendant to uncontroverted evidence that Harper Sparrow and had previously committed perjury. contends, Therefore, he Harper Sparrow disqual were witnesses, ified as though even neither had been convicted of perjury.2

Although common law principle which a disqualified by treason, witness reason of conviction or a felony, crime involving fraud deceit has in abrogated been states,3 federal courts and in Maryland most retains a disqualification person for “a convicted of perjury.” Mary- (1974, Repl.Vol.), land Code 9-104 of the Courts and § Proceedings Judicial Article. the plain As language demonstrates, however, statute the disqualification occurs only upon of perjury. conviction

That a judgment of conviction is necessary before one is disqualified as a was perjurer, recently by underscored (1985). Court 303 Md. Myers 496 A.2d 312 case, In that a prosecution had, witness in a murder trial prior prosecution, perjury adjudicated been guilty per- probation but had been given judgment. before This Court, Cole, opinion Judge an person held that the disqualified not as a witness in the murder trial because Article, 9-104 of the Courts Judicial Proceedings as a § disqualification, condition for required a “judgment court on the verdict and not ... mere determination of Harper having giving grand 2. admitted to lied while evidence to a jury, Sparrow acknowledged having lied under oath two on previous proceedings. occasions in related (E. 1984). 3. on Cleary McCormick Evidence at 3d ed.

503 pointed 496 A.2d 312. out that 303 Md. at We guilt.” is not such a of judgment “probation judgment” before probation order person “unless the violates conviction guilt.” on the finding a Id. judgment and a court enters Judge A.2d 312. As Cole summarized at 496 [303 Md.] in Myers, for the Court not of perju- that Darlene was ‘convicted’ conclude

“[W]e such, 9-104. As she was meaning within the ry murder trial. That testify at her husband’s competent discharged probation from satisfactorily she had not been not, in this case does in our testimony at the time of her view, simple conclusion for the materially change this probation court had not revoked her and reason that the of guilty. entered a on the verdict judgment above, contends that this hold- “Despite appellant in legislature’s enacting frustrates intent ing disqualification perjurers. statute for convicted We dis- its agree. Assembly, as evidenced care- General case, dispositive ful use of the terms associated with this might aware that a situation such as obviously was intended to Assembly disqualify arise. Had the General convicted, of it perjury, surely those found but not guilty, knowledge had to do so.” at ability and Id. [303 Md.] 648-649, 496 A.2d 312. defendant’s in the case dispositive argument

This is at had not Harper Sparrow bar. Since and been convicted Accord, not perjury, they disqualified. were Florentine 335, 340, (1945).4 v. 184 Md. 40 A.2d 820 prosecute 4. The defendant asserts that the failure of the State to course, Harper Sparrow perjury constituted misconduct. Of shows, Harper Sparrow as the prosecuted case even if had been Myers guilty, necessarily and had been found this would not have Moreover, disqualification. generally resulted in we note that their Attorney particular does or does not institute a "whether State’s Wells, prosecution a which rests in his discretion.” Brack v. is matter 86, 90, (1944). Md. 40 A.2d 283 274 Joy, 319 See Food Fair Stores v. 205, 213, (1978); Balto., Atty. City Md. Md. 389 A.2d 874 State’s 597, 608-609, (1975), A.2d 92 and cases there cited. (b) The defendant contends that trial judge erred his denying pretrial motion to compel psychiatric exami Sparrow, nation of quashing for her subpoena attend motion, ance and at testimony hearing on the refusing testimony to exclude her at In support trial. of his that Sparrow’s testimony excluded, contention should be that he entitled to obtain additional information relat ing competence testify, to her to the defendant made a proffer of facts to the judge reproduce trial which we from the agreed statement of facts:

“Appellant’s counsel proffered Sparrow that had given nine separate inconsistent versions of what had hap- (her at pened. In least one grand jury version testimony) she lied under oath after having been warned of the penalties of perjury. proffered Counsel also that Spar- row tailored her to what police stories would accept, that included her they own ‘inventions’ and ‘imagination’, and that she at any would ‘lie time it when would suit purpose.’ also proffered Counsel that Sparrow [her] testify child, would that was an she abused that her molester, father had been a child she that had been prostitute, and that she had used a number of drugs given heroin. including She was total immunity was being paid per month as part of a witness protec- $1100 tion program.” motion,

At hearing on his the defendant called Dr. Blumberg, Neil a forensic psychiatrist, who offered opinions based upon proffered evidence. Dr. Blumberg testified that Sparrow might be suffering from a heroin or opioid dependence disorder, an anti-social personality disorder, and/or a personality borderline disorder. He further noted prostitute, for a central system nervous syphilis an “might hazard,” occupational be and that persons so damage afflicted could suffer to the frontal lobes of the brain, which turn cause them might “incapable be truth, perceiving right from wrong.” Dr. Blumberg could not state with medical probability reasonable that Sparrow disorders; only he said of these any from suffered actually so afflicted. might that she in- for examination motion pretrial

The defendant’s her denied, objection an but Sparrow terrogation called as a she was when interposed again testimony was occasion, Judge Cathell On that at trial. witness State’s hearing of the out of the witness question elected dialogue ensued: following jury. questions, to ask several you I want ...

“THE COURT: Do things general. about specific, anything not about sworn, not? you do have been you know you Yes. “THE WITNESS: oath do under are you do know You

“THE COURT: not? you Yes.

“THE WITNESS: meant is what Do understand ‍‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​​​​​‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌​‌‌‌‍you “THE COURT: the truth? telling Yes.

“THE WITNESS: by lying? meant know what you Do “THE COURT: the truth. telling Not “THE WITNESS: the truth? telling Well, meant “THE what COURT: lying. Not “THE WITNESS: proceeding in a that understand you Do

“THE COURT: truth that important exceedingly it is type of this be told? should Yes.

“THE WITNESS: whether confused about Are at all you “THE COURT: tell the truth? necessary to not it is No. “THE WITNESS: that you mind your very it clear

“THE Is COURT: truth? tell the under all events must Yes. “THE WITNESS: ask any care to the State Does Okay.

“THE COURT: in this area? questions No, Your Honor. ATTORNEY:

“PROSECUTING time, Zer- area, In at this Mr. only “THE COURT: questions? ask witz, any do care to you advised that ATTORNEY: You have been “DEFENSE that had you were under oath you when prior proceedings truth, correct? is that to tell the Yes. “THE WITNESS: that you You were advised ATTORNEY:

“DEFENSE you had May tell the truth on 1983 when had to is that correct? Jury, in front of the Grand testified Yes. “THE WITNESS: fact, you As a matter of were ATTORNEY:

“DEFENSE perjury, ... penalty lying that the would be advised Did immunity you from that. granted were not you by perjury? is meant understand what “THE Yes. WITNESS: perjury? What is

“DEFENSE ATTORNEY: of Court. Lying. Contempt “THE WITNESS: All right. to the Court. Lying “DEFENSE ATTORNEY: you Do understand lying Jury. Or bеfore Grand perjury? to be

“THE Yes. WITNESS: that, fact, knowing Did you,

“DEFENSE ATTORNEY: Jury? lie to that Grand ATTORNEY: Objection.

“PROSECUTING area. If question I ask the “THE COURT: will lied, in any proceeding, you lied when you previously have lied? you did know that you Objection. ATTORNEY: “PROSECUTING over- question. Objection “THE Answer the COURT: ruled.

“THE Yes. WITNESS:

“THE Pardon? COURT:

“THE Yes. WITNESS: know, I if she “THE That is all wanted to COURT: is the truth and she knows when telling knows when she competent truth. is a witness. telling not She Thank Your Honor. you, “PROSECUTING ATTORNEY: Gentlemen, going “THE I am to call the Okay. COURT: now.” sought Neither counsel further examination of preliminary witness, permitted testify. and she was to concerning The law of this State of a witness competency is In suffering incapacity mental well settled. Weeks v. State, 223, 227, (1915), 126 Md. 94 A. 774 this Court af- firmed a stat- ruling permitted testify, an imbecile to ing:

“The fact to Waring alleged that Carrie shown an did not her necessarily incompetent be imbecile render as a witness. If an understanding imbecile has sufficient appreciate obligation to the nature and of an oath and sufficient to capacity correctly observe describe in regard facts to which she is called to there is no testify, ” why reason her should testimony be excluded.... Frederick, 272, 281-282, In A. Johnston v. 140 Md. (1922), the Court stated:

“A witness not from on the testifying should be debarred of mental ground proof unless the of such incapacity disqualification is clear and The test of in- conclusive. is competency whether the witness has ‘sufficient under-

standing to appreciate obligation nature and of an oath and sufficient cor- capacity observe describe rectly regard the facts she is called to testify.’ which ****** “The competency of a witness to cannot be denied testify merely that his apprehensions testimony may because not truthful. If oath capable appreciating be he is his and of he is not to alto- testifying correctly, rejected be gether proof might disposed because of that he disregard obligation.” O’Neal, 680, 688, (1950);

See v. 194 Md. 72 A.2d 26 Terry (3d 1984). on at 156 ed. McCormick Evidence See (1961) 80, 82, Horsey also 225 Md. 169 A.2d 457 (“[qualification or competency largely within the discre- court.”) tion of the trial

508 question

When a substantial presented is concerning the witness, competency of a judge the trial should ordinarily conduct a voir dire examination of the witness out of the presence of the jury. Although it is doubtful that any question presented substantial concerning the compe- tency Sparrow testify, as to opposed willingness her lie when it suited her purposes, Judge Cathell charted a careful course and elected to voir dire the witness. Addi- tionally, judgе trial has the authority to order a mental examination of a witness assist the determination of the issue competency when cannot be satisfactorily resolved by existing reference to information and voir dire of the In determining witness. request whether a for a mental however, examination should granted, a trial judge should carefully balance demonstrated necessity for a compelled examination against the of important existence countervailing considerations. In affirming the denial of a motion for a psychiatric examination a government wit- ness, the United States Court of for the Appeals District of Circuit, in Benn, Columbia 1127, United States v. 476 F.2d (D.C.Cir.1972), 1131 listed some of the factors to be con- sidered: psychiatric examination may seriously impinge on a

“[A] right witness’ to privacy; the trauma that attends the role of complainant ... is increased sharply indig- of a nity psychiatric examination; the examination itself could as a harassment; serve tool of impact of all these may considerations deter the well victim of ... a crime from lodging any all. complaint at Since there is no exact measure for weighing these kinds of dangers against examination, the need for an the decision must be entrusted to the sound discretion of the trial judge light particular facts.” Accord, Butler, (D.C.Cir. United States v. 481 F.2d 531 1973). 564, 571-572, See Rasnick v. 7 Md.App. (1969), A.2d 543 denied, cert. 400 U.S. 91 S.Ct. (1970). L.Ed.2d 67 applicable Judge clear that Cathell understood

It is psychiatric the need for a exami- balanced carefully law in this case. His present the relevant factors against nation proper examination was well within deny decision to It clear that the defendant equally exercise of discretion. deposition pretrial upon pretrial no to insist a right had did not judge and that the trial interrogation Sparrow, required that her subpoena in would have quashing err pretrial hearing. to attend the

Moreover, allowing Spar- in judge justified the trial was given that had Sparrow row to There was evidence testify. facts, had lied inconsistent versions the relevant various oath, had an drugs, under a and a user of prostitute was lie she would unfortunate indicated background, and At the same time the evidence purposes. when it suited her and supported appreciat- the conclusion that she understood capacity ed possessed the nature of an oath and correctly and the facts about which she observe dеscribe one of not credibility, was called to The issue was testify. denied the judge correctly and the trial admissibility, testimony. motion to exclude Sparrow’s III. him of the Claiming pretrial publicity deprived had in a and trial Worcester opportunity impartial receive fair suggestion the defendant filed a for removal on the County, that relief day begin. that his trial was scheduled When denied, continuance, requested the defendant and was failing sought prospective that he individual voir dire of the throughout the trial. jurors sequestration of these motions was He now contends that the denial erroneous.

