Miller v. State

843A.2d 803 MILLER, John Albert IV Maryland. STATE 90, Sept. Term, No. 2000. Appeals Maryland.

Court of

Feb. 2004. April

Reconsideration Denied 2004. Braudes, (Stephen Michael R. Asst. Public Defender E. Harris, Defender; Margaret Public Martha Weisheit and L. Lanier, brief), Defenders, Baltimore, Ap- Asst. Public pellant. (J. Lisie, Curran, Jr., Asst. Atty. Joseph

Annabelle L. Gen. Gen., brief), Baltimore, on for Atty. Appellee. BELL, C.J., *, RAKER,

Argued Before ELDRIDGE WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.

WILNER, Judge. Miller, TV, John Albert was in the

Appellant, charged murder, County Circuit Court for Baltimore with the attempt- offense, first sexual and false rape, degree robbery, impris- ed of 17-year-old onment Shen Poehlman. After the State filed a penalty, notice its intention seek the death the case was removed to for trial. A in Allegany County jury that court murder, premeditated degree convicted Miller of first sexual offense, A robbery, imprisonment. judgment and false acquittal charge attempted rape. was entered on the found,

At sentencing jury a separate proceeding, beyond doubt, in principal reasonable Miller was the first in the murder and that the degree proven, State had as an circumstance, that the murder was aggravating committed * J., retired, Eldridge, participated hearing now in the and conference Court; being this case while an active member of this after recalled Constitution, IV, 3A, pursuant participated Article Section he also adoption opinion. in the decision and of this found sexual offense. The degree of a first the course circumstance —that alleged aggravating that a second not robbery of a was committed the course murder —was by found one or circumstances were mitigating Five proved. circumstances, unani- such found jurors. of the Two more convicted of had not been mously, previously were that Miller family had a environment. poor of violence and that he a crime one, all, mitigators found as jurors also At least but remorseful, children, that he would that was Miller had he concluded, unanimously by in jail. die likely outweighed factor aggravating preponderance, In addition to Miller to death. mitigators and thus sentenced murder, for the Miller sen- imposed the death sentence offense, first sexual degree to 30 for the years prison tenced year and one concur- robbery, five consecutive for the years for imprisonment. rent false briefed fully fifteen issues that were appealed, raising oral to the date set for prior him and the State. Just trial, however, for claim- Miller filed a motion new

argument, (1) discovered evidence the decision ing, newly Arizona, Ring Court U.S. Supreme United States (2002), urged which he 153 L.Ed.2d 556 S.Ct. mitigating factors statutory process weighing rendered (2) unconstitutional, and that Clar- factors against aggravating him, Bobbitt, had an against witness received ence State’s testimony. postponed argument inducement for his We an give opportunity the the Circuit Court resolve appeal motion, 2002, the August, motion. In the court denied the (1) by Miller assuming upon the evidence relied finding evidence, newly discovered respect with to Bobbitt constituted or demonstrating his burden of a substantial he had not met in either the that the verdict the significant possibility or of the trial would have guilt/innocence sentencing phases (2) Ring v. Arizona affected, in did not the decision been not, event, in any discovered evidence and did newly constitute Miller Maryland appeal- the statute unconstitutional. render motion, the two ed from the denial of his and we consolidated By on both. the choice of appeals argument and held oral counsel, argument the oral focused on the issues raised motion for new trial.

Because of an divergence unusual of views among Court, members of the there is in this majority case no opinion on all of the issues. Raker Judge would affirm the verdicts and the sentences prison but vacate the death sentence based standard, on her view that preponderance by required of this statute and Rule Court to be used in determining aggravating by whether the factor found the jury outweighed any found or mitigating by jurors, factors one more of the Apprendi v. unconstitutional under principles enunciated New Jersey, U.S. S.Ct. 147 L.Ed.2d 435 (2000) Arizona, Ring supra. declaring that death joined sentence should be vacated on that she is ground, by Judge Judge Chief Bell and Eldridge. Judge Battaglia, joined by Judge Bell and Judge Eldridge, Chief believes that judgment entire should be reversed and that Miller should be of newly awarded new trial because discovered evidence witness, Bobbitt, may have been promised leniency by that, the State return for his testimony. They believe had that new presented jury, evidence been there is reasonable possibility would have acquitted degree Miller the first sexual offense charge, which would him ineligible or, have made for the death penalty, at the sentencing proceeding, would have failed to necessary find the factor, that aggravating he committed the murder while com- mitting attempting to commit the first sexual degree of- fense. Harrell,

Along Judges with Cathell and I believe has presented disturbing no basis for either the verdicts or the joins sentences. Raker us Judge holding that the verdicts prison sentences should be affirmed. The Court is thus in very peculiar position having three votes to reverse the under Apprendi/Ring, death sentence three votes to reverse all convictions and sentences on ground addressed Judge Battaglia, four votes to affirm the prison verdicts and sentences, but four votes to reverse the death sentence. The judgment of the Court will therefore be to affirm the verdicts sentence, and remand sentences, reverse the death prison and conviction, murder on the sentencing proceeding for a new why. opinions The as majority no Court with only address one Battaglia Judges Raker by authored Cathell, Judge Because they which would reverse. upon issue entirety, in its Harrell, judgment I and would affirm Judge raised Miller. all of the issues to us to address it falls

I. BACKGROUND

A Introduction to his Poehlman that he lured Shen Miller does contest Reisters- Park Bentley Apartments, at the apartment 28,1998, an offer with County, July on town area of Baltimore that, while she longer no contests job, and he baby-sitting of a death, using a belt. her to strangled in his he apartment, was activity sexual engaged not contest that he He also does to this relevant The substantive issues with Ms. Poehlman. (1) was consensual activity the sexual are whether appeal maintained, or was violent and as Miller part, Ms. Poehlman’s degree constitute a first and was of a nature to non-consensual (2) offense, murder was committed whether the sexual offense. degree of a first sexual the course Disappearance and B. Ms. Poehlman’s Leading to Miller’s Arrest Events young 17-year-old Poehlman was a July, Shen school with honors. She just high had graduated woman who summer, during the boyfriend, working part-time had a spent off to in Florida. She go college and was about to friends, Jessica, 27 with her best Lauren July afternoon of Jessica worked Bentley Apartments pool, Park where part-time as employed Shen and Lauren were lifeguard. 5:30 to 9:30 that and were due to work from telemarketers 4:00, but Shen around 3:30 evening. pool Lauren left to meet girls agreed with remained for a while Jessica. there. Shen spend night home after work and at Lauren’s that, Lauren as she at about 4:30. She later told pool left the leaving, babysit was a man had asked her to for him the next day agreed. and that she had left, Miller,

After Shen a resident of the apartment develop- occasions, pool ment who had been to the on earlier sometimes woman, approached with a Jessica and asked whether she and had a conversation that boyfriends. During Shen lasted about minutes, told he Jessica the woman he sometimes an brought pool ex-girlfriend, that he had an ex- Rochester, York, in wife and children who lived New and that five-year-old he had a who was to nephew coming stay with him. Jessica observed a distinctive tattoo on arm Miller’s and said that she had seen him previously driving Geo Tracker. She recalled that he used the name “John.” work, they

When Shen and Lauren finished went to Lau- Jessica, pick up ren’s home. Lauren left to but re- Shen waiting mained because she was for a call about babysit- return, job. ting Upon their Shen said that she had received concerned, the call. Lauren and Jessica were and Lauren not job advised Shen to take the with someone she did not know, but Shen she persisted, although agreed page them when she arrived at Miller’s apartment, at about 10:00 a.m.1 message When no had received from day, been Shen the next Lauren and Jessica became worried and began looking for her either, car or the Tracker. they Geo Unable locate contact- ed Shen’s mother. When Shen failed to for report work at 5:30, the Baltimore were County police called. Jessica, Lauren,

Officer Ransom met with and Shen’s moth- at the apartment pool er around 6:00. Lauren and Jessica him related to the events of the previous day, and Ransom description radioed a of both and Shen Miller. Based on what learned, he had Officer Ransom did not regard the matter as a “missing juvenile,” routine and he supervisor, called his who additional dispatched officers assist locating By Shen. 7:00, that a they learned John Miller lived 3B at Apartment appears 1. It pool, that Shen was to meet Miller at the rather than at his apartment, heightened which Lauren’s concern. address. they Park went Bentley Apartments, registration green a New York also had obtained They no there was described.2 Tracker Jessica had When Geo man let had a maintenance apartment, they at the response explicit with if there. accordance in to see Shen was them they sergeant, from they received their instructions had and did person would hide only places looked looked flashlights, slowly open any Using they drawers. one, left rooms, closets, they hallways, finding no observed disturbing anything. One officers without in a golf set of clubs closet. area, leaving general continued to search police apart- in in lot front of Miller’s Arrington

Officer the parking descrip- Tracker fitting At 9:10 a Geo the about p.m., ment. lights, appeared car for without they looking tion of the were Arrington sitting, was but police the car where approached he what away Arrington reported and drove off. then backed to do find the car but unable attempted seen and to was had lot, the Geo he he saw parking so. returned to When Price, charge in Sergeant in of the parked front apartment. knocked apartment investigation, approached and, asked if Ms. answered when on the door. Sherman in there, responded else was she that John was anyone exit- and invited officers inside. Miller’s Upon bathroom bathroom, Price him that he was informed ing Sergeant talking if was bringing girls person two see he was who brought Officer Ransom Jessica previous day. with Shen Miller, in the lot. apartment parking and Lauren When officers, girls of several exited the company apartment, him, him.” and said that’s immediately began cry “that’s Price said 9:30 p.m., At that which was about point, Sergeant Sherman, girlfriend, actually 2. car was owned Miller’s Isabella apartment. met also Sherman who was the lessee of the Miller and Rochester, relationship began New she moved to York. When at a Maryland job, to take a new moved with Miller worked her. Maryland about a had been fired store for month but convenience testified, unemployed here. at the time relevant Ms. Sherman admitted, while she allowed Miller use her car and Miller that she work. was at arrested, handcuffed, Miller was patted for weapons, down and taken to police station for further investigation. The apartment was pending secured issuance a search warrant. Subsequent

C. Miller’s Statements and Events As Shen, the search continued Sergeant Price notified unit, Hill, the homicide detective, and Detective a homicide met with Miller at police station. Miller was his given Miranda warnings p.m. about 11:30 and questioned about his knowledge Shen’s disappearance and Mil- whereabouts. that, ler May, said he had come to Baltimore from Roch- Sherman, ester with Ms. that she job had obtained a Baltimore and that he had hoped get job with the Orioles. In an oral statement later that, reduced to writing, he said after learning name Shen’s from the lifeguard, he asked if she babysit weeks, could for him in about two as his children were York, from coming New that Shen asked him to call her that 10:00, evening around that he did so but she said that she was week, going away for a and he said that he would call her when she returned. He claimed that he had no further contact said, with Shen. The day, next he he took Ms. work, Sherman to then returned to apartment, his got golf his clubs, and with played golf three other men from about 9:00 a.m. to p.m. 2:30 He then shopping went for an engagement ring for Ms. Sherman and did a few other errands. When he returned to his apartment, he was arrested. a.m.,

At about 3:00 while Miller was still being questioned, Detective Walsh located Shen’s car in a dead-end court of an apartment complex not too far from Bentley Park apart- ments. The windows were up and the car was locked. In the back seat body, down, was Shen’s lying face partially covered with a blanket. Her head and shoulder were visible. Because it was obvious to (and, arrival, Detective upon Walsh his Detective Bollinger) from signs lividity that Shen was dead and time, had been for dead some he did not disturb the scene.

Detective Hill was informed of the discovery about 3:15 a.m. He told Miller that body Shen’s had been found and that he did not believe Miller’s story. Miller put his stated that he had face, and shaking, his admitted began over hands aby oral followed gave long He then statement killed Shen. statements, that he met In he admitted one. those written the 28th and morning on the pool Shen at the around 9:30 some gave He said that he her apartment. took to his her on, on her belts, down which she she laid chastity put her, oral mastur- stomach, and that he sex on performed then not to bated, ejaculated promised on her When she and back. would, aput he believing she so panicked, tell he anyone, head, merely telling her that he clothing bag over her plastic out but pretended pass her to out. she pass wanted When and panicked again put a hole in he plastic, had bitten she around bag a belt her neck. When pillow over and that, point, he said at or about this stop, him to did. He asked finishing the he with Ms. Sherman. After spoke called car, her to call, apartment took another put he Shen her trunk, from and left covered her with a blanket her complex, have breathing, that she that he should her. He said was still car, her in the with the but that left locked help, called he shirt, key, in the heat. He took her up, 90-degree windows a tree and and shirt key purse threw near purse, dumpsters. in different statement, took to the

Following the the detectives they where Shen’s shirt and dumpsters, purse, recovered tree, car they key. where found the his return Upon station, guard under in an interview Miller was left police room, which he a number of calls. His telephone from made attending part of the conversations overheard officers, those who later them. In some of testified about calls, In masturbating “having he admitted but denied sex.” father, he having call to his admitted oral sex with Shen calls, that he masturbating In some he said well as on her. Shen; was, others, may have had killed he said she that, been, up locked by leaving alive when he left but her her most, heat, it did ninety degree the car not matter. he strangling he and admitted could admitted her as well her, have chose her and he could but have saved knew saved thing He mother that led to do so. told his “one another, tell, and he was afraid she going was and he her.” choked He added that her, “she was alive when he left but the car up, was closed and it ninety degrees was out.” In a call Kim, who, to someone named out, as it turned was a girlfriend Rochester, former he girl said that “the was her,” almost dead or dead when I left that “it adding probably wouldn’t have mattered” as “it was so hot in the car all closed up.” He said to someone named girl Chris that a from the over, pool around,” came that “we started messing got but he seared when he realized she was under age, that he put bag over her out, head and tried to knock her and that he then “put my belt around her and choked her put her in her car.” He added that “I I her, think could have saved I but was afraid.” He her, told Vito Calzone that I hurt I “[a]fter couldn’t let her I go. strangled her a little bit. I left her in car, and she up dying.”3 ended

D. Additional Trial Evidence Miller did not testify evidence, at his trial. Much of the described, already came from officers, the various police from Lauren, Jessica and and from photographs of Miller’s apart- ment, recovered, of Shen’s as it body and from the scene where car her was located. It was stipulated vaginal, rectal, and oral swabs taken from body Shen’s were negative semen, for the presence of but that a semen stain on Shen’s blouse came from Miller.

Ms. Sherman testified that Miller had taken her to work on the 28th and then used her car. She called the apartment a.m., between 9:00 and 9:30 got but no answer. Miller called her at work rushed, between 11:30 and noon and sounded interesting thereof, 3. As an credibility, side note to Miller’s or lack suggestions contrast telephone his in the may calls that Shen have car, brief, been alive when he left her in the he tells us in his as a admission, judicial disposal body necessarily ”[t]he of her occurred because, testified, killing, hours as the Medical Examiner after lividity had become fixed in Shen's back at lying the time she was found obvious, therefore, face down. It is lying that she was on her back left died, hours appellant she moved her to her car and after before disposed added). property.'’ (Emphasis her Sherman, pick He came to Ms. which, Ms. was unusual. 8:30, an hour which was up from work at about Sherman sweating profusely He was and was due to leave. before she ate for lunch had vomited, he claiming something had that Bell Nonetheless, at a Taco on they stopped made him sick. to take home. When carry-out some food get the home way police noticed several apartment, they the they approached the car in lights put off car and cars. Miller turned the space. looking parking to find a reverse, that he was claiming block, in front pulled the the went around police When of apartment. the that, she entering apartment, the upon said

Ms. Sherman her and turned the but that Miller followed lights, turned on bedroom, clothes, changed then entered the lights. off the He from and to climb down the balcony, attempted went to the that were after him. story apartment, saying police the second Sherman, that had met a Ms. said he Upon by he questioning apartment, she come girl pool, at the had over police her.” As the thought that “he that he had hurt frantic and added “I the he became approached apartment, knocked on might police think I have killed her.” When the door, he ran into the asked Ms. the bathroom and Sherman first, not there and then that he police, tell the he was all Ms. do golf day. had Sherman declined playing been into police the door and the her opened that. She invited apartment. Examiner that the cause of death was opined

The Medical strangulation herringbone and that the ligature pattern having on with been he neck was consistent observed Shen’s eventually the found Miller’s police caused belt The Medical Examiner also described number apartment. head, includ- of that he found on Shen’s bruises abrasions that the were the result of ing lip. He testified bruises alive, injuries was still with blunt force inflicted while Shen object. He her been struck on the head with blunt having right in the area of the front breast and found similar bruises on the head and on leg and a number of abrasions left The attributed some body. other Shen’s doctor parts bruises, head, body but not those on the to a “terminal fall”— itself, the last fall as dying. Shen was In the autopsy report the Medical injuries Examiner concluded that pattern “[t]he of the are head chest consistent with Ms. Poehlman on having been struck once chest and minimum of four on object.” times the head with blunt autopsy commenced at 11:40 a.m. July 29. The that, doctor said autopsy performed because so quick- ly delivery after time of body, death could be fixed with greater From condition certainty. body, medical examiner that Shen had opined been dead “close testified, to” 24 hours. He also on the lividity based the victim, she on for eight had laid her back to twelve hours evidence, being before That coupled moved. with Miller’s and testimony statements Ms. Sherman’s regarding tele- call, not phone only established that Shen was Miller’s when apartment she died but that she had been kept there for a period car, considerable of time being placed before in her a above, which, ante, fact as noted Miller now See concedes. n. 3. for our

Finally, present purposes, the State produced Clar- Bobbitt, ence Roxbury then an inmate at Correctional Insti- tute. and Bobbitt Miller had been cellmates at the Baltimore County Detention awaiting Center while Miller was trial. Bobbitt recounted conversation he had with Miller about the crime, in which Miller confessed that activity sexual consensual, as he had maintained. told Bobbitt that he girl babysit had asked the and that agreed: she had

“She knocked on door. He it. asked him opened She they where the kids He right were. said ain’t here now. And then she came in. And tried to he seduce her. She her, said no. Threw her on the He bed. ripped smacked off, her top sexually assaulting started her. And then he her strangled bag with his hand. And he over put her face. And then he belt on ... put chastity her face I neck, mean around her on stepped pulled one-half and on the other half of it. And realized what had he done. And he went then and took her down ... wrapped downstairs, of her her in the backseat blanket, her put took car, keys, took the car, and parked like two blocks drove I ... money pocket out her keys and her and took put it pocketbook out of money her mean took else, everything in his Took put pocket. it pocket, her back on it and belt, got cause he had semen her shirt chastity in a can.” threw all that trash Ad- essentially this evidence. rested

Miller’s convictions our connection with discus- will be recounted in ditional facts appeals. raised in the of the various issues sion

II. DISCUSSION in his noted, raised issues direct As Miller has fifteen of motion for new appeal In the from denial his appeal.

trial, aspect argument weighing he his embellishes is unconstitutional and adds our death statute penalty prospect discovered evidence shows argument newly testimony, for his which leniency did Bobbitt receive those issues him to a trial. We shall consider entitles new first, the Court. they are the ones that divide because Ring Apprendi

A. for a penalties person three Maryland provides possible law death, for first degree imprisonment found of murder: guilty life life without the imprisonment of or for possibility parole, may so be with the of A convicted possibility parole. person (1) however, if death, only gives the State sentenced to penalty of its intent to seek the death advance written notice factor aggravating upon the and informs defendant each (2) here, relevant exceptions it intends to with rely; which doubt, finds, the beyond the a that defendant jury4 reasonable (3) murder; degree jury in in the the principal was a the first finds, doubt, of at least one a reasonable the existence beyond in the and which aggravating specified factor that is law by right a has to have sentence determined 4. The defendant his/her judge. jury jury by a chose to have the determine or Miller sentence, sentencing body jury. so we shall refer to the as 20 (4) notice;

State has given and either finds no finds, mitigating by circumstances a that preponderance, factor(s) it aggravating outweigh has found to exist any eircumstance(s) mitigating jurors found, that one or more have evidence, by preponderance a to exist. in this case was instructed in conformance with noted, found, statutory

that construct. As it beyond a reason- doubt, able that Miller was principal degree in the first in Shen’s and that murder the murder was in committed offense, of a degree course first sexual which is one aggravating by found, factors allowed the statute. It also presumably by preponderance, instructed, ag- that that gravating factor outweighed any and all factors mitigating found jurors. Hence, one or more of the the death sentence. his direct from in appeal judgment and his from appeal trial, the denial of his motion for new that, claims under the pronouncements and holdings Court in v. Supreme Apprendi Jersey, New supra, 530 U.S. 466, 2348, (2000), 147 Ring S.Ct. L.Ed.2d 435 Arizona, 584, 2428, supra, 536 U.S. S.Ct. 153 L.Ed.2d 556 (2002), the use of preponderance standard to govern weighing of aggravating mitigating factors is unconstitu- tional. State, argument 91,

That was made Borchardt v. Md. (2001), denied, 786 A.2d 631 1104, cert. 535 U.S. 122 S.Ct. (2002), 152 L.Ed.2d 1064 which was after Ap decided announced, but prendi Ring before was and was It rejected. State, decided, was made again, Ring after in Oken v. (2003), Md. 835 A.2d 1105 and again rejected. Our decisions Borchardt and were Oken four-to-three decisions. Raker, joined by Judge Judge Chief Bell and Judge Eldridge, that urged Apprendi did, dissent first Ring then indeed, require finding out aggravating factors factors weigh mitigating beyond be a reasonable doubt and any lesser standard was unconstitutional. They continue belief, in which accounts their separate opinion this Oken, case. As expressed only however, a few months in ago of majority this Court to the that holds belief and Apprendi standard, only applied Ring preponderance do not render fact any and not weighing process judgmental evidence, Until from unconstitutional. actually deducible otherwise, that remains chooses to declare Court Supreme of this Court. judgment

B. Bobbitt Clarence testimony. Though sus have Bobbitt’s We recounted significant “jailhouse from snitch” with a in that it came pect record, other evidence criminal it did serve to corroborate concededly that occurred indicating activity that the sexual consensual, sexual degree that it a first was not constituted offense, in the course strangled that was death Shen trial, being called objected At Bobbitt’s that offense. him witness, had claiming promised that the State and had to disclose testimony in for his failed leniency return denied, Miller not complain fact. The motion was did that his judgment. his from the ruling appeal about trial, however, to have discovered motion for new he claimed he leniency, evidence of which could new evidence such noted, the the time of As court been aware at trial. have any there had failed to show found that Miller that, significant had the new evidence possibility or substantial or the sentencing, at trial verdicts been before ruling different. That is before any sentence would have been for new from the of his motion appeal us Miller’s denial trial. Judge

Judge Battaglia, joined by Judge Bell Chief from denial of his Eldridge, appeal find merit Miller’s it judges join As only opinion, motion for new trial. three majority Regretta- does not view this Court. represent required a rather detailed factual demon- bly, exposition no merit. why complaint strate Miller’s has stand, counsel, having taking Prior to Bobbitt’s defense file, him from prison testifying his moved to preclude reviewed promises leniency the State made ground on the had fact. testimony for his and had to disclose that return failed motion, hearing prosecu- on that at which the The court held tors in the Miller case—Mr. Norman and Ms. Coffin—denied that any deals for testimony. had been made his Mr. Norman represented to the court that is no leniency “[t]here promise to in exchange added, this man for testimony.” his Coffin Ms. “As Court, an officer of the no member the State’s Attor ney’s any Office ever extended exchange offers to Bobbitt in for his testimony in State v. Miller.”

