*1 оr legally practically when became even for the impossible condition be met.
I with agree judgment the Court’s ultimate because the evidence would that such support finding knowledge did not point years exist until a within three of the suit— filing i.e., 23, a time after March 1996. It may have come when John and Lisa or separated proceedings when divorce It began January, 1998. have been manifest when the Bryckes July, Ver decided to record the deed of trust in it certainly would have existed when and Lisa John November, contracted to sell property 1999. Whether Bryckes knew had reason to know to March prior Ver 23,1996 that the not condition would be met was substantial As the not dispute. jury clearly question did answer 3C, ambiguous wording Question judge because call, had to make that and I judge’s would disturb the decision.
843A.2d 778 Wayne Thomas JONES Maryland. STATE of Term, Sept. No. 2001. Appeals Maryland.
Court of
Feb. 2004. April
Reconsideration Denied 2004. *3 (Booth Ripke, Marcus Bennett & Fred Warren Bennett LLP, brief), Greenbelt, Nathans, for petitioner. on (J. Curran, Davis, Asst. Atty. Joseph Anderson Gen. Celia Gen., Jr., brief), for respondent. Atty. BELL, C.J.,
Argued ELDRIDGE,* RAKER, before WILNER, CATHELL, BATTAGLIA, THEODORE G. (retired, BLOOM specially assigned), JJ.
RAKER, J. presents
Petitioner a single question for review in this Court: Whether Special the Court of Appeals exceeded the outer limits of its discretion by improperly excusing the procedural State’s default and remanding case to the circuit court for further proceedings. This case is a post- conviction proceeding. primary question before the post- conviction hearing court was whether trial counsel was ineffec- tive for failing object at trial of a admissibility hearsay statement. We hold that the Court of Special Ap- peals discretion, has the in the context of a post-conviction proceeding, excuse a procedural default or waivеr and did not abuse its discretion this instance.
In December petitioner Thomas Wayne Jones was tried and convicted in the Circuit Court for George’s Prince County of the first degree felony Gary murder of Gulston and offenses, other related including kidnapping, robbery with a deadly weapon, use of a in a handgun felony. The trial court sentenced Jones to life without the possibility parole for the felony murder conviction and consecutive terms of twenty years each for the handgun and robbery armed of- fenses; the remaining offenses merged were for sentencing purposes. an unreported opinion, the Court of Special Appeals affirmed the conviction. Jones filed no from appeal that judgment.
In November Jones filed a petition for post-conviction *4 relief pursuant Maryland to the Post Conviction Procedure Act, (1957, Md.Code 1996 Repl.Vol.) 645A,1 § Art. alleging * J., retired, Eldridge, participated now hearing in the and conference of Court; this case while an active being member of this after recalled Constitution, IV, pursuant 3A, to the Article Section participated he also adoption in the opinion. decision and of this Maryland 1. The Post Conviction Procedure Act was recodified as the Act, (2001, Uniform Postconviction Procedure Md.Code 2003 Cum. Supp.) Tit. 7 of the Criminal Procedure Article. appel- trial and had received ineffective assistance of that he under rights in violation of his constitutional late counsel to Con- and Fourteenth Amendments the United States Sixth relief, post-conviction As one of for Jones stitution. his bases trial constitutional- that his counsel were argued admissibility of object because failed to they deficient ly within written statement of statement contained hearsay a Smith, trial, At Jones’s Smith a Derrick State witness. he, Jones, аnd Don statement2 had described how written Gutrick, in the had participant episode, another criminal robbery of home Gary and committed the Gulston’s planned felony murder for which Jones was that resulted statement, that Smith stated convicted. Within the written him,” meaning that had told him that “we killed Gutrick Gary Because Jones’s and Jones had killed Gulston. Gutrick objected of this incrimina- admissibility never to counsel hearsay as contained within Smith’s statement Gutrick ting statement, peti- post-conviction claimed his written Jones at of counsel trial. tion that he received ineffective assistance adjudicated petition Jones’s post-conviction The an order Jones new granting with Jones and issued agreed trial, al- stating performance, counsel’s] “[Jones’s excellent, fall of reason- did below a standard though generally object he Gutrick’s state- ableness when failed [Don ment].” Appeal filed Application
The State Leave Post Con- the Uniform Special Appeals pursuant (2001, § Act, Cum.Supp.) 7- Procedure Md.Code viction presented Article. The 109 of the Criminal Procedure the incrimina- legal arguments admissibility for the several statement, was Don which ting among admissible as a statement of a “clearly remark was Gutrick’s in furtherance made the course of and coconspirator during 5-803(a)(5); Perry Rule Maryland conspiracy.” See trial, Smith, having time been convicted of Jones’s called 2. knowledge partic- unexpectedly of and a State's witness but denied as ipation events. State therefore offered in the murders and related evidence. Smith’s written statement into *5 204, 231-35, 287-89 This court, had not been raised in the post-conviction nor itwas raised in the State’s opening brief to the intermediate brief, however, In its reply court. again the State co-conspirator stated the exception hearsay the rule as an theory alternative for the admissibility. statement’s Because of the theory State’s failure to raise initially upon appeal, Jones’s counsel filed a motion to strike that of the portion reply Special State’s of Appeals agreed, brief. Court legal found that theory, raised time in first brief, reply not properly was before the court and therefore would not be considered the merits that court.
After of Special the Court decision Appeals affirmed the court, the post-conviction filed a Motion Reconsid- er, in arguing that the court had erred refusing to consider the co-conspirator exception theory presented Application for Leave to and the Appeal reply brief. Although Special rejected legal Appeals grounds of the State’s motion, and, opinion its revised of its exercise discretion, post-convic- ordered limited remand so that the tion court might determine whether the statement hearsay co-conspirator admissible under the to the exception hearsay rule. The Court of Special Appeals explained action as follows:
“The that, cases cited above elucidate for us ain criminal can claim, the State be found to have waived a valid even if the waiver leads to reversal of a conviction. On hand, the other when the State fails to important raise an argument, an court ordinarily has discretion to review the or the judge’s record in its ruling effort to reach a sound result. Similarly, the appellate general- court ly retains discretion to consider аrgument that belat- edly raised.