(a) The defendant’s for removal was his suggestion case, filed December having second the first been 1983 to remove the case from Baltimore County.5 The burden then upon the defendant to demonstrate to the Circuit Court for Worcester County that he could not have a fair impartial trial in that county or that there was a ground believing reasonable for that he could not receive fair and impartial Maryland Constitution, trial there. Arti- IV, 8(c); cle 487, 506, Johnson v. Md. 495 A.2d (1985). In support of his request removal the defendant articles, introduced six news the first three from Baltimore City newspapers and the remaining three from Wicomico County newspapers. The first article appeared The Eve- 26, 1984, ning April and, Sun on in addition to providing offense, details of the the article referred to Grandison’s trial as well as the defendant’s. It recited the previous sentences, federal convictions and detailed the extensive security precautions being taken in connection with Grandi- appearances, son’s court spoke of earlier threats alleg- edly made to in Cheryl Piechowicz a courtroom. The second and third articles in' appeared The Sun and The Evening Sun, respectively, April on 27th. The second article did not mention the defendant Evans but referred the in security case, Grandison’s Grandison’s previous federal convictions sentences, and his attempts interpose the defense The third insanity. article also referred to the security being measures taken case, in repeated Grandison’s the information concerning the federal conviction and sentence Evans, Grandison and and identified Evans as the alleged “hit man.” The fourth and fifth in appeared articles April 27th Times, edition of The in Daily published Wicomi- co County enjoying but at least limited in circulation Constitution, Maryland IV, 8(b), 5. The grants in Article § to each party penalty in right a death case one absolute of removal. For a IV, comprehensive recent Judge discussion of Article see Couch's opinion for the Court in Johnson v. 303 Md. 495 A.2d 1 (1985). held, alia, In Johnson we inter that the defendant’s automatic right capital of removal in only cases can be exercised once. 303 Md. 506-508, at A.2d 1. County. Worcester Neither article mentioned Evans. The picture handcuffs, fourth article in included Grandison reported offense, details of the security place trial, the Grandison Grandison’s attempt interpose defense of insanity, previous his federal convictions and sentences. The fifth article elaborated on the security taken in precautions being connection with the Grandison trial. The final article appeared April 28th issue of Times and Daily briefly sketched facts of the reporting Grandison case while that no jurors had been selected in that case. Consequently, only two of the six articles mentioned the defendant and reported Evans his prior federal convictions and sentences.

Defense proffered radio, counsel there had been television and newspaper coverage of the criminal events occurred, when first they and of the subsequent federal prosecution Grandison, of Evans and as as well local tele- coverage vision of security measures employed connec- tion with the Grandison trial. He contended that the citi- zens of Worcester County exposed would have been to some of this coverage, and this contention was later somewhat confirmed by responses of a minority prospective jurors during voir dire questioning.

The record discloses that the trial judge was aware of the publicity earlier concerning Grandison, the defendant and and of potential for prejudice to the defendant. To this possible prejudice abate he entered a restrictive order curtailing public dissemination of concerning statements case parties, witnesses, attorneys, jurors police, steps and he took to ensure that necessary security mea- sures would be carried out as as inconspicuously possible. Additionally, there awas careful voir dire of prospective jurors.

We hold that the supports record the decision of the trial judge deny the request for further removal. We have consistently takеn the position question is one rests discretion, which within the trial court’s on reviewable 512

appeal only to determine whether there has been an abuse See, State, Johnson v. discretion. e.g., 487, 303 Md. 505-506, State, Johnson v. (1985); 495 A.2d 1 189, 271 Md. 191-192, (1974); State, Seidman v. 315 A.2d 524 230 Md. 305, 324-325, denied, cert. (1962), A.2d 187 109 374 U.S. State, 83 (1963); S.Ct. 10 L.Ed. 1031 Gray 224 308, 315-316, (1961); Md. Piracci v. 167 A.2d 865 207 499, 508-512, (1955); Md. 115 A.2d 262 Wanzer v. State, 601, 607, State, 111 (1953); 202 Md. 97 A.2d 914 Downs v. 241, 248-251, (1909). Md. A. The record reveals that judge trial possessed complete understanding of the surrounding circumstances and of the applicable law. His conclusion that “the publicity brought been to the [had] Court’s attention deny would us the opportunity to [not] pick a fair impartial was [jury]” amply supported by record, and was confirmed subsequent voir dire of prospective jurors.

The defendant request renewed his for removal at the dire, conclusion of the voir contending that the loss of those persons excused for cause had altered composition the jury pool so that the remaining veniremen did not represent a fair cross-section of the community. The re- quest again denied. Of the 130 prospective jurors questioned, 50 acknowledged having heard or read some- thing those, about case. Of 20 were excused for cause by reason of exposure their to pretrial and an publicity, additional six were excused for other reasons. The loss of 20 out of prospective jurors by reason of pretrial not, publicity itself, did in and of indicate that it would be difficult to select a fair impartial jury from the remain- ing pool.6

The denial of the requests for further removal did not amount to an abuse of discretion under Maryland law. implied 6. The defendant also that exclusion of a substantial number prospective jurors, part upon based in their awareness of current events, might jurors. result in fewer well educated selected college graduates in this case consisted high of seven and five school graduates.

513 (b) re- he entitled to asserts that “was The defendant also process due a matter of his case as moval [federal] be) (or have could it should been of whether regardless 45). In (Brief, Irvin p. removed under state law.” 1639, 1642-1643, 722-723, Dowd, 81 S.Ct. 366 U.S. (1961), Court said: Supreme L.Ed.2d 751 to essence, right guarantees to trial “In panel impartial, a fair trial accused criminally accused a The failure to accord an jurors. ‘indifferent’ of due the minimal standards even hearing fair violates ... process.” however, totally that the be jurors is not required,

“It days In these facts and issues involved. of the ignorant communica- diverse methods of swift, widesрread and expected to arouse tion, an case can be important scarcely any in vicinity, public interest of not have will jurors to serve as qualified those best of the or as to the merits impression opinion formed some hold cases. To true criminal particularly case. This is to notion as preconceived existence of any that the mere more, accused, without or innocence of an guilt prospective ju- of a presumption sufficient rebut impossible an establish impartiality ror’s would aside his lay if the can juror It is sufficient standard. on the render a based opinion verdict impression in court.” presented evidence ques- out that where Supreme pointed Court also raised, independent an properly juror partiality

tion of was impaneled jurors testimony of the voir dire evaluation at Dowd, 366 U.S. supra, Irvin v. required. examination independent made such at 1643. We have S.Ct. case, find no error in this and we of the entire voir dire deny or the decision of the examination the conduct of law process not denied due The defendant was removal. jury. selection of the (C) principles applicable Similar are to the defendant’s argument improperly that he was denied a continuance. grant The determination of whether to a continuance lies within the sound discretion of the trial court. Johnson v. 283, 288, State, (1965); 237 Md. 206 A.2d 138 McKenzie v. 597, 601, State, (1964); 236 Md. 204 A.2d 678 v. Schroder State, 261, 265, (1955). 111 See, 206 Md. A.2d 587 in addition, the of cases in recently review set forth v. State 422, 451-452, Frazier, (1984). 298 Md. 470 In A.2d 1269 State, 565, 580, (1955), 207 Md. 115 Bryant v. A.2d 502 Court stated: in

“As the trial court is a much better than the position court to determine it appellate proper whether ground continue a case on the of public excitement and prejudice, the court appellate give great weight will to the trial court’s determination that newspaper publicity of charges against the defendant was not likely prejudice him at trial.” case,

In the there no present perva- evidence of such inflammatory pretrial sive and publicity would have mandated the granting of a continuance. The trial judge did not his discretion he abuse when denied the motion for a continuance.

(d) The defendant contends the trial judge erred his refusing request individual voir dire of the jurors. State, 88, 102, We In disagree. Colvin v. 299 Md. 472 A.2d — 953, denied, -, 226, cert. U.S. 105 S.Ct. 83 L.Ed.2d (1984), Judge Couch stated for the that “in the Court of a statute court rule absence to the as as contrary, long procedure the selectiоn results in a impartial fair and jury, the method and manner of conducting voir dire rests Accord, within sound discretion of the trial court.” State, 167, 186-188, Poole 295 Md. (1983); 453 A.2d 1218 543, State, 549-550, 699, Connor v. 225 Md. 171 A.2d cert. denied, 906, 186, (1961). 368 U.S. 82 S.Ct. 7 L.Ed.2d 100 The defendant points “specific to no deficiencies or particu lar shortcomings the court’s voir dire examination of the prospective jurors” might which have resulted in an unfair and biased jury. Tichnell v. 297 Md. 468 A.2d 1 — (1983), denied, cert. -, U.S. 104 S.Ct. (1984). L.Ed.2d 846

As is quite done, commonly Judge Cathell combined tech- niques of collective and individual dire in voir this case. general When questions could be asked of the venire with- danger out of prejudice, that procedure was followed. appeared When it particular that a question might produce an answer that should not be heard by other jurors, the answer was received at the bench. The judge trial did not err denying defendant’s request.

(e) that, defendant argues in light pretrial publicity, the trial judge erroneously denied his motion to have the jury sequestered throughout the trial. Maryland Rule 751 e7 makes it clear that this decision is within the discretion of the trial judge:

“The jurors sworn to try criminal case either may, before or after submission of the case to the jury, discretion of court, permitted to separate or be kept charge of proper officers.” The applicable statute is effect, to the same 8-304 of the § Courts and Judicial Proceedings Article.