The State an submitted affidavit from the Assistant State’s who Attorney prosecuted agreement Bobbitt an had been Bobbitt, made with but that it did not involve his testifying Rather, the Miller case. the affidavit was to the effect that guidelines in Bobbitt’s case for degree burglary first and unauthorized use warranted a from seven ten sentence to years prison agreement, return for a guilty for plea, years, years called ten with all five suspended but favor of years probation three and a evaluation.5 The TAS[C] prosecutor knowing denied even that Bobbitt to was be in the witness Miller case until after the plea had agreement evidence, been made. On this the court denied the motion exclude testimony, Bobbitt’s finding that “there has been no showing deal, that the State an agreement, entered or under- standing witness, with this formally whether informally.” The correctness of that is not ruling before us.

Bobbitt, time, 19 at admitted trial that he had been previously convicted of first degree burglary and pos- sessing and selling handguns, that he had using drugs been since he was that he had carrying guns been since he was 13, that he had in jail been since he was that he was currently for violating incarcerated probation on the burglary gun charges, that he had pled guilty charges new of car theft and burglary, and that he was awaiting then sentence those convictions. He repeatedly any denied that deal had been made his testimony said he not expeet- acronym 5. TASC is an for Treatment Alternatives Street Crime. isIt program County drug offered in Baltimore that includes and alcohol counseling. testimony. The relevant of his leniency ing any because cross-examination, was: colloquy, on burglary again, already guilty pled You’ve “Q ... correct? A. Yes unauthorized use?

Q. And

A. Yes. you are another since. When you’re pending And

Q. sentencing? for coming up No, month, the 9th. it’s this

A. Next month. February 9th?

Q.

A. sir. Yes go you to Judge easier you expecting And aren’t

Q. testifying today? here you’re cause I found out. guilty I even pleaded A. No. See had before sir. Q. question, Answer Oh,

A. no.

Q. No?

A. sir.” No lawyer his he not even told about

Bobbitt added that had and entered when he discussed the conversation with Miller guilty plea. sentencing, February postponed. for was scheduled in by Judge April, Fader eventually sentenced Bobbitt was in case. than he testified the Miller year 2001—more after time, year imposed he a four sentence serving At the Fader Judge suspended in Judge Levitz another case. prison and remanded Bobbitt year entire ten sentence It is clear from the record the other sentence. complete whether, time, into the accepted at that he had been before us if had made with his progress, any, or he TASC what program drug problem.6 accepted against that he had been proceedings Bobbitt reveal

6. Later and, October, meetings program but missed five into TASC had positive tested for cocaine. had years ease, testimony Two after Ms in the Miller Bobbitt was called as a uncle, State’s witness his prosecution of Joswick, Richard for murder. there Although was no connec- cases, tion between the Miller and Joswick defense counsel in out brought Joswick the fact that Bobbitt had testified in Miller, suggested that he had been given in return leniency case, for his in a testimony murder sought permission explore whether his current testimony Joswick was similar- ly that, motivated. Counsel him on cross-examined and Bob- again bitt demed expecting receiving any benefit Ms testimony Miller: Bobbitt,

“Q you before, Mr. you? have testified haven’t A Yes. case, You

Q testified in a you murder did not?

Yes,A sir.

Q you case, And when in that testified person you jail,

testified went against didn’t he?

A He got the death penalty. Now,

Q you had a charge hanging your over head

time, did not? you

Yes,A and I to prison. went You

Q prison, you went to go but didn’t to prison as long have;

as you right? could is that A. Yeah.

Q. you got And a benefit? A. Not testifying I didn’t. for

[*] * * ^[*] But Q. you that, a expected benefit from did you not? No, A. I did not.” added).

(Emphasis examination, On re-direct the prosecutor elicited the testi- mony Miller now complains and that Judges Battaglia, Bell, and find Eldridge compelling: Bobbitt, a clear, in matter you Mr. testified so I’m “Q. Just a John Mil- against this case unrelated to completely ler, that right? Yes,

A. sir. a in that case? plea agreement have Q. you Did A. Yeah. negotiation a with State? you entered into

Q. Where plea A. Like a with State?

Q. Yes. Yeah, we sentence. pled A. for is that bargain; into Exactly. you And had entered Q. right? Yes,

A sir. you testimo- exchange bargain, gave for that certain Q. case; right? is that ny in Yes, A. sir? in this case? place like that take

Q. anything Did No, A. sir.” added).

(Emphasis penultimate Regarding ambiguous response Bobbitt’s answer, as question, than an recorded as rather question, indeed, may have newly evidence Bobbitt discovered for him to in Miller’s bargain calling testify a plea received case, was that argument new trial. His Miller moved regarding bargain, given testimony had false Bobbitt testimony knew his have known that the State should false, failure advise Miller false and that its Bobbitt’s Brady Maryland, a violation of constituted testimony (1963). hearing At the 83 S.Ct. L.Ed.2d 215 U.S. Bobbitt, motion, Norman, prosecuted who had on that Mr. promises no had been made to Bobbitt in again testified that of defense testimony. for his With concurrence return Coffin, in counsel, that Ms. who assisted proffered the State Miller, give testimony prosecution of would similar —that day until not even met he testified she had Bobbitt Miller’s case and had no for promises made deals his testimony. Neither side testify. called Bobbitt to Joswick,

Stephen who Bailey, prosecuted testified regarding (to colloquy upon Judge Battaglia which relies the exclu- evidence). of Bailey Joswick, sion all other explained that uncle, into breaking Bobbitt’s was accused his girlfriend’s and strangling house her and the investigation revealed Bobbitt, just who had from prison, been released had day following been with Joswick the Bailey the murder. said that he knowledge had no of Bobbitt’s involvement and, case no initially, Miller had intention of Bobbitt to calling testify Joswick. He described Bobbitt as a reluctant very during cross-examination, and emotional counsel was witness — full “bringing import out the of the fact that Bobbitt’s testimo- ny could send his uncle to for possibly prison the rest his face, life” running and “there were tears down his he had nose, running mucus out of his his visibly shoulders were heaving, that continued through cross redirect.” Bai- that, ley agreement testify, added because Bobbitt’s his own mother —Joswick’s sister —would no longer speak him.

Bailey said he with had talked on two occasions Bobbitt prior to the Joswick trial and had made to him clear that there testimony case, would be no deals his in that and that at no during time those conversations had ever indicated Bobbitt that he had a deal in testimony made connection with his because, case. This significant, became prior trial, again Joswick was arrested pros- Bobbitt faced the pect Judge fact, revoke having Fader the probation. that what three-year occurred: he received a sentence for crime, did, indeed, the new Judge Fader revoke the probation and direct execution of the ten-year entire sentence that had previously suspended. been Based on the cross- examination, however, Bailey suspected that counsel defense had some evidence that a indicating deal had been made with respect the Miller case and decided to explore the matter on re-direct examination. found, a evidence, judge the trial as

Having all this heard that, fact, if one could be ambiguous response even that evidence, has “the Defendant newly discovered regarded that there is a substantial not met demonstrate his burden jury the either that verdict significant possibility or this case would sentencing phases or the of guilt/innocence that, obviously court did not believe been affected.” The have along and that one context jury response, had the heard its bearing question, on the all of the other evidence with any have different. verdicts and sentence would been Miller, Bell, Judges Battaglia, Eldridge, and view not as an but as a ambiguous recorded answer response, one Bobbitt, indeed, may that only proof not as clear question, significant testimony for his but as so have received benefit it that, likely that jury inquisitive response, had the heard or Miller of the sexual offense would have convicted him to death. sentenced belief, our that argument, colleagues’

Miller’s three entitled, law, of trial is wholly as a matter new for unwarranted; whatever such a there is no reasonable basis of They ignore unambiguous testimony conclusion. Bob- case, bitt, in that both the Miller case and the Joswick no deal Miller, they testimony ignore was made for his unam- matter, of in the biguous testimony every prosecutor involved trial they give finding no credence whatever heard, who all that that judge, heard evidence him that there is persuade any Miller had failed substantial the one significant possibility ambiguous response is no any would have different result. There reason- produced that, basis for a heard this one able belief had witness, it response from emotional would have highly disregarded or found the clear and unpersuasive unambiguous every and of Bobbitt himself testimony prosecutor involved testimony.7 that no deal had been made his Judge Battaglia on that her conclusion is not based this one 7. claims ambiguous response but rather her determination "Bobbitt affirmatively responded questions plea than times to about a no less five

Newly discovered evidence warrants a new trial if only it “may result, is, well produced have different there was a significant possibility substantial or verdict the trier of have fact would been affected” and that only issue on from a appeal ruling denying such a motion is whether the trial its court abused discretion in concluding that State, 637, that test had met. Campbell not been 373 Md. State, 821 1 (2003); 648, A.2d Baker v. 695-96, 367 Md. 790 (2002); State, A.2d 612, 626, Jackson v. 358 Md. (2000). A.2d is nothing There in this to justify record upsetting judge’s the trial conclusion Miller to that had failed possibility. establish that

C. Doubt Sentencing Reasonable Instruction at At the guilt/innocence trial, conclusion stage of court jury that instructed the State had the burden proving guilt a beyond reasonable It told the jury doubt. the State guilt beyond possible need not all to prove doubt or a certainty, mathematical but that proof beyond a reasonable “requires proof doubt such as you would convince of the truth of a fact to the that you extent would willing be to act upon such belief reservation in without an important your matter added). own business or personal (Emphasis affairs.” No instruction, exception was taken and no complaint made about it here.

At the sentencing proceeding, the trial court in- correctly that, in formed the order to death, sentence of it impose find, was required beyond doubt, a reasonable that Miller was a principal the first degree the murder and he committed the murder while to commit attempting a first bargain related responded to the case.” It is true that Bobbitt questions several bargain, occasions to plea about a but on each specifically any occasion he leniency promised denied that there testimony. prosecutors consistently for his he Both and the described plea bargain plea guilty as for sentence: one in return for a 10

year years suspended. only sentence response with five that could conceivably question indicate otherwise is the one followed mark. Judge Battaglia any regard, fails to note other evidence in this and for good reason: there is none. doubt” “reasonable court defined offense. The degree sexual follows: a doubt as in the law as such is defined “A doubt reasonable act in the hesitate to person cause a reasonable would Proof life. of ones transactions important or more grave any proof beyond not mean doubt does a reasonable beyond it does but certainty, mathematical to a proof doubt of a of the truth you convince such as would require proof upon to act such willing be you to the extent that would fact business or your own affecting in an matter important belief affairs.” personal added).

(Emphasis Miller now instruction. was taken to that exception No of “to hesitate however, substitution about the complains, sentence, arguing first for “without reservation” act” beyond proof to the conveyed that somehow this respect something meant less with reasonable doubt finding respect than it did with sentencing requirements State, 370, 295 620 A.2d v. 329 Md. guilt. He reads Wills (1993) sentencing making given as the instruction hearing inappropriate. that, objection Miller made no answer is simple instruction, about it. right complain he has waived his 238, 245-46, Rose, 4-325(e); v. 345 Md. Rule State

Maryland 629, (1997); State, 1314, v. 343 Md. 691 A.2d 1317-18 Walker State, 65, 645, 429, (1996); v. 337 Md. A.2d 436 Bowman 684 (1994). 67-68, 954, Recognizing procedural A.2d 955 650 deficiency plain under Miller asks that we review the lapse, in a instruc “plain have defined error” error rule. We fair right to a vitally as “error which affects defendant’s tion under the limited our review and trial” and have impartial “compelling, which are error doctrine to circumstances plain the defen to assure or fundamental extraordinary, exceptional Hutchinson, 198, 203, 411 v. 287 Md. dant a fair trial.” State 206, 211, (1980); Md. 1035, v. 321 Daughton, A.2d 1038 State State, 236, 223, 521, (1990); 330 Md. A.2d 523 Richmond v. State, 630, Ayers v. (1993); 602, 627-28, 623 A.2d 335 Md. (1994). 645 A.2d do not any

We see such error the instruction at the given sentencing proceeding, and thus conclude that has, indeed, complaint. waived his Had we reached the issue, however, we would have found no error at all in the instruction. Wills, we reversed a conviction because the rather

rambling given reasonable doubt instruction was “confusing misleading” towards the preponderance “lean[ed] standard rather than the reasonable doubt standard.” Wills State, supra, 329 Md. at 620 A.2d at Although, 303. concurring opinion, Judge wisely McAuliffe suggested judges “closely Maryland trial adhere” to Criminal Pattern 2:02 Jury attempting Instruction when to define “reasonable doubt,” instruction given guilt/innocence stage at the —the impose trial —the Court did not that as a or requirement suggest including “hesitate to act” of “without place reservation” would make the instruction erroneous. We con- State, Hunt v. 122, 151-52, that in firmed 345 Md. 691 A.2d (1997). 1255, 1269 nothing We find confusing misleading Indeed, by about the instruction. using the “hesitate to act” language, more, less, the court probably gave Miller than receive, that, he was entitled to as it if suggested matter, even had to take time to think about the it would have a reasonable doubt. Regarding

D. Weighing Mitigating Instructions Aggravating Circumstances The court’s instructions at sentencing focused on the written Findings and Determination Sentencing sheet that was sub- in mitted to the conformance jury Maryland with Rule 4- 343(h). I Section asked whether Miller was a in principal the first degree Shen’s murder. II Section asked whether the aggravating two factors alleged by the State had been proved. III Section dealt with mitigating circumstances. mitigating circumstances regarding In its instructions III, mitigating “anything a factor the court defined Section that in facts of this case or about the about the Defendant an mercy may make the death sentence fairness and that and stated for this Defendant” inappropriate penalty yourself any mitigat- whether you “each of must determine that The court repeated circumstances exist this case.” ing each individually mitigating of should consider you one “[e]ach three gave jury The written document circumstance.” circum- respect every mitigating choices with to each (a) by found a jury unanimously preponder- stance: that the circumstance did mitigating ance of the evidence (b) exist; by preponderance that it found a unanimously (c) exist; jurors, that it did not or that one or more evidence by but than all found preponderance fewer was in- evidence the circumstance existed. The regard. again structed The court iterated before respect mitigating III that “with cir- leaving Section cumstance, should circum- you each consider each stance.” here,

Finally, as relevant was instructed that “once III, circumstances, you mitigating you consider Section shall by preponderance then determine whether the evidence or aggravating outweigh circumstance circumstances or court in- mitigating circumstance circumstances.” The do not find you preponderance structed that “[i]f aggravating evidence that the circumstance or circumstances circumstances, outweigh mitigating circumstance imprisonment,” conversely sentence shall be life that “[i]f you unanimously proven by prepon- find that the State has derance of the evidence that the circumstance or aggravating circumstances or cir- outweigh mitigating circumstance added). cumstances, the sentence shall be death.” (Emphasis sentencing Section IV of the form stated that individ- “[e]ach ual shall juror weigh aggravating circumstances found unanimously against any to exist circumstances mitigating exist, found unanimously against any mitigating as well as (Em- juror circumstance found that individual to exist.” by added). phasis an additional instruction the proposed regarding circumstances and

weighing mitigating aggravating court’s failure to include that instruction. He objected the in juror engage asked that the court instruct must “[e]ach individually this and reach his or her own weighing process decision,” juror weigh and that because “each will be personal jury the same circumstance that the collec ing aggravating own individual tively against has determined exist their ... mitigating determination of circumstances the actual weighing aggravating against circumstances miti process juror.” circumstances could in fact be different for each gating proposed necessary Miller avers that his instruction was Maryland, the mandate of Mills v. 486 U.S. implement (1988) juror 100 L.Ed.2d 384 that each must S.Ct. weigh against any mitigating circumstances cir aggravating exist, juror individually cumstances that the has found to even if the as a has not found that circum mitigating whole complains stance to exist. He that the court’s use of the word in “you” describing weighing process may the have been sense, than plural singular rather interpreted juror that each properly convey the instruction thus did decision, weighing must make an individual and that misinterpretation regarded of such a cannot be prospect sentencing corrected Section language IV form. an

Although proposed inappro- Miller’s instruction was not Mills one, or in priate nothing any there is other decision any cited to us that mandates its use. Nor do we find Mills, given. Supreme confusion the instructions interpreted then-existing sentencing possi- Court form as it bly permitting weigh to conclude that could not an mitigating against aggravating circumstance circumstance (and death) than impose thus sentence other unless all circumstance, and, jurors agreed upon mitigating upon concluded that the scheme was interpretation, sentencing unconstitutional. the Mills in the pending While case Court, Supreme changed sentencing we form to eliminate Court, the ambiguity telling by Supreme found and the Court noted that the new form—the one used in this case—did Mills, 381-82, 108 serve to eliminate the problem. 486 U.S. at 1869, 100 S.Ct. at L.Ed.2d at 398-399. suggestion jurors

Miller’s that the not may have realized that, in using “you,” court was pronoun speaking individually each them and that the court had therefore Mills, regressed to the in approach wanting wholly found is speculative and court unpersuasive. abundantly made juror clear that each was to weigh individually determine and whatever he or she found would make a death sentence inappropriate, repeated and it that point several times. As we instructions, read the it is clear that word “you” “your” was intended in singular, juror addressed to each individu- ally. When the court intended to refer to the jury collectively, as a it body, added the word “unanimously.”