“In light of the importance of the issue presented with regard co-conspirator exception, determined, we have discretion, exercise our that a is appropri- remand ate, parties so that the will have an opportunity fully litigate before the post-conviction question under the co- statement was admissible
whether Gutriek’s Moreover, we hearsay rule. conspirator exception because resolution appropriate believe remand will post-conviction proceeding context of a issue *6 record, analysis appropriate of the entire require careful of defense coun- and, further examination briefing, perhaps, counsel. sel remand, we this perceive our decision to that reaching
“In a which made tactical decision not a case in the State Instead, it co-conspirator exception. the raising forego its argument the from inadvertently to have omitted seems Further, in in Application. it the including initial brief after considered, of cases have the State contrast some the we brief; issue in co-conspirator reply its eventually raised we to raise the matter until after altogether it did not fail ruled, in of cases that we cited. Nor as some happened concessions damaging misleading it kinds of did make the To the in that we discussed. that we saw other cases below that contrary, steadfastly has maintained Smith’s the State in its persisted admissible and has entire statement was upheld.” should be that conviction claim Jones’s 178, 241-242, Jones, 407, 444 Md.App. State v. certiorari, (2001). for writ of timely petition noted Jones A.2d 382 granted. which we Court, intermediate contends the petitioner Before this by considering unpre- its discretion appellate court abused ordering post-conviction the remand to the served issue and its exercising permit discretion by court. He contends court to determine the admissibili- hearing post-conviction excep- ty hearsay co-conspirator statement under of effectively tion, Special Appeals of held the Court appel- preservation post-conviction a lower standard of Finally, it for criminal than does defendants. arguments late have consis- courts petitioner argues Maryland appellate of consideration preclude waiver tently applied principle such as belatedly, post-conviction raised arguments time was raised for the first proceeding which result, an says petitioner, The end was reply brief. of partiality by intermediate court appearance argu- and a second chance the State to resurrect a dead ment. co-conspirator argument that the belatedly
The State claims in its was a reply subsidiary theory raised brief bedrock assistance, trial counsel did render ineffective theory properly through- that the State raised and maintained proceedings. out the post-conviction post-conviction claim could not resolve the assistance of ineffective counsel determining without first the hearsay whether statement Thus, any would have been admissible in event. not an abuse of of Special Appeals discretion for to order a remand on issue that was included necessarily within objection overarching State’s to Jones’s ineffective assistance of counsel claim. If Jones’s trial counsel could not have prevented any admission Smith’s written statement *7 event, his then Jones could not win Sixth claim. Amendment by The of Special Appeals, action the Court according State, appellate routine exercise of judicial discretion 8-131(a). pursuant Maryland to Rule
I. The Court of Special Appeals exercised its twice authority when it ordered a to post-conviction First, remand the court. the court exercised to its discretion consider an unpreserved argument. that court did not Although address the of merits theory the State’s co-conspirator under the exception, the up court took the belated when it implicitly decided to remand the case post-conviction back the court. This act by the of Special Appeals Court for us sufficient to deter- mine the type that court exercised the of appellate discretion that permits consideration of unpreserved arguments. second,
The of Special Appeals Court exercised a distinct type of authority when decided remand issue to the post-conviction court. This sort of authority distinct from the discretion to consider unpreserved arguments or to excuse waiver, a procedural default or because a of issue remand another, issue, or be way properly in some that the requires place. court the first remanding appellate before words, unpreserved argu- to consider an the decision other decision to remand. was antecedent ment 8-131(a) courts to appellate Maryland permits Rule issues: unpreserved consider
“(a) Generally. of the trial court jurisdiction The issues and, 2- under Rule subject matter unless waived over the by be raised and decidеd person may over by and decided court or raised in appellate whether will not Ordinarily, the court decide appellate trial court. by unless it the record any plainly appears other issue court, in or the trial but the by have been raised decided or necessary such an if desirable may decide issue or expense delay trial court to avoid guide the appeal.” another general forth principle first sentence of Rule sets
The be raised subject jurisdiction may matter question for the first time any properly and thus be raised time Lane v. appeal. See the Rule articulates the sentence of second review is ordinary strong presumption raised at the trial level. We are limited to those issues (a). aspect the second of Rule 8-131 case with concerned 8-131(a) forth sentence of Rule sets The second ordinarily will not that an proposition general the trial that was not raised decided consider an issue however, rule, makes clear plain language court. The Glen, is not absolute. See Crown Oil prohibition *8 (1990) that, 546, 561, (noting A.2d 1191 Md. 578 320 8-131(a) “ordinarily,” it employs the term inasmuch as Rule occasionally have appellate and courts exceptions, permits raised). The word previously on issues not decided cases 8-131(a) anticipates appellate in an “ordinarily” Rule occasion, issues. will, unpreserved review appropriate court courts, Maryland appellate has practice This been states, dating our courts and sister as well as of federal
713 8-131(a). v. Kenney, well before Rule See Atlantic Mutual (1991) 116, 122, that Rule 8- (noting 323 Md. 591 A.2d 131(a) which has existed simply enunciatory practice 1825); Annot., Appeal, see also Issue First Raised оn since (1986). Bell, In A.L.R. Fed. 522 State v. 334 Md. (1994),
A.2d 107 concluded: we 8-131(a) “It is clear from of Rule that an plain language appellate arguments court’s review of not raised discretionary, mandatory. level is not The use of the word both those circumstances ‘ordinarily’ clearly contemplates if they which an court will not review issues were appellate it previously not raised those circumstances which will.” Thus, Rule,
Id. at at 113. under the court has a procedural discretion excuse waiver or default and to consider an though issue even it was raised or properly preserved by party. instance,
default is two-fold. In the first the State failed to present eo-eonspirator theory hear post-conviction error, ing court. Compounding the State did not raise opening brief on appeal, subjecting the rule that an will ordinarily not consider an issue raised for the first reply time brief. Fearnow v. 363, 384, & Potomac Chesapeake Telephone, 342 Md. 676 A.2d 65, 75
There is no fixed formula for the determination of when exercised, discretion should be and there are no bright line rules conclude that discretion has been abused. See State Hutchinson, 198, 202, (1980) (refusing to set forth a “fixed formula” for determining when the exercise of appellate discretion in considering an unpre- have, served proper). however, issue is We laid out in prior cases, explanation example, principles guide courts when consideration of unpreserved might issues be proper. 8-131(a) primary purpose of Rule to ensure
fairness for all parties and to promote orderly administra- *9 367 Md. Conyers
tion of law. See are generally of fairness Although the interests first to the brought thé issues to be by requiring furthered may pass that the trial court of the trial court so attention instance, the court has appellate it in first upon and consider the issue. Id. the default discretion to excuse that it only when it is clear should exercised This discretion be or to the court. parties unfair prejudice will not work an issues is discretion- unpreserved to review authority While the an unfair exercised when will work ary, it should not be Bell, A.2d at 114. 334 Md. at to the prejudice parties. 8-131(a) is to Therefore, behind Rule animating policy order- involved and to parties promote for the ensure fairness Thus, a plau- when with judicial presented administration. ly discretion, make courts should appellate of this sible exercise or subversion concerning promotion two determinations 8-131(a)’s twin goals.
First, consider whether the court should appellate unfair to either of prejudice will work exercise of its discretion 189-90, example, at 113-14. For Id. at parties. by the argument presented to the a new respect parties, with to a criminal defendant if prejudice work unfair State would not adduced at the trial upon evidence validity depended consideration of court’s level. Id. such be an abuse of its discretion likely would most argument 8-131(a) unfair to manifestly because it would be under Rule to the respond had no opportunity the defendant who contrary. Similarly, with his own evidence posi if fails to bring result counsel prejudice unfair court so that to the attention the lower tion of her client in its own any and correct errors pass upon that court can addition, court should look reviewing Id. In proceedings. The court should for the default or waiver. to the reasons was a consid the failure to raise the issue consider whether ered, one, it was inadvertent and unin or whether deliberate See, 790 A.2d at e.g., Conyers, tentional. 30.
Second,
court should consider whether the
orderly
will
administra-
promote
exercise
its discretion
tion of
Rule seeks to
justice.
simply
This
means
fashion, thereby
in a
prevent
piecemeal
the trial of cases
*10
of
saving
accelerating
time and
and
the termination
expense
See,
Oil,
litigation.
e.g.,
Finally, we note that we do not reverse the Court of
Special Appeals for the exercise of its
discretion unless
has
clearly been abused. While this Court retains its own inde
pendent
unpreserved arguments,
discretion to hear
Squire
132, 134,
(1977),
368 A.2d
that does
not mean we review the discretionary functions of the lower
appellate court de novo. To
contrary,
respect
we
judgment of the
Special Appeals
determining
Court
whether it needed to consider
proper
the issue for the
execu
justice,
tion of
and
upon
unless
our review that court abused
Rule,
its discretion under the
we will not substitute our
Fearnow,
judgment
75;
for theirs.