Reviewing the circumstances of pretrial publicity, we find nothing that mandated sequestration of the Nor jury. do we find in the record any evidence of or publicity during occurrences trial that would have compelled seques- tration. The trial judge instructed the each jury day con- cerning exposure to publicity and to others, comments of and the content of these instructions was not challenged by the defendant. Furthermore, the record fails to show a single instance of a violation of the court’s or instructions Maryland 4-311(c). 7. Now Rule

of potentially prejudicial exposure any juror publicity comment, trial. during The defendant has shown no abuse of discretion in the refusal to sequester the trial. during

IV. Next, the defendant contests three evidentiary rul ings by the trial court. Two of the rulings concerned the admission of documents under the business records excep tion rule, (1974, to the hearsay Code 1984 Repl.Vol.), 10-101 of the Courts and Article, Judicial Proceedings and the ruling third was the admission into evidence of a pistol. MAC-11 machine

(a) discussed, As earlier Charlene Sparrow and Janet Moore testified that they had to the gone Baltimore City Jail with 26, 1983, the defendant on April for the purpose of visiting Anthony Grandison. Both stated that Sparrow remained in the car while Moore and the defendant went inside the jail. Moore testified that completed she had a visitor’s card required by the ‍‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​​​​​‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌​‌‌‌‍jail, signing her name as Janet Grandison writing also card, defendant’s name on the mis- spelling it as “Vernoned Evans.” She identified State’s exhibit 18 as the visitor’s card which she signed. had Captain James L. Drewery testified that he in charge department that controlled at visits the Baltimore City Jail. He identified State’s exhibit as a visitor’s card required completed, to be kept in the regular course of business of the jail. Captain Drewery explained jail personnel enter the name of the prisoner to be visited and date, and then hand the visitor, card to the who enters the name of those visiting and their to relationship prisoner. This card pass serves as a when a visitor moves through various checkpoints, but it must be surrendered to the jail authorities when the place. visit takes Information from the card is then normally entered into a computer for statistical purposes, Captain but Drewery indicated that this always was not done personnel because of shortages. Sparrow Charlene testified that she had attempted rent a room at the 26th, Warren House Hotel on April but could not because of the lack of a reservation and the unavailabili- ty name, however, rooms. She had left her and was able to rent a room April on 27th. She testified that she had signed a hotel registration form and had given been Room 222, which she until occupied April 29th. She identified State’s form, exhibit 10 as the registration and identified her name and address as having been written her.8 Luther Pugh, night auditor and clerk desk at the Warren Hotel, House identified State’s exhibit 10 as a record re- quired to kept regular course of business hotel. He testified that his handwriting appeared in the top form, portion of the and he identified the room as number 222, the guest as “Sparrow, C.” and the check-in and check-out April dates as 27th and April 29th, respectively. He explained that the guest normally enters his or her name and address on the next portion card, and that portion final consists of charge entries made from the cash register. Pugh also confirmed that a black female had attempted 26th, to rent a room April and, on being unable to do so hаd left her name and returned to rent a room on the following day.

The defendant mounts a single upon attack the admission of the jail visitor’s card and the registration hotel form. He contends that they were not admissible under the business records statute because they were made by Janet Moore and Charlene Sparrow instead of by custodians under a duty make truthful reports. The argues defendant thus (Brief, 49-50): pp.

“The rationale of the business records exception is that the writer is under a duty make a truthful report. Aetna Casualty Kuhl, and Surety Co. v. 296 Md. Sparrow 8. stated that she had entered her sister’s address because she give did not want to her own. (1983). In this case the record was not

454, 463 A.2d 822 a truthful any duty official under make by any made Moore____ The was in fact Janet report. writer s]t 4* H* H: 10-101(c) provides of the Courts article “Section to make such of the business must be ‘practice the time are done or they records of its acts at written time The a reasonable afterwards.’ ‘business’ within concerned, the did not make the record nor did the prison, Rather it concerned prison concern officials’ acts. record under no to be jail duty the acts of visitors to Thus, not fall the business truthful. the record did within used to testi- exception. records The record was bolster and Moore’s Appellant’s State’s witnesses about mony by Grandison, case. important part an State’s visit error. Thus, prejudicial the admission of the record was guest into evidence the “The trial court also admitted House. It admitted to show register of Warren was Sparrow registered guest. had as that Charlene Guests, however, under no to make a truthful duty are House practice and it not the of the Warren report, Thus, all of the identity guests. to check the of its wag criteria for admission absent.” necessary statute, records 10-101 of Courts business Article, part in relevant as Proceedings provides Judicial follows:

“(b) or record made Admissibility. writing —A as a memorandum or record of regular course of business act, transaction, occurrence, or event is admissible to an act, transaction, occurrence, or event. prove “(c) practice of the making Time records.—The acts must be to make such written records of its business time they at the time are done or within reasonable afterwards.

“(d) person- lack of knowledge Lack maker. —The knowledge may al of the maker of the written notice weight shown to affect the of the evidence but not its admissibility.”

Each document clearly was record made in the regular course business within the of the contemplation above- quoted statutory language. State, 44 Md. See Wilson v. 318, 333-334, (1979). App. 408 A.2d 1058 see no prac- We tical jailor asking difference between a the name of a visitor it entering given, asking as the visitor to enter the information. A wishing give visitor incorrect informa- tion do so as well as in may verbally writing, and there is no having enhanced enter reliability jailor this informa- reasoning tion. The same applies registration the hotel form, that, although apparently we observe because of the reservation, previous day’s the information identifying as the Sparrow person renting appears the room on the form in the hand of clerk as well as that of Sparrow. clear, any As statute makes lack of personal knowledge by jailor concerning or clerk goes information to the weight of the evidence but not its admissibility. Further- more, Sparrow both Moore and were available for cross-ex- amination.

We also note that the card and registration form were not offered as independent substantive evidence of the fact that Moore and Evans were at the City April Baltimore Jail on 26th, or that Sparrow registered at the Warren House Hotel April on 27th. The visitor’s card was offered to corroborate testimony Sparrow and Moore that Grandison was visited on 26th April people, two and to corroborate the of Moore that she testimony present jail April was at the on 26th particular and made the entries on a visitor’s card bearing the name of regis- Grandison. the hotel Similarly, tration form was offered to testimony corroborate the Sparrow registered that she had at the House Hotel Warren on April signed registration 27th and form on that date. 559, 562, (1948); See Morrow v. Md. 59 A.2d 325 Owens, (1975). 28 Md.App. Thomas v. 346 A.2d 662

(b) the trial erred judge maintains that The defendant as a pistol machine into a MAC-11 admitting evidence slaying. used in the allegedly of that weapon representative recovered, the not actually used was Although weapon the trial could judge from which produced evidence State if not quite likely, used was weapon concluded that have pistol. Agent machine Robert a MAC-11 certainly, almost Investigation the Federal Bureau W. Sibert of He testified expert. firearms identification as a qualified and fired that, expended of the bullets from his examination or the from the scene of the crime cases removed cartridge victims, weapon, fired from the same all were bodies used was a MAC-11 opinion weapon in his possibil could not exclude the pistol. Agent machine Sibert in the someone had manufactured that somewhere world ity characteris the weapon duplicate a that would identifiable Nevertheless, he did and casings. found on the bullets tics him, through either known to weapon that no other testify from through gained or information personal knowledge his data accumulated and search of the extensive computer a to Investigation relating of stored the Federal Bureau by fired weapons, of all could have the characteristics known him.9 casings by examined the bullets dupli- of Concerning admissibility representative the exhibits, passage from McCormick on following cate (3d ed.1984) apposite: at 670 Evidence § and satisfacto- may properly “Illustrative exhibits often noted, previously of real As be used lieu evidence. rily or occurrence involved a transaction actually articles casings they that Initial examination of the and bullets disclosed 9. markings groove caliber. Examination of the land and were .380 auto fired, comparison when with the land and etched onto the bullets every weapon capable groove known that is of characteristics of other possi- firing .380 auto caliber ammunition narrowed the search to casings weapons. Comparison of marks found on the shell with ble extractor, by firing ejector mecha- marks known to be made weapons the MAC-11 machine of those excluded all other than nisms pistol. unavailable, have lost or may become or witnesses may testify present be unable to that the article in court is the they identical one have previously observed. Where only generic characteristics the item are significant no would objection appear exist to the introduction of a substantially ‘duplicate.’ similar While generally matter is viewed as within discretion of court, the trial it has been suggested that it would constitute error duplicate reversible to exclude a testified to be object identical involved occur- ” rence .... United See States v. 423 F.2d Cunningham, (4th Cir.1970). materiality The relevance and of the prof- exhibit, fered desirability having representative and the weapon rather than photograph, apparent. were offered testimony Harper State of Calvin show day one before the shooting Evans had been shown a “machine gun” by Rodney Kelly, and that Evans had exam- ined the it” weapon, saying “he liked when by told Kelly that it was he Tying “what needed.” the weapon Evans, offered to day one before the shooting, to the weapon shooting, used in the an important was clearly part Moreover, State’s case. identification could more accurately be made a representative examination of weapon than by examination a photograph.

The trial judge required probative to weigh value of the proffered against exhibit any improper prejudicial effect it might had on the jury. have We cannot conclude balance struck was an abuse of discretion.

V. On grounds constitutional the defendant advances two arguments separate that the jury improperly was selected. First, he argues that exclusion from venire of who persons capital punishment would never vote to impose resulted in of the selection infirm jury constitutionally the function of adjudicating guilt Second, or innocence. he use of chal- prosecution’s peremptory

contends that jury improper. to exclude blacks from the lenges (a) selection, those During jury prospective jurors to the death they opposed penalty who indicated that were it under certain they impose but that could vote circum hand, excused for cause. On the other stances were not they stated that prospective jurors those who would any to return a death sentence under circumstances unable studies, Citing for cause. various the defend were excused exclusion for cause of the latter group ant asserts that the guilt phase from the or innocence of prospective jurors, prone” resulted in a “conviction He proceedings, jury. impartial “is therefore not on the argues jury such innocence,” that it him of “his question guilt deprives a fair right jury to a drawn from cross-section equal protection, that it constitutes a denial of community,” proper functioning and that it causes the to be (Brief, 53). impaired. p. argument argument

The defendant’s same as 304 Md. 498 A.2d rejected made and Foster v. (1985), filed For the reasons set today. which we have at opinion, I B 304 Md. in Part Foster forth 1243, 1245-1250, 457-466, again reject A.2d at we argument.

(b) At the conclusion of the exercise of peremptory challenges for the selection of the first jurors, twelve selected, any juror before was sworn or the alternates defense counsel that the had charged prosecutor improperly challenges exercised his to strike peremptory prospec black jurors. part transcript tive The relevant of the trial is as follows:

“THE as it is Jury, presently COURT: ... constitut- ed, acceptable is it to the Defendant? Honor, approach

“DEFENSE ATTORNEY: Your we may the bench?

“THE You The record will may. COURT: reflect to the Defendant is invited bench.

“(Whereupon, Counsel and the Defendant approached following proceedings and the held out of the bench were hearing jury.) Honor,

“DEFENSE ATTORNEY: Your if Your Honor acceptable is not to the please, panel Defendant as One, following seated for the reasons: that the State has challenges exercised its peremptory purposely limit from representation blacks on the The panel. State eight ten prospective struck jurors utilizing black their peremptory challenges.

“THE I I COURT: counted seven. listed the names of seven. ten,

“DEFENSE ATTORNEY: I had Your Honor. “PROSECUTING ATTORNEY: The State doesn’t know. “THE had COURT: State ten strikes.

“DEFENSE ATTORNEY: The ten State had strikes and eight. used There They eight. used were ten.

“THE I COURT: recall them I striking seven blacks. may wrong by one.

“DEFENSE ATTORNEY: Okay.