E. Miranda Violation When police found eventually apart Miller at his just 28th, ment p.m. after 9:00 on the him they removed from him apartment and with in hallway. talked He was arrest, drawn, not then guns under no were he was not handcuffed, and no hands had been laid on him. first Without him giving the Miranda warnings, Price him Sergeant asked where he had day, been all to which responded he that he had been playing golf. Officer Kennedy, who had golf noticed the clubs the closet during the earlier if sweep, asked he had golf him, taken his clubs with to which responded he “yes.” When Kennedy observation, informed Price of his earlier Price asked Miller whether he had come home between the he golf mall, time finished playing went to the shopping and he replied that he had not. again He said that he had golf taken his with clubs him. he Finally, having denied been pool at the any talked with there. girls having those statements as suppress

Miller moved sans Miranda interrogation of a custodial product been the the court warnings. pre-trial suppression hearing, After inadmissible, the statements that relief and declared granted not, fact, Sweeping admitted at trial. they were (indeed mentioning aside not even it his rather critical fact brief), invalidity interrogation of that urges his at the but all of the just responses apartment tainted station, had, in at the after he police statements made later his Miranda fact, warnings. argument His given been Elstad, 298,105 1285, 84 by Oregon 470 U.S. S.Ct. answered (1985): L.Ed.2d

“If are law enforcement officers adminis- errors made Miranda they should tering prophylactic procedures, consequences police not breed the same irremediable an un- of the Fifth Amendment itself. It is infringement extension of Miranda simple to hold that a warranted any warnings, unaccompanied by failure to administer calculated to under- actual coercion or other circumstances will, to his so taints suspect’s ability mine the exercise free voluntary that a and investigatory process subsequent peri- informed waiver is ineffective for some indeterminate Miranda Though requires od. that the unwarned admis- admissibility any sion must be subse- suppressed, solely should turn in these circumstances quent statement knowingly voluntarily on whether it is made.” 309, 105 1293, Id. at 84 L.Ed.2d at 232. S.Ct. Elstad The attempt distinguish unpersuasive.

Miller’s nature, if in interrogation apartment, at the even custodial coercive, responses largely exculpatory, they his were little, had if influence on the statements made any, inculpatory changed being later at station. He his after police story his Miranda warnings, being after informed that Shen’s given recovered, him and after Detective Hill told body had been Com exculpatory explanation. that he did not believe Miller’s — States, U.S.—, pare Fellers United S.Ct. (2004) (finding police 157 L.Ed.2d 1016 conversation between had been counsel, in and defendant absence after defendant States, indicted to be violation of Massiah v. United (1964)). 1199, 12 L.Ed.2d 246 U.S. S.Ct. Argument

F. State’s Rebuttal During sentencing proceeding, produced former classification counselor at the Deten County Baltimore Center, tion who testified as to positive adjustment Miller’s when he was an inmate at the Center trial. He also awaiting Carolina, a social from produced worker South who had done a family study and who testified about Miller’s somewhat chaotic upbringing. closing argument, defense counsel stressed testimony urging mitigating find various factors.

In his closing argument, rebuttal the prosecutor responded to some of He argument. suggested it was not that Miller had surprising jail, behaved himself because he was not stupid, starting problems awaiting while trial was needs,” thing “the last he that he needed to control himself out, until the trial prosecutor pointed was over. The he said, because, if Miller was to be sentenced to in prison, life got continued, “what’s he prosecutor lose?” The “I’m in jail, life without I parole, get trusty little action see working, boom, a young lady guard day, my one predator nature comes out. they going objection What are to do?” Miller lodged an comment, and a motion to strike the which the court immedi- ately granted. sustained and prosecutor then testimony turned of the social

worker, that not regard she did Miller as a predator. The worker, social though occasionally testifying for defendants cases, capital did predominantly adoption prosecu- work. The remarked, woman, tor “Here is a who by her own admission Carolinas, and Carolina, think, a former life South I decides what should or parents should not be to adopt allowed and children she doesn’t think this is a guy predator.” Miller again objected, and again the court sustained objection.

At the conclusion of argument, the rebuttal Miller moved for mistrial based on the two comments. The court denied that, during argument, instructed the

the motion but it argument, objections prosecutor’s were two there them, “complete- that the must and had sustained both point that were made at that the comments ly disregard “predator,” use the word Keying prosecutor’s on the time.” beyond to be as so as prejudicial the comments regards Miller instruction. the curative remediation In in context. comments need be taken The prosecutor’s history, the family Miller’s testimony regarding extensive her nature detail Miller’s violent worker some social described with a former He had been violent irregularities. and sexual as a result. Kim, relationship had ended the who girlfriend, wife, Tina, both before with his former had been violent He restraining order There was during marriage. and Tina, and the vio- him when he married outstanding against twice, Tina At marriage. least throughout lence continued to attend required him. he was against charges filed as a result one counseling clinic for batterers a six-month eight, his sister was he he was those When charges. year. His regular on a basis about abused her sexually attempting to him in bed with his sister caught father once the wit- summary, have intercourse with her. Somewhat ness said: in his own He saw punching bags. as

“He saw women as of sex bags, providers women family punching women meal demand, and women as drug partners women as they’re worry as a source of tickets and then women was self you or abandon and there you to leave going did leave in that for His women John. fulfilling prophecy so abusive.” him because he was her, the prose- cross-examination of At conclusion of his she would characterize the social worker whether cutor asked That replied she “no.” predator, Miller as sexual in his argument. was responding answer to which he entitled, and record, to which he was got this all On more, objections sustained his when the court perhaps was no abuse of discre- instruction. There gave the curative it heard for mistrial. Given what the motion denying tion in have been worker, possibly could not social from the comments, it was which brief by prosecutor’s prejudiced in any event. disregard instructed to Penalty Constitutionality of Death Statute G. on the to be a dual attack appears makes what first, Ring, on hinged Apprendi law. The penalty death unconsti The second is that it is already have addressed. we factors mitigating to to establish require tutional a defendant that non- of evidence and establish by preponderance are, fact, circumstances mitigating enumerated statutorily rejected argument circumstances. We have mitigating State, Md. occasions, recently most Ware number (2000), no reason to 650, 712-13, and see 759 A.2d differently rule now. Apartment of the

H. Initial Search in an apartment, of Miller’s effort The initial search inside, between 7:45 occurred determine whether Shen suppress 28th. Miller moved to “obser p.m. and 8:00 on the search, which the court made” limited during vations basis that the had a reasonable ground police denied on the urges existed. Miller believing emergency for that an search was no and that the warrantless emergency there was Shen, missing only says, unlawful. he had been therefore discovery no sign play. hours and there was foul three closet, taint says, in the he served to golf clubs thereafter, police it that occurred led everything day. There story having played golf disbelieve his about complaint. no merit to Miller’s utterly A time, information. 17- following At the had the police woman, by described her mother friends year-old young who drug problems, no alcohol or responsible person, as a with then, to do run and had no reason so away had never before job a man named John. This babysitting had with accepted pool presum- had and therefore apartment man been He had been seen apartment complex. lived ably a Geo Tracker. Shen had her driving promised page Mends 10:00 that and had not done so. No one morning her, reported had heard from and she had not for work at hours, had for effectively missing 5:30. She been about ten not three hours as Miller Her Mends her suggests. mother had said that it unusual for out of very Shen to be touch. police began doing

The house-to-house checks and conduct- A ing interviews. searched for both Shen’s car and helicopter nearby the Geo Tracker. One officer learned from a conven- a ience store that man named John Miller had worked at the

store, fired, that and that he had been he drove Geo Tracker n withNew York number, tags. The store provided telephone at 415 police Apartment Valley which the traced B3 Mead- Circle, in Bentley Apartment ow Park A development. prior charge records check revealed a false imprisonment against descriptions police Miller. The received of Miller person matched that of the named John described Jessica information, and Lauren. Based on that Sergeant Price au- apartment thorized officers to knock the door of Miller’s and, if no key there was to secure a and enter the response, were to see if Shen was inside and to check apartment. They for well-being. Sergeant her Price directed the officers to be, in places search where a could but not to into person go any drawers or small places person where could not be. Price, According just “it was of the quick sweep apart- safety they ment for reasons and then left.” v. Michigan Tyler, 436 U.S. 499, 509, 1942, 1949, In 98 S.Ct. (1978), 486, 56 Supreme L.Ed.2d 498 Court noted that it had “recognized entry by a warrantless criminal law may legal enforcement officials be when there is compelling need for official action and no time to In secure a warrant.” case, exigency investigate was to a fire the build Arizona, v. Mincey ing. 385, 392, 2408, 437 U.S. 98 S.Ct. 2413, (1978), 290, 57 L.Ed.2d 300 the Court confirmed that it not question right police did respond emergen “[njumerous situations, cy and that state and federal cases recognized have the Fourth Amendment does bar

39 and searches warrantless entries making officers from police is in need within person believe that a they reasonably when States, 318 Wayne from v. United Quoting aid.” of immediate (D.C.Cir.1963), made clear that 205, “[t]he 212 the Court F.2d injury is or avoid serious preserve or life protect need to an illegal absent what would be otherwise justification State, 628, Md. 327 emergency.” See also Oken exigency State, (1992) 258, Burks v. 644-45, 612 A.2d denied, 381, 332 Md. A.2d cert. Md.App. 451(1993). A.2d that, on the information concluding no hesitation

We have time, in the reasonable they at the acted police available to the justified circumstance existed exigent belief that an police entry apartment. into Miller’s brief and limited any without teenager disappeared for a who had looking were reason, job stranger with accepted babysitting who had returned from it. and had never apartment linked to that as a caretaker investigation clothed This was not a criminal function, and assist a child who legitimate but a effort to locate was not to objective The initial have been trouble. may present as to inquire anyone but to apartment, search only occurred because no one entry whereabouts. The Shen’s valid. entry home. The and limited search were Regarding Impact Evidence Instruction Victim I. sentencing At the Shen’s mother testified proceeding, death on her and Shen’s briefly impact about the Shen’s testimony only covers younger older sister and brother. The was, A expected, poignant. but it pages, two-and-a-half This kind of from father was also introduced. letter Shen’s by statute and case impact permitted by victim evidence is Code, §§ 11-402—11-404 of the Criminal Maryland law. See Tennessee, Article; 41, 4-609(d); Payne § Art. v. Procedure (1991); 2597, Conyers 115 L.Ed.2d 720 501 U.S. S.Ct. (1999) State, 132, 177-78, 354 Md. A.2d challenge impact does not the victim cases cited there. Miller itself, given but rather the instruction evidence concerning it. instructions, part the first of its the court instructed the

jury regarding the kind of evidence it heard and its role in instructions, considering that evidence. As of those part court noted that had heard or seen or testimony statements by family, members Shen’s it informed the jury:

“This testimony and these statements are known as victim It impact. given weight you should be whatever feel it impact deserves. victim should not be considered you determining whether the Defendant is a principal degree the first or whether the aggravating circumstances may exist. You consider these statements in determining, form, instructions to pursuant my you and the verdict death, whether the sentence shall be life without parole impact life. Victim describes the nature of the harm caused by the Defendant.”

Miller had submitted an alternative victim impact instruc- tion, and, instructions, completed when the court its he com- mented that his instruction is “far instructive proposed more explains much more detail how the evidence is be said, given, used.” The instruction he “is too entirely concise fully and does not each and explain every detail.” Miller asked that four particular paragraphs of his instruc- proposed tion be added. Finding adequate, its instructions the court denied request. sought by

Two of the paragraphs essentially repeated given by the admonitions the court that victim impact evidence could not be used in determining princi- whether Miller was a in in pal degree the first or an determining aggrava- whether ting circumstance existed. The paragraphs other would have the that victim jury impact informed evidence could never as for making serve the basis a defendant for the eligible death that it did not constitute an cir- penalty, aggravating own, of its that it in cumstance could not be considered determining whether aggravating circumstances outweigh any mitigating points circumstances. Those were made clear in governing aggravating other instructions circumstances weigh as to those and how it was to consider jury circumstances. mitigating against any circumstances is that by made now Miller argument The principal given “should be what- evidence impact that victim instruction to too jury give allowed the feel it deserves” weight you ever He con- to the evidence. weight weight improper much not covered argument “arguably that his current cedes asks that instruction” but oral or the submitted exception error doctrine. Whether plain consider it under we clear not, error. The court made there is no plain covered evidence impact not consider the victim jury that the could in the first degree determining principal whether was The aggravating of an factor. or in the existence determining its with respect free use that evidence jury certainly was weighing process in the factors and mitigating consideration it, contexts, instructed, in those and, give as the court it deserved. weight jury whatever felt Robbery an as J. Submission Aggravating Circumstance circumstances aggravating The State offered two the murder was commit quest penalty its for the death —that offense and that it degree in the course of a first sexual ted robbery. of a The latter was was committed the course purse stole and her wallet. based on the fact that Miller Shen’s aggravating on two occasions to strike both Miller moved factors, the court denied the motion and and on both occasions jury. factors to the ultimately aggravating submitted both robbery that the was an argued Defense counsel was dead was taken after Shen thought purse after —that not, therefore, committed in the killing and that That found favor with the robbery. argument course of the which, noted, prove found that the State had failed to of a robbery. was committed the course that the murder had a different view about the sexual jury obviously offense, that the murder proved as it found that the State had in the course of that offense. was committed 42 returned,

About five months after the verdicts were this State, 576, Metheny decided 359 Md. 755 A.2d Court 1088 (2000), that, in which we confirmed is as robbery alleged when case, in an circumstance a death aggravating penalty State in must that the murder was committed with or further- prove the murder “must have been con- robbery ance —that by nected to the crime more than mere coinci- aggravating dence, from eliminating penalty therefore death consideration Id. at 618, robbery afterthought.” committed as an 755 A.2d trial, Metheny at 1111. In a motion for new heard after was filed, that again complained robbery Miller offense should an aggravator not have been submitted as because there was that in no evidence the murder occurred connection with the motion, robbery. The court denied the and the issue is raised in this again appeal. is, course,

There this huge one difference between case Metheny. Metheny, only factor sub- aggravating jury mitted to the was that the murder was committed in the robbery, commission of a and the death returned penalty on that jury solely aggravating thus rested circumstance. only Metheney’s evidence that case was that “concep- design clothing tion of the to rob of her and purse [the victim] was not formed until after the murder” and we therefore held the intent to steal was formed after “[b]eeause murder, a rational of fact trier could have found while [Metheney] committing murdered the rob- [the victim] 631, bery.” Id. Here, noted, A.2d at 1118-19. as factor. Methe- an robbery aggravating dismissed the as ny does not assist Miller. State, (1984)

Citing Brooks v. 299 Md. 472 A.2d 981 State, Sherman v. (1980), Md. 421 A.2d submission of an complains very robbery aggravator may finding have tainted the degree murder was committed the course of a first sexual offense, and that the death sentence should be annulled for First, that reason. for two reasons. wrong He there of when no an direct evidence this case Miller formed intent believe, jury obviously beyond to rob Shen. The did not of value from doubt, anything took that Miller reasonable If alive, it could have so found. still but while she was Shen was alive that Shen credited Miller’s statements jury the had indeed, would, die, murder in the car to the when he left her robbery, as he took in the course have been committed fact, In car. he he left her the her and wallet when purse in the car and put items when he Shen possession had of those an intent to return them to never did to indicate anything he her. as an submitting robbery if err in the

Even the court did circumstance, not help Brooks and Sherman do aggravating Brooks, Miller, In the distinguishable. as both are defendant offenses, armed rob- variety including was with a of charged a robbery, carrying to commit armed and bery, conspiracy injure, arising with intent all out of the deadly weapon At during robbery. of an armed murder one Keith Bee case, the court found insufficient evidence close of the State’s of charge granted judgment to sustain a conspiracy urging, on that count. At the the court acquittal prosecutor’s all counts ruling later reconsidered that and submitted three of all reversed the jury, to the which convicted three. We grounds conviction on double once conspiracy jeopardy —that court, judgment acquittal of had been entered to the Be- charge jury. could not be revived and submitted charges cause all not stemmed form the same only three interrelated,” incident but “were we could declare belief wrongful doubt that the submission of the beyond reasonable jury’s did not taint the consideration of the conspiracy charge well, reversed them as well. charges other so we Brooks, no here be- inter-relationship Unlike there was The issue as to the robbery. tween the sexual offense and the as an was whether the intent to steal robbery, aggravator, or was stran- property Shen’s was formed before while Miller die, Did leaving her and her to afterward. he take gling claimed, as an as he or had purse afterthought, wallet The had property robbery he intended to take the earlier? offense, nothing whatever to do with the sexual however. (1) activity issues as to that offense were whether the sexual (2) was part, consensual Shen’s whether the murder completed. occurred after it was There is no inter-relation- ship possibility whatever between the two offenses and thus no taint- jury’s robbery consideration unfavorable of the sexual offense. ed its consideration Sherman, defendant, lawyer, charged was with five from arising personal offenses the unauthorized use client trial, funds. the court entered During judgments counts, acquittal on two of the but then allowed the entire indictment, counts, to containing go those two to the That violation of a room. clear Rule this Court that documents to to the charging go jury only allowed they extent that reflected which the was to charges upon “dead” counts were not permitted go deliberate: that, jury. reversing, prior adoption we noted to the of rule, judge had discretion as to what was allowed in jury adopted room and that the Court the Rule because over the from the submis- potential prejudice arising concern sion of counts that had been eliminated. The previously not a decision to reverse was Constitutional one but rested which, entirely on the mandate of the Rule as a “precise rubric,” was to be and followed. No counts read “dead” were in this submitted case. Sufficiency

K. of Evidence of Sexual Offense Miller contends that the evidence was insuffi legally cient to establish that the murder was committed degree commission of first sexual offense. Under former (and Code, § Art. Law Art. Maryland current Criminal 3-305), § of a first offense if person guilty degree sexual engages a “sexual act” with another force or person other, threat of force and without the consent of the suffocates, injury or inflicts serious on the strangles, physical victim in the course of the crime. A act committing sexual 461(e) Code, Maryland § was defined in former Art. (current 3-301(e)) § Art. cunnilin including Criminal Law which act gus, upon by was the relied the State to establish the offense and falls “oral colloquial which within term (current 413(d)(10) 27, § Criminal former Art. sex.” Under factor, for pur- it is an 2-303(g)(x)), aggravating § Law Art. if committed the the defendant of the death poses penalty, a sexual to commit attempting committing murder while first degree. offense in the in some of police

Miller admitted in his statement that he en- officers by police calls overheard telephone however, that complains, sex He gaged in oral with Shen. there no corroboration those statements there was consensual, oral not as he was no evidence that the sex was testimony examiner’s He medical maintained. overlooks body, on Shen’s regarding the various bruises and abrasions did, that she can be drawn from which a reasonable inference indeed, violent and activity and that the sexual was both resist testimony He also brushes aside Bob- non-consensual. her. said no. Threw her on that “he tried to seduce She bitt off, her, ripped top sexually her started the bed. He smacked said noth- blithely wholly premise only mistaken Upon charge evidence that he committed first supporting to degree sexual came from his own statements offense police, police by argues and overheard court instruct need for erred to those failing that he acknowledges statements be corroborated. He did to the omission object ask for such an instruction or one, that we his under the give complaint but insists address error, find no and thus con plain plain error doctrine. We if we clude that the waived. Even were complaint however, no complaint, address the we would find error. 46

Maryland general that, follows the rule as a matter law, substantive a criminal conviction cannot rest solely on an State, uncorroborated confession. See v. 591, Woods 315 Md. 615-16, (1989). 236, 556 A.2d 248 clear, We have made however, that it is not necessary for the corroborating evi dence to be “full and complete that it establish the truth of the corpus delicti either beyond a by reasonable doubt or preponderance State, of proof.” Cooper 183, 190, v. 220 Md. 120, (1959); State, A.2d v. supra, Woods 315 Md. at 616, 556 evidence, A.2d at 248. The supporting said, we have “may be small in amount” and is sufficient to establish the “if, corpus delicti when considered connection with the admission, confession or it satisfies the trier of beyond facts reasonable doubt that the offense charged was committed and that the accused State, committed it.” Bradbury v. 233 Md. 421, 424-25, 197 126, (1964); A.2d State, Woods v. 315 Md. 616, 556 A.2d at 248. These which precepts, have been times, many stated were confirmed more recently Ballard State, 567, (1994). v. 333 Md. 636 A.2d 474

Miller’s admissions came in three forms—his oral and writ- ten police, statements the statements he made on the telephone that were by overheard the police, and the admis- sion he made to Clarence Bobbitt. There was independent forensic ejaculated evidence that he had Shen, which certainly established that sexual activity some kind was committed, and there was medical evidence of contusions and abrasions on Shen’s head and much of her from body, which a reasonable inference could be drawn that the activity was violent and non-consensual. We made clear Ballard that the corroborating evidence need only establish the corpus generally deliciti and need not establish “each component element of corpus 577, delicti.” 333 Md. at 636 A.2d at 478, State, quoting from Ball v. 338, 351, 57 Md.App. 470 A.2d (1984), on other grounds sub Wright nom. modified State, (1986). 307 Md. 515 A.2d 1157 It is not neces- therefore, sary, that the corroborating evidence establish the precise method which the sexual offense was perpetrated. The corroborating sufficed, evidence here more than so there rights in the material to Miller’s not no error only plain was never requested, an that was give to instruction court’s failure no error at all. but Expert of Defense Impeachment

M. Dr. presented the sentencing proceeding, defense At Carolina, testify to from South Burry, a social worker Caroline social, family, personal history. and Miller’s regarding in a credibility number to her attempted impeach prosecutor of questions. lines here about two ways. complains Miller 4-343(d), Rule which is part Rule Maryland cases, sentencing pro death proceedings penalty governing that, has of the State after the defendant upon request vides first degree, in the defendant guilty found murder been and “all copy the State produce permit inspect must by the action each made connection with reports written to call a witness at the expert expects the defendant “the only substance sentencing but must furnish proceeding” case, In this the State any report such oral or conclusion.” was ever report pro such a but no written request, made testimony It Dr. Burry’s evident from duced. seemed actually had not counsel. Dr. Burry testified that she was not to asked make a report written but she was not told not to make such a report. It appear would from that testimony the decision not to prepare was, report indeed, written made by her. Who made the decision is unimportant in any event. It is fair and relevant for the inquire State to why the expert, who spent more than 70 hours on her investigation and who was fully aware of the disclosure requirement, would make exten- sive written guide notes to her testimony, including a written geneogram tree, Miller’s family but fail to make a written report, and to suggest that the reason was to avoid to having disclose the report to the State.