(1991);
Hutchinson,
see also
Turning now to judice the case sub applying above, analytic framework and standard of review outlined we hold that the Court of did not Special Appeals abuse its discretion to consider the unpreserved argument appeal 8-131(a). under Rule find if any prejudice generatеd We little against petitioner post-conviction either or the by Court of Special Appeals’s exercise of discretion this mat ter; furthermore, we find policy goal the second of Rule 8- administration, strongly
131(a), judicial and efficient orderly by the intermediate favors the outcome determined court. context, imagine hypo- it is ruling helpful our
Putting Appeals if the happen Special what would thetically affirmed the only and had had not exercised its discretion would receive a new court. In that Jones post-conviction written trial, would submit Smith’s surely and the State counsel, time, statement, which Jones’s new upon hearsay statement surely object as to Gutrick’s just would Now, would statement. the State within written Smith’s that was co-conspirator exception with the respond post-conviction proceedings, to it foreclosed Essentially, decide this matter law. trial court would the co- whereby question regarding unfold scenario would if there was fully litigated would be even exception conspirator in this Court. position prevailed no remand and petitioner’s *11 scenario hypothetical difference between the above only The of by Special Appeals current decision the Court and the is that in question post-conviction proceedings litigate measure of both expensive the extreme requires former issue and jury relitigating every single new empaneling ,The of this is absurdity conviction. fact relevant to Jones’s depriving it is understood that made even more clear when could determining legal from this issue court post-conviction in jury the same hearsay reaching in the statement result nothing will have original as in Jones’s manner trial — changed. hand, Special Ap- to the Court of pursuant the other
On remand, will have judge the post-conviction order peals’s law, of the admissi- question to determine the opportunity judge If the determines of Derrick Smith’s statement. bility inadmissible, then will receive his the statement is Jones that If, hand, that judge determines new trial. on the other admissible, deny court will post-conviction the statement assis- for relief based on ineffective petition his post-conviction in were never rights counsel because that case his tance of violated. Appeals, note, Special of we as did the Court
Finally, the state- position wavered from its has never the State Jones in and that therefore entirety, its ment was admissible did of counsel. The State assistance was afforded sufficient waive, concede the forgo, a tactical decision not make co- under the statement was admissible that the argument and, indeed, set forth the clearly had conspirator Appeal. for Leave legal theory Application its brief there- opening its again failure to mention State’s oversight. and pure to have been an inadvertent appears fore serious, not think it was an we do such a mistake While to excuse it for the lower abuse of discretion prejudice (except will suffer no of the fact that Jones light have entitled to of a trial he never been loss new that will be judicial resources place) first and the substantial of this collateral matter. by adjudication saved
II. of the antecedent propriety Initially, only we addressed consider, in Special Appeals by determination Court discretion, argument be- unpreserved the exercise of “limited” Special Appeals’s propriety cause the In this regard, the State. solely by remand was raised understanding the State’s vigorously denounced petitioner argument, stating his as follows: Court, on the challenge
“In did not focus his this Petitioner to order limited Special Appeals the Court [decision Instead, respectfully requested Petitioner remand]. *12 Appeals prior that of erred Special
Court find the Court rules to hold the State to the well-established by failing that preservation.... for record/claim its discretion Special Appeals abused
“Whether question is the before this Court.” primary that at The dissent believes Reply Petitioner’s Brief 2-3. of the remand and that petitioner propriety raises the addressed,3 though issue should be even was the petitioner asked that issue not who be addressed. Because the heart remand, argument of the dissent’s relates to the we will respond. hearsay
The dissent’s characterization of the issue as “inte- (and gral” and not collateral therefore for limit- inappropriate remand) hearsay ed is without merit. The issue the instant case is issue part parcel larger reviewing before court —the claim of ineffective assistance of counsel —and that a larger indisputably issue is collateral matter. The fact that hearsay integral issue is to determination of the collateral Amendment is irrelevant challenge question Sixth to the is appropriate whether the matter for remand.
The crux of
argument appears
the dissent’s
to rest on
the mistaken
and novel
suggestion
“post-conviction
belief
trial,”
are the
a
proceedings
equivalent
“appropriate question is whether the issue is collateral
to ...
proceedings
they
out which
arise”
at 11
Dissenting op.
added).
(emphases
This has never been the law in this
definition,
By
nor should it be.
post-cоnviction proceeding
collateral,
adjudicated
and thus the issues
that proceeding
are
collateral and
ipso
appropriate
remand.
facto
petitioner argued
appel-
3. The dissent’s belief that
that the intermediate
ordering
late court abused its discretion in
the limited remand belies
petitioner’s express
propriety
statement that "the
of the limited remand
question
relevant to
Reply
[is] not
before this Court.” Petitioner’s
"question presented”
petitioner’s
Brief at 3. The dissent relies on the
opening
manifestly ambiguous
question
brief which is
as to whether the
just
procedural
relates to
the excuse of the
default or to both the default
remand,
4;
dissenting op.
petition-
and the limited
see
at
a sentence in
that,
context,
reply
clearly
petitioner's
er’s
brief
taken in
furthered
argument
Court,
that the limited remand issue should not be decided
3;
4;
Reply
dissenting op.
see Petitioner's
Brief at
and a
heading
petitioner’s reply
brief that is
irrelevant
dissent’s
(mistaken)
question petitioner
belief about the
wanted this Court to
address,
dissenting op.
single
present
see
at 4-5. Petitioner did not
argument apart
improp-
from his core
that the remand was
—
procedural
improp-
er because the antecedent excuse of the
default was
(which
address)
opening
reply
er
we
either its
brief
ad-
—in
and,
contrary, expressly
dressed the issue of the limited remand
asked this Court not to address it.
*13
our case
dissent’s
that this case falls within
The
view
State,
265 Md.
limited
as set forth Gill v.
law on
remands
course,
(1972),
wrong.
its
Of
progeny
A.2d 575
and
facts;
notes,
is not limited to its
correctly
the dissent
Gill
as
”
nonetheless,
not fall
is not a
case and does
case
“Gill
the volun
rationale of
The issue
was
within the
Gill.
Gill
confession,
is mixed question
оf a
a matter which
a
tariness
for the
determina
specially designated
and fact
ultimate
law
Gill,
In
as
by jury.
tion
a
we held
follows:
the confes-
remand
for a redetermination of
solely
“[A]
in a
permitted
jury
voluntariness can never be
sion’s
if
the statement
judge again
even
the trial
concludes
since
establishes,
facie, it was
voluntary,
only
prima
opportunity
still must have the
jury
uncoerced.
to its
before
the evidence
voluntariness
pertaining
consider
This
or innocent.
deciding
guilty
whether the accused
would be eliminated unless
jury
inviolable
function
a new trial
judgment was reversed and
awarded.”
added).
(emphases
intermediate manifestly unfair to Jones for Court prejudicial co-conspirator the issue of the Appeals up take Special (2) judicial economy are that the interests exception, furthered, subverted, by not exercise of strongly It would and inconsistent for this discretion. be unreasonable conclude, particularly under the deferential standard Court discretion, judicial Special such afforded 8-131(a) Rule abused discretion under reach Appeals Rule’s twin We will promoted policy goals. result so, and instead Special Appeals’s do affirm the Court of judicial exercise of discretion this case. AFFIRMED,
JUDGMENT WITH BE PAID COSTS TO BY PETITIONER.
BELL, C.J., CATHELL, J., dissent. *14 BELL,
Dissenting Opinion by C. J. This case involves the of the of propriety Special Court remand of this to Appeals’ pursuant Maryland Rule 8- 8-604, 131 and to Maryland post Rule the conviction court to issue, fact, consider an in to underlying post substantive the been, not, conviction could have but was proceedings,4 trial, during raised the conviction or at in post any time the intermediate court until appellate reply the State submitted brief that court.5 states, 704, 711-12,
As majority 843 A.2d (2004), Special Appeals 782-83 the Court of exercised discre- considered, tion on two occasions: when it the issue this ease, in, though by even it was neither raised nor decided court, trial it a post and when ordered remand to the convic- tion court specific purpose for the of addressing the State’s argument that State Witness Smith’s statement would have been admissible under the to co-conspirator exception An hearsay rule. court’s exercise of appellate discretion consider issues not previously presented before the lower cases; right appeal post party 4. There is no automatic of conviction aggrieved by post decision of conviction court must seek leave (1957, Volume) appeal, Maryland Replacement to 27, see Code Article 645-1, (2001) Maryland §§ § and 645E now Code 7-109 of the Article; Maryland Criminal Procedure Rule 8-204. The State was granted appeal leave to case. in this alia, support application appeal, argued, of its for leave to it inter 5. that "It is clear from the context of this statement and the other presented evidence at trial that Donald Gutrick's remark to Derrick enterprise Smith was made before the criminal that started at 6804 Alpine clearly St. was over.... The remark was admissible as a state- coconspirator during ment of a made the course of and in furtherance conspiracy.” Jones, 178, 228, Md.App. State v. 436-37 It did not make that in its initial brief filed Court in the however, Special Appeals, making only reply it when it filed its brief. (a) Maryland Rule section governed by court is review. It scope provides: appellate which addresses “(a) court of the trial jurisdiction The issues of Generally. and, 2- Rule subject matter unless waived under over by person may be raised and decided over by or in and decided court whether not raised appellate court not decide Ordinarily, court. will by the record any plainly appears other issue unless court, in or the trial but have been raised decided necessary if or desirable may decide such issue delay of expense or to the trial court avoid guide appeal.” another 8-131(a).6 rule, an court Pursuant Rule
Md. if it raised for first time on appeal consider an issue guide “necessary that to do so desirable determines another delay avoid the expense the trial or to appeal.” *15 discretion, ini- Special Appeals
Exercising its
Court
co-conspirator argument,
not
tially chose
to review
State’s
portion
raised on
and struck the
of the State’s
newly
appeal,
231,
Jones,
178,
v.