“THE Assuming correct, COURT: I your figures are will hear you. I

“DEFENSE ATTORNEY: submit to the Court there were ten presented blacks to the jury panel and State its utilized peremptory challenges eight strike of those ten, leaving on I panel. two blacks the jury believe that the State did so a manner to limit representa- the black on the panel. tion I believe State exercised its per- emptory challenges in a totally racially motivated man- ner, therefore, panel certainly represent does not an adequate cross-section. that, on Honor,

“Based Your panel is not accept- able. ![{ 5[5

& Jf! ift objections heard on his care to be you “THE Do COURT: Counsel? by Defense panel raised to the I Yes, Your Honor. ATTORNEY: “PROSECUTING I didn’t struck. people we many how black don’t know people or striking black we were track of whether keep occupation, age, background, struck on We people. white at the bench and dire during learned voir what grounds. on racial did not strike court. We open I that there are and see jury now at looking “I am I And I also note am jury. persons on two black I am I don’t know. people. white I struck some sure people. I struck some white sure Two. “DEFENSE ATTORNEY: it’s two or three. counting, is As to who “THE COURT: me. I That’s news to ATTORNEY: “PROSECUTING striking grounds. I on racial wasn’t keep track. didn’t issue, make a may we On “DEFENSE ATTORNEY: to the Court? proffer by The exercised peremptories

“DEFENSE ATTORNEY: the State— exercised peremptories

“THE COURT: lady records, Bagwell, Polla were according my Johnson, here; Eliven F. Jr.— red back Yes. ATTORNEY: “DEFENSE Anna Allen. Allen—Norma —Norma “THE COURT: me, Honor. Excuse Your ATTORNEY: “DEFENSE Dennis. also Charles S. There was are correct. right. I’m that’s You sorry, “THE COURT: down here. not have Mr. Dennis I did eight. There were eight. That makes ATTORNEY: “DEFENSE agreement. We are Eight “THE blacks. COURT: him I didn’t have down. sorry, I’m Very good. Now, is clear. the record ATTORNEY: “DEFENSE are noted for the record. objections Your “THE COURT: overruled____” are Your objections holding if the must fail argument The defendant’s 13 L.Ed.2d Alabama, 85 S.Ct. 380 U.S. Swain (1965), controlling. In Supreme Court, Swain the reviewing after the nature peremptory challenges, said (380 221-222, 836-37): U.S. at at S.Ct. striking cannot hold that of Negroes in a

“[W]e particular equal protection case is a denial of the laws. In the an quest impartial qualified Negro jury, white, Catholic, Protestant and subject are alike being challenged To without cause. subject prosecu- challenge tor’s in any particular case to the demands and traditional the Equal standards of Protection Clause change would entail radical in the nature operation challenge. tanto, The challenge, pro would no longer peremptory, be each and every challenge being examination, open to at challenge either the time of the or a hearing prosecutor’s at afterwards. The judgment each underlying challenge would be to subject scrutiny 10 for reasonableness and sincerity....” argues, force, defendant with considerable that longer controlling. points Swain no He out that Swain was only equal protection grounds, decided on and that years following three the in Supreme decision that case the Louisiana, in 145, Court ruled v. 391 Duncan U.S. 88 S.Ct. 1444, (1968), 20 L.Ed.2d 491 the that Sixth Amendment guarantee “by impartial of trial an jury” applicable was to the York, states. He relies on v. New McCray 461 U.S. 961, 2438, 103 (1983), S.Ct. 77 L.Ed.2d 1322 where five Justices of the Supreme Court indicated that the time may approaching a re-examination of holding in Swain. The defendant cites state cases which have held Swain did hold proof 10. peremptory challenges that of use of to bring systematic juries about of exclusion blacks from criminal over a time, period of sufficient to demonstrate that "the State has not seen single Negro case,” any jury fit to might leave a on in a criminal presumption protecting prosecutor permit overcome a finding "purposes peremptory challenge that being of are Swain, perverted” supra, in violation the Fourteenth Amendment. 224, 380 U.S. at 85 In S.Ct. at 838. the instant there case is no claim systematic or a juries evidence of exclusion blacks from criminal County. Worcester

526 challenges by prosecutor use of peremptory that the single jury solely from a because race exclude all blacks Wheeler, provisions. People v. state constitutional violates 890, (1978); 258, 583 P.2d 748 State Cal.Rptr. 22 148 Cal.3d (Fla. Neil, 1984); 481 v. 457 So.2d Commonwealth v. 499, denied, 444 Soares, 461, 387 N.E.2d cert. 377 Mass. 881, 170, (1979). 100 S.Ct. 62 L.Ed.2d 110 See State v. U.S. 486, (N.M.Ct.App.1980). P.2d 94 N.M. 612 716 Crespin, decisión of the United points the defendant Finally, for the Second v. Appeals McCray Court Circuit States (2d Cir.1984), Abrams, holding 750 1131 F.2d chal peremptory Amendment the exercise of Sixth forbids on prosecution jurors solely exclude lenges by of their racial affiliation. basis did upon This considered but not rule similar Court A.2d Md. argument Lawrence case (1983). that the in that We concluded evidence the prosecu- to overcome the presumption insufficient in a peremptory challenges had exercised his constitu- tor manner. tional not Lawrence,

As in we need here decide whether to Soares, Wheeler, approach suggested by follow the cases, the approach suggested by McCray related state Abrams, does for the record in this case supra, v. not of under the the defendant’s assertion error test support suggested line of cases. The tests by by established either the leading pre- case are similar. Each starts with each Swain, prosecution established that the sumption by then using challenges requires the State’s Each properly. to a of discrimina- prima the defendant establish facie case the an presumption, by tion sufficient overcome followed part on the of the if opportunity explanation prosecution out, a facie case is made with the ultimate resolution prima the any dispute of made trial judge. case, a requires

To establish facie prima Wheeler (1) persons defendant to “that the excluded are mem- show cognizable meaning of a within the of group bers

527 representative (2) cross-section ... from rule all [and that] of the there strong circumstances case exists a likeli- persons being hood that challenged such are because their group specific association rather than because of any Wheelеr, bias.” People v. 583 P.2d at 764. Soares supra, requires showing “(1) pattern a that a of conduct has developed whereby several prospective jurors who have been are challenged peremptorily members of a discrete group, (2) there is a they likelihood are excluded being from the their jury solely by membership.” reason of group Soares, v. Commonwealth 387 at 517. supra, N.E.2d “(1) a requires showing McCray group alleged that cognizable (2) be excluded is a group community, there is a substantial likelihood that the challenges leading to this exclusion have made on been the basis group individual venireman’s affiliation rather than because of a any possible inability indication to decide case on Abrams, basis of the evidence presented.” McCray supra, 750 at a prima F.2d 1131-1132. If facie is made case out, the burden shifts to the State. court in McCray (id. 1132): explained at

“In order to rebut the defendant’s showing, prose- cutor need show a rising not reason to the of cause. level There any are number of on party may bases which a believe, not unreasonably, prospective may juror slight have some bias challenge that would not support for cause but would make him or her excusing reasons, they genuine, desirable. Such if appear to be accepted court, should be by the which will bear the responsibility assessing genuineness prose- cutor’s and of alert response being to reasons that are See, pretextual. Hall, 161, e.g., People v. Cal.3d Cal.Rptr. 71, (1983) (en banc) 672 P.2d (reasons proffered by prosecutor for excus- peremptorily ing excused; equally applicable blacks were to whites not held, prima showing rebutted). defendant’s facie If not the court that prosecution’s presentation determines the is inadequate to rebut the proof, defendant’s the court select- should be and a new a mistrial

should declare panel.” ed from a new trial for the was on case, a black defendant

In the present the defendant persons, white murder of two alleged its ten eight used the prosecution show that able to was assume We shall to exclude blacks. challenges peremptory to establish was sufficient showing this that arguendo Neverthe- rights. the defendant’s facie violation prima prose- the by offered less, explanation that the we conclude court, sufficient cutor, accepted by apparently trial of the to the decision support under the circumstances prosecu- objection. the defendant’s overruling judge chal- peremptory to exercise case had declined tion and instead impaneled who were two blacks lenges against It is to exclude whites. challenges remaining used its two counsel nor defense judge that neither significant also requested or prosecutor explanation questioned represented have may This well further particulars. counsel, require the defendant’s decision by tactical weighing upon made court’s decision general the rather showing against prima facie defendant’s seeking specific opposed as prosecutor, of the response each excused venire- as to prosecutor from the information strengthening of further the risk running man and reason, expla- For whatever explanation. prosecutor’s and unim- uncontroverted stood prosecutor nation of the indicated, support sufficient to it was As we have peached. by judge. reached the trial the decision

VI. guilt at the to the verdicts challenge final The defendant’s is his contention proceedings phase innocence jeopardy double was barred prosecution the instant prosecu- federal and state Asserting principles. offenses, insists that the defendant for the same tions were “the trials, and sentences for convictions multiple such provisions constitutional offenses” violate same “[b]oth 71). iden- (Brief, rejected the p. fairness” We fundamental

529 tical argument in the defendant’s prior appeal, Evans v. State, 45, 301 supra, 1135, Md. 481 A.2d and the majority of the Court adheres to the views set forth in opinion.

VII. Turning the sentencing hearing, the defendant initially complains that evidence concerning minimum parole release date was improperly proffered excluded. He the testimony Kunkel, of William J. Chairman of the Mary Commission, land Parole to prove that if he were given a consecutive life sentence for each in murder addition to a consecutive life sentence for conspiracy to murder and a 20-year consecutive sentence for offense, the handgun un der current law Parole Commission guidelines, he would eligible be for consideration parole only after serving 3972 years. Additionally, Mr. Kunkel would have testified that if these sentences were made consecutivе to the previously imposed federal sentence of life plus 10 years, computation of the years would not until begin the defendant paroled by federal officials. Mr. Kunkel would also explained have that because of the imposition of life sentences the Commission could only recommend pa role, and that the final decision as to parole whether would granted lay with the Governor.

In State, 167, 196, Poole v. (1983), Md. 453 A.2d 1218 this Court took the flatly position that, at capital sentenc- ing hearing, “reference to the of future possibility parole and, was improper upon remand, should not again be made.” Judge Couch for the pointed Court out that such reference “is likely to allow the jury to disregard its duty determine aggravating and mitigating factors, and then balance one against required other as stat- [the Any consideration of the possibility parole ute]---- as irrelevant____” such simply is 197, 295 Md. at 453 A.2d 1218. We also quoted approval with the reasoning of Chief Judge Bruñe for the State, Court Shoemaker v. 228 Md. 462, 469, (1962), 180 A.2d 682 as follows:

“ ‘The chief vice of the reference in this case to the possibility parole suggested is that it to the that it shift might part responsibility finding its for a ” 196, defendant’s to some other 295 Md. at guilt body.’ 453 A.2d 1218. recently,

More 303 Md. at supra, Johnson parole 495 A.2d we reiterated that reference- to in a capital sentencing hearing “improper.” argues The defendant that the proffered evidence was “11 statutory relevant to the circumstance ‘deal- mitigating the ing activity with unlikelihood of further criminal that ” (Brief, constitute a continuing society.’ p. would threat to 72). Such evidence offered a the by concerning defendant is possibility parole mitigating no more relevant to this circumstance than the reference argument by pros- and connection, ecution in and In Poole Johnson. this it should out that one in pointed might likely engage be be to criminal a activity constituting threat to those around him whether he penal is confined a institution or is on parole.12

The and dispositive Poole Johnson cases are of the de- argument fendant’s and trial in the required judge instant case to exclude the proffered testimony.