The second line of questioning challenged by Miller concerned three people interviewed Dr. Burry —Miller’s Ruhl, former Kim girlfriend, cousin, his Gardner, Phil and his Aunt Carol. prosecutor asked Dr. Burry whether Ms. Ruhl appeared any have physical impediment that would prohibit her from and, moving freely, about objection, over witness said “no.” The same question and, was put, over objection, answered, with respect to Gardner and Aunt Carol. Miller treats these questions as raising the question why those "witnesses could not have come to Maryland to testify and, result, as a as an attack on ability his to use hearsay statements as of a part social history which report, we de permissible State, clared Whittlesey 340 Md. 665 A.2d (1995).

We find no basis for such an argument. Statements made by persons those to Dr. Burry were without admitted objection, so clearly there no conflict with Whittlesey. Even when a person’s extra-judicial statements are admissible under some exception to or relaxation of the hearsay and best rules, evidence it is fair to inquire whether there is any impediment person appearing in court and testifying directly, subject to cross-examination. Such an inquiry goes not to the admissibility of the statements but weight given be to them. Arrest for Miller’s

N. Probable Cause arrest, police that, at time his Claiming in any harmed that Shen had been no reason to believe had any felony had cause to believe that way probable and thus no committed, his warrantless arrest was Miller avers that been not preserved issue responds unlawful. The State event, and, any has no merit. review appellate 4-252, Rule Maryland In an motion under omnibus ask, that all evidence seized among things, other Miller did of the arrest” be “at or about time person from his unlawfully, “was such evidence seized because suppressed cause, of the United States violation probable absent Constitution, Rights and other Declaration of Maryland out recently pointed As we in of this legal rights Defendant.” State, (2003), Maryland A.2d 378 Md. Denicolis 4-252(e) in criminal state the that motions cases requires Rule and contain a statement of upon which are made ground they and citation authorities. points added, Rule, “to alert the we is both purpose that com- to nature of the prosecutor precise

court and the the opportunity to in have a fair plaint, prosecutor order the court the issue against it and that understand defend Denieolis, it.” A.2d at 952. As in this before Id. at gave supporting of Miller’s motion no details aspect omnibus from “at his was seized him or contention that evidence bald Nor, probable without cause. as about the time of arrest” Denieolis, pursue also the in did Miller ever was case he hearing Although pressed at the the motion. his matter on apart- during about evidence seized search complaint warrant, mentioned, ment, to a never and thus pursuant he itself, abandoned, effectively contention that the arrest or any If it, to without cause. we any probable search incident was no issue, we would have found merit it. had reached Miller’s lacked premise, police any knowledge that the committed, By felony simply had not accurate. been arrested, missing Miller was Shen had been more time indicated, knew that police than ten hours. As have we supposed she was to meet Miller at about morning 9:30 that for babysitting job, that she had promised page call or her friends, Jessica, a.m., best Lauren or by 10:00 when she at his apartment, any arrived that she had not called at time day, she during and that had failed show for work at up They 5:30 evening. responsible knew that she was a person no history drug with or alcohol abuse no reason away, run and that it was most unusual for to keep her not in touch with her They prior friends. knew Miller had a charge of false York imprisonment they New knew that his he been all playing golf alibi—that had afternoon —was true, they had probably golf seen his clubs in his closet. They had observed him acting suspicious surrepti- when, dark, tious manner in the apartment he approached and, in his car without lights upon seeing Arring- Officer car, away. ton’s backed police When Lauren and Jessica positively him as the person they identified had at the seen pool, they had ample cause to he probable believe that and, disappearance, given involved Shen’s circum- stances, could reasonably believe that several different felo- may committed, nies have been ranging from a criminal homicide, to a offense, first or second degree rape sexual a kidnapping. Evidentiary Sufficiency Sexual

O. Offense— argument Miller’s is a repetition here we argument K, above, addressed Part and no merits further consider- ation.

P. Failure to Instruct on Corroboration

of Sexual Offense argument repetition This is a argument the addressed we L, above, in Part no and merits further consideration.

Q. Mitiyatiny Instruction on Circumstances earlier,

As we indicated at the court’s instructions the sentencing focused, proceeding large to a extent on the verdict form the jury that had and required complete. would be circumstances. mitigating form III of the deals with Section as “anything circumstance mitigating a court defined The this that in facts of case or about the about the Defendant sentence an make death mercy may and in fairness instruct- The court for this Defendant.” penalty inappropriate evidence, by as factors are raised long ed such “[s]o that factor,” but it express- a may mitigating them as you consider “a having as far broader this ly purpose “evidence” for defined it regard, that testimony than and exhibits.” meaning just or the appropriate- “mercy, compassion, sympathy said necessarily by be a than death need sentence other ness repeated, focusing The court when or exhibits.” testimony factors, could consider evidence non-statutory jury that the “as well as relevant background to the Defendant’s relating to, including, up conduct of the Defendant and material sentencing proceeding.” this jury mitigating instructing complains with an basis is inconsistent evidentiary must possess

factor can factor. That anything mitigating notion that be in Conyers us rejected by was made and argument same (1999). 132, 172-73, State, 729 A.2d 354 Md. miti- that, its instructions on throughout there was complaint factors, had “based on gating phrase, the court used in- give judges precisely evidence.” admonished We “any- mitigating in this factor is given struction case—that which [the to the defendant or the crime causes thing relating may not be jury] appropriate” to believe death —and form, that, as the word sentencing make clear used meaning just testimony has “a far than “evidence” broader at 929. and exhibits.” Id. A.2d objection Conyers made Although no had been instruction, plain we held that no error had been committed. on a line in the single that he was focusing We observed Not- than on the as whole. instructions rather instructions that, here, had told that it could consider ing been includ- presented during sentencing proceeding, anything ing up conduct the defendant “relevant material the thor- we held that including sentencing proceeding,” this oughness the court’s “effectively instructions precluded juror from not he or considering factor she perceived as ” mitigating because it was ‘raised the evidence.’ We perceive no error.

CONCLUSION noted, For the reasons the verdicts and the prison sentences affirmed, will be the death imposed sentence on the murder vacated, will conviction be will the case be remanded for a sentencing proceeding new on the murder conviction. JUDGMENTS ENTERED ON CONVICTIONS FOR OFFENSE, ROBBERY, DEGREE FIRST SEXUAL AND AFFIRMED; FALSE IMPRISONMENT VERDICT EN- AFFIRMED; TERED ON MURDER CONVICTION SEN- OF TENCE DEATH IMPOSED ON MURDER CONVIC- VACATED; TION REMANDED CASE TO CIRCUIT FOR COURT ALLEGANY COUNTY FOR NEW SEN- TENCING THAT CONVICTION; PROCEEDING ON BE APPELLANT, TO PAID COSTS ONE-HALF BY ONE- HALF BY COUNTY. BALTIMORE

RAKER, Judge, concurring part dissenting part.

I. sentence, I would reverse the death affirm the guilty verdicts, and affirm prison I sentences this case. would remand for a sentencing new proceeding on the murder join conviction. I majority A, opinion Part II excepting Apprendi Ring.

II. I hold portion Maryland (1957, would that the Code 413(h)1 Repl.Vol.) 27, § Article that provides that punishment 1. prior This case tried to the 2002 Code For recodification. reason, indicated, statutory Mary- unless otherwise all are references (1957, Repl.Vol.) land Code Article 27. finds that the sentencing authority2 if the shall death be pre- a mitigating by factors outweigh the aggravating factors the due under process of violates the evidence ponderance of the and the Sixth Amendment Amendment Fourteenth Maryland and Article 24 of the Constitution United States in the my expressed views Rights. of I adhere Declaration (2003) 179, State, A.2d 1105 in Oken v. 378 Md. 835 dissent J.) Bell, Eldridge, (Raker, J., dissenting, by C.J. and joined (2001) State, 91, v. 367 A.2d 631 and in Borchardt Md. 786 J.), Bell, (Raker, J., by Eldridge, and dissenting, joined C.J. aggrava- authority must find that stating sentencing that the a reasonable ting outweigh mitigating beyond factors factors of I would a the evidence. by preponderance doubt and statute, require the portion sever the unconstitutional law, a matter of applied standard be reasonable doubt imposed pursuant and sentence of death appellant’s vacate § 413. scheme, the Maryland penalty the death State must

Under allege in penalty notice of intent to seek the death and give an notice, statutory of a factor. aggravating that the existence killing of murder the of a With the a contract and exception officer, jury must law enforcement the find that the State has doubt, that a beyond a reasonable the defendant was proven, jury first must find that the degree. the principal doubt, beyond has a reasonable the existence of proven, State find jury at least one factor. The must also that aggravating outweigh mitigating the factors the factors. The aggravating if jury that the sentence shall be death finds statute states aggravating outweigh mitigating factors factors finding a the evidence. This is a neces- by preponderance sary my to the of a sentence death. predicate imposition view, this “finding” must find last and ultimate beyond a reasonable doubt. sentencing authority jury, be will with Future references

2. may right recognition to have the defendant waive the by jury may elect to sentence. sentence determined have court 27, 413(b)(3), (k)(3). § See Art. 54 Arizona,

Ring 584, v. U.S. 2428, 122 S.Ct. 153 L.Ed.2d (2002), 466, Apprendi Jersey, New 530 U.S. S.Ct. (2000), L.Ed.2d 435 in framework Maryland statute, death penalty mandate that must find that aggravating outweigh factors factors mitigating be yond a reasonable doubt and not a mere preponderance “[ojther the evidence. held Apprendi than the fact of a prior conviction, fact any increases the penalty beyond crime the prescribed statutory must maximum be to a jury, proved submitted beyond reasonable doubt.” 2362-63, Id. at 120 S.Ct. at 147 L.Ed.2d at 455. Ring made clear death Apprendi applied penalty proceed ings, defendants, reasoning “[c]apital no than non- less capital defendants ... are to a jury entitled determination of any on legislature fact which the conditions an increase in their punishment.” 589,122 maximum Ring, U.S. at S.Ct. 2432, 153 564. L.Ed.2d at

The maximum for degree sentence first in Maryland murder is life Life imprisonment. imprisonment without the possibili- ty of and parole death are may enhanced penalties and be imposed unless the State meets statutory requirements the justifying enhancement. The Maryland statutory scheme re- quires that before a sentence of may imposed, death be the jury must make findings certain additional beyond the finding of guilt of the murder. Those findings increase the maximum penalty from life to death.

The plain language Maryland death penalty statute certain requires findings during the weighing stage as an absolute for the precondition imposition of the penalty, death a determination which the Maryland Assembly General con- ditioned an increase in the penalty from life imprisonment to are, minimum, death. These at a findings factual partially and are quintessentially Apprendi type findings, requiring proof beyond a reasonable doubt.

The for penalty degree “death, first in Maryland murder is life, or imprisonment imprisonment for life without the 412(b). § of possibility parole.” The sentence shall be im- of is imposed a for life unless sentence death prisonment mandates that the § 413. Id. The statute with accordance doubt, find, beyond a reasonable jury first consider 413(d) § exist. circumstances any alleged aggravating whether (f). a find, by preponder- must then consider & evidence, mitigating circum- whether one or more ance of the determine, by must 413(g). Finally, § the stances exist. evidence, the aggravating of whether a the preponderance mitigating the circumstances.3 outweigh circumstances 413(h)(1). circum- the aggravating § If the jury finds circumstances, “the sentence mitigating outweigh stances 413(h)(2). court is then instructed § The trial shall be death.” 414(k)(l). § by jury. as decided impose sentence 4-343(k) imposed, requires Rule Maryland After sentence is parties, judge prepare, send to promptly trial report of Appeals file with the Clerk the Court Rule, including form recommendation prescribed death court as to whether of a sentence imposition trial Appeals to review justified. requires The statute the Court and, alia, to deter- penalty death inter imposition “[wjhether jury’s the evidence court’s supports mine outweigh the miti- aggravating that the circumstances finding 414(e)(3) added). § gating (emphasis circumstances.” (2001), State, 367 Md. 786 A.2d 631 In Borchardt scheme Maryland penalty Court held that the death divided that passes not run afoul of and the statute Apprendi does argu- rejected appellant’s The constitutional muster. Court (1) grounds: on that did Apprendi in that case three ments schemes; (2) that maxi- the sentencing not apply capital Maryland first in was death degree mum for murder penalty in excess of and Borchardt did not receive a sentence the that (3) maximum; is statutory Apprendi inapplicable aggravators against mitigators the of because the weighing process purely judgmental weighing is a one process in rejecting appellant’s arguments factor. In sentencing Borchardt, majority reasoned as follows: regarded "weighing" Maryland is as a state. 3.

56

“Perhaps the easiest answer lies in the unequivocal state- Apprendi majority ment its did not decision schemes, invalid capital sentencing render State such as Arizona, v. approved Walton[ 639, 497 110 U.S. S.Ct. 3047, (1990)], 111 L.Ed.2d that allowed the not judge, fact, as the trier to find and weigh specific sitting If factors. it is Apprendi aggravating permissible under for the law to that fact-finding remove and fact-weighing pro- entirely cess from the it judge leave as a sentencing factor, legitimate without specifying a reasonable standard, can hardly impermissible doubt it a jury be for has found the prerequisite aggravating beyond factors to apply reasonable doubt preponderance standard them weighing against any mitigating circumstances. The Walton scheme, words, in other is in far greater direct Apprendi conflict with underpinning than Mary- Thus, approach. land if aggravating circumstances do constitute elements the offense or serve to increase the maximum the offense in the Walton punishment context, they reasonably cannot be found to have status renders Maryland under the law. Apprendi Mary- If unconstitutional, then, land law it perforce, likely renders the capital most laws in the punishment country uncon- stitutional. We cannot conceive that Court, the Supreme light statement, of its especially contrary such intended dramatic result to from flow a case that did not even involve a capital punishment law.” (footnote

Id. at 121-22, omitted). at 786 A.2d reasoning wrong. That in Oken acknowl- majority The Oken, See edged wrong. that it was 254, 378 Md. at 835 A.2d result, at 1148-49. As a majority’s foundation of the set out in Borchardt no reasoning longer Ring exists. Arizona, 589, 536 U.S. at S.Ct. L.Ed.2d at Supreme overruled Walton because expressly Court in Apprendi is “irreconcilable” with the holding reasoning in Walton. Court, Oken, Borchardt relied the third prong— Oken, only majority

the one the found to survive Ring. See

57 The maintained that 258, A.2d 1151. Court Md. 835 at 378 at one, of balancing purely judgmental is a weighing process “the determine wheth- mitigator[s] against aggravator[s] in the case. particular appropriate punishment death is the er quintessential- only traditionally, a that not but process This is factor, sentencing Constitutionally legitimate ly pure is a made require beyond a determination to be one that does not 208, (quoting 1121-22 Id. 835 A.2d at a reasonable doubt.” at 652). Borchardt, 126-27, 786 A.2d at 367 Md. at jury a Ring capital entitle a defendant Apprendi for a death eligibility determination of facts which 490, at 120 Apprendi, In 530 U.S. predicated. sentence is 2362-63, (2000), the 147 at 455 Supreme at L.Ed.2d S.Ct. State, a “other regardless labeling by Court held conviction, prior any of a fact increases than fact maximum beyond prescribed statutory crime penalty a a beyond to a reasonable jury, proved must be submitted inquiry that “the relevant doubt.” The Court made clear form, required finding not of but of effect—does the one punishment than that expose greater the defendant 494, at jury’s verdict?” Id. S.Ct. guilty authorized 2365, L.Ed.2d at at 457. Ring, Supreme penalty Court held Arizona death statute, a judge, because under that

statute unconstitutional was to determine the existence of jury, required rather than a factor, making findings the factual aggravating thereby an imposition penalty following of the death prerequisite degree first mur- guilt determination of defendant’s 609, 2443, at at 536 U.S. 122 S.Ct. L.Ed.2d at Ring, der. 576-77. held that the Arizona statute violated the The Court by jury. to trial Id. The right defendant’s Sixth Amendment expressly Apprendi’s overruled favor Sixth Court Walton defendants, reasoning Amendment no approach, “[ejapital ... non-capital less than defendants are entitled any legislature determination of fact on which conditions at in their maximum Id. punishment.” an increase 153 L.Ed.2d at 564. Court concluded that S.Ct. the Arizona statute invalid because the “enumerated

58 aggravating factors operate as ‘the functional equivalent an ” element greater offense,’ of a and therefore “the Sixth Amendment requires that they be found aby jury.” Id. at 609, 2443, 122 S.Ct. at 153 L.Ed.2d at (quoting 577 Apprendi, 19, 530 at U.S. 494 n. 120 19, S.Ct. at 2365 n. 147 L.Ed.2d at 19). 457 n.

Thus, contrary the majority’s assertion in Borchardt that Apprendi has no application to death penalty sentencing pro ceedings, the Supreme Court applied the Apprendi holding that “the Sixth Amendment does not permit defendant to be ‘expose[d] ... penalty exceeding the maximum he would receive if punished according the facts reflected in the jury ” verdict alone.’ Ring, 588-89, 536 U.S. at 2432, 122 at S.Ct. 153 L.Ed.2d at 564 (quoting Apprendi, 483, 530 U.S. at 120 450). 2359, 147 at S.Ct. L.Ed.2d at The Ring pointed Court out that every fact that the legisla- requires ture may before death imposed be by jury be found beyond a reasonable doubt. The Court reiterated that “the ” dispositive ... question form, ‘is one not of but effect.’ 602, Ring, 536 at 122 2439, U.S. S.Ct. at 153 L.Ed.2d (quoting Apprendi, 494, 530 U.S. at 2365, 120 S.Ct. at 457). L.Ed.2d at The Court stated: “If a State makes an increase in a defendant’s authorized punishment contingent fact, on the finding of a that fact—no matter how the State labels it—must be found a jury beyond a reasonable doubt.”

Id.

The weighing portion Maryland’s death vio- penalty law lates due process under the Fourteenth Amendment and Sixth Amendment of the United States Constitution and Article 24 of Maryland Declaration of Rights because balancing serves as an absolute prerequisite finding to a death sentence and, thus, subject must be to the reasonable doubt standard.4 history 4. I need not recount the of the rule Winship, announced in In re (1970), 397 U.S. 90 S.Ct. 25 L.Ed.2d process that due requires every necessary fact charged proven the crime be of fact must the trier Ring Apprendi, under Accordingly, outweigh mitigating factors aggravating find reasonable doubt. beyond a the Ma- under death-eligible

A does not become defendant statutory jury aggrava- until the finds that the ryland scheme statute, Maryland Under outweigh mitigators. tors determination process includes weighing Until appropriate of death is the sentence. penalty ultimate eligible finding, makes this the defendant is sentence of death. Maryland in degree for first murder penalty

The maximum imprisonment or life without the imprisonment; is life death degree enhanced sentences for first possibility parole are murder, dependent upon special are circumstances. See Borchardt, Oken, 256-58, 1150-51; A.2d at 367 378 Md. 835 154-55, (Raker, J., dissenting); 786 668-69 Md. at A.2d at (2001). 529, State, 525, 93, v. 362 Md. 766 A.2d 95 It Johnson finding outweigh is circumstances jury aggravating the increases for first penalty circumstances that mitigating statutory degree Maryland beyond prescribed murder Johnson, 529, Md. at 766 A.2d at 95 maximum. See 362 for first is degree that “basic sentence” murder life (holding imprisonment parole and that life without and death are State, 520, 513, 671 Gary enhanced v. 341 Md. A.2d penalties); (1996) 495, (holding degree 498 that maximum for first penalty Because for imprisonment). penalty murder is life the default jury’s first murder is life degree Maryland imprisonment, 684, Wilbur, beyond Mullaney v. 421 U.S. 95 a reasonable doubt. See States, 1881, (1975) through 44 L.Ed.2d Jones United 526 S.Ct. 508 v. 227, 1215, (1999) Apprendi U.S. 119 S.Ct. 143 L.Ed.2d 311 151-52, Borchardt, (Raker, Ring. See also 367 Md. at 786 A.2d at 667 J., State, 487, 550-51, 1261, dissenting); Evans 304 Md. 499 A.2d (1985) (McAuliffe, J., dissenting) (reasoning princi- that "the basic ples process explicated Winship, Mullaney in] and Patter- [due York, (1977)] 97 S.Ct. New U.S. 53 L.Ed.2d son[v. persuasion this must require[ that the burden of ultimate issue be ] State, upon persuaded beyond jury and the must be a reasonable aggravating outweigh mitigating doubt circumstances cir- penalty imposed”). before the of death can be cumstances determination that aggravating miti- outweigh eircumstanee[s] gating is an additional finding beyond circumstance[s] that of guilt that serves to make a defendant eligible the enhanced penalty of death. Ring and Apprendi require that such a finding beyond be made a reasonable doubt. Maryland law,

Under jurors are factfinders throughout sentencing entire procedure. Before the com- sentencing mences, a guilty defendant must be found degree first murder and at least one aggravating circumstance must be alleged. The present State must then evidence supporting aggravating then engages circumstance[s]. three-step process and proceeds each succeeding phase of that process only it after makes with findings respect First, preceding phase. jurors must find at least one aggravating circumstance unanimously beyond reasonable Second, doubt. the jury determines the existence vel non circumstances, any mitigating based on a preponderance of the evidence standard. Third and finally, weighs the aggravating against Thus, the mitigating circumstances. be- fore a eligible defendant for the death penalty Maryland, the jury must determine that the aggravating circumstances outweigh the mitigating circumstances. Included within that determination is the conclusion that death is appropriate sentence.