138
raising
Md.App.
brief
it. State
reply
(2001).
407,
of the State’s
Upon
771 A.2d
439
consideration
Reconsideration,7
filed Motion
the Court
subsequently
“ordi-
clear that this section’s use of the word
6. This
has made
merely
narily”
usual rule
absolute.
indicates that it
states the
and is not
Khan,
143, 151,
Thus,
(1997).
167
an
Md.
695
Gindes
appellate
arguments
not
at trial
is
court’s decision
review
raised
Bell,
178, 188,
discretionary,
mandatory.
Md.
638 A.2d
not
State v.
motion,
presented
argument
yet
State
another
for the first
7.
In that
time,
effect,
waivable,
argument
contending
its
"in
belated
was not
ineffective,
because the issue is whether defense counsel was or was not
regardless
justify
basis
proposes
of whether the State
a valid
defense
Jones,
performance.”
Md.App.
at
counsel’s
at
439.
argument,
appellate
rejected
court
which
The intermediate
timely
being
"even
did
offer
[the State]
characterized as
if
not
ineffective,
reason to
valid
show that defense counsel
independent obligation
has an
determine whether
Special
Appeals changed
mind and exercised its discretion
Id. to consider the unpreserved argument.
It is clear that an appellate court in this remand a criminal case to the trial court for further proceedings. Maryland Rule in pertinent part, provides: “(a) Generally. party As each to an appeal, the Court dispose shall of an appeal one of the following ways: “(1) dismiss appeal pursuant 8-602; to Rule “(2) affirm judgment;
“(3) vacate or reverse the judgment; “(4) modify judgment;
“(5) remand the action to a lower court in accordance (d) Rule; with section of this or “(6) an appropriate combination of the above.
“(b) Reversal, Modification, Affirmance Part and or Re- mand in If Part. the Court concludes that error affects a action, Court, severable part of the as to that severable part, may modify reverse or the judgment or remand the action to a and, lower court for further proceedings as to the other affirm parts, judgment.
[*]
[*]
[*]
[*]
[*]
[*]
was,
fact,
attorney's performance
defense
constitutionally
deficient.”
explained:
Id. at
“(1) If that the substantial Generally. the Court concludes by affirming, case will not be determined merits of a justice or that will judgment, the reversing modifying proceedings, further Court by permitting be served a lower court. the order the case to remand shall state the court remanding The of remand and the for the remand. order purpose are conclusive as opinion which the order based upon remand, the lower court shall points Upon decided. to determine any necessary conduct further proceedings and order of the opinion in accordance with action appellate court.
“(2) case, if the appellate Case. In a criminal Criminal for error in the sentence or judgment court reverses remand case sentencing the Court shall proceeding, resentencing.” State, 350, 357, 575, 578-79 265 Md. 289 A.2d See Gill (1972).8 only
The one of the two exercises majority believes that Appeals properly the Court of by Special discretion before review; of the antecedent namely propriety this consider, by Special Appeals determination discretion, unpreserved argument. the exercise of its dеcision, says, by the limited remand was raised propriety of effect, and, in rejected, certainly adopted, by the State not petitioner, following argument petitioner’s as the from brief reply indicates: Court, challenge
“In on the Petitioner did focus his Appeals to order a limited Special Court of [decision Instead, that this respectfully requested Petitioner remand]. Court find that the Court of erred Special Appeals prior note, State, citing 8. In a Committee Gill v. 265 Md. A.2d 575 (1972); State, 425, 438, (1981); Wiener v. 290 Md. (1985), and Reid v. the Court existing regarding change stated its not to intention case law limited remands criminal cases. *17 that by failing to hold the the well-established rules preservation.... record/claim “Whether the Court of Special Appeals abused its discretion primary is the question before this Court.” Id. at 843 A.2d at quoting Reply Petitioner’s Brief at 2-3. Construing one as an paragraph intentional restric- tion of the petitioner’s argument Court, in this it believes that the issue of limited remand is not an issue before court.
A review of the petitioner’s briefs, initial and reply clearly petitioner discloses that argued that the intermediate appellate court abused its discretion both in excusing the State’s waiver of an unpreserved issue and in ordering a limited remand. with,
To start the question presented in the petitioner’s initial brief addresses and challenges the propriety remand. It reads:
“Did the Court of Special Appeals exceed the outer limits of its discretion improperly excusing procedural State’s default of an issue at post-conviction both the hearing and on this appeal, resurrecting one of the State’s undeniably claims, dead and remanding this case to the circuit court ” post-conviction proceedings? for further added). Petitioner’s Brief at 5-6 (emphasis Furthermore, brief, reply very portion of the which majority relies, the petitioner characterizes the preserva- tion issue as the “primary,” not the “only,” question before the Court. also He stated that “[cjertainly, under the circum- stances of this a limited remand was the wrong solution because it unfairly prejudiced Petitioner.” Reply Petitioner’s Moreover, Brief at 2. one of the headings to the arguments petitioner advanced in his Reply Brief was “THE STATE ERRONEOUSLY TRIES TO CONVINCE THIS COURT THAT THE COURT OF SPECIAL APPEALS IS- SUED A LIMITED REMAND FOR REASONS OTHER THAN TO CONSIDER THE CLAIM THE STATE FAILED TO PROPERLY PRESERVE.” Petitioner’s Reply Brief at 3. secondary have been
Although the issue remand of the Court propriety primary argument, petitioner’s to consider initial discretion exercise Special Appeals’ believe, fully I should be addressed. argument, unpreserved it does address to the extent that analysis, majority’s *18 issue, wrong. is simply remand court in this State
It is clear that It for proceedings. further criminal to that, and application given purpose also well settled is limited, restricted, 8-604(d), for the remand can be Rule 104-105, 13, 93, State, v. 807 A.2d 371 Md. Southern purpose. 296-97, (2002). State, 272, v. 325 Md. also McMillian 20 See State, 650, 496 (1992); v. 303 430, Bailey A.2d 442 Md. 600 State, 162, A.2d 189 (1985); v. 302 Md. 486 A.2d 665 Warrick State, 86, 477, 479 (1985); 82, 472 A.2d v. 299 Md. Mahammitt 425, State, 438, 588, 596 (1984); Md. 430 A.2d Wiener v. 290 (1981). 8-604(d) neither
Nevertheless,
have
that “Rule
is
we
stated
or of
nor a
for the
of the State
counsel
an ‘antidote’
errors
during
to
committed
trial itself.”
method
correct errors
State,
Southern,
19,
104,
citing
at
A.2d at
Reid v.
371 Md.
807
(1985);
9, 17,
436, 440
Comptroller
Md.
501
305
A.2d
Panitz,
301,
289, 292(1972);
296,
Treasury v.
267
297 A.2d
Md.