VIII. The death Maryland penalty statute lists as mitigating circumstance to considered sentencing that act of the authority defendant was not the sole “[t]he 27, proximate cause of the victim’s death.” Art. 413(g)(6). The defendant requested jurors be § instructed that they mitigating must find this circumstance 27, 413(g)(7). 11. Art. See, e.g., (concurring Thomas v. 301 Md. 348

12. (1984), denied,-U.S.-, dissenting opinion), 483 A.2d 6 cert. 105 (1985), expert testimony, S.Ct. cerning L.Ed.2d where the con activity constituting danger society, criminal future related might happen prison, expert saying regard to what the with the with defendant, “I wouldn’t want to be his cell mate.” they if found an aggravating as circumstance that these contract The that, were murders.13 defendant ‍‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​​​​​‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌​‌‌‌‍reasoned if found him that Grandison had hired to kill the victims, was, then action law, Grandisonas as a matter of victims, proximate cause of the death of the and that the defendant’s not proximate conduct could have been sole cause. trial denied the judge request, reasoning as follows: proximate that I cause read the Statute is that it

“[T]he was, did, whatever Defendant proximate sole individuals, cause of the as death it relates to death, not in planning the occurrence. And there no absolutely evidence indicate that from the time Vernon Evans pulled trigger gun, on this machine died, Susan David Kennedy anything Piechowicz else happened deaths, from anyone that caused those other than particular bullet And I think wounds. proximate cause as mentioned in the Statute relates to death, proximate cause of the to planning not related of a before, some, week or two weeks before in and perhaps longer I before. think it relates the death of solely to the victims.”

The defendant in the argues ruling this Court that consti- tuted reversible error. question resolution of depends upon the meaning “proximate

of words cause” by Legislature intended “cause,” in the context of this statute. The standing word alone, event, to the generally refers actual cause of an fact,” often referred to as “causation in if unrestrained legal qualifications may an almost embrace endless Perkins, number of antecedent factors. See R. Criminal (3d ed.1982): Law 413(d)(6), aggravating Art. § lists as an circumstance

13. "[t]he pursuant agreement defendant committed murder to an or con- promise tract for remuneration or to commit remuneration murder.”

“In by shooting, example, homicide for while mind turns first to the man pulled trigger, who it was him obviously impossible to have committed that (by homicide shooting) weapon. without loaded As he not, in gun himself, did all make the probability, it is others, to consider necessary such as those who made and weapon, sold the particular even inventor of that kind of firearm. perhaps Others were connected with the result because they mаde the shell or the bullet or the powder, or assembled the finished cartridge. The mind in gets lost the labyrinth contributory factors long exhausted____” the possibilities before are Underwood, 9, 16-17, See also Peterson v. 258 Md. (1970). A.2d 851

The addition of the modifier “proximate” to word “cause” limits the number of actual causes for which liabili- ty may imposed having to those a nexus to the event sufficient to satisfy concept societal of fairness.14 Pre- what will cisely “proximate constitute cause” may vary (R. according Perkins, to the nature of the case Criminal Law, at supra, 776.

“The line of demarcation between causes which will be recognized as proximate and those which will be dis- as regarded remote ‘is really ‘Legal flexible line.’ causation reaches in types further’ some of cases than it in does others. It reaches further tort actions based upon intentional harm resulting than those from negli- gence, and neither of the boundaries so established is necessarily cases, controlling types other such as word, Commenting (W. on the choice of this Professor Prosser said 14. Prosser, (5th 1984)): The Law Torts at 273 ed. Bacon, ‘proximate’ legacy "The word is a Lord from Chancellor who nothing in his time committed other sins.. The word means more immediate; than near or up by and when it was first taken proximity space courts it had of connotations in time and which which word, long disappeared. have since It is an unfortunate places entirely wrong emphasis upon an physical the factor of or 'legal mechanical 'responsible perhaps closeness. For this reason cause’ or even appropriate cause’ would be a more term.” contract, actions of for breach those under Workmen’s Acts, Compensation prosecutions.” criminal 438, 451, And see 293 Md. Campbell 444 A.2d 1034 (1982), where stated: we

“Because of the extreme penalty attaching to a conviction murder, felony a closer and more direct causal connec- tion felony between the and the killing is required than the causal connection ordinarily required under the tort concept proximate cause.”

We have thus far analyzed the meaning the term “proximate cause” the context of its utilization to de- scribe the nexus that the law will require support imposition of liability a particular case. If it were our task to determine whether there is a (a) nexus between act of procuring for hire the another, (b) murder of actual murder of that person, sufficient to support a verdict of murder in the first degree and the imposition of the death, sanction of we would conclude that there is. At common procured law one who another to commit murder could be convicted as an accessory before the fact and suffer the same punishment as the perpetrator, and today Maryland law permits an accessory before the fact murder to be indicted and convicted of murder the first degree. Williamson, State v. 282 Md. 382 A.2d 588 (1978). Moreover, the Legislature has imposi- authorized tion of the death penalty for one who procured the murder of another for remuneration or the promise of remunera- tion,15thus as a finding matter of policy sufficient nexus between the act and the result to justify imposition the ultimate Therefore, sanction. using the term “proxi- mate cause” in context, and ascribing to it legal meaning developed use, for such we would conclude that the act of hiring another to commit murder is a proximate cause of that murder. 413(d)(7) (e)(1).

15. Art.

534 does inquiry, however,

This not conclude our because the did the Legislature not use term in its clearly ordinary context. being Rather than concerned with the fairness of holding one for a responsible murder by committed another outside of his the presence, Legislature was here concerned with the fairness allowing of defendant to show that his act alone did not cause the of death the victim. It was concerned with cause reasonably another which could be in “mitigating.” considered Viewed the particular context used, in the which words are conclude we that the General Assembly the intended words “proximate cause” to apply death, to direct only physical causes of the victim’s and not in to acts of a the principal degree second or accessory an before the fact aided which or abetted the directly act causing death. the ordinary Under meaning of word is “mitigating,” nothing mitigating there about murder pursuant it because was done to a contract.

If interpretation the defendant’s of statutory lan- guage correct, is the assassin is entitled to consideration respect with to sentence it is that whenever shown some person other as an participated accessory before the fact or as a in principal degree. the second It is difficult in understand the such logic proposition. It is more reason- suggest able to that one may be entitled to sentencing showing consideration by he alone was not sole physical direct of cause the death of the victim.16 Conse- type Legislature likely 16. The of which by situation had mind language 413(g)(6) following. illustrated If the perpetrator inflicts a serious wound under circumstances that would ensue, justify a conviction murder if death should death does partly by negligent ensue reason medical or treatment refusal of care, medically accept perpetrator victim recommended will liability Vaughn not be excused from for the murder. See De (1963), denied, 232 Md. 693, 194 A.2d 109 cert. U.S. S.Ct. Nevertheless, (1964). capital punishment 11 L.Ed.2d 623 in a mitigating case there would as a proximate exist an factor additional cause death. case, however, explore We need not in range scope might language acts 413(g)(6). go which fall within the of § We no holding principal further than our that the of a act second requested not entitled to the the defendant was quently, instruction.17

IX. erred judge contends the trial defendant mitigat add to his instructions a statement refusing to those specifical the in addition to by jury factors found ing as given weight in the “can as much set forth statute ly factors, to up jury and it is to the [statutory] mitigating pro them.” While this weight given determine the to be law, the was not judge instruction stated the posed properly by if covered grant fairly to it the matter was obligated v. and Edwards actually given. England instructions (1975). 264, 274-276, A.2d 98 State, 274 Md. their concerning jurors

The trial instructed the judge following by circumstances mitigating consideration of enjoining of the statute. After closely wording whether, upon preponderance jurors to “consider based evidence, circumstances following mitigating any each numbered exists,” paraphrased he read or closely concluding Art. with: paragraph 413(g), § sets “(8) specifically facts Any jury other which as circumstances writing mitigating forth that it finds in the case.” sentencing deter- also referred the to the judge jurors

The them, on these forms mination forms that were before numbered eight circumstances were listed mitigating eighth that track the words of the statute. paragraphs paragraph provides: numbered Legislature accessory had in

degree the fact is not what the or before mind. course, rejection construction of Of our of the defendant’s 17. defendant, 413(g)(6) preclude capital who was would not murder § case, arguing degrеe principal from to the first in a contract murder accessory mitigating circum- constituted a that the role of the 413(g)(8). supra, SeeFoster 304 Md. at under stance A.2d at 1254. exist, as set forth below: mitigating

“8. circumstances Other ”

Yes No The message clearly conveyed by given the instructions that mitigating all circumstances were entitled to equal Nothing consideration. in the instructions in- remotely ferred that other mitigating circumstances found jurors were entitled less than weight specifically those set in the Additionally, forth statute. the trial in- judge the jurors structed as follows: important you you is remember that are en- “[I]t in more a mere gaged counting than of aggravating and your It mitigating duty weigh circumstances. each factors, aggravating those mitigating, both determine whether sentence shall be life death.” There was no refusing requested error instruction.

X. The defendant argues next the Maryland capital punishment argument statute is unconstitutional. This is identical, word, with the virtually word made argument State, supra, today. Foster v. filed in the As Foster case, the defendant does not in this Court challenge any given instruction the trial does by judge, complain not of a give instruction, refusal to requested a not and does com- plain Instead, of the form sentencing used the the jury. attack upon is the of language the statute itself. For the reasons set forth in Part IV of opinion, the Foster we reject the defendant’s argument.18 above, Although, pointed as out the defendant does Evans not in

18. complain any given, this Court of instruction he the did in trial court objection interpose an to an In instruction. connection with instruct- ing jury weighing aggravating mitigating the on the of circum- stances, judge point the trial language at one utilized verbatim the 27, 413(h). objected Art. counsel Defense to the on the instruction ground language unconstitutionally placed that the burden the proof upon objection the defendant. was overruled. As the concerning defendant in this Court raises no issue given, Abrams, instruction matter waived. Ricker v. 263 Md.