Section permits jury 413 the to a find as mitigating circum- stance, in addition to § those enumerated in 413(g)(l)-(7), “[a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the § 413(g)(8). case.” provision, This known as the “catchall” provision, permits a to jury extend if mercy, it is so inclined. State, See Grandison v. 685, 756, 580, 305 Md. 506 A.2d 615 (1986). State, Foster v. 439, We stated 474-75, 304 Md. 499 1236, (1985), A.2d 1254 that jury, the “unconvinced that death is appropriate, may list aas mitigating circumstance whatever factor or conclusion, factors have led to may this irrespective of what the defendant produced or If argued. the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that may death not be

61 mitigating circum- such factor as a may it treat appropriate, circum- outweighs aggravating it the and decide that stance stances.” a offense as capital element of a substantive

Ring describes contin- punishment in authorized makes an increase one which the substan- description, fact. this finding Using on a of gent jury’s are the Maryland murder in capital elements of tive necessary sup- finding aggravating circumstance[s] of the aggravators and the fact that the sentence port capital aggrava- that finding, It is the latter outweigh mitigators. the determination outweigh mitigators, including tors to con- jurors authorizes ultimately is appropriate, death is, of That a sentence death. impose sider and then death from imprisonment life punishment increase finding aggrava- that the contingent is on the factual penalty statute, then, when mitigators. Under the outweigh tors outweigh mitigating aggravating finds that the circumstances, poten- is to an increased exposed the defendant for first that for a conviction punishment beyond range tial States, 545, Harris v. United 536 U.S. degree murder. See (2002) 524, 567, 2406, 2419, (plurali- 153 L.Ed.2d S.Ct. (“Read Pennsylvania, ty opinion) together, McMillan[ (1986) Apprendi and ] 106 S.Ct. 91 L.Ed.2d U.S. sentence, of a those facts the outer limits setting mean that it, are the elements of the judicial power impose and analysis.”) (empha- for of the constitutional purposes crime added). § 414 § 413 and that the by reading sis It evident a death sentence on factual Legislature intended base find that the mandating aggrava- first that the finding, ie., mitigators by specific proof, tors burden outweigh second, evidence, by requiring of the by preponderance sufficiency finding this Court review evidence. three, aggravating mitigating

Step balancing Unless, view, factors, is a determination. my factual until, outweigh aggravating factor[s] the finds the factor[s], is not the mitigating eligible the the defendant which Because it is a factual determination penalty. death death, penalty raises the maximum from life to Ring requires a beyond the standard be reasonable doubt. aspects Three of the statute show that all three steps Maryland First, death scheme are factual in nature. penalty has for a Legislature provided burden of proof Second, weighing process. this Court is mandated to review jury finding sufficiency of death for of the evidence. Finally, repeated use of the word “find” suggests the fact, determination of an observable see Third New Webster’s (1961) International Dictionary (defining “finding” as judicial result of a or quasi-judicial inquiry “the examination or into matters of fact as especially embodied the verdict court, referee, jury or decision of a body”). administrative A standard of has factual proof commonly applied been State, findings. See Olsen v. 67 P.3d 589 (Wyo.2003) (stating language of the statute “that aggravating proved beyond circumstances be a reasonable doubt and miti- gating circumstances be proved preponderance ”) (em- assigned evidence references burdens issues factual added). phasis prescription by Assembly the General of a specific proof, ordinarily burden of reserved for factual find- ings, is the clearest indication that the Legislature envisioned this finding. determination as factual proof

The burden of consists of two the bur- components: going den of forward and the burden of persuasion. McCor- mick on Evidence describes the term as follows: “One burden evidence, satisfactory is that of of a producing judge, fact issue. The second is particular persuad- the burden of ing alleged the trier of fact that the fact is true.” McCormick ed.1999) (footnote § on Evidence at 409 5th (Strong omitted). In the context of weighing aggravating circumstances, mitigating we refer to the of persua- burden case, sion. civil ordinary “proof by preponderance, proof seems be which leads the to find that existence the contested fact is more than probable its nonexistence.” Id. at 422. The burden clear-and-convincing of persuasion has been described to mean that a fact

63 to the if leads the factfinder only the evidence “proved” highly probable. of the contention is conclusion that the truth Harlan, Winship, in In re by 425. As Justice expressed Id. at 368, 358, 370, 1068, 1075, 25 378 L.Ed.2d 397 U.S. S.Ct. (1970) of a “choice of the (concurring expression opinion), ... adjudication of does particular variety standard for a of very comparative a fundamental assessment reflect In discuss- social costs of erroneous factual determinations.” the function of a standard of he further noted: ing proof, attempt standard of an to instruct the proof represents “[A] concerning degree society factfinder of confidence our in of conclu- thinks he should have the correctness factual Although for a of particular type adjudication. sions of a ‘preponderance ‘proof beyond the evidence’ phrases com- imprecise, they doubt’ are do quantitatively reasonable concerning municate to the finder of fact different notions in of he is to have degree expected confidence of his conclusions.” correctness factual 370, 1076, at 25 L.Ed.2d at 379 (emphasis Id. S.Ct. added). Maryland for a bur- Legislature, providing specific

The recognized den of was a proof, weighing process factual at least in that could finding, part, by be satisfied preponderance of the evidence standard. This statute was enacted before the Supreme spoke Ap'prendi Court If Ring. weighing determination is not of a susceptible call, burden of and is proof merely judgment why would the have for Legislature provided any particular proof? burden burdens, As to the two Justice Stewart of the Utah Supreme Court observed: course, ‘beyond

“The a reasonable doubt’ standard may, be considered similar in its function to proof by prepon- evidence, e., derance of i. both standards to resolve are used disputes.” factual (Utah 1980) Brown, (emphasis

State 607 P.2d added). Court, Oken, The characterized Oken’s contention regarding “factfinding” merely semantics. 378 Md. at upon It is form over to rely 835 A.2d at 1152. substance Ring application Apprendi labels to avoid the statute. Maryland penalty death has for automatic re- Maryland Legislature provided of the sentence of death Appeals jury’s view the Court of § 414. The “sufficiency Legislature for of the evidence.” sentencing of the death penalty could not have conceived as a choice” if it “purely judgmental provided determination evidence, appellate sufficiency review fact. findings Legislature traditional review of of The estab- lished of death as an enhanced to be penalty, the sentence (with the the establishment of additional facts imposed upon finding aggravating outweigh ultimate factual that the factors factors) by a standard of that is mitigating particular proof the law, reviewable, of at the appellate as a matter level. recognize balancing aggravating against Commentators that factfinding circumstances is a For exam- mitigating process. ple:

“Although many among capital there are variations existence, most of these sentencing currently statutes common, employ tripartite finding process statutes fact on making findings that involves the sentencer’s factual cir- aggravating three issues: the existence of different cumstances; mitigating aspects the existence of of the de- character, record, offense; fendant’s and whether the outweigh mitigating cir- aggravating circumstances of this structure that portion tripartite cumstances. The scrutiny focus of has been the central Sixth Amendment first point prong: finding to this has been the fact up of circumstances. This was the aggravating the existence finding fact determination the now-overruled Walton Hild- jurisprudentially predecessor, decision and its linked win, judge. deemed suitable for a And it is the factfind- Walton, Ring, overruling re- ing determination wake of inevitable jury. Ring, served for the are ratio- questions Ring next resolution whether and third nale also to make the second requires determinations —the determination of the exis- finding fact and the assessment mitigating tence circumstances mitigating aggravating outweigh whether circumstances circumstances.” Stevenson, The on the Pun- Authority Ultimate Ultimate

B. Sentenc- Requisite Jury Capital ishment: Role added) (foot- (2003) ing, 54 Ala. (emphasis L.Rev. (hereinafter omitted) Stevenson). See also id. at 1129 n. note mitigat- (recognizing balancing aggravating against ing finding). factors is factual of the Arizona

Noting tripartite penalty nature death statute, Professor Ring reasoning argues Stevenson determination, finding aggravating as to the first of an factor, applies equally to the other two determinations. He follows: reasons as Ring

“All aggravation finding of the features of the that the regarded significant equally Court are true of the two other components tripartite sentencing determination. Arizona law upon just conditions a death sentence circumstance, finding aggravating of an but also a determi- any mitigating nation —after identification of circumstances ‘ in the case—of whether the “mitigating circumstances ’ Thus, sufficiently leniency.” substantial to call for as [are] Ring remarked, the Court itself a defendant cannot ‘be sentenced to death Arizona ... unless [under law] [these] Indeed, further findings statutory made.’ the feature [are] the Ring that rejecting Court deemed essential the state’s characterization treating of Arizona law as a convic- first-degree tion of for murder sufficient authorization a death sentence —that first-degree the murder statute itself aggravation finding necessary cross-referenced the as a predicate additional for a of applies equally sentence death — to the other two The findings. statutory cross-reference is merely provision governing finding aggra- vating circumstances: It references the entire tripartite for determining structure the existence of aggravating mitigating gauging weight.” circumstances and their relative omitted). (footnotes Maryland Inasmuch as the 1126-27

Id. at outweigh mitigators aggravators that the requires statute penalty, for of the death predicate imposition as an essential Ring apply. should reasoning the central Ring/Apprendi applies states have concluded Other result, and, as a have in death cases balancing process aggravating that the circum- requires process held that due a beyond circumstances rea- mitigating outweigh stances Supreme recog- Court Recently, the Colorado sonable doubt. mitigating factors and balancing aggravating that a nized penalty. for the death eligibility can to a defendant’s go factors (Colo.2003), following Ring, People, 64 P.3d Woldt concluded the Colorado Supreme Court Colorado statute, statute, improperly like the Arizona death penalty judge role to a violation Sixth factfinding assigned state, the trier of Noting weighing that “[i]n Amendment. the miti- against factors all weigh aggravating fact must for if is eligible to determine the defendant evidence gating applies a reasonable doubt beyond ... A standard of death has The Colorado statute fact-finding.” Id. 263. eligibility The court step weighing the third one. steps, four with process steps, the first three Colorado’s “[t]hrough noted continues eligibility phase state. ‘The weighing resembles a three, evidence jury weighs mitigating through step when ” (citation omitted). Id. at 264 statutory against aggravators.’ all the circum- whether under step, determining The fourth stances, stage. is the selection imposed, death should be requires Amendment court held that Sixth “[b]ecause eligible necessary facts to make defendant any find statute], and the first three penalty, steps [the for the death of fact that render a defen- findings to make required judges death, the statute under which Woldt eligible dant sentences is unconstitutional Martinez received their death stage balancing at 266-67. The court found the its face.” Id. aby jury to be determined factfinding stage, required to be a Id. required Ring. a doubt as under beyond reasonable at 265.

In Maryland, weighing stage eligi- the includes elements of In bility single stage, concluding selection. that that is both aggravators outweigh mitigators, jury weighing the the factors and also whether death is determining appropriate. question principles

Missouri considered the whether the set out invalidated a Ring judge death sentence when made the factual determinations on for eligibility which the death sentence was predicated Whitfield, State (Mo.2003). Step S.W.3d three of the Missouri statute requires jury to determine whether the in mitiga- evidence outweighs tion in aggravation. evidence Id. at 259. Like statute, does, the Maryland it the defendant eligible “[i]f is not death, jury and the must return sentence of life impris- onment. While the State once more argues merely this calls for to offer subjective its and discretionary opinion rather than to make a factual finding, again this Court disagrees.” one, Id. court steps two, held that and three (similar to Maryland steps) “require findings factual are prerequisites the trier of fact’s determination that a defendant is death-eligible.” Id. at 261.5 The Missouri Su- preme rejected Court argument the state’s finding merely required subjective finding by fact, the trier noting as follows:

“But, the State fails to note that this Court rejected this very argument opinion its on Mr. Whitfield’s appeal his conviction, initial in which it remanded for the trial new decision, issue In here. this Court held that step requires ‘finding of fact by jury, not a discretionary Whitfield, decision.’ 837 S.W.2d at 515. holding This supported by plain language In statute. order to fulfill duty, its the trier of required fact is to make a case- Missouri, step requires 5. four of the statute to assess and punishment declare the imprisonment at life if it decides under all of the circumstances punishment assess and declare at death. Step gives juiy four in Missouri give the discretion to a life statute, Maryland sentence. Under the steps the Missouri three and Thus, collapsed four are step step step into one three. three in — Maryland finding. is a factual aggravating on all the based factual determination

by-case in case. This is present of fact finds are facts the trier of each made on the facts to be a determination necessarily for a it is not Ring, permissible under Accordingly, case. re- jury The is factual determination. to make this judge aggra- and other statutory to determine whether quired the imposition warrants by the evidence vators shown death.” omitted). (emphasis

Id. at 259 State, Court, in v. Johnson Supreme Nevada Similarly, the (2002), weighing that the held 59 P.3d 450 118 Nev. a part is circumstances mitigating aggravating against The rubric. Ring within the falling factual determination court stated: find- distinct

“Moreover, requires law two statutory Nevada jury ‘The or the death-eligible: a defendant to render ings if it only of death a sentence may impose of judges panel circumstance aggravating at least one finds further circumstances sufficient mitigating no that there are finds or circumstances circumstance aggravating outweigh circum- mitigating finding regarding This second found.’ penalty the death to authorize necessary is stances part it is in Nevada, conclude that and we factual determination, weighing. So merely discretionary ruling any from on abstained expressly though Ring even circum- mitigating with respect claim ‘Sixth Amendment to make this jury stances,’ Ring requires conclude that we in a an increase defen- ‘If a makes as well: State finding of a finding on the contingent punishment dant’s authorized be labels it—must how the State fact, that fact—no matter ” a reasonable doubt.’ beyond aby jury found omitted). added) (footnotes (second emphasis Id. at 460 ad- recently Maryland, state like weighing Wyoming, weighing process persuasion the burden dressed factors under mitigating against factors aggravating State, 67 P.3d statute. See Olsen penalty death state’s assign specific does not statute Wyoming (Wyo.2003). aggravating “consider directing burden Nonetheless, the court Id. at 587. circumstances.” mitigating before the instructed jury should be that the directed death, persuaded “must be juror each bemay sentence compari- so substantial are circumstances aggravating death that it warrants circumstances mitigating son with went on 588. The court Id. at of a life sentence.” instead for a necessary in a case capital of proof that the burden state state, if the and that on the of death remains sentence produce must the defendant “weigh,” to be instructed The court Id. at 589. circumstances. mitigating of evidence defenses, the ultimate that, affirmative “just as with concluded a reason- by proof beyond of such defenses negating burden n. 12. also Id. at 589 See with the State.” doubt remains able (2003) 363, (noting Rizzo, 171, A.2d 407 266 833 Conn. State weighing doubt standard on the the reasonable “Imposing that of of moreover, of the functions burdens fulfills all process, of certitude that its level instructing jury the By persuasion. meet must weighing process arriving at the outcome doubt, we a reasonable beyond standard of demanding the error, communicate both and we minimize the risk of on place that we large importance at the society felon shall capital a convicted decision of whether the awesome die.”). live or Arizona, Ring, in State v. of

Finally, Supreme the Court from 534, (2003), Supreme on remand 65 P.3d 915 Ariz. Arizona death that the Court, argument state’s rejected the against weigh aggravating requiring judge penalty statute determina- require not a factual circumstances did mitigating court, Ring required concluding that The Arizona tion. concluded jury, necessarily aby to be made finding one. Id. at 942-43. was a factual the determination Oken, “Ring only implicates majority maintained circumstances, process and not the finding aggravating of Md. factors.” 378 mitigating weighing aggravating against Court did 208, Ring 1122. It correct at 835 A.2d at whether, weighing issue of specifically address mitigators, Apprendi applies against aggravators whether the must be convinced beyond a reasonable doubt before death may imposed. so, be The Court did not do however, likely most because Ring did not argue anything with respect mitigators or balancing. Ring presented a claim, Ring, “tightly delineated” 4, 122 536 U.S. at 597 n. S.Ct. 4,153 4, at 2437 n. raising only the question L.Ed.2d at 569 n. judge, alone, whether trial sitting could determine the presence or absence of the aggravating factors required by Arizona law for imposition the death penalty.6 Ring, 588, 122 2432, U.S. at at S.Ct. 153 L.Ed.2d at 563. Ring argued that the Arizona death penalty statute violated the Sixth and Fourteenth Amendments it because entrusted to a judge finding of a fact raising the defendant’s maximum Id. penalty from life to death. 122 S.Ct. at Nonetheless, L.Ed.2d at 568. Ring set out the general princi ples that courts apply must in deciding what may issues be decided aby judge and those for which defendant is entitled determination, to a jury as well as the applicability higher reasonable doubt standard at least as to the finding of aggravators. Moreover, earlier, remand, as noted Arizona Supreme rejected Court the contention that the re quirement that mitigating circumstances be considered and weighed against aggravators was not a factual predicate for Arizona, 584, 597-98, Ring 2428, 6. Footnote 4 in v. 536 U.S. 122 S.Ct. 2437, 556, 569, 153 L.Ed.2d weighing process makes clear that the not before the Court. The Court stated: "Ring’s tightly claim is only delineated: He contends that the Sixth required jury findings Amendment aggravating on the circumstances against aggravating asserted him. No past circumstance related to case; Ring convictions in his challenge therefore does not Almenda- States,[ 224, 1219, v. United 523 U.S. rez-Torres 118 S.Ct. 140 (1998) L.Ed.2d 350 which held prior may ] that the fact of conviction judge be found the statutory even if it increases the maximum sentence. He makes no Sixth respect Amendment claim with to mitigating argue circumstances. does Nor he that the Sixth Amend- required ment the to make the ultimate determination whether impose penalty. the death question He does not the Arizona Supreme authority Court’s reweigh aggravating mitigating the circumstances aggravator. after that court Finally, struck one Ring does not contend that constitutionally his indictment was defective.” (citations omitted) added). (emphasis Id.