Buick, Inc.,
653, 659,
246 Md.
229
Earl v. Anchor Pontiac
therefore,
412,
Where,
issue
be
A.2d
416
proceedings
limited
resolved
remand
collateral
arose,
See
proper.
of which the issue
a limited remand
out
State,
314, 339-342,
1034,
v.
372
A.2d
1048-
Edmonds
Md.
812
(2002)
476 U.S.
(challenge pursuant
Kentucky,
50
Batson
State,
79,
1712,
(1986));
106 S.Ct.
Conversely, when the error giving rise to the issue to be
addressed on limited remand is one that
is integral
proceedings
occurred,
in which it
the appropriate mandate
would not be a remand for further proceedings to resolve the
Rather,
issue.
the appropriate mandate would be a remand
State,
new trial.
350,
Gill v.
727 ” 577, 11 Gill 353, quoting 289 A.2d at Id. at sion.’ I). (1971) (Gill 384, 667, Rather 670 Md.App. trial, new trial court for the case to the than remand returned to the ordered the case court intermediate “ of of the voluntari question court ‘for a redetermination trial testimony’ ”. Id. at additional taking ness after I, at A.2d at 670. Gill Md.App. quoting at ruling voluntariness prior reconfirmed its an judgment affirmed Special Appeals the Court of Id. A.2d at 577-78. We at unreported opinion. reversed, 1071(a),9 predecessor Rule holding although 8-604(d), procedures correct “may Rule suitable to be trial, it can never be utilized subsidiary to the criminal the trial itself.” rectify prejudicial during errors committed Id. Noting A.2d at well-settled 579. State’s of a employed to determine the voluntariness practice two-tier confession, that “the the Court concluded admissi defendant’s of trial. part of a bility always integral confession se, per confession, it also This is true of the but only facie, ascertaining, prima the entire encompasses process obtained.” Id. We further stated: it was legally 1071(a) Maryland provided: 9. Rule Proceedings. appear to this "a. If it shall For Further by affirming, will not the substantial merits a case be determined modifying judgment appeal was
reversing from which or taken, by permitting purposes justice will be advanced or that cause, through either amendment of the proceedings further evidence, otherwise, pleadings, or then this introduction of additional Court, affirming, reversing entering modi- a final order instead taken, may appeal fying judgment from order which Upon remand the lower case to remanded the lower court. be court, proceedings shall be amendment further had such *20 evidence, making of pleadings, of additional additional introduction otherwise, determining necessary parties, may as be the action judgment upon from appeal as if no had been taken and its merits entered; provided, appeal which was had not been howev- taken er, remanding said by this Court the order entered passed, opinion be of this Court on which said order shall points finally thereby. decided In such an order conclusive as to the remanding express purpose for so remand- a case this Court will ing opinion with said order will determine all and in its filed may presented.” questions properly which have been “[tjherefore, it becomes quite apparent that a remand solely for a redetermination of the confession’s voluntariness can permitted never be in a jury trial since even if the trial judge again concludes the statement was voluntary, only establishes, facie, prima it was jury uncoerced. The still must have the opportunity to consider the evidence pertaining to its voluntariness before deciding whether the guilty accused is or innocent. This jury inviolable function would be eliminated unless the judgment was reversed and a new trial awarded.” 358-59,
Id. at
“Here, the
definition
the judge of the
charged
crime
not subsidiary to the criminal trial. The court’s analysis of
the crime of premeditated murder was prejudicially errone-
ous, and the error was
during
committed
the trial itself.
8-604(d)
Rule
be utilized to rectify that error.”
Id. at
Similarly,
Mitchell v.
729 511, at 1310. at 654 A.2d inaction.” Id. to right counsel sanction, holding the proper new trial was held that a We the issue appropriate not because remand was “that limited right his to counsel was waived of whether Mitchell 515, 654 at 1312. criminal Id. at A.2d subsidiary to the trial.” said: Explaining, we the limited re- propriety key determining
“The to was so intertwined required inquiry mand whether remand cause the defen- limited could with not, controlling factor is great prejudice. dant suffer stated, whether as intermediate trial; it the error during the is whether error occurred to a fair trial. right the defendant’s adversely affected for a determination “If the at bar were remanded case was without counsel appearing Mitchell’s reason whether his actions meritorious, would have reconstruct Mitchell ago. He must also recall dates years of over two representatives with the Office contents of conversations had Defender, money in how much of the addition to Public owed to the money private and how much was paid been poten- to retain. The attorney attempted he had previously obvious, in limited to Mitchell is and a remand prejudice tial fundamentally this case be unfair.” would 357, 517, 1313, Gill, 289 citing A.2d at 265 Md. at Id. at 624 579. A.2d at subject on made most pronouncement
Our
recent
State,
13. We
supra,
v.
A.2d
Southern
whether it was
certiorari
that case
consider
granted
to order a limited
Special Appeals
for the Court
proper
supporting
the State to introduce evidence
remand
allow
initial
its
stop,
challenged
of an
where the defense
legality
the State failed
suppression hearing
at a
legality
15.
issue.
at
any
introduce
evidence
Id. at
challenged
that once the
Although
recognized
defendant
had
“to
stop,
present
of the
the State
the burden
propriety
actions,”
at
id.
807 A.2d at
justifying
evidence
574, 578,
406 A.2d
citing
Md.App.
DiPasquale
(1979),
court held that
the intermediate
constitutionality
stop
and,
had not been resolved
there-
“granted
to,
essence,
fore
a remand
the State
permitting
reopen suppression proceeding
order to
new
introduce
Id. аt
regarding
evidence
the initial
stop.”
21.
rejected
approach,
We
and noted that the trial court
*22
denied the
Motion
defendant’s
to
fact
Suppress despite the
that the State did not meet
proof
its burden of
on the issue.
Accordingly, we elucidated that “Rule 8-604 does not afford
who fail to
on
parties
their burdens
issues
in a
raised
meet
completed suppression hearing an opportunity to
the
reopen
suppression
for the
of
proceeding
taking
additional evidence
after the
has
appellate court
held the
has
meet
party
failed to
burden.” Id. at
evidentiary
105,
A.2d at
19-20. We
furthermore
Special
“[t]he
stated
Court of
Appeals went
astray when it
to
attempted
afford the State the opportunity
case,
relitigate,
the same
an
issue
had failed to litigate
Id. at
prove.”
“The of the remand purpose was not correct a procedural error, but to the afford State an additional do opportunity to that which it previously failed to do-present evidence on the initial not stop. This is a case the hearing where motions rule, judge simply State, did not it is a case where the which had the burden of on proof constitutionality the initial the detention suppression at the hearing, admits that it not did present sufficient evidence to constitutionality the support of the stop. taking Without additional re- evidence at a hearing, newed the State obviously meet its cannot burden.” Id. 21. 807 A.2d at case,
In this the trial and appeal the direct of the judgment thereby long rendered have since ended. Those judgments not was, were at issue in this case. rather, At issue the of the trial court’s propriety ruling post at the conviction hearing that the petitionеr’s trial counsel peti- rendered the tioner ineffective assistance. the hearsay Whether Smith statement, as a of an alleged participant statement with petitioner activity, the criminal against admissible to, as the of a petitioner statement is if co-conspirator integral to,, not critical the resolution that issue. are sure, themselves proceedings conviction post
To be on ordinarily cognizable trial. When issues collateral i.e., trial, in the context pursued conviction are post see, appeal, e.g., on of counsel direct litigating competence 892-93 Harris Md. (1984),10 bearing a defen admissibility of a statement subject a limited proper or innocence be guilt dant’s is collateral substantive remand because the issue Where, however, as in this case trial. merits final, conviction post pro at trial is judgment rendered that judgment are to attack ceedings being pursued separately only proceedings are the collaterally, proceedings and those extant, equivalent of a are the post proceedings conviction judicial proceeding. the relevant inasmuch as it becomes and connection context, as to the relevance inquiring In this question. the appropriate issue the trial to, or is collateral whether issue appropriate question arise; in this to, they out of which integral proceedings post proceedings. conviction *23 challenged his convic- In the judice, petitioner the case sub trial on that his proceedings the basis post tion conviction As to ineffective assistance. and counsel rendered counsel, assistance oc- alleged he that the ineffective trial failed to to the admission the Smith object curred when he the defended counsel’s hearsay Although State statement. effectiveness, that state- grounds it did not do so on the the co-conspirator’s excep- to the pursuant ment was admissible rule, on and hearsay grounds pursues to the the it now tion 726, out, W., 717, Md. 770 pointed Re: Parris 363 10. This Court has In 202, (2001), A.2d 207 that general assistance counsel "It is the rule that a claim of ineffective appropriately post-conviction proceeding pursuant is raised most 27, (1958, Maryland Repl.Vol., Supp.) 2000 Article Code 1996 375, 394, See, State, § e.g., 645A. Austin v. 327 Md. State, 405, 434-35, (1992); 439 A.2d Johnson v. 292 Md. that, ordinarily, the the primary reason behind rule is challenged or not the basis for the acts trial record does illuminate Johnson, 292 A.2d at omissions of counsel. See Md. at 559.” 686, (2003). Mosley See also Rather, the basis of which the case has been remanded. the argued object that counsel did statement and under Nance it was a prior admissible as inconsistent state- fact, ment. the State never argued co-conspirator Furthermore, exception post hearing. conviction during although it referred exception Application Leave to Appeal, the State failed to make the in its initial of Special brief Appeals.