XI. judge’s jury trial argues The defendant a proof beyond concept instructions, dealing with to include for failure doubt, deficient were reasonable a “beyond the words certainty” after to a moral “and words the words that because He contends doubt.” reasonable upon that was explain burden used had been trial, use failure to stage at the guilt/innocence State that a lesser convey impression would the same words stage. penalty at the the State imposed upon burden In giving contention. this suppоrt does not The record the penalty conclusion of at the to the his instructions said: Cathell stage, Judge case, shall you determining

“In the sentence doubt and whether, a reasonable beyond first determine proven has the State certainty, to a moral (Empha- degree.” first in the principal Defendant was a added.) sis doubt as reasonable later he defined paragraphs

Three follows: reason. upon founded is a doubt

“A reasonable doubt doubt, capricious or a whimsical It is not a fanciful a cause reasonable a doubt as would It is such doubt. important or more gravest to act in the to hesitate person Thus, if is of such life. the evidence transactions the Defendant was you that persuade character as to force that the same degree in the first with principal hesi- act without persuade you sufficient would be in the gravest of truth abiding conviction upon tation Comm., 509, 516, (1971); 242 v. State Roads A.2d Harmon 283 583 24, 30-32, (1966). 217 A.2d 513 Md. Moreover, been objection instruction had not if the to the even 1256-1257, Foster, that waived, at 499 A.2d 304 Md. at we held in upon the ac- 413(h) place any or risk burden language does not of § dealing with the explicit instruction requests an cused. If a defendant 413(h), discus- with the in accordance persuasion under § burden of Foster, give instruction. IV(c) judge such should a trial in Part sion however, was, request in this case. no such There life, important or most transactions of your you may own conclude that proof State has met its burden of beyond reasonable doubt and to a certainty." moral added.) (Emphasis (the thereafter in

Very shortly following page the tran- script) The trial instructed judge “you shall whether, doubt, first consider beyond a reasonable exist____” following aggravating circumstances After then circumstances, the sixth and reading aggravating ninth he said that in you “reasonable doubt has been defined for in discussing principals the first degree.” (without in Assuming any manner that it intimating) necessary to define reasonable doubt terms of “moral certainty” any to avoid possibility misunderstanding, it is clear judge’s that the trial instructions did so.

XII. In separate counts the charged defendant was with the murder of David Piechowicz and of Susan In Kennedy. each count the State sought penalty, death each instance the State advanced as an aggravating factor that defendant committed more than one offense of mur “[t]he der in the first degree arising out of the same incident.” 27, 413(d)(9). Art. Appellant contends that it was error to the jury allow to find and consider this aggravating circum instance, stance each because the Legislature intended one death only sentence could imposed where more than one person was murdered. legislative We find no such intent. Each murder was clearly separate offense. The readily apparent intent Legislature in the enactment of the capital punishment permit statute was to considera tion death under penalty egregious circumstances of multiple degree first murders. There is no indication of an intent to imposition allow the that punishment as a sanction for one not all but of the offenses. Cf., Thomas v. 294, 333-334, (1984), Md. denied, A.2d 6 cert. — U.S.-, (1985). 105 S.Ct. 85 L.Ed.2d 153

XIII. The defendant’s final contention is that the imposi tion of the death sentence in disproportionate this case is imposed the sentences similar cases. We disagree. giving murders rise to prosecution were as The heinous as in any those case to come before us under the present capital punishment statute. No killings could have premeditated been more than deliberate those here. defendant, time, The was 39 old at years who contracted $9,000 for to kill appear witnesses scheduled to in a federal Using narcotics trial. a MAC-11 machine pistol equipped a suppressor, with silencer noise Evans coldly delib- erately gunned persons lobby down two innocent of a motel.

We recently upheld have death sentence a case where the sole aggravating circumstance was that the defendant committed more than one degree offense of first murder. supra, Thomas v. 301 Md. at 483 A.2d 6. This case is more heinous because of the additional circumstance of contract murder.

The sentences here are not disproportionate to sen- Moreover, tences in similar cases. we find that were they imposed not under the passion, influence of or an prejudice factor, arbitrary that the supports finding evidence of a statutory aggravating circumstance, and that the evidence supports the jury’s aggravating determination that the cir- cumstances outweighed mitigating one circumstance found.

JUDGMENT AFFIRMED.

McAULIFFE, Judge, concurring dissenting.

I agree affirmed, the conviction should be I but dissent from the decision to affirm the sentence of death. 413(h)

The Court holds that today Maryland’s capital punishment statute places persuasion burden of upon the State to prove by preponderance of the evidence that aggravating circumstances outweigh mitigating circum-

stances before the penalty of death may imposed. Court further holds that preserve Evans did not appel- late review the adequacy jury instructions, and that in any event the instructions were correct. dissent,

I as to believing 1) these issues that the Court has rewritten the statute pretense under of interpretation, 2) the Court has failed to correctly apply the principles basic Wilbur, v. Mullaney 421 684, 1881, U.S. 95 44 S.Ct. (1975) and In Re L.Ed.2d 508 Winship, 358, 397 U.S. 1068, (1970), 5.Ct. 25 L.Ed. 3) and Evans has fully preserved his valid contentions for our consideration and should be afforded a new sentencing proceeding. Because the decision of the on majority these issues upon relies Part Foster IV the decision in 294, 301 Md. 483 A.2d 91, September Term, 43 & (1985),filed today, [Nos. 1984] and because I believe that holding well, in error be as I address both opinions this dissent.

A Interpretation the Statute I emphatically disagree with the holding of the majority 413(h) Article place does not the burden of persuasion upon the defendant as to the ultimate and crit- ical question of whether he should live or die. It does that, precisely and in the following clear and unequivocal language:

(h) Weighing mitigating and aggravating circumstanc- (1) If the court or jury finds that one or more of es.— these mitigating exist, circumstances it shall determine whether, aby preponderance evidence, the mitigat- ing circumstances outweigh the aggravating circumstanc- es.

(2) If it finds that the mitigating circumstances do not outweigh the circumstances, aggravating the sentence shall death. be

(3) If it finds that the mitigating circumstances out- weigh aggravating circumstances, the sentence shall for life. imprisonment be (h)(1) frames one one only question:

Subsection Has it aby preponderance shown of the evidence that the been mitigating outweigh aggravating circumstances circum- (2) (3) stances? pose Subsections do not other or different questions, simple language but instead state in depending upon result that shall obtain that single how If question no, is answered. answer is sentence is death; if the is yes, answer the sentence is life.

In the of statutory interpretation name this Court in (h)(2), (2) finding Foster rewrote subsection that subsections (3) intended to pose separate questions. were As interpreted by the those sections should read majority, as follows:

(2) it that the circumstances aggravating If finds circumstances, the outweigh the sentence mitigating shall be death.

(3) If it mitigating finds that the circumstances out- circumstances, wеigh aggravating the the sentence shall imprisonment for life. majority Foster then said: If Legislature had paragraph added fourth to sub- (h), section the result if the authori- specifying sentencing ty found that and mitigating aggravating circumstances were a state of even or if the sentencing balance authority was unable to determine which outweighed the other, there would a clear inference regarding have been the allocation of the burden or risk. added.)

304 Md. (Emphasis 498 A.2d 1184 The conclusion of the is incorrect in majority Foster two First, respects. legislature said nothing aggra- about vating circumstances outweighing mitigating circumstanc- es, spoke but only mitigating whether circumstances second, outweighed circumstances; and aggravating legislature clearly placed persuasion burden of as to question this on defendant.

I acknowledge the familiar that proposition “where there constructions, are two possible and one of them makes a statute of constitutionality, doubtful courts adopt will that view of the enactment which establishes it free of funda- mental objections.” 67, 70, State v. Petrushansky, Md. (1944). 36 A.2d 533 I differ with the majority my inability possible to find two constructions of the plain 413(h). At language the root of our disagreement § that majority’s phrase belief “mitigating circum- stances do outweigh aggravating not circumstances” means the same “aggravating as circumstances outweigh mitigat- ing circumstances,” I cannot that accept proposition. (1963) Webster’s Third New International Dictionary defines “outweigh” as “to exceed in weight, value or impor- tance,” I am unaware of any contrary connotation or usage. Roget’s Thesaurus, 36.6, (4th International ed. § 1977) “preponderate” lists as a synonym of “outweigh.”

In Foster this Court said that a “principal misunderstand- ing” of our death places statute is that it the burden on the capital defendant to sentencing convince the that authority mitigating circumstances outweigh aggravating circum- stances, and then held that the statute Maryland places no such burden on the I defendant. disagree, impor- more I tantly, 413(h) am persuaded has consistently been interpreted trial judges, jurors and attorneys throughout placing State as precisely upon burden the defend- ant.

First, burden, as to the existence any it is clear from 413(c)(3) the language of that the legislature intended to § establish a in proof 413(h),1 burden of require and to § proof” may 1. producing “Burden of mean the burden of еvidence or persuasion, (E. the burden of or both. McCormick on Evidence § 336 1984). Cleary (h) 3d ed. solely Because subsection deals with the weighing already produced, proof of evidence the burden of with respect to that subsection persuasion. means the burden of 413(c)(3) be instructed as to that burden. Section jury provides: in presentation proceeding

After of the evidence in jury, any appropriate before addition other instruc- law, permitted by tions the court shall instruct the as findings to the it must make in order to determine wheth- imprisonment er the sentence shall death or for life proof applicable the burden to these to] [as (h). (Em- in accordance with subsection ... findings added.) phasis (h)

Implicit language of subsection is the conclusion that the that the persuasion prove mitigating burden outweigh aggravating circumstances circumstances is upon the defendant. This conclusion even more becomes if apparent one substitutes the correlative term “risk of nonpersuasion” persuasion,” for that of “burden of considers who will lose if the is not made proposition out. lose, it is Clearly the defendant who will ‍‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​​​​​‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌​‌‌‌‍and lose if dearly, sentencing is not that the authority persuaded mitigat ing outweigh circumstances the aggravating circumstances. If, example, the sentencing authority finds that balanced, aggravating mitigating factors are it equally must by definition find that the do not mitigating outweigh aggravating circumstances and that event our statute mandates death. The risk of nonpersuasion evident. is puzzling

It that the majority Foster has no difficulty in finding (d) places subsection the burden of implicitly persuasion upon the prove aggra- State to the existence of circumstances, vating and that (g) implicitly subsection places persuasion burden of on the defendant to prove circumstances, the existence of mitigating but is unable (or proof burden of should not be confused with the standard mea- sure) proof. party The former addresses the issue of which must produce persuade; question evidence or the latter addresses quantity quality necessary of evidence to fulfill the burden of persuasion. (E. Cleary 2. See McCormick on 1984). Evidence n.4 3d ed. (h)(1) though of subsection even implication fathom the and (g) is used subsections nearly language identical three and the (h)(1). comparison A of the subsections to each make the majority of the as should interpretation point: shall first consider wheth-

(d) jury court or ... ... [T]he doubt, er, following of the any a reasonable beyond exist____ circumstances aggravating a reasonable beyond holds burden on (Majority State — doubt.) then consider jury ... court or ... shall wheth-

(g) [T]he er, evidence, of the of upon preponderance any based exist____ following mitigating circumstances preponderance on holds burden (Majority defendant — evidence.) whether, (h)(1) court or ... shall determine ... [T]he evidence, cir- preponderance mitigating circumstances. outweigh aggravating cumstances preponderance holds burden on (Majority State — evidence.)