71 65 P.3d at Ring, penalty. of death See State imposition the 942-43. that due thesis the view majority’s upon

The Oken rested circumstances finding aggravating the of only process requires doubt, weighing of process and not the a reasonable beyond Oken, Md. at against mitigating See 378 factors. aggravating the (stating “Ring only implicates A.2d at of circumstances, aggravating process of the finding factors”). It was the weighing aggravating against mitigating penalty juris- view death majority’s Supreme Court only applies the reasonable doubt standard prudence requiring makes sentencing process a defendant part in involved select- death-eligible, as those elements opposed actually be sen- those defendants who will ing death-eligible 208-10, A.2d at 1122-23. The tenced to death. Id. that which process, concluded that the selection majority of the the death judgment jury, whether determines may constitutionally should be determined penalty applied, be on the evidence. See id. preponderance based majority’s upon eligibility sole focus was The Oken concluding that “the sentencing process, [Su- phase and its Eighth jurisprudence Court’s Amendment preme] clear, Ring finding make it is an holding aggravating circumstance, circum- only finding aggravating of an stance, death-eligible.” which a defendant Id. at makes A.2d at 1150. The “states majority recognized Oken and limit specify aggravating must factors order direct sentencing authority’s discretion as to of convict- class Id. at may defendants to which the death penalty apply.” ed 219, 835 A.2d at 1128. versus selec- Supreme eligibility Court’s discussion requirement arose context of that a

tion the Court’s must class of capital sentencing genuinely scheme narrow the eligible the death The Court persons penalty. Supreme Eighth cruel and prohibition has stated unusual prohibits penalty a state from imposing Amendment death arbitrary capricious Accordingly, in an manner. 72

sentencing authority provided must be with standards which will genuinely narrow the class of persons crimes and the against whom the death penalty imposed by allowing it to make an individualized determination on the basis of the character of the individual and the circumstances of the crime. Stephens, Zant v. 862, 878-80, 2733, 462 U.S. 103 S.Ct. 2743- 44, 235, 77 Gregg v. Georgia, 428 U.S. (1983); L.Ed.2d 250-51 153, 206-07, 2909, 2940-41, 96 859, S.Ct. 49 L.Ed.2d 893 (1976); Furman v. Georgia, 238, 293-94, 408 U.S. 92 S.Ct. 2726, 2754-55, (1972) 346, (Brennan, J., 33 L.Ed.2d 380-81 concurring). Oken majority ignored important several consider- First,

ations. the majority underestimated impact reach of Ring. of Ring v. Arizona that it is It has been said “clearly the most significant death penalty decision of the U.S. Supreme Court since the decision in Furman v. Georgia, 238, 2726, (1972), U.S. 92 S.Ct. 33 L.Ed.2d 346 invalidating penalty death states.” Bottoson v. schemes of all virtually Moore, (Fla.2002) (Anstead, C.J., So.2d 693 concurring). Ring has been called “monumental decision that will have extensive implications Note, across country.” The Death Penalty and the Sixth Amendment: How System Will the Arizona?, Ring Look After 77 St. John’s L.Rev. (2003). Ring discusses penalty the death for the first time within the framework of the Sixth Amendment. It has been suggested that Supreme Walton Court’s overruling questions raises about the viability of earlier capital cases. See supra, Stevenson, “A (noting that central difficulty resolving these second-stage issues is that jurisprudential tools that one would naturally use to analyze questions Supreme prior Court’s decisions on the —the jury’s role capital sentencing now inherently suspect —are in light Ring.”).

But if even the “eligibility” versus “selection” distinction holds the context of the weighing process, the language and structure of the Maryland statute put weighing process the eligibility side rather than the selection side. I reiterate my analysis in Borchardt:

73 412(b), merely ‘death-eligible’ § a defendant is not “Under of murder. Rath- guilty degree been found first by having and a er, guilt/innocence phase the at conclusion murder, is degree first the defendant finding guilty of of only imprisonment. for a sentence of life eligible of the receive a sentence death unless defendant cannot i.e., met, §of have been that requirements 413 additional the proven, factor has been that aggravating least one degree, first and that the principal the defendant outweigh any mitigating cir- circumstance[s] aggravating 413(h). § the of the hate presence See Just as cumstances. second de- Apprendi crime enhancement transformed a New offense into a first offense under the gree degree statute, hate that the Jersey finding aggravating crime the the circumstances trans- outweigh mitigating circumstances into a life sentence a death sentence under forms death Maryland penalty statute.” 154-55, A.2d at 668-69. 367 Md. at 786 affronting pro- of federal due guarantee addition cess, Article of Maryland’s penalty death scheme violates Rights and the basic Maryland principles Declaration guaranteed by fundamental fairness State Constitution. Maryland Rights 24 of Declaration provides, Article ... no man to be of his pertinent part, ought deprived “That life, liberty by but ... the Law of the land.” property, Long Apprendi, Maryland recognized any before law that fact offense relating exposed circumstance of an to enhanced had to be determined punishment defendant See, e.g., trier of fact a reasonable doubt. Fisher beyond State, 218, 280-82, Utley & v. 367 Md. 786 A.2d 743-44 (2001) (holding imposition of enhanced under penalty causes the death must be child abuse statute where abuse doubt); proven beyond a reasonable Wadlow alleged (1994) State, 122, 132, 335 Md. (holding A.2d statute, provided by the State enhanced penalties, when seeks distribute, of cocaine with intent to the State possession concerning amount of allege necessary must fact substance, dangerous beyond fact prove controlled doubt); State, reasonable Jones v. 32, 37, 324 Md. 595 A.2d (1991) 463, 465 (holding that for imposition of enhanced penal- ty provided for by Legislature, prove State must all statutory doubt). precedent conditions beyond a reasonable

Permitting a person sentence a to death based on a standard, ie., preponderance the evidence that death is not, more than appropriate offends Maryland due process and principles of fundamental fairness. Biegenwald, State v. Cf 13, 130, 151, 106 N.J. 524 A.2d (1987); Wood, 156 State v. 648 (Utah 1981). 71, P.2d 80-81

The allocation of a particular burden of proof reflects the of gravity factfinder, the task before the impor relative decision, tance of the and “a fundamental value determination of our society[.]” 372, In re Winship, 397 at U.S. 90 S.Ct. at 1077, (Harlan, J., 25 L.Ed.2d at 380 concurring). Adding Texas, 418, ton v. 441 1804, U.S. 99 S.Ct. 60 L.Ed.2d 323 (1979), Chief Justice Burger expressed for the Court significance highest of the requisite level of proof as follows:

“The function of a standard of proof, as that concept is embodied the Due Process Clause and in the realm of factfinding, ‘instruct the factfinder concerning the of degree confidence society our thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ 358, In re Winship, 370, 397 U.S. 90 S.Ct. 1068, (1970) 25 (Harlan, J., L.Ed.2d 368 concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof different of types cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since has a mini- society mal concern with the suits, outcome of such private plain- tiffs burden of proof is a mere preponderance of the evidence. litigants thus share the risk of error roughly equal fashion.

75 hand, the interests case, other on the In a criminal with- historically and such magnitude are of defendant have been they requirement constitutional any explicit out as to exclude designed proof of standards protected by judgment. erroneous likelihood of an nearly possible society imposes our justice, criminal of In the administration This is accom- itself. upon risk of error the entire almost that the Process Clause under the Due by requiring plished a reasonable beyond an accused guilt prove state Winship, supra.” In re doubt. (footnote 1808, at 329 60 L.Ed.2d 423-24, at

Id. 99 S.Ct. error, omitted). higher the risk The more serious proof. standard requisite statute, Maryland three of step within

Included death is the is the ultimate decision weighing provision, com- doubt standard The reasonable sentence. appropriate possess it must certainty degree municates is the death ultimate decision that arriving at before Rizzo, A.2d v. See State 266 Conn. sentence. proper (Colo. Tenneson, P.2d People (2003);7 1990). (2003), 171, 363, Rizzo, n. 37 408-09 266 Conn. 833 A.2d

7. In State v. argument that the Supreme rejected the dissent’s Court the Connecticut judgment, weighing process a moral in the is jury’s determination The court reasoned a reasonable doubt standard. inconsistent with follows: that, Sullivan, J., suggesting disagree of C. with the dissent "We judgment, it is somehow jury's is a moral determination because assign persuasion to that determination. a burden of inconsistent understanding the reasonable on its of contention relies The dissent’s We have quantitative of the evidence. as a evaluation doubt standard meaning of opinion traditional already explained in this that the focuses, quantification of the standard not on reasonable doubt or, evidence, degree certainty in this of the fact finder but on the of Therefore, case, juiy's determination the nature the sentencer. reason- application of the judgment does not render the as a moral confusing. inconsistent doubt standard to that determination able common, sense, and, indeed, quite when contrary, it makes On determination, certainty degree to that assign making a moral particular level of way, of a judgment. another the notion Put arriving process at a moral certainty with the is not inconsistent demanding simply assigns most the law's judgment; our conclusion 76

payWe mere lip service to the principle that death is different yet to impose continue a lower certainty level of in the death penalty context than we do for other lesser important in Maryland. interests Maryland has required higher burden of than persuasion preponderance of the evi dence situations involving penalties far less severe than the penalty See, § ultimate at stake under 413. e.g., 1986 Mer State, v. 264, 282-83, (1994) cedes 334 1164, Md. 638 A.2d 1173 (requiring the state to prove requisite elements under drug forfeiture laws by evidence); clear and convincing Mack Mack, 188, 207, (1993) v. 744, 329 Md. 618 A.2d 753 (requiring clear and convincing evidence for the withdrawal of life- sustaining treatment); medical Zenobia, Owens-Illinois v. 325 420, 469, (1992) 633, Md. 601 A.2d 657 (requiring the clear and convincing evidence standard for proof of punitive damages); Washington Clark, County Dep’t 190, v. Serv. 296 Md. of Soc. 197, 1077, (1983) 461 A.2d 1081 (requiring proof parental unfitness clear and convincing evidence order to termi State, nate parental rights); 523, Coard v. 525, 288 Md. 419 (1980) 383, A.2d 384 (requiring proof by clear and convincing evidence in civil Delia, commitment proceedings); Berkey v. 302, 320, (1980) 170, 287 Md. 413 A.2d (requiring the heightened evidentiary standard of clear and convincing evi slander). Stewart, dence libel and Summerlin Cf (9th 1082, Cir.2003) F.3d (stating that ‘We do not execute people according ordinary legal principles that may good be enough for our more routine decisions. When the state assumes the Deity, role it must greater exercise care.”); see also Addington, U.S. at 99 S.Ct. at 60 L.Ed.2d at 330 (stating that involving “[i]n cases individual rights, civil, whether criminal or standard of proof ‘[t]he [at liberty.’ reflects society minimum] the value places on individual ). ”

It is correct that states must narrow the class of persons deemed to be death-eligible, in order to eliminate total arbi- certainly jury’s level of demanding most and irrevocable moral

judgment.” the death in the of imposition and capriciousness trariness assum- Even equally important. But is reliability penalty. Maryland’s of death portion ing arguendo weighing selection, I of which do not a matter scheme is penalty purely finding aggrava- hold a accept, I would nonetheless be determined mitigating factors should ting outweigh factors A in the relative jury engaging doubt. beyond a reasonable factors is mitigating factors to comparison aggravating mercy grant of whether the final determination making entirely incongruous that life. It seems spare a defendant’s a highest proof jury standards of when require should we executed, yet “eligible” is be whether a defendant decides not the whether or jury lower the bar when decides These life and death spared. is be “eligible” defendant should be they are of the same coin and decisions two sides subject to the same level proof. that a finding a a reasonable doubt” “beyond

Requiring inis line given entirely should be a death sentence defendant safeguards Maryland’s penalty death procedural with the A sentencing markedly scheme. death differs penalty phase a sentencing Maryland. Maryland, from a typical in a may impose only penalty proceeding. sentence death cases, In the judge imposes In all other the sentence. sentencing phase, presented, is capital case evidence evidence, judgment must rules of evi- pass this relaxed, dence, in force.8 If the State although somewhat are doubt, every of a beyond must a reasonable element prove, crime, every why prove should it need element phase? murder in the capital proceeding punishment un throughout Supreme jurisprudence Court Reflected is that death Amendment derlying Eighth principle See, 2428, 584, 122 Ring, 536 U.S. S.Ct. e.g., different. 399, 556; 411, 106 S.Ct. Wainwright, L.Ed.2d Ford 477 U.S. (1986) 335, (plurality opinion) 91 L.Ed.2d reliability capital concern (noting especial that “This [for Ring question requires 8. as to whether strict rules of evidence A arises during post-conviction part penalty of a trial. the entire death 78 is a natural

proceedings] consequence of knowledge that execution is the most irremediable and unfathomable of penal- ties; Florida, different.”); Gardner v. is death 430 U.S. 349, 357, 1197, 1204, 393, (1977) 97 S.Ct. 51 L.Ed.2d 401 Carolina, v. (plurality opinion); Woodson North 280, 428 U.S. 305, (1976) 2978, 2991, 944, 96 S.Ct. 49 L.Ed.2d 961 (plurality Furman, 289, opinion); 2752, 408 at 92 at U.S. 33 S.Ct. (Brennan, J., L.Ed.2d at 378 a death concurring). proceed- In ing, the Supreme recognized Court has Eighth that “the requires Amendment a greater degree accuracy of and fact- finding than would be true in a noncapital case.” Gilmore v. Taylor, 333, 342, 2112, 2117, 508 113 U.S. S.Ct. 124 L.Ed.2d (1993). 306, Kennedy 318 Justice has observed “all of our Eighth jurisprudence capital Amendment concerning sentenc- ing is directed toward the reliability enhancement of Smith, Sawyer 243, accuracy 227, in some sense.” 497 U.S. 2832, (1990). 110 2822, 193, S.Ct. 111 212 L.Ed.2d Ring dealt with the Sixth Amendment to a right jury trial. overlooked, however, Not to be is the to a fair right reliable sentencing determination. Throughout jurispru dence on the death penalty recognition is universal Zant, death is different. See 884-85, 462 at U.S. 103 at S.Ct. 2747, 77 at (noting L.Ed.2d 255 that “because there is a qualitative difference between death and other any permissi ble form of punishment, ‘there is a corresponding difference in reliability need for in the determination that death is the ”) appropriate punishment specific Wood (quoting case.’ son, 305, at 2991, 428 96 at 961); U.S. S.Ct. 49 L.Ed.2d at Gardner, 357, 1204, at 430 U.S. 97 at S.Ct. 51 L.Ed.2d at 401. Because the penalty qualitatively death is different from a sentence, prison Court, Court, the Supreme and our requires the death penalty may not be imposed unless the jury makes an individualized determination that is death the appro Woodson, priate particular sentence defendant. 303-04, 2991, U.S. at 96 S.Ct. at at L.Ed.2d 960-61. Furman, 408 U.S. at S.Ct. 33 L.Ed.2d at 388 (Stewart, J., concurring), Justice Stewart stated: differs of crimi- from all other forms penalty “The death It is degree unique kind. punishment, nal but rejection unique It in its irrevocability. its total of criminal purpose of the convict as a basic rehabilitation in its absolute renunciation finally, it is justice. unique, And humanity.” concept all in our that is embodied different, heightened relia fundamentally is Because death trial. That stages penalty is at of a death bility all required sentencing and the entire phase, includes guilt/innocence punish nature capital of discussing unique In process. ment, Murray v. Giarrata in dissent noted Justice Stevens no, 2765, 9, 106 1, 9, 22 n. 109 2777 n. L.Ed.2d 492 S.Ct. U.S. (1989), 1, 19 n. as 9 follows: decided, had Justice 1983, years

“In 11 after Furman been ‘Court, in a that the majority opinion O’Connor observed a of the individual opinions majority of separate well as difference of Justices, qualitative that the recognized has corresponding- requires all a punishments death from other sentencing degree of of the ly greater scrutiny capital Ramos, 992, 463 U.S. 998- determination.’ v. California id., [1983]; 999, 999, 3446, 1171 see at 77 L.Ed.2d 103 S.Ct. cases). also, 9, e.g., See Ford v. (citing n. 3446 103 S.Ct. 2595, 399, 411, 91 L.Ed.2d 477 106 S.Ct. Wainwright, U.S. (‘In (1986) (Marshall, J., opinion) capital pro- plurality 335 that factfind- this Court has demanded ceedings generally, to a standard reliabili- ing procedures aspire heightened consequence concern a natural of the ty.... especial This is most and is the irremediable knowledge that execution different’); Ake v. penalties; that death unfathomable 87, Oklahoma, 68, 1087, 84 L.Ed.2d 53 470 105 S.Ct. U.S. (‘In (1985) C.J., judgment) (Burger, concurring capital finality imposed protec- cases of the sentence warrants cases’); may may required tions or not in other be 1197, Florida, 349, 357-358, 51 430 U.S. 97 S.Ct. Gardner (1977) (‘From (Stevens, J., plurality opinion) 393 L.Ed.2d defendant, it is in both its point of view of the different society, point its From the of view severity finality. and one life of of its sovereign taking the action of also dramatically any citizens differs from legitimate other It vital state action. is of importance the defendant and community any decision the death impose be, be, sentence on appear based reason rather than emotion’).” caprice sum, the touchstone of Apprendi, applied to cases capital is to a Ring, exposes decide whether requisite finding to higher

defendant than can solely sentence be on imposed of a stated, basis criminal conviction. As the Ring Court “If a State makes an increase in a defendant’s authorized fact, punishment contingent of a finding that fact—no matter how the labels by State it—must be found beyond a reasonable doubt.” at Ring, U.S. S.Ct. 572. in Maryland L.Ed.2d at Because the finding that aggravating outweigh factors is a mitigating factors nec- essary for the predicate imposition penalty, the death made, Apprendi Ring require that this finding be jury, by preponderance evidence, beyond but a reasonable doubt. Judge BELL Judge

Chief and ELDRIDGE authorize me to state they join in Part II of this dissenting opinion. BATTAGLIA,

Dissenting Opinion by BELL, C.J., J. which ELDRIDGE, J., join. I would reverse the convictions death of sentence John Miller, IV, Albert and remand this case for a trial. new A in the jury Circuit for Allegany County Court found Miller murder, of guilty first-degree premeditated first-degree sexual assault, robbery, and false imprisonment. Based on its find- ings sentencing at the the proceeding, jury determined Mil- ler’s to sentence be death.1 Among challenges the numerous 1, 2002, provisions 1. statutory governing Effective October the homi- sentencing procedures cide and had revised been without substantive Code, (1957, Maryland Vol.), change. Rep. § Article 27 trial, governed sentencing procedures which the at the time of Miller’s 2-202, Code, 2-303, 2-304, Maryland § § § § now codified under 2- (2002). 305 of the Criminal Law Article Section 413 stated relevant part: Note 1—Continued person required. a is found (a) sentencing proceeding Separate —If given degree, Slate had the if the guilty in the first of murder 412(b), separate sentencing proceeding § a required under notice practicable the trial has been after as soon as be conducted shall to he be sentenced death. to whether shall completed determine proceeding shall (b) be proceeding conducted.—This whom Before conducted: guilt; or (1) juiy that determined defendant’s Before proceeding if: (2) purpose jury impaneled a for Before (i) upon guilty; plea a was convicted The defendant (ii) a trial before court was convicted after The defendant sitting juiy; without a guilt (iii) been dis- the defendant’s has that determined The cause; good by or charged court for by compe- (iv) original court of sentence of death Review of the resentencing; or jurisdiction has resulted in remand tent alone, sentencing (3) proceeding is waived the court if Before by defendant. determining (d) aggravating circumstances. —In Consideration of be, sentence, jury, may shall first consider or as the case the court doubt, whether, following aggravating beyond any of the a reasonable exist: circumstances (1) who was murdered a law enforcement officer The victim was performance duties. in the of his while (2) when he was the murder at time The defendant committed institution; any correctional confined (3) escape an furtherance of defendant committed the murder in The arrest, custody, attempt escape or or evade the lawful from or an guard institution or an officer or of a correctional detention or officer; by a law enforcement (4) attempted taken the course of a was taken or to be The victim abduct; attempt kidnap or kidnaping or or an abduction article; § (5) of this a child abducted in violation The victim was agreement (6) pursuant to an defendant committed the murder promise remuneration or remuneration or contract for murder; commit person (7) engaged employed or another commit The defendant agreement pursuant to an the murder was committed the murder and remuneration; promise of remuneration or the or contract for (8) murder, was under sentence of At the time of the defendant life; imprisonment for death (9) more than one offense of murder the The defendant committed incident; arising degree out of same or first the (10) committing or at- committed the murder while The defendant carjacking, robbery, carjacking, arson in tempting to commit a armed degree. degree, rape or the first first sexual offense in (f) Finding aggravating the court or circumstances exist.—If that no doubt, find, beyond that or more jury reasonable one of does not a sentence, to his conviction and complains newly that discovered evidence a I agree warrants new trial. with Miller that a new trial required is because is a there substantial or significant possibility that newly evidence discovered a produced would have result in this different case. Note 1—Continued exist, aggravating these writing, circumstances it state shall that conclusion in may imposed. and a sentence of death not be (g) mitigating jury Consideration circumstances. —If the court or of finds, doubt, beyond aggrava- a reasonable that one or more of these exist, whether, ting upon circumstances it then shall consider based evidence, preponderance any following mitigating of of the cir- cumstances exist: (1) (i) previously guilty The defendant has not found been of crime violence; (ii) plea guilty of charge entered a of or nolo contendere to a violence; (iii) judgment of a crime of probation or had a of stay entry judgment charge of entered on a of a crime of violence. abduction, paragraph, As used in this "crime of violence” means degree, escape degree, arson in the kidnapping, first in the first manslaughter, except murder, involuntary manslaughter, mayhem, robbery, carjacking carjacking, rape or armed or or sexual offense in degree, any the first or offenses, an attempt second or to commit these handgun felony or of a the use in the commission of a or another crime of violence. (2) participant The victim was a in the defendant’s conduct con- sented the act which caused the victim's death. (3) duress, The defendant acted under substantial domination or provocation person, of another but not so substantial constitute as to complete prosecution. defense (4) capacity The murder was committed while the of the defendant to appreciate criminality of his conduct or to conform his conduct to requirements substantially impaired law was a result incapacity, mental (5) mental disorder or emotional disturbance. youthful age The of the defendant the time of the crime. (6) proximate act of the defendant was not the sole cause of the victim’s death. (7) unlikely engage It that the defendant will in further criminal activity continuing society. would constitute a threat (8) Any specifically other facts which the or the court sets forth writing mitigating it finds as circumstances in the case. (h) (1) Weighing aggravating mitigating If circumstances. — court or mitigating finds one or more of these circumstances exist, whether, by evidence, it preponderance shall determine aggravating outweigh mitigating circumstances circum- stances. (2) aggravating it finds outweigh If circumstances the miti- circumstances, gating the sentence shall be death. (3) aggravating it outweigh If finds that the circumstances do not circumstances,