Gill, and, indeed, its progeny all of the cases in which a special or remand have limited been ordered involved direct of a appeals judgment. criminal It there- surprising, is fore, that all of spoke them issues collateral to the “trial.” however, is significant, What most instructive and drew committed Gill distinction that between error prejudicial subsidiary procedures. There are proceedings other than trials at which prejudicial criminal error can occur on subsidiary and whiсh procedures impinge. can Post convic- proceedings tion are the facts of sub example and the case judice are illustrative.11 co-conspirator
Whether the exception applies to the Smith hearsay statement to render it is not admissible at all subsid- iary to post conviction or proceedings collateral to the being issue litigated; namely petitioner’s whether the counsel Gill and its court, Although progeny, 11. addressed propriety of a limited within the remand context of an initial trial and direct trial, appeal 8-604(d) nothing language there from that in the leads me to believe that the discretion to order limited remand only attendant limitation that discretion is confined sure, language provision context. To be states that a court "[i]f remand matter a. court concludes that the substantial merits of a not be affirming, reversing, case will determined added). modifying judgment”, (emphasis All other references to *24 integral provision presented matters within are likewise in terms of propriety a "case” remand and at no time does the use rule language indicating applicable only it post that is to a "trial". A proceeding certainly qualifies conviction most as a "case” the- purpose issue; deciding underlying of the merits of the substantive namely, in this whether or not counsel was and ineffective although post proceedings the entire "case” in conviction is collateral trial, to a post that fact does make the conviction "case" collateral to itself. and Rather, directly is that determination ineffective. fact, counsel. In issue of ineffective critically related as whether the dispositive of issue is the outcome that assis- thаt to ineffective acted in a manner amounted counsel issue, integral which is ruling An tance. erroneous certainly prejudicial. would be allegations, conviction post no that the trial or allegation case is In this there any made original prejudicially in the matter courts appellate case fact, the at issue in this argument In ruling. erroneous Ap- of Special of which the Court for the consideration nor by the State ordered remand was never raised peals court on review. court or the by appellate considered the trial Thus, not to correct an errone- of the remand is purpose permitting it is for the ruling; purpose ous rather whether, never though even issue was determination of appeal, trial or an errone- argued during original raised light asser- might my committed. ruling ous have been exception argu- proposed co-conspirator tion that the State’s of the conviction post be to the outcome integral ment would considering my stance an erroneous proceedings, and argument certainly preju- on the would ruling newly posited of Special Appeals clear petitioner, it is the Court dice Moreover, I erred in a limited remand. believe ordering issue, it first the intermediate when considered excusing the effect of properly accurately analyzed preserve co-conspirator exception the State’s failure to argument: view, logical position
“In our extension State’s apply respect that there are no time constraints with was not a claim the State that defense counsel constitu- tionally If the State is to raise a new permitted ineffective. brief, or in argument reply but valid for the time first issued, ruling a motion after an reconsider long could for the time then it also raise first Moreover, applying after the Court has ruled. the State’s reasoning, would be incumbent Court to consider upon strate- possible justifying lawyer’s reasons universe action, if or course even the never raises such a gy *25 734 extreme, In
point.
the
the
position
State’s
means that
to justify
failure
defense
representation
counsel’s
is virtually
irrelevant, because it is
on
incumbent
court
appellate
determine whether
there is any basis to sustain
repre-
sentation
by
afforded
defense counsel.”
Jones,
State v.
supra,
234,
Md.App.
at
The
of Special
Court
Appeals also abused its discretion
elected,
when it
pursuant
8-131(a),13
to Rule
to consider the
correct,
majority
12. Even it the
and
appropriate
remand was
discretion,
not an
appropriate
abuse of
remand would not be a
best,
Gill,
limited one. At
consistent with
the appropriate remand
post
would be
hearing.
fore new
conviction
majority
8-131(a)
expands
13. The
scope
of Rulе
to include within
"decide,” excusing
the ambit of
procedural
a waiver or
default. 379
704, 712,
Md.
843 A.2d
I am not at all sure that that is
appropriate. The Rule does not
procedural
mention waiver or
default
and,
fact, speaks
"deciding,”
[o]rdinarily,
appel
terms of
i.e.
any
late court will not decide
plainly appears by
other issue unless it
court,
record to have been raised in or decided
the trial
but the
necessary
decide such an
guide
issue if
or desirable to
expense
delay
or to avoid the
appeal."
of another
majority
cases on
support
which the
expanded
relies do not
such an
State,
meaning
28,
655, 661-62,
of "decide.” In Brice v.
254 Md.
255 A.2d
(1969),
actually
allegedly
the Court
decided the
present
issue
trial;
presented.
ed at
on the record
Basoff v.
(1956),
object
the defendant failed to
at trial to
admissibility
witness,
testimony
prompting
of State's
Court,
rejecting
argument,
to comment
the State’s
despite
argument
statement
co-conspirator
State’s
review,
failed to
having
for the court’s
preserve
failure to
proceed
conviction
during
post
either
raise
clear, as the
First, it is
brief.
its initial
or in
ings
appel
is that the
rule
that the usual
acknowledges,
majority
*26
first time
for the
raised
arguments
consider
will not
late court
leave to
for
or,
applications
in the case
perhaps
on appeal
in such a
Implicit
reply
in the
brief.
the first time
appeal,
is the
appeal
on
arguments
new
to consider
that refusal
rule is
To
of action.
fair course
desirable,
consistent
more
rule, to deviate
generally preferred
or
this usual
overcome
such
must be
circumstances
the
practice,
from the usual
“
orderly
promote
parties [or]
for all
fairness
‘ensure
”
189,
Bell,
178,
638
Md.
v.
334
of law.’ State
administration
omitted).
(1994) (citations
107, 113
in the Circuit
Bell,
tried and convicted
In
the defendant
The evidence
charges.
narcotics
on
City
for Baltimore
Court
vial,
in a
of drugs
consisted
was based
which the conviction
on
in a
view,
drugs
gym
in plain
observed
police
which the
held,
and trial court
after,
argued
the State
bag discovered
conducted
argument,
police
with the State’s
consistent
brief, the State
in its initial
inventory
appeal,
search. On
police-
to the
objection at the trial of the case
“Appellant made no
Therefore, we
testimony
statements.
as to Mrs. Thomas’
woman’s
respecting ap-
our rules
objection here. One of
consider the
cannot
any point
Appeals decide
the Court of
peals provides: 'In no case shall
by
appear
record to have been
plainly
question which does not
or
”
Appeals,
of the Court of
by
Court below.’ Rules
tried and decided
rule 9.
party
has
and criminal cases. When
applies
rule
to both civil
“This
object
object,
failure to exercise
or not to
his
option
either to
power of the trial court to correct
option
within the
while it
still
obtaining
estopping
regarded
of it
him from
as a waiver
error is
Appeals
appeal. The Court of
point
question
review of the
parties to
and to
for all
cases
adopted the rule to ensure fairness
orderly
the law.”
promote
administration of
State,
(1946);
State,
1,
v.