It is clear to me that the Rules Committee of this Court 413(h) interpreted place also the ultimate burden 4-343 man- upon Maryland the defendant. Rule persuasion Determination Findings Sentencing dates the use of a and language and the capital sentencing proceedings, form structure of that form will leave no doubt the mind and party persuasion. of the user as to which has the burden listing I II for the of those provide aggravat- Sections circumstances found to exist. Section ing mitigating question III the ultimate to be decided in those cases poses cir- aggravating mitigating in which at least one and one found, the sentence that must im- cumstance are posed depending upon question how is answered. III Section been unanimously find that it has evidence, we Based on THE EVIDENCE OF by A PREPONDERANCE proven outweigh the “yes” II in Section marked mitigating circumstances “yes” in I....... Section marked aggravating circumstances yes no DETERMINATION OF SENTENCE Imprisonment” or Enter determination of sentence either “Life according following instructions: “Death” to the 1. . . . completed “yes,” 2. If III was and was marked enter Section Imprisonment.” “Life 3. ... “no,” completed If III and was marked enter 4. Section was “Death.” form, 4-343, in this nor Rule nor indeed in the Nowhere Maryland Penalty any Death Statute will one find mention considering of the whether circum- necessity aggravating outweigh mitigating signifi- stances circumstances. That different has been constructed the ma- cantly question by attempt in an to avoid the constitutional jority obvious implication forcing a defendant to shoulder the burden of persuading sentencing authority put he should not be to death.

B The Constitutional Issues pretrial a motion to notice of By dismiss State’s intention to seek the death penalty, by exceptions timely given Appellant taken to instructions ar- jury, to that gued judge unconstitutionally the trial the statute upon prove cast the burden the defendant to mitigating outweighed aggravating circumstances cir- question cumstances.3 The thus is difficult and im- posed 1) Appellant the statute is 3. also contended unconstitutional because it aggravating mandates death if at least one circumstance is found and found, 2) mitigating upon no circumstance is it casts the defend- proving mitigating ant the burden of the existence of circumstances. arguments jury The first of these is not before us because the found mitigating Concerning the existence of a circumstance. the second argument, agree majority I with the in Foster that there is no constitu- infirmity requiring prove, by preponderance tional defendant evidence, mitigating the existence of circumstances. Knowl- edge mitigating pecu- of the nature and existence of circumstances is letter law from portant. by It is not answered black cases, accepted careful application antecedent but in analogous the law situations. principles underlying portion penalty I am of our death persuaded unconstitutional, and that the jury improper- statute is the ultimate ly concerning persuasion. instructed burden allocating persuasion In the ultimate burden of legislature quite likely provi defendant our tracked similar penalty sions of the Florida death statute that survived Florida, constitutional attack 428 U.S. Proffitt (1976). S.Ct. 49 L.Ed.2d 913 Fla.Stat.Ann. 921.- 141(2)(b) (c) 1976-77) (Supp. required to consider exist “[wjhether mitigating sufficient circumstances ... outweigh aggravating which circumstances found 4 921.141(3)required judge certify exist” and the trial [statutory] aggravating that “sufficient circumstances exist [statutory] mitigat ... and ... there are insufficient [t]hat ing outweigh circumstances ... circum aggravating Al imposed. the death could penalty stances” before be the Florida death statute though penalty every survived attack made it in upon Proffitt, precise constitutional in question presented appears now not to have been raised case, the trial probably judge specif because had found ically statutory mitigating that none of the circumstances note, however, existed. I the recent determination of the Supreme of Florida that an instruction which allo Court to the defendant the of proving mitigat cates burden ing outweigh aggravating circumstances circumstances In may constitutionally impermissible. be v. Arango 172, (Fla.1982), 411 So.2d 174 that court stated: case, instruction, alone, present given In the if jury may principles have conflicted with the of law enunciated defendant, liarly proof with the and the convenience of will as well be 197, 209, 2319, York, him. Patterson v. New U.S. S.Ct. with 2326, 432 97 (1977). L.Ed.2d 53 281 jury's advisory only. 4. Under the Florida Statute the verdict is The judge. actual sentence must be determined trial

547 Dixon, So.2d 1 v. 283 in and Dixon Mullaney [State 943, 1950, denied, 94 40 (Fla.1973), 416 U.S. S.Ct. cert. transcript, A of the (1974) reading careful L.Ed.2d 295 ]. however, never shifted. proof that the reveals burden first told that the state must establish jury was aggravating of one or more circumstances be existence could Then were penalty imposed. they fore the death be if could only given instructed that such sentence outweighed aggravating state showed the circumstances in circumstances. These standard mitigating that no error structions taken as a whole show reversible committed. was 153, 2909, 49

In v. 428 U.S. 96 S.Ct. Gregg Georgia, 262, (1976) Texas, 428 L.Ed.2d 859 U.S. Jurek 2950, (1976), on the same day S.Ct. 49 L.Ed.2d 929 decided not for review. question presented as Proffitt, for ultimate Georgia provided The statutes of and Texas circumstances, weighing aggravating against mitigating silent as to the on that issue. proof but were burden proper The resolution of this issue lies important application principles Winship, Mullaney York, 432 Patterson v. New U.S. S.Ct. (1977), stage making

L.Ed.2d 281 to the final of decision case. Be- sentencing phase capital punishment of a holdings adjudicatory cause those cases deal with stage susceptible of a criminal trial are not of direct they the application procedures fixing penalty to the involved case, in a death to the principles so that careful attention in the rationale the decisions is re- underlying involved quired. principle confirm the basic

Winship Mullaney process protects against except due an accused conviction upon proof beyond every a reasonable doubt of fact neces- sary charged. to constitute the crime with which he is Winship protection juvenile delinquency extends this to proceedings potentially consequences because of the serious of an of Patterson does not adjudication delinquency. from this but makes clear the principle, right

retreat basic the states to allocate to the defendant the of burden holding an affirmative defense. Central to the proving Patterson is the that the state must shoulder proposition proof beyond the burden of a reasonable doubt as to every issue, i.e. principal the the necessary prove fact accused, committed and no charged by crime was bur- the defendant may placed upon respect any den with of the or respect essential element crime with to identifica- the state has Only provided tion of the offender. where for or for relief from criminal sanctions mitigation upon facts the state cast the showing separate may burden Pat- Thus, establishing upon those facts defendant. terson where the crime of murder by proof was established that the defendant caused the death of another intentionally it was the defend- person constitutionally proper require ant to establish that he acted under influence of ex- treme emotional to reduce the crime to man- disturbance slaughter. sentencing proceeding pursuant

In a conducted to our death statute the State the burden of penalty proving bears a that the defendant committed beyond reasonable doubt the crime of murder in the first that the defendant degree, in the first or the murder principal degree procured hire, for and that one more cir- statutory aggravating exist. The cumstances defendant must then shoulder proving by preponderance burden of evidence existence of any mitigating point circumstances. To this is in process harmony principles with established Winship, Mullaney Patterson. however,

Beyond point, opportunity for direct rules ends. In the application adjudicatory established stage of a criminal case the matter is and the complete stage result is known when this is reached. Utilizing Patterson illustration, if proven the State has the mur- proven der but the defendant has not the existence of the circumstances, mitigating If, the verdict is murder. on the hand, proven other the defendant has circum- mitigating stances, manslaughter. in capital verdict But a production of sentencing proceeding proof evidence and of aggravating mitigating of existence circumstances result, produce does not an automatic sets the simply but stage all-important phase for the final of considering determining total circumstances and the ultimate issue— the defendant should be to death. put Concerning whether centra] issue there must a persuasion be burden of —a of nonpersuasion. risk Who is to lose if the mind of the is in state of sentencing authority equipoise a after consid- eration оf all the circumstances? And the standard of proof must established. Must the sentencing be authority persuaded one or the other way by preponderance evidence, evidence, clear and convincing proof or by beyond a doubt? The reasonable decision maker must be given questions the answers to these intelligent make an Wigmore decision. Professor explains the need for a stan- proof dard of these words:

After the having tribunal the function of deciding upon facts, i.e. the has jury, retired to reach and frame its decision, question arises as to the or quality, degree of Here, its it persuasion. is to be noticed are no longer we concerned with the incidence of the duty burden proof cause, as between the parties to the merely but with the tribunal’s own and conduct as to its duty persuasion. standard of

Now the logical notion involved in the situation is that persuaded tribunal must be to believe the affirmation of the burden-bearer before it can be asked to act as desired, but that this persuasion or conviction in the mind may tribunal have more than one degree or quality positiveness; and an attempt is made by the law to define the degree positiveness or persuasion which must exist order to justify action of a shape verdict for the burden-bearer. (3d

9 Wigmore, 1940). Evidence ed. 418, Texas, 441 U.S. effect, v. Addington see To the same (1979), 1808-10, L.Ed.2d 323 1804, 60 423-27, 99 S.Ct. said: the Court which concept that proof, of as of a standard

The function of and in the realm Due Process Clause in the embodied the concerning the factfinder to “instruct factfinding, is he should have our thinks society of confidence degree particular conclusions for a of factual the correctness 370, 358, 397 Winship, In re U.S. of type adjudication.” J., 1076, (1970) (Harlan, L.Ed.2d 368 25 90 S.Ct. the risk of serves to allocate The standard concurring). and to indicate the relative litigants error between to the ultimate decision. attached importance jfc s}c sje ^ £ or criminal rights, individual whether involving In cases reflects the a civil, proof standard of [at minimum] “[t]he n liberty.” on individual society places value (4th Cir.1971)]. 436 F.2d [Tippett Maryland, impress is one proof way of Increasing burden the decision and there- importance factfinder with the that com- inappropriate the chances to reduce by perhaps ordered. mitments will be necessity where the of a situation

It is difficult to conceive importance the factfinder with impressing charged with jury than in thе case of greater decision is circumstances mitigating weighing aggravating die. defendant should as to whether the and the decision if imposed only constitutionally can penalty The death be in the determination reliability ensures procedure case.” specific appropriate punishment “death is the 280, 305, 96 Carolina, 428 U.S. S.Ct. v. North Woodson (1976). 2978, 2991, 49 L.Ed.2d principles Winship, Mullaney Drawing upon the basic requires due Patterson, process I conclude upon ultimate issue must be on this persuasion burden of a reason- persuaded beyond must able doubt that the aggravating circumstances outweigh mitigating circumstances before the penalty of death imposed. can be The importance of the issue to be decided and the societal interest in attempting to ensure an accurate decision are quite apparent, and the Supreme Court has made it clear that the allocation of the burden of persuasion to the State and the use of the reasonable doubt standard are mandated when the decision will involve loss of liberty stigma of criminal conviction.

Winship is concerned with substance rather than ... formalism. The rationale of-that case requires an analy sis that looks to the “operation and effect of the law as applied State,” and enforced by the St. Louis S. W.R. Co. Arkansas, 350, 362, 235 99, 102, U.S. 35 S.Ct. 59 L.Ed. (1914), 265 and to the interests of both the State and the defendant as by affected the allocation of the burden of proof.

In Winship the Court emphasized the societal interests in the of reliability jury verdicts:

“The requirement proof beyond a reasonable doubt has in vital role our procedure criminal [a] cogent reasons. The accused during a criminal prose- cution has at stake interests of importance, immense both because of the possibility that he may lose his upon liberty conviction and because of the certainty that he stigmatized would be by the conviction. ...