mitigating may imposed. a sentence of death not be

I. Background Miller’s Trial A. of Shen Poehl- from the murder convictions arose

Miller’s trial the Circuit Court on 1998. Miller’s July man 31, 2000, and January on County commenced for Allegany evi- presented 2000.2 The State February continued until mur- that Poehlman had been theory support dence to to commit a attempting committing was dered while Miller was testimo- Among this evidence degree first sexual offense. scene Bollinger, who had observed the of ny Detective Carroll He testified about body had been found. where Poehlman’s to medical before it was released body the condition mark on the Bollinger ligature noticed a Detective examiner. knees, that an unfastened neck, bruising on the and cuts and socks, body. on the bra, shorts, and shoes remained tennis of a testified his observation The medical examiner on the and bruising body on the neck as ligature mark well results injuries autopsy to the victim’s force head. blunt strangulation ligature that the cause death indicated Although tests of the manner of death was homicide. and semen, there was identify presence body failed DNA. that matched Miller’s semen stain Poehlman’s blouse addition, evidence of numerous state- presented the State while ments made Miller after he had been arrested and had written given lengthy the case. He police processed Poehlman that described his sexual encounter with statement statement, began to this According as consensual. panic Poehlman in a after the sexual encounter strangling girlfriend his concluded because he was afraid would learn time, as described episode plan with Poehlman. His out,” so statement, Poehlman causing “pass in the involved ass” with would “see that an “bother” [he was] she in his that Poehl- any longer. him Miller insisted statement County, charged in his case was transferred 2. Miller was Baltimore but County subsequently to the Circuit to the Circuit Court Garrett County. Allegany Court for unconscious, man, although continued to he put breathe when car, her in the drove found, her where she was eventually left her. Miller’s other depicted statements the crime similarly, and not once he to choking did admit or strangling during Poehlman the course the sexual encounter. To its that support theory Poehlman’s homicide place took during offense, a sexual the State presented information that Bobbitt, had been obtained from Clarence a former cell mate who claimed that he spoken had to Miller while Miller was end, awaiting trial. To officers, this the State called two Fox, Hill and Detectives to about testify interviews conducted with a Clarence Bobbitt and written statement that he had provided. Testifying Hill, first was Detective who stated that Bobbitt had willingly though written his statement even he not “very could read or write well.” Hill Detective also stated that he had nothing offered to for Bobbitt his statement and a “any did not make kind of plea agreement regard- with him ing whatever other he charges had.” that, 16, 1999,

Detective Fox on February testified he had picked up from the Department Bobbitt Sheriffs him and took to the White Marsh Precinct. While Detective Fox was interviewing Bobbitt of part routine processing, Bobbitt told the detective he had information about number including crimes the murder of Shen Poehlman. Bobbitt told Detective Fox information about the murder that some- “only one had detailed information could provide.” [who] When statement, detective then asked for written first Bobbitt what asked was it for him. The detective that he testified replied, “Absolutely Instead, nothing.” he told Bobbitt he should provide the statement it right “because would be the do,” to it thing might “clear conscience.” The [his] detective also testified that he not promise anything did Bobbitt threaten him.

Bobbitt, who years was 19 old at the time trial and still incarcerated, testified about what had he learned from Miller while the two shared a cell. During his testimony, Bobbitt explained currently that he awaiting for a sentencing testified, howev- He had entered. already that he guilty plea exchange any er, plea agreements he had not made even and had told his in the Miller case testimony his police he had with the had lawyer about conversations then recounted the Poehlman murder. Bobbitt about murder, which, he according testimony, to his events from Miller: had learned school. He walking he aside he said was night,

On babysit. She girl. He asked her if she wanted seen phone her a ... he her his gave gave So he yeah. said went home. number, And then he got phone his number. come----Asked her if night he called her. She The next for him. He she babysit said wanted come over she ... on the they over and She knocked yes. said She come it. him where the kids were. He She asked opened door. then she come in. they right ain’t here now. And He said her on the her. no. Threw And he tried seduce She said off, her, top sexually her started ripped He smacked bed. her his hand. strangled And then he with assaulting her. he aput chastity over her face. And then put bag he And neck, stepped ... I mean her and on her face around belt half of it. And realized on one-half on the other pulled and down, he her he And then went and took what had done. downstairs, blanket, her in put in a took her wrapped car, parked her like two blocks and backseat of drove her ... I car, money pocket took the and her out of keys put out of her and it her money pocket mean took else, put everything it in his Took pocket, pocket. back shirt, belt, he had semen on it and chastity got her cause in a threw all that trash can. given went on to written answers that he had

Bobbitt discuss he Fox when first had dis- questions posed Detective written answers de- police. Miller’s case with These cussed crime, suggesting was scribed further details ejaculated choking in a sexual act and had while engaging Poehlman. examination, lawyers questioned

On cross one of defense background, his his interaction with extensively Bobbitt about Miller, statement, Ms the police In mterrogation. re- sponse, Bobbitt described himself aas drug dealer and spoke about his criminal Bobbitt, past illegal drug abuse. however, denied expecting in return for anything the informa- stated, tion. he provided He I police. “If expecting was something tMs, of I out would my lawyer. have told I would had my lawyer have present when I was giving my statement. I would told the Attorney have State’s on my case what I was I doing. would have told the what Judge I was He domg.” that, also testified in his pending sentencing he proceeding, was expecting “the Judge go easier” him in return testimony. his At the conclusion of the 3, 2000, evidence on February judge trial granted motion Miller’s for judgment acquittal of on the charge attempted rape. convicted Miller the other charges: murder, premeditated first degree sexual offense, robbery, imprisonment. and false At the sentencing case, phase of Miller’s 7-9, which took place February from 2000, the jury found that Miller a principal in the first and, degree circumstance, as an aggravating that Miller had committed the crime while committing or attempting to com- mit a first-degree sex mitigatmg circumstances, offense. As found “family environment” and that Miller had no prior record committing crime of Frnding violence. further the aggravating outweighed circumstances case, mitigating circumstances in the the jury determined Miller’s sentence to be death. accordance with the jury’s determination, the trial judge signed filed warrant execution.

C. The Joswick Trial In a separate 6, and unrelated trial February on two years trial, after Miller’s again Bobbitt was called as a State’s In uncle, witness. the criminal trial agamst Ms Richard Lance Joswick, Bobbitt testified about the murder of Taylor. Melissa examination, During cross defense counsel brought up issue of Bobbitt’s previous testimony m Miller’s case. He asked, “This is not testified, it, the first time you is Mr. answered, “No,” ob- the prosecutor Bobbitt After Bobbitt?” bench, where de- jected. lawyers approached The then leniency given had been suggested that Bobbitt fense counsel counsel ease. Defense in murder previous testimony for his whether Bobbitt explore that wanted he judge informed some receiving an expectation currently testifying with and cross- objection prosecutor withdrew benefit. testimony regard previous with his continued examination or however, Bobbitt, receiving denied a death case. penalty in that case in Jo- testifying any benefit for expecting swick’s. redirect, of Bobbitt’s revisited the issue prosecutor

On ensued: following colloquy case. The testimony in Miller’s clear, Bobbitt, you in matter I’m Mr. testified Just so Q. Miller, is against a John to this case completely unrelated right? Yes, A. sir. in that ease? plea agreement Did have a

Q. you A. Yeah. negotiation into a with State?

Q. you Where entered State? plea A. Like with the Q. Yes. Yeah, pled for a

A. we sentence. you bargain; And had entered into is Q. Exactly. right? Yes,

A. sir. testimo- bargain, you gave for that certain Q. exchange case; that right? ny Yes, sir?

A. in this like that take case? Q. anything place Did No, A. sir. have induced may

Based on this evidence that Bobbitt been a motion for a new trial testify Miller filed 15, 1, 2002, March August 2002.3 On the Circuit Court for Allegany County motion, held a hearing on that during which argued contradictory testimony Bobbitt’s constitut- ed newly discovered evidence that was relevant jury’s verdict with to its respect finding guilt and sentence deter- contended, therefore, mination. Miller that he was entitled only not to a sentencing new but proceeding, also trial. new As additional support his assertion that may Bobbitt have given a to testify him, been benefit against Miller pre- sented evidence the criminal against proceedings Bobbitt. Bobbitt, When testimony case, before his in the Miller came before the Circuit Court for Baltimore County September on 7, 1999, plead guilty degree to first burglary and unautho- vehicle, rized of a use motor the victim concern expressed plea agreement too was In response, judge lenient. stated, go will to jail “[H]e for at least five years probably consecutive to what he is now.” serving When Bobbitt eventually sentenced for the crimes on after his April case, in testimony the Miller judge imposed a ten-year sentence, all of prison suspended. which was witnesses, two presented Norman, State Mickey J. Esq., Stephen Bailey, Esq., both prosecutors with the Baltimore County Attorney’s Norman, State’s Office. one prosecutors case, in Miller’s testified that he “never made Mr. ... any promises Bobbitt for testifying in any case” and had not done anything to benefit He Bobbitt. also stated that he Judge did ask anything Fader to do for Bobbitt and denied “direct[ing] anyone in else County Baltimore Attorney’s State’s Office or Police Department” make “promises” to Bobbitt or “to in any way.” benefit [him] Bailey, the lead prosecutor case, the Joswick maintained that he never offered Bobbitt anything for his testimony either the Miller Joswick Bailey case. then explained that he questioned Bobbitt about the Miller case redirect in the 20, 2002, By February 3. order dated appeal this Court held Miller’s abeyance permit litigate Miller to the motion for a new trial before the Circuit Court. himself, he, was unsure whether only trial because Joswick in Miller. Afraid testimony made a deal for the had Bobbitt case, Bailey in Miller Bobbitt, fact, a deal did have credibility Bobbitt’s prevent issue clarify intended that Bailey contended attacked defense. being from somewhat mis- of Bobbitt was of his redirect transcript leading: plea had whether he a asked

Q. you [Bobbitt] And when case, he doesn’t in [the Miller] with the State agreement a he for sentence? on to that go say pled then fact, forty, on where does, page the transcript, A. It and State, with the into a says you negotiation entered it where answer, a with the plea like his my question. that is And actually, yes, And it was yes. My question State? that, talking are over each You see but we can exactly. like with the State? plea He a point. says other at that applied for typed yes, we yes, exactly. up And I It is say sentence, my exactly, question and that next somehow question. and then

Q. Okay. for pled he a sentence. A. He does indicate agreements plea that he knew Bailey also stated testimony into that Bobbitt’s Bobbitt had entered but believed and cases was connected both the Miller Joswick agreements. those trial, new Miller’s motion Court denied Circuit

stating: (1) this Court concludes:

Upon presented, the evidence Bobbitt testimony presented of Clarence assuming (No. of State v. Joswick 01- the case February CR-1669, County) Baltimore constituted Circuit Court for not met evidence, Defendant has his newly discovered signifi- or that there is a substantial to demonstrate burden jury in either the the verdict of the cant possibility case would sentencing phases this guilt/innocenee have affected.... been Court,4

On Miller this appeal presents total of 18 questions urges reversal his convictions sen- Nonetheless, resolution following tence. issue one any eliminates need to address the others: Did the trial court in denying err motion Miller’s for new Bobbitt, trial or sentencing hearing new where a key State’s witness, testified at trial that he had no received inducement for his testimony and entered into no or plea bargains, deals but in an testified unrelated after had proceeding Miller been sentenced that he had against part testified Miller as of a plea bargain?5 Code, appealed pursuant Maryland

4. his conviction sentence (1957, Vol), Repl. § Article 27 which been has recodified Code, Maryland (2002). § 2-401 of Law Criminal Article Section part: 414 stated in (a) by required. Appeals Review court the penalty death of —Whenever final, imposed, judgment is and Appeals the becomes Court the of shall the review sentence the record. (b) Appeals. to papers Transmission Court clerk of the trial of of —The Appeals court shall transmit to the Clerk of the Court of the entire transcript sentencing proceeding days record and the of within ten receipt transcript by after of the the trial court. The clerk also shall findings jury transmit the written and the determination of court or report prepared by and a report the trial court. The shall be in the questionnaire form a prepared supplied by of standard the Court Appeals Maryland of by of shall include the recommendation imposition trial court as to or not whether of the sentence is of death justified in the case. (e) by Appeals. Considerations Court to addition the consider- of —In any properly ation of appeal, errors before the Court on the Court of Appeals imposition shall consider the of the death sentence. With sentence, regard to the the Court shall determine: (1) imposed the Whether sentence of death under the influence factor; passion, any arbitrary of (2) prejudice, or other supports jury’s the finding Whether evidence the of a or court’s 413(d); statutory aggravating § circumstance under (3) supports jury’s the finding Whether evidence the or court’s that aggravating outweigh the mitigating circumstances the circum- stances. questions posed by not be need reached are as follows: 5. instructing 1. Did trial jury proof beyond the court err in the capital doubt reasonable different and lesser standard at a sentencing guilt hearing during stage than the of the innocence proceeding? new and a reversal of Miller’s convictions hold that I would evidence newly discovered necessary are because trial testimony been had lied about whether his may have Bobbitt by agreement. an induced

Note 5—Continued failing adequately the err to instruct Did the trial court in 2. weighing mitigating circumstances concerning the individual aggravating jurors against circum- by all of the found less than stances, refusing propound instruction on that to the and in by subject requested the defense? appellant response question- by in Were made the 3. statements ing by they after his obtained in violation police entered home the of the of Miranda v. dictates Arizona? argu- permitting closing improper rebuttal 4. Did the court err by sentencing hearing? ment the State at the penalty Maryland law unconstitutional? 5. Is the death apartment appellant’s the violate 6. Did the warrantless search of the Fourth Amendment? regarding proper the role Did the court err in its instruction 7. trial evidence, refusing propound the impact and in victim submitted the defense? instruction hearing, sending the sentencing err 8. Did trial court aggravating robbery, when evidence circumstance support aggravating was insufficient to circumstance? prove, aggravating factor at Was evidence sufficient to as an 9. sentencing, victim commit- appellant that the murdered the while degree? ting offense the first sexual jury regarding sentencing Was failure to instruct the corrob- 10. felony plain underlying error material oration of rights accused? sentencing hearing, permitting Did err at 11. the court impeach expert with prosecutor the defense two different questioning? improper lines of probable cause? appellant Was arrested with 12. appellant’s Was sufficient to sustain the conviction 13. the evidence degree for a sex offense? first corpus judge’s failure to instruct the that the [Was] 14. the trial by degree be delecti of the first sex offense must corroborated independent plain appellant's error evidence material rights? juiy instructing mitigating Did court err in 15. the trial evidence, permitting must be raised circumstances argue may pulled be out that such factors "... State to justify an of air to end?” findings adequate Did to make of fact 16. the trial court fail Sentencing New denying Appellant’s Trial or Motion New Hearing? 92

II. Standard of Review State, Recently, 637, 665-66, in Campbell v. 373 Md. 821 1, (2003), A.2d 18 this Court discussed the standard for of appellate review the denial of a motion for a new trial: of motions for new trials are reviewable on appeal [D]enials and rulings on such motions are to subject reversal when State, 583, there is an abuse discretion. Mack v. 300 Md. 600, 1344, (1984); 479 Wernsing A.2d 1352 v. Gen. Motors (1984). 406, 420, Corp., 802, 298 Md. 470 A.2d 809 haveWe noted that discretion a judge afforded trial “is broad but State, 70, is not 62, it boundless.” v. 315 Nelson Md. 553 (1989). 667, A.2d 671 The abuse of discretion standard requires judge a trial his or soundly use her discretion and the must record reflect the of that exercise discretion. Abuse occurs a judge when trial exercises discretion in an arbitrary capricious or manner or when he or she acts State, beyond the or letter reason the law. Ricks v. 312 (1988). 11, 31, Md. A.2d 612 As we indicated in Buck v. (1992), Rugs, Cam’s 328 Md. 612 A.2d 1294 judge “a trial has no virtually ‘discretion’ refuse newly consider discovered evidence that directly question bears whether a new trial should be granted,” and a new trial granted newly should be when clearly discovered evidence 58-59, indicates that the jury has been misled. 328 atMd. A.2d 1298. the context of denial of motion a case, for new trial in a criminal we have noted that “under some judge’s circumstances trial to deny discretion motion for a new trial much more limited than under State, 17, 29, other circumstances.” Merritt 367 Md. (2001). stated, may A.2d We be said that the “[I]t breadth of a trial judge’s grant discretion to or new deny immutable; rather, trial is not fixed or it will expand contract depending upon the nature of the being factors considered, and the extent which the exercise depends upon discretion the trial opportunity judge had Note 5—Continued Maryland’s penalty Is light 17. death law unconstitutional Supreme Ring Court’s decision in v. Arizona? on his own rely trial and of the pulse to feel justice.” of fairness and determining questions in impressions 420, 470 A.2d 802. Md. at nsing, Wer

III. Discussion Court, that contends, before Circuit as he did newly amounts to in case the Joswick testimony Bobbitt’s bought was testimony his about “whether evidence discovered He credibility. lack of utter for” and about his and paid evidence, it is that, discovered newly of this light complains case the Miller oath either that Bobbitt lied under evident view, evidence is this case. Under Miller’s or the Joswick far testimony “provided material” because Bobbitt’s “highly Poehlman,” of the death Shen damning version the most offense first-degree sexual jury to convict Miller leading the that formed the basis factor aggravating to find the sole and Miller, Bobbitt’s testi- According to death sentence. that, sentence had the was so critical the verdict mony evidence, the new hearing it as a jury disbelieved result trial that the result significant possibility is a there been different. would have insists, however, it never entered into a deal

The State transcript testimony for his with Bobbitt trial, closely, if read testimony during the Joswick Bobbitt’s also of such a deal. The State evidence provide any does not not essential to the testimony that Bobbitt’s was maintains because, Bobbitt’s testimo- even without verdict sentence that Miller jury’s finding supports evidence ny, ample that Poehlman was offense or degree committed a first sexual Therefore, in the in the encounter. willing participant not a view, significant possibility there was no substantial State’s trial Miller’s case. impacted occurred the Joswick that what assertion that I should address the State’s Initially, of a not furnish evidence in the Joswick case does transcript contends that Bobbitt The State testimony. deal for Bobbitt’s at the trial on redirect Joswick confused when he testified and, result, misleading. that were gave answers points, specifically, State to Bobbitt’s answer to prosecu- question, tor’s “In exchange for that bargain, you gave certain case; in testimony is that right?” The court reporter as, “Yes, transcribed Bobbitt’s answer sir?” According to the State, question mark following Bobbitt’s answer indicates that he was confused and did not question, understand the he, fact, in admitted to a deal for his testimony. Based on the prosecutor’s testimony Miller’s for hearing a new trial, Bobbitt, State further argues that who “very is uneducated,” believed that he admitting to a plea agree- ment that in he had made connection with a burglary charge that was independent any testimony he gave.

A straightforward reading the transcript belies the State’s contention. The questions and answers during the prosecutor’s redirect speak examination for themselves: clear,

Q. Bobbitt, Just so I’m you Mr. in testified a matter completely Miller, unrelated to this case against a John that right? Yes,

A. sir. Q. Did you have a plea agreement that case? A Yeah.

Q. you Where entered into a negotiation with the State? A. plea Like a with the State?

Q. Yes. Yeah,

A. we for a pled sentence. Q. Exactly. you And had entered into a bargain; is that right? Yes,

A. sir. Q. In for exchange that bargain, you gave certain testimo- case; ny in that is that right? Yes,

A sir? Q. Did anything like that place take this case? No, A. sir.