430
Davis
Citing Courtney
Md.
48 A.2d
187
488, 495,
State,
(1947);
102
203 Md.
A.2d 702
Banks v.
189 Md.
Banks,
predecessor
Court also referred
A.2d 267
In
8-131,
why, given
failure to
only
explain
the defendant’s
but
of Rule
stenographer,
of a
object
proceeding
trial in the absence
with
of the issue.
address the substance
would not
added аn additional
argument
second search was
appropriate under the Carroll doctrine.14 The
of Spe-
Court
cial Appeals
Court,
reversed the
judgment
the Circuit
holding that
the second search was not a valid inventory-
It
search.
declined to consider the
State’s Carroll
because it had not been raised
trial.
during
Court,
argued, relying
on Robeson v.
498, 502,
denied,
(1979),
403 A.2d
cert.
(1980),
U.S.
100 S.Ct.
“We do not think that these belated
open
contentions are
government
to the
in this Court and accordingly we have
no occasion to consider their soundness. To permit the
inject
Government to
theory
its new
into the case at this
States,
132,
280,
In Carroll v. United
267 U.S.
45 S.Ct.
737 stage would unfairly deprive petitioner adequate of an opportunity respond. This so in the because District Court, petitioner, being entitled to assume that the war- rant only purported justification constituted the for the arrest, had no Finley reason cross-examine or adduce evidence of his own rebut the contentions that ” Government makes here for the first time.’ 190, 113-14, Id. 334 Md. at A.2d at quoting 638 Giordenello States, 480, 488, 1245, 1251, United 357 U.S. 78 S.Ct. 2 1503, also, L.Ed.2d 1510-11 See Crown Oil and Wax VA., 546, Delaware Co. v. Glen Construction 320 Md. Co. (1990) 1184, 578 A.2d (holding that the court could properly theory consider new upon appeal pursuant to its discretion under Rule 8-131 even when the issue was raised for the first petitioner’s because, time appellate brief issue, although a new it only constituted an additional argu ment that the could decide based adequately upon the court); Khan, facts before the 143, 151, Gindes v. 346 Md. (1997) (declining to exercise discretion to direct entry of final judgment where the sought issue to be present and, ed was not in 8-131, the case with regard to Rule “[t]he factual confused”); record this case quite Taub v. (1983) (deciding the issue, dispositive construction, one of statutory although not raised or court); Ordonez, decided in the trial United States v. (9th Cir.1983) 737 F.2d (holding decline to “[w]e speculate the state of this record that court would have been satisfied that sufficient foundational facts were presented to satisfy the if co-conspirator exception, the prose cutor argued had thеory a timely manner. For us to sustain a theory of admissibility below, not presented would unfairly rob appellants of the opportunity argue the weight, *28 sufficiency and trustworthiness of the evidence to establish a proper foundation before the trial judge, or to offer proof to controvert the facts now relied upon by government.”) the
Bell and the other cases cited are as instructive to when an court, appellate pursuant to consider, Rule and decide, an presented court; issue not to the trial they difieren- the record is sufficient to allow the
tiate the situation which court to the issue the situation where the decide appellate Bell, case, As in because the record is insufficient. raise, the during post proceedings, failed to conviction State that statement admissible under Smith’s was argument rule, hearsay petitioner to co-conspirator exception a counter given argument never chance to was result, was with developed As a the record never level. Special argument; to that the Court regard consequently, its discretion to “decide” that was unable to exercise Appeals fair, event, any been because and it would not have issue was afforded the to meet this opportunity the defendant never Delaware v. argument.” “new Crown Oil Wax Co. of VA., Md. 546 at supra, 320 Glen Construction Co. of (1990). All appellate 1184 at 1191 the intermediate court done to the State’s waiver the co- forgive could have was and, doing in so a give second conspirator arena on the prevail post to in the conviction opportunity level. issue, as to Having unpreserved excused the waiver to permit record insufficient a decision which the was choice merits, had no but to Special Appeals the Court of But a limited Rule 8-604. limited pursuant order a remand remand, settled, appropriate only it is well when issue is one to the case before the court. be decided collateral forum, as the only remaining For all intents and purposes, matter, in this post- “trial” before lower hearing. the statement is admissible un- conviction Whether rule is not collat- co-conspirator exception hearsay der the case, critical, it is if not integral, conviction post eral Certainly, Special the Court of believed to be Appeals it. else it remand the issue to why post would purpose court for limited determining conviction admissibility. two majority part determining test proposes 8-131(a) of discretion under Rule plausible
whether
exercise
court should consider whether
appropriate:
“the
prejudice
of its
will work unfair
the exercise
discretion
*29
court,”
either the
parties
the trial
Md. at
at 784
appellate
and “the
court should consider whether the
exercise of its discretion will promote the orderly administra
justice.”
tion of
Id. at
“[I]t
imagine
what
hypothetically
would happen
if the Court of Special Appeals had not exercised its discre-
tion and had only affirmed the post-conviction
court.
that case
trial,
Jones would receive a new
in which the State
surely would
statement,
submit Smith’s written
upon which
counsel,
Jones’
time,
new trial
just
would
surely
as
object to Gutrick’s hearsay statement within Smith’s written
Now,
statement.
the State would respond with the co-
conspirator exception argument that was foreclosed to it by
the post-conviction proceedings, and the trial court would
law____The
decide this matter of
absurdity of this is made
even more clear when it is understood that depriving the
post-conviction court from determining this purely legal
issue could result
in the hearsay statement reaching the
jury
precisely the same
manner as
Jones’ original
will
nothing
have changed.”
trial —
Id. at
To the majority, expediency demands that the Court of Special Appeals’ decision to remand this case to the Circuit Court for a limited purpose be upheld, notwithstanding the State’s patent failure to abide the procedural rules of court. An important factor for the majority the fact that the issue the State neglected raise the post conviction proceedings or in its initial appellate brief would be admissible even if the remand were a general one for a new trial. It is than integrity is reserved procedural to ensure that
better
cases,
that, in
message
post
send
conviction
that we
compliance
proce-
itself with
with
need not concern
rules,
able,
any time,
when the
that it will be
even
dural
proce-
correct even
process
complete,
egregious
by invoking judicial
defaults,
simply
in this
dural
as
*30
It
that
economy.
repeating
bears
of the
is that there are
logical
position
State’s
“the
extension
respect
by
that
to a claim the
apply
time
with
no
constraints
constitutionally
not
ineffec-
that
counsel was
State
defense
to raise
new but valid
permitted
If
is
tive.
the State
brief,
in a motion
first time in its
or
reply
for the
argument
issued,
ruling is
then it
after an appellate
to reconsider
long
the first
after the
also
time
could
raise
the
Moreover,
reasoning,
State’s
applying
has ruled.
to consider the
incumbent
the Court
upon
it would be
strategy
or
justifying
lawyer’s
of reasons
universe
possible
action,
point.
if
such a
of
even
never raises
course
the State
extreme,
means
its failure to
the State’s
position
virtually
counsel’s
is
irrele-
justify
representation
defense
vant,
on the
court
to
because it is incumbent
repre-
there
basis to sustain the
any
determine
is
whether
counsel.”
sentation afforded
defense
Jones,
dant could but an allegation failed to assert error at of a prior proceeding, allegation is deemed to have been waived (2001) and may Md.Code, he or she not appeal. raise it on See § 7-106 of the Criminal Procedure Article.15 cases are relevant, Code, (2001) Maryland § 15. As 7-106 of the Criminal Proce- provides: dure Article “(b) allegation Waiver of of error.— “(1) (i) Except (ii) provided as subparagraph paragraph, of this allegation an of petitioner error is waived when have could made intelligently knowingly but allegation: failed to make the trial; “1. before trial; at “2. appeal, “3. petitioner on direct appeal; whether or not the took an application “4. appeal In an for leave to a conviction based on a guilty plea; corpus “5. in a habeas proсeeding began by or coram nobis petitioner; subtitle; petition prior “6. in a under or any “7. proceeding petitioner other began. “(ii) 1. allegation Failure to make an of error shall be excused if special circumstances exist.