“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of in community applications of the criminal law. It is critical that the moral force of the criminal law not be diluted aby proof standard of that leaves in people doubt whether innocent men are being condemned.” U.S., at 364. Not only are the interests underlying Winship implicat- greater ed to a degree case, in this but in one resрect the protection afforded those interests is less In here. Win- remained with the persuasion the ultimate burden

ship had been reduced although the standard prosecution, In of the evidence. fair preponderance a proof by contrast, affirmatively has shifted case, the State result, in a case defendant. proof burden to prove is required one the defendant as this where such is increase further dispute, fact in the critical an murder conviction. likelihood of erroneous at Wilbur, 699-701, 95 S.Ct. 421 U.S. at v Mullaney omitted). (footnotes 1889-91 certainly impli- most Winship are underlying The interests process balancing circumstanc- excruciating in the cated to death. put whether a defendant should be to determine es a different from qualitatively of death is penalty [T]he Death, its long. imprisonment, however sentence of life than a 100- imprisonment more from finality, differs two. only year from one of a prison term differs year difference, there is corre- qualitative Because of reliability in the the need for difference sponding punishment death the appropriate determination case. specific at Carolina, 428 at U.S. S.Ct. v. North Woodson 2991. — 2727, Alabama, U.S.-, 86 105 S.Ct.

In Baldwin case not (1985), by this presented the issue L.Ed.2d 300 13-11-4 of the raised, interpreting note that in but we Statute, as to the which silent Penalty Death Alabama persuasion, standard of the Su- burden and appropriate said: preme Court requirement discretion is judge’s guided by if the finds the imposed only judge penalty

the death capi- circumstance that serves define aggravating took this case the fact that homicide tal crime—in robbery only of a if the during the commission place —and aggravating circum- finds that the definitional judge stance, aggravating other circum- plus any specified

553 stance, outweighs any statutory and nonstatutory miti- gating circumstances. at-, (footnote omitted).

Id. 105 S.Ct. at 2732-33 I expressed believe views by dissent are consist- expressed ent with views Justice by Marshall his — dissent from the denial certiorari in White v. U.S.-, 1779, (1985), 105 84 S.Ct. L.Ed.2d 837 and Steb- ——U.S.-, bing 276, v. Maryland, 105 S.Ct. 83 L.Ed.2d (1984), 212 and by Justice Stevens in a similar dissent in Carolina, Smith v. North 459 U.S. 103 S.Ct. (1982).

L.Ed.2d

C Preservation Issues Appellate Review agrees The majority that at the trial Appellant level specifically challenged the constitutionality portion of the statute which allocated to the defendant the burden of persuasion on the sentencing determination, ultimate seasonably noted exceptions to the instructions that accom- plished the same result. The majority suggests, however, that he failed preserve this issue for appellate review by failing to any argument include on the question his brief. I disagree. pages brief, At 81-87 of his under the heading “The Maryland Capital Penalty Statute is Unconstitutional” Appellant argued: at least respects two and a defend-

[I]n —mandatoriness ant’s Maryland burdens—the procedure is substantially different from procedures found constitutional Supreme Marshall, Court. As Justice joined by Justice Brennan, pointed out in his dissent to the Supreme Court’s petition denial of a for writ of certiorari in Steb- bing v. Maryland, -], U.S. S.Ct. [— [105 276] (1984), L.Ed.2d 212 serious flaws exist in Maryland’s statutory scheme. Specifically, the statute places two different of proof upon burdens the defendant at the sentencing stage....

554 772A, 413, Rule 27, by as Md. implemented

Art. Sec. the defendant “to capital the burden on only places not circumstances mitigating that convince sentencer] [the circumstances,” aggravating Tichnell v. outweigh the [ ] 61, 43, (1981), A.2d 991 further Md. 427 but 290 once the existence of the sentence death bare requires if the factor is de- aggravating a established statutory proof persuasion. meet his and fendant burden fails Thus, a death in circumstances in state sentence of where the sentencer is unconvinced may be mandated appropriate punishment. procedure death the This is repeated insis- Supreme with Court’s is inconsistent in “reliability assure procedures tence that state appropriate punishment that death is the determination Carolina, supra, case.” v. North specific a Woodson 96 S.Ct. at 2991. U.S. at law, therefore, dramatically from the Maryland differs permit of the states majority statutes of the which where no or to return a life sentence even jury judge place are or circumstances” found which “mitigating persuasion the ultimate burden of upon prosecution death, beyond life or in some question on the instances eighteen statutes of [citing a reasonable doubt states]. from dissent- quotes opinion then Justice Stevens’ Appellant Supreme certiorari Smith by from denial of Court ing Carolina, quota- including following supra, v. North (Utah 1982): P.2d Wood, tion from State our standard appropriate It is conclusion that be authority judge sentencing followed — —in following: is the capital case considering “After of the totality aggravating circumstances, must mitigating you persuaded be- aggravation total out- yond reasonable doubt weighs mitigation, you per- must further be total doubt, suadеd, imposition a reasonable that the beyond appropriate penalty justified death circumstances.”

555 “These standards require that the sentencing body com- the pare totality against the mitigating totality of in aggravating factors. Not terms of the relative numbers of the aggravating factors, and the mitigating in terms of respective per- but their substantiality Basically, suasiveness. what the sentencing authority must decide is compelling persuasive how the totality of the mitigating compared factors are against when of totality aggravating The sentencing factors. body, making judgment aggravating factors 'out- weigh,’ than, or are compelling more the mitigating factors, must have no reasonable doubt as to that conclu- sion, and toas the additional conclusion that the death penalty is justified and after appropriate considering all the circumstances.”

Appellant concludes argument his on this issue with the following:

In no perhaps other area of the has need law reliability in the process decisional been stressed as it has been In capital punishment context. other areas the Supreme perceived where a to Court has need mini- mize the risk of error the adjudicatory process, it has not of place heightened proof hesitated standard upon the party seeking change See, quo. status Kramer, e.g., Santosky 1388, v. 455 U.S. 745 S.Ct. 71 [102 (1982); Texas, L.Ed.2d 441 Addington v. U.S. 418 599] [99 1804, (1979); S.Ct. 60 L.Ed.2d Re: Winship, In 397 323] 1068, (1970). U.S. 358 S.Ct. 25 L.Ed.2d [90 368] Maryland scheme, however, permits the capital sentenc- decision to ing be made on the basis the “preponder- of standard,” of ance evidence which “by very its terms of consideration rather than quantity, demand[s] evidence,” Kramer, quality at supra, Santosky 102 S.Ct. at and “is quite consistent with want of Trickett, “Preponderance belief.” of Evidence Rea- Doubt,” (1906). Moreover, sonable Dick.L.Rev. it places the ultimate production persua- burden both defendant, if he must executed capital on the who

sion regard. in that fails that instruc- Appellant specifically argue

The failure of the statute are language track precisely tions which Reasonably prudent is understandable. similarly flawed if language we found that the could assume that counsel imposed upon the ultimate burden impermissibly the statute of persua- use of standard permitted and/or the defendant mandated, that instructions constitutionally sion less than It is similarly disapproved. to the same effect would “interpretаtion” by the statute of extraordinary the only In present previous the dilemma.5 majority the that creates applica- strict ordinarily have relaxed the capital cases we State, waiver, Md. Johnson v. of 292 tion of the principle State, Bartholomey v. (1982); 405, N.4, 542 412 439 A.2d do so 513, (1971), 273 164 and we should 504, Md. A.2d 260 the was is that so where issue Particularly this case. have arguments and all relevant carefully preserved below us, the challenge as a to constitu- presented been albeit of the statute. tionality portion a of may "misun- majority there have been some 5. The in Foster concedes derstanding” "authoritatively interpreted” in Tichnell of the statute as 695, 720-37, I) State, (1980) (Tichnell and 415 830 287 Md. A.2d v. 563, 635-38, (1983). State, find the v. 468 A.2d 45 I A.2d Calhoun Md. 830, I, single 287 Md. at statement made in Tichnell capital inadequate and in the context of the in the context of that case effectively convey import by the thereafter this Court to cases decided interpretation clearly by today the Court in Foster. the announced of interpretation” nothing of more "authoritative Calhoun consists The than repetition 292 Md. a of the statement made Johnson (1982), "thoroughly argument con- that the was 439 A.2d 542 frequency rejected” I. The with which defense Tichnell sidered improperly places argued I the have since Tichnell that statute counsel the burden of ultimate defendant, persuasion upon the failure argue an instruction to experienced and able defense counsel suggests upon áuthority opposite of TichnellI to me effect among “interpretation” by Foster must be ranked announced the best in the instant case judge kept All learned in this State. counsel trial secrets understandably were led believe the burden by language capital upon of our cases subse- the defendant well, course, I, language of the statute. quent to Tichnell as D Erroneous Instructions Judge Cathell instructed the on this issue in the following words:

If you find that no mitigating factor has been proven by preponderance a of the evidence and all of the mitigat- ing factors are marked no on the form verdict and you have previously found that an aggravating factor exists doubt, beyond reasonable then the sentence must be If, however, death. you find that one or more of the mitigating exist, you circumstances shall determine whether, by preponderance evidence, the mitigat- ing outweigh circumstances the aggravating circumstanc- es.

If you find that the mitigating circumstаnces not do outweigh aggravating circumstances, the sentence shall be death.

If you find that the mitigating circumstances outweigh circumstances, aggravating the sentence shall be imprisonment for life.

Judge Cathell provided each juror with a of the Find- copy ings Sentencing and Determination form during to follow instructions, his and instructed the jury that “the law the of procedure rules require you use to the forms arewe providing you.” 4-343, As required Rule III by Section of the form posed the question ultimate in following the language: evidence, Based on unanimously the we it find that has been

proven by A PREPONDERANCE OF THE EVIDENCE that the mitigating “yes” outweigh circumstances marked II Section aggravating “yes” circumstances marked in Section I....... yes no The jury question answered that negative and there- by determined the sentence to be death.

If the statute unconstitutionally places the ultimate bur- den upon defendant, it is that clear the instructions were erroneous. conclusion correct its

However, if is majority even to the interpreted may the statute of that the words sense to and common reality of it is the antithesis contrary, message to any such conveyed that the instructions suggest a construction distressing accept judicial It is the jury. will suggest jurors white; folly it is that black could juror No fair-minded conclusion. the same arrive at instructions that burden from these understand possibly preponderance a ‍‌‌‌‌​​‌​​‌‌‌​‌‌‌​‌​​​​​​‌​‌​‌​​‌‌​​‌‌​​​​‌‌‌​‌‌‌‍prove by the State upon outweigh must circumstances aggravating evidence death a sentence of before circumstances mitigating compel vaca- The erroneous instructions returned. could be sentencing for a new and remand sentence tion of the To of the statute. interpretation either upon proceeding an correct Rule 4-343 to fail to hold otherwise and error confusion perpetuate is to rules order emergency criminal jurisprudence. area of important in most

CONCLUSION of the substantial prospect I dislike As much as sentencing affording new inconvenience expense cases, I even dislike number significant in a hearings those who to their deaths sending prospect more misunderstanding upon based sentenced have been An socie- enlightened of proof. and standard burden proper an individual upon sanction the ultimate impose should ty the most observed carefully it has in those cases where only sentence of I vacate the of fairness. would concepts basic sentencing proceed- for a new this case death and remand ing.

Case Details

Case Name: Evans v. State

Court Name: Court of Appeals of Maryland

Date Published: Nov 12, 1985

Citation: 499 A.2d 1261

Docket Number: 66, 98, September Term, 1984

Court Abbreviation: Md.