I find it Bobbitt, difficult to believe that despite his limited education, was confused about the substance of his testimony, when prosecutor referred to the Miller specifically by case no evidence that Furthermore, has presented the State name. than the Miller and other any proceedings testified Bobbitt mistook his cases, that Bobbitt highly unlikely so it is Joswick case. in some other testimony gave he testimony newly discov- all According Judge opinion, Wilner’s ambigu- amounts to “one relied on this case ered evidence question.” but as a not as an answer ous recorded response, Judge is invalid. Unlike at 27. This statement op. Wilner assertion, demon- colloquy plainly and as the above Wilner’s strates, single suggest- more than a statement Bobbitt made a deal for Miller was induced ing testimony against that his fact, affirmatively responded sentence. Bobbitt lighter plea bargain about a questions no less than five times to mark question of a appearance related to the Miller case. The responses affirmative does at the end of one of those ambiguous. or all of the other unreliable responses render knew that he was transcript, From the it is clear that Bobbitt responded that he about the Miller case being questioned part bargain Miller as of a testimony against considered his the State. with in trial that he did

Because Bobbitt testified the Joswick testimony against with the to provide make deal State Miller, trial court was next becomes whether the question In a new trial based this evidence. denying correct based on newly whether a new trial is warranted determining evidence, employ trial court must a two- discovered the movant has the approach. approach, Under this pronged (1) newly discovered evi- burden to demonstrate: (2) was, fact, “may that it well newly dence discovered result, is, was a substan- a different there produced have fact or that the verdict of the trier of significant possibility tial (Yorke State, 578, 588, affected.”; 315 Md. have been v. would 230, (1989)); see also 373 Md. at 671- Campbell, 556 A.2d 235 21; State, 648, 695-96, 72, Baker v. 367 Md. 821 A.2d at (2002) 629, (applying two-pronged approach A.2d newly trial court’s of a trial based on affirming denial new case); State, penalty discovered evidence a death Jackson 612, 626, (2000); State, 358 Md. 751 A.2d Argyrou v. (1998). 587, 600-01, 1194, 1200-01 349 Md. 709 A.2d The first which has prong, “essentially been described as one,” Jackson, factual is from Maryland derived Rule 4-331. 4-331(a), 358 Md. at 751 A.2d at 480. Under Rule may circuit court order a new trial “in justice” the interest of if the defendant files a motion days “within ten after a verdict,” and, subject 4-331(c), to the requirements of Rule may order a new trial on the basis of newly discovered 4-331(c) evidence. Rule in part: states (c) Newly discovered may The court evidence. grant new trial or other relief on appropriate ground newly discovered evidence which could not have been discovered by diligence due in time to for a pursuant move new trial (a) section of this Rule:

(1) on motion year filed within one after the date the court imposed sentence or the date it received a mandate issued by Appeals the Court of or the Court of Special Appeals, later; whichever is

(2) on if any motion filed at time sentence death was evidence, and the if imposed newly discovered would proven, show that the defendant innocent of the crime of capital which the defendant was convicted or of an aggravating circumstance other condition of eligibility the death penalty actually found the court or in imposing the death sentence.... case, 15, 2002, present on March Miller filed a motion 4-331(c)(2). pursuant a new trial to Rule The evidence of contradictory

Bobbitt’s about a testimony deal with the State 2002, manifested at the trial in February Joswick well over year 9, after Miller received the death sentence on February to, 2000. The other evidence that Miller points Bobbitt’s 6, suspended sentence that he received on 2001 April after Miller, testifying against also occurred well year over a after Miller’s events, sentence was Neither of imposed. these therefore, possibly could have been discovered earlier Miller with any diligence. doubt, amount of There is no

97 is, fact, therefore, on which Miller relies that the evidence newly discovered. analysis this complex prong second and more

The evidence, of the an impact case involves a determination judgmental as “a which this Court has characterized inquiry Jackson, 358 Md. the effect of the evidence.” weighing one— 626, newly A trial based on discover at 751 A.2d at 480. new if evidence newly discovered permitted ed evidence is, result, a different there “may produced well have of the that the verdict significant possibility a substantial Yorke, Md. at of fact would have been affected.” 315 trier 588, ] 556 A.2d at The evidence further must “touch[ 235. 585, 233, trial,” at 556 A.2d at at id. upon presented evidence ” or impeaching.’ than cumulative ‘merely and “must be more 601, (citing A.2d at 1201 Love v. Argyrou, 349 Md. at 709 State, 432, 910, (1993); 420, 621 A.2d Jones v. Md.App. (1973)). State, 472, 477, 298 A.2d Md.App. case, im present although discovered evidence newly time, it for the first peaching, opens, is not cumulative because attacking obstructed and avenue for previously important the State’s case. Yorke, evi- newly this Court announced that discovered if it have only “may produced

dence warrants a new trial well result, is, significant a different there was a substantial or of the trier of fact would have been possibility that the verdict Yorke, affected.” 315 Md. at 556 A.2d at 235. The Court newly this standard to discovered evidence that the applied DNA convicted of four petitioner, rape of the who had been earlier, vaginal did not match the DNA found from a years rape. Although taken from the victim after the washing trial, presented “touched the evidence at as to upon” evidence evidence, newly discovered DNA “persuasiveness” in Yorke stated: opinion standard, that the new say, light We cannot our trial to evidence touched on the evidence the extent do “may produced that it well have a different result.” We significant “a substantial or believe there was do As possibility” judge recognized, that it would so. showed no more than that the DNA the new evidence swabbings in the of the victim did not match pattern vaginal DNA The DNA test results before the pattern. Yorke’s not of the DNA origin pattern court did even disclose washings. was found in the did not [The victim] which ejaculated had so that the absence rapist know whether the him of Yorke’s DNA did not exclude as the criminal pattern trial judge We hold that did abuse his agent. denying discretion in the motion for a new trial. 590,

Id. at at 556 A.2d 236. newly discovered recently weighed impact This Court 670, Campbell, at A.2d evidence 373 Md. impeachment at newly at 20. The discovered evidence issue there involved in the concerning underlying information State’s witness allegedly “previously falsely murder trial who had accused Id. 644, another of murder” an unrelated case. at person argued testimony 821 A.2d at 5. of this false Campbell to distrust “inspired accusation would have [the murder. Campbell statement” that committed the witness’s] Id. at 651-52, Reasoning 821 A.2d at 9. the witness’s trial, had at credibility impeached thoroughly been Court trial Campbell’s concluded that motion for a new had been denied had heard evidence that appropriately. a hit-man had murdered drug-dealer, witness was he within an that he had people eighteen-month period, seven murders, had committing been those that he falsified paid get his criminal record to into the United States Marine Corps, sought and that he avoid the death sentence Id. at 670, trial. at 21. testifying Campbell’s at 821 A.2d This stated, “Surely presentation Court of additional evidence initially would reinforce the shadows east on [the witness’s] testifying, character and motive for but the new evidence a collateral and was to that al involved matter cumulative Id. Additionally, 821 A.2d at 21. ready presented.” Campbell opinion declared that there was “not a ‘substan ” that significant possibility' impeach tial or the “cumulative Id. at 671- ment would a different result. produce evidence” judge 821 A.2d at 21. The Court concluded that the “trial on his own rely ‘felt the of the trial’ and was entitled pulse determine, exceeding without the limits his impressions discretion, bearing that the new evidence [the witness’s] to substantially likely tip trustworthiness was not the balance 672, A.2d 21. Campbell.” in favor of Id. at 821 at that this found Campbell per- The circumstances Court suasive, however, do not in the case. Given appear present had im- Campbell the extent which the witness been trial, newly discovered evidence of his peached previous allegedly nothing false statement was more than “cumulative evidence” it would have had effect impeachment because little jury’s credibility on the determination. cannot newly

The same be said about the discovered evi- case, however, dence at issue in the present considering the impeaching effect of evidence of a witness’s powerful plea bargain with the State and the testi- importance Bobbitt’s mony to Miller’s conviction and death Impeachment sentence. evidence, “if ... disclosed and used make the effectively, may difference between conviction and acquittal.” Conyers v. (2002) State, 571, 606, 15, 367 Md. 790 A.2d 36 v. (citing Spicer (4th Inst., Cir.1999)). 547, Roxbury Corr. 194 F.3d 556 particular, agreements or deals with witnesses “[e]videnee provides powerful impeachment often a wit- against evidence ness and enables defendant to attack the motive or bias of a might appear witness who otherwise to have no motive to State, falsify 19, 50, or color his v. testimony.” Ware 348 Md. 699, (1997); Werme, 702 A.2d 714 United States v. 939 F.2d (3rd Cir.1991) (“Proof 108, 114 that a pleaded witness has guilty agreed guilty has plead highly relevant show bias, recognized mode of impeachment.”). Recognizing evidence of witness cooperation with the State is so potentially impeaching, this Court has held that the jury is entitled to know, exists, just agreement not that an but also the terms of agreement to “assess whether the reasonably ‘deal’would tend to indicate that testimony [the has been influ- witness’s] State, enced bias or to testify falsely.” motive Marshall v. (1997). 186, 197-98, 184, 346 Md. 695 A.2d 189-90 Consistent principles with the underlying holding, the State is re- 100 terms of a specific to disclose to the defendant

quired v. witnesses. Wilson agreement cooperating with plea written State, Giglio see 333, 356, 675, (2001); Md. 768 A.2d States, 766, 150, 154-55, United 405 U.S. 92 S.Ct. (1972) that an individual was denied (holding L.Ed.2d facts of failed to disclose prosecution due where process exchange testimony). made to a witness promises impeaching effect of evidence powerful Because State, newly with the discovered cooperation witness authorities casts seri- possible evidence of Bobbitt’s deal with reduce, if could veracity testimony on the of his ous doubt eliminate, issue in this its The evidence at case impact. Campbell sought where the petitioner differs from that introducing newly him discov- against the witness impeach Here, accusation. Miller prior alleged evidence of a false ered may that Bobbitt have had a deal with authori- has discovered of this is much more Impeachment genre ties. evidence evi- any type impeachment than almost other “powerful” and, therefore, than surely would as more qualify dence or contradiction.” impeachment” “peripheral “collateral in Campbell addition, testimony whose unlike witness trial, credibility at Bobbitt’s thoroughly had been discredited trial cross examination. damage had suffered little at after Bobbitt at trial consist- only possibly impeaching evidence his criminal and that he had past ed of his statements about user, entering and Bobbitt denied into drug been a dealer and for his police prosecutors exchange with or any agreement at testifying Miller. While the Joswick testimony against trial, however, directly testimony Bobbitt contradicted his case, that he had to a deal for his stating agreed the Miller “touches on” clearly Miller. This evidence testimony against Bobbitt, fact, to testify had a deal with the State whether and, thus, into his question purpose for some benefit calls jury gave credit the Bobbitt’s testifying. motive for Whatever in light impeach- of the new testimony may well deteriorate ment evidence. newly the effect of the concerned over

I am particularly testimony Bobbitt’s evidence because impeachment discovered Miller and the encounter between critical. It described will, attack a violent entirely against victim’s Poehlman as advances. Poehlman refused Miller’s sexual after undertaken strangling of the homicide portrayed version Bobbitt’s time, in a sexual act. while, engaging same victim at the testimony entirely, jury discounted Bobbitt’s Had the the State’s may support evidence have done little remaining murder occurred finding that theory jury’s admissions, attack. In his numerous of a brutal sexual course consensual, and he the sexual encounter as Miller described that, the victim’s death episode, after the sexual claimed attempted accidentally panicked while he occurred Nevertheless, heard Bobbitt’s jury, having subdue her. factor, homicide, only single aggravating found version of the committing while had committed the crime that Miller offense. Absent first-degree to commit a sexual attempting however, may not have con- testimony, record Bobbitt’s a reason- beyond for a to find tained sufficient evidence degree a first during doubt that the homicide occurred able of death and jury’s offense. Because the sentence sexual sexual offense rested heavi- regarding degree verdict the first necessarily it follows that had the ly testimony, on Bobbitt’s it, or significant possi- there is a “substantial jury disbelieved sentencing would have that the result at trial and bility” different. been that, light in of Bobbitt’s

Judge opinion contends Wilner’s in the Miller and Joswick cases and the testimony other cooperation that no deal for Bobbitt’s testimony prosecutors at existed, the would not believe Bobbitt’s statement jury ever for a against trial that he testified Miller return the Joswick “Miller, Judges Judge sentence. Wilner states: lighter Bell, ambiguous the one re- Battaglia, Eldridge, view question, only not as an answer but as a recorded sponse, Bobbitt, indeed, may have received proof as clear that, had the testimony significant for his but as so benefit likely it would not have inquisitive response, heard that jury convicted Miller of the sexual offense or sentenced him to at 27. op. death.” Wilner

These contentions demonstrate either a failure to under- or concede the actual import newly stand refusal to I suggest newly discovered evidence. do not that the discov- any proof ered evidence established Bobbitt received a Rather, testimony. testimony benefit for his Bobbitt’s redirect in the case would Miller’s provide Joswick defense important powerful discrediting counsel with an tool for instance, Bobbitt’s account of the murder. For before the newly testimony, pos- discovered evidence Bobbitt’s testify- sessed no concrete Bobbitt’s motive for evidence than altruistic. If ing anything was other allowed to hear had testified an inconsistent fashion about his Bobbitt jury motives, however, could determine that Bobbitt’s testi- and, therefore, mony part negotiated bargain of a poten- jury likely biased. A then is less Bobbitt’s tially accept if version of the events as true. Even Bobbitt denies that his State, Miller case came at a cost to testimony testimony Miller’s counsel’s use of Bobbitt’s former as im- inconsistent statement fodder to peachment prior provides Bobbitt’s encourage discrediting. newly Bobbitt’s discovered evidence, testimony important whether a believes its such, substance or not. As should have the opportunity in determining guilt to consider it both Miller’s and sentence. opinion practice This is consistent with the of the other newly key courts that have addressed discovered evidence of a United States cooperation witness’s with the prosecution. Harris, (10th v. Cir.1972), 462 F.2d 1033 the Tenth Circuit the trial Appeals Court reversed court’s denial of a new trial on newly key based discovered evidence that a prosecu- provided testimony tion witness had his exchange him. Id. at 1034-35. The charges against dismissal of various “general court stated the rule” that “a new trial is not of newly necessitated because discovered evidence of a cumu- nature its impeaching potential impact upon lative unless Id. (citing King v. the result of the trial is apparent.” States, (10th United Cir.1968); United States 402 F.2d 289 Cir.1969)). (10th holding In Gleeson, 411 F.2d 1091 of how evidence emphasized the court necessary, was new trial credibility: affects the witness’s cooperation government is cumulative bargain plea of [the witness’s] The evidence It is true that [the in broadest sense. that term’s only and question to attack credibility] subject was witness’s felon, a a convicted accomplice, an admitted he was because addict, leniency of some because hopeful and was heroin incriminating that the But it is also true testimony. his credibility accepted is whose accomplice statement of an leeway Great to the defense. hopelessly damaging almost establishing in such a wit- the defense should be accorded bar, this case testifying. reasons for subjective ness’ squarely premised for was testifying reason witness’s] [the had in main leniency” His bargain. “hope upon plea from the through relief already accomplished been part So, too, gov- prosecutions. of a multitude potential only on the witness is reflected reliance ernment’s throughout pages over 130 bargain of the but plea terms The should testimony of transcript [the witness]. trial and fairness requires of the case aspect have known of this given opportunity pursue the defense be full argue the matter. (footnote omitted).

Id. (E.D.N.C. Atkinson, F.Supp. In United States v. 1977), trial after the defendant the court ordered new that a witness newly key discovered evidence presented witness’s regarding previous him on the stand against lied had testified as of a part and that the witness convictions the effect with The court described bargain prosecution. evidence: newly impeachment discovered who testified only Here was the witness [the witness] transactions, and the the heroin petitioner’s participation uncorrob- witness’s] in the truthfulness of jury’s [the belief finding petitioner’s essential to a testimony orated sufficient- evidence this case guilt. newly discovered ... of the witness veracity credibility ly impugns justice the interest of should have the the of said opportunity passing upon credibility witness.

* * * case, newly by The discovered evidence this developed counsel, “might” “probably” skilled have and would have jurors induced reasonable doubt the minds of to enough avoid a conviction. (citation omitted) (footnotes omitted).

Id. at 887 Davila, (9th Cir.1970) United States 428 F.2d 465 also Al- provides support my opinion present the case. court in Davila concluded though newly that discovered of a testimony evidence witness’s induced did not warrant a trial, it so prosecutor new did because the and defense counsel had to the trial suggested jury during proba- that the witness had bly testifying. some self interest its reason- Explaining ing, the court stated: whole, as a

[Considering opinion record we are of the would likely have convicted Davila even had evidence, discovered, to newly claimed have been been summations, In introduced trial. their both the prosecu- tor and the defense counsel discussed the possibility prosecuting -witnesses would receive favorable consider- having against ation for testified Davila. prosecutor very forthrightly fairly stated to as to jury, one -witnesses, “And it’s obvious that fairly he has some kind and, of self interest in his testimony,” as to the other “So, witness, fairly it is obvious again cooper- whatever might ation he will most given probably have be called to sentencing judge the attention of the before he imposes So, you sentence. want to this in mind.” The defense keep “I attorney commented: am not is saying Government Davila, in some kind of a I conspiracy against saying all am certainly can expect good [one witnesses] deal.” In light arguments by of these attor- responsible naive, neys, any jury we cannot believe that could be so testi- whether the witnesses’ as not to consider collectively, for reward. hope influenced their mony was 466-67. Id. at Davila, closing during the State’s contrast sharp case, urged the prosecutor in the

argument present he had because, according prosecutor, Bobbitt believe testifying: nothing gain by impeach to somehow Mr. did their best

And the defense necessarily I wrong. wouldn’t get And don’t me Bobbitt. admit, home, guy you got but suggest you take [him] see is you I’m a criminal. What this I’m a criminal. says Now the happened. what get. you But he tells you what some sort of gaining that he was suggest Defense tried to fact, to they matter of tried advantage for this. As a ... in another case sentencing that he was suggest pending something happens. hoping to that he’s they suggest tried that who’s so unconcerned about guy Well here’s a in County September in Baltimore back pled guilty when he in the lawyer year didn’t tell his that back earlier of 1999 he this case. He never even told police he had talked to about can’t believe Mr. lawyer. they suggest you And liar, criminal, he’s a he has some- Bobbitt because he’s a Whoa, to whoa. thing gain. offered to

Considering impeach what little evidence had been trial, time, argument, persua- this at the was during Bobbitt if sive; however, jury could its luster knew that it lose that his participation Bobbitt later testified under oath by agreement police Miller trial was secured an with argument damage The would suffer even further prosecutors. that, testimony if Bobbitt’s jury understood after trial, entirely suspended sentence his Miller he received an Davila, no the Miller had reason guilty plea. Contrary testimony may by Bobbitt’s have been affected to believe that Therefore, on the by the State. based favorable treatment testimony great potential importance Bobbitt’s evidence, a new newly it discovered to be undermined necessary trial is to allow a decide Miller’s fate after hearing newly all of this discovered evidence.

IV. Conclusion testimony against may evidence Bobbitt’s have been induced as of a warrants a new part plea agreement trial this case. The evidence of the agreement newly discovered it came to after trial had light long because Miller’s concluded. It is more than “cumulative impeachment evi- significant dence” and “there is a substantial or possibility” that the new evidence would a different produce result. With- out testimony, may support Bobbitt’s the evidence conviction of first sexual offense or a degree finding the sole circumstance in this trial aggravating Consequently, case. denial of Miller’s motion for a trial judge’s new amounted discretion, an abuse of and it should be reversed. BELL Judge Judge

Chief ELDRIDGE have authorized they join opinion. me state this

843 A.2d 865 Harold C. JURGENSEN PHOENIX NEW ATLANTIC CONDOMINIUM COUNCIL OF UNIT OWNERS. Term, Sept.

No. 2003. Appeals Maryland. Court March 2004. her.” notes Bobbitt assaulting “sexually assaulting to: ing about oral sex. He did need Miller’s required her” will do. was not believe woman who had a story 17-year-old young far-fetched that a with an boyfriend, apartment who was lured Miller’s offer Miller, babysitting job, of a and who did not know would him consent to sexual with after willingly engage activity job being babysitting ploy. informed Felony L. Failure to Instruct Corroboration

Notes

had notes she made extensive written but she was about that. report, questioned made written that, if was written prepared said that she aware she She to turn it over to required the defense would have been report, in closing argument, sug and the prosecutor, prosecutor, that, by report, not a written gested preparing it from us.” “keeping defense was closing Although objection no was made that comment now that it was even to argument, argues impermissible Burry. suggests Dr. He pose questions by made report decision not to such was defense prepare counsel, Burry, Dr. and that it was unfair to use by credibility. her find report impeach absence of We thing, For one nothing impermissible questions. about that the support suggestion record does not Miller’s current made report decision not to a written defense prepare

Case Details

Case Name: Miller v. State

Court Name: Court of Appeals of Maryland

Date Published: Feb 19, 2004

Citation: 843 A.2d 803

Docket Number: 90, Sept. Term, 2000

Court Abbreviation: Md.