742
to
court has refused
entertain
in which an
legion
when
or she has failed
raise
he
defendant’s
State,
256,
v.
Md.
681
See Oken
343
prior hearing.
issue at a
State,
1255,
(1996),
122, 142, 691
Md.
A.2d
A.2d
Hunt v.
345
30
State,
650,
764,
692,
786
(1997),
360 Md.
759 A.2d
1265
Ware v.
132,
910,
State,
148,
918
(2000),
354 Md.
729 A.2d
Conyers v.
State,
253,
239,
262,
243
(1999),
v.
658 A.2d
Walker
(1995).
Furthermore,
argu
a defendant who fails
raise
trial,
of
at
bears
assistance
counsel
regarding
ment
ineffective
why
he
justify
circumstances
proving special
the burden of
prior proceeding.
not
issue at a
did
raise the
she
no
acknowledged, there is
Special Appeals
As
the Court
to the same standard
reason not
to hold
State
fails to raise an issue before
determine that when
court,
raise
issue
post-conviction
properly
Jones,
showing
circumstances.
special
on
absent a
appeal
228-29,
407,
178,
771 A.2d
437
Md.App.
138
instructive.
Oken
particularly
Oken is
263,
At his
This held Oken Court that had his right waived to assert the that, In issue. so holding, notwithstanding we noted Morgan decision, ample there was precedent defining defen- dant’s right “during identify jurors voir dire prospective [to] who disqualifying harbored biases favor of the penal- death Id. ty.” Md. at at 38. Given that stated, precedent, this Court petitioner special offered no circumstances would obviate his responsibility to raise the Accordingly, issue on appeal. we refused to our exercise Id. discretion under Rule 8-131 to See excuse waiver.17 relief, petition post 16. In alleged his for conviction Oken that the trial questions court erred when it ask satisfactorily failed to identified jurors prospective those predisposition who harbored a toward the penalty death and that trial his counsel and counsel were ” failing ineffective "reverse-Witherspoon objection raise appeal the trial on dirеct respectively. post-conviction After the judge questions jurors, found that the trial asked sufficient court, appealed Oken only to this and in alleged its initial brief pertained court error as it reverse-Witherspoon question. words, petitioner dropped other the claims of ineffective assistance pertained alleged object during counsel as to their failure to voir dire appeal. or assert the on direct Oken, that, acknowledge 17. I decided also even if the petitioner right had not waived argument, assert the voir dire we Interestingly, would have found no error. because issue was raised court, post-conviction before the trial court and before the this court upon had a rely sufficient record which to to address the substantive indicated, issue. In this as developed the record was not on the co-conspiratorship permit issue of as the intermediate court to have decided the issue. State's waiver and failure *33 744 191, Bell, A.2d at 114 (holding Md. at 638 supra,
also 334 the trial court the defendant and State lead “[t]he when, on to them stranded only leave primrose path, down a its change to strate advantageous the State deems appeal, States, 480, also, v. United 357 U.S. Giordenello gy”). See (1958) (“[W]e 1503, 1510-11 488, 1245, 1251,2 L.Ed.2d 78 S.Ct. to judicial administration think that it would be sound [do not] hearing for a special to District the case back Court send determine whether of cause which would probable on the issue already entered should judgment and the guilty verdict now on to The facts which Government be allowed stand. known it at the time of to fully the arrest were uphold relies such suggesting no circumstances special are and there course”). an exceptional regard- law and long-standing precedent
In
addition
review,
consistently
in
has also
ing
collateral
waiver
argument
will not address an
held that an
raises in the
brief. Health Svcs. Cost
reply
first
appellant
651, 664, 472
Lutheran
298 Md.
Hosp.,
Review Comm’n v.
Somerset,
42,
(1984).
55,
271 Md.
Logan
61
v. Town
A.2d
67,
436,
(1974),
v. State Roads
A.2d
449-50
Harmon
314
Commission,
513,
A.2d
516-17
242 Md.
217
State,
our
see
precedents,
Under
Basoff v.
495, 102
(1956);
Banks
Md.
A.2d
(1954),18
dispute
no
that the State waived
there is
as
state
statement was admissible
argument that Smith’s
in
of a conspiracy
a
the furtherance
co-conspirator
ment of
raise
issue
conviction
post
when it failed to
before
cases,
a
to raise
the failure of
defendant
court.
most
rely
upon
appellate court
which the
could
sufficient record
establish
proce-
exercising
new
constitute
discretion to consider the
issue
Special Appeal's
the Court of
exercise
fault sufficient
render
dural
argument
abuse
the new
an
of discretion.
discretion
consider
issues
Banks involved defendants who failed
raise
18. Both
Basoff
defendant,
reasoning,
post
By parity
when the
the trial court.
issues,
proceedings
does not contro-
raise
which
conviction
so,
vert, although
be
done
the issue not controverted must
it could have
deemed waived.
alone,
claim at
post-conviction hearing
results
the refusal of
court to
appeal.
consider
claim
This is
because,
have,
when a defendant could
but fails to
raise
argument, the presumption arises that the failure to raise the
was a tactical
decision.
maintains,
majority
however that the
failure
raise
*34
that,
in
co-conspirator argument
any
inadvertent and
event, the
“never
position
State
wavered from its
that the
therefore,
in
entirety,
statement was admissible
and that
Jones was afforded effeсtive assistance of counsel.” 379 Md.
at
Further,
majority
holds that
State did not make a
“[t]he
waive,
tactical decision to forgo,
argument
concede the
that
the statement was admissible under the co-conspirator argu-
...”
ment
Id. at
Moreover, and even more telling, only raised the once, issue of co-conspirator admissibility the application for leave to appeal, when it sought to challenge post conviction court’s decision. The argued, raised, State never or even issue at post conviction trial and it failed include it as an argument its initial brief in the Court of Special Appeals. smacks, inadvertence, That far from of a tactical decision. er- procedural its consistent overlooking majority, from the appeal issues on to raise rors, allow the State would it raised before never relief post-conviction grant raised properly it never court and post-conviction oppor- to afford the same refusal its consistent despite appeal, effect, it defendants. tunity post-conviction to criminal in the knowl- State, reasons and secure for tactical allows the considered, pro- notwithstanding multiple be that it will edge argu- of its from some defaults, presenting refrain cedural resort, one, until, a last as ments, the dispositive perhaps made that can be so, as an long must do so judicial economy If satisfied. economy are judicial interests of however, why we have interest, one wonders overriding at all. This review to collateral applicable rules procedural criminal defendants to hold an answer: suggests case allowed which is to which the requirements procedural so, when, to do need as, and it chooses claims to assert new not adhere. intermediate affirming majority,
I that the believe *35 rule that treats announced a court has default procedural guilty same criminal defendants much better. being treated with the State differently, quite co-conspirator issue preserve of its failure light or even to raise proceedings during post-conviction review fashion, should not be the State timely appeal the issue on on the point. evidence present opportunity another allowed opportunity has denied that consistently I this Court repeat, proceedings. post-conviction from appeal to defendants in the most we of cases ensuring dispose In addition of Rule 8- overriding goal possible, fashion expedient I 131(a) unfairly prejudiced. party that neither is to ensure Special Appeals decision of would hold that the (cid:127) 8-131(a), to consider discretion, under Rule exercise an abuse of its discretion. unpreserved State’s I dissent. expressed. herein joins the views CATHELL
Judge