Oken v. State

A.2d Steven Howard OKEN Maryland. STATE Term, Sept. No. 2002. Appeals Maryland.

Nov. 2003. (Michael Lawlor, & E. Bennett Na- Bennett Fred Warren Greenbelt, thans, LLP, brief), for appellant. on (J. Curran, Jr., Bosse, Atty. Atty. Joseph Ann N. Asst. Gen. brief), Baltimore, for appellee. Maryland, Gen. Kymberlee Stapleton, C. Criminal Scheidegger, Kent S. Foundation, Sacramento, CA, of Amici Legal brief Justice Foundation, Frederick Legal of the Criminal Justice Curiae Romano, Anthony Supporting Romano and Frederick Joseph Affirmance. RAKER, ELDRIDGE,* BELL, C.J., and

Argued Before BATTAGLIA, WILNER, CATHELL, JJ. HARRELL and HARRELL, Judge. effect, if any,

It turn to consider Maryland’s Arizona, Ring v. holding U.S. Court’s capital its upon 153 L.Ed.2d 556 supreme At statutory scheme. least eleven state punishment question the same preceded pondering courts have us states, four, Ari- statutes.1 those regards their Of respective Ring Nevada, zona, Colorado, Missouri, concluded * J., retired, hearing Eldridge, participated now and conference Court; being active member of this after recalled this case while an IV, Constitution, 3A, participated pursuant he also to the Article Section adoption opinion. in the decision and this (Ala.2003); Waldrop, Hodges, 856 So.2d 936 Ex Parte 1. See Ex Parte (Ala.2002); Ring, v. 204 Ariz. So.2d 534, 2002 WL 31630710 State Prieto, (2003); People P.3d 915 30 Cal.4th 133 Cal. 18, 458, Navarette, (2003); People Rptr.2d 1123 v. 30 Cal.4th 66 P.3d 89, (2003); Cal.Rptr.2d People, 64 P.3d 256 133 66 P.3d 1182 Woldt v. Moore, State, (Del.2003); (Colo.2003); 815 314 Bottoson v. Brice v. A.2d 151, Ballard, (Fla.2002); People v. 276 Ill.Dec. 833 So.2d 206 Ill.2d 693 538, (2002); (Mo. Whitfield, v. 107 S.W.3d 253 794 N.E.2d 788 State State, State, 2003); (Nev.2002); v. 59 P.3d 450 Torres v. 58 Johnson State, (Okla.Crim.App.2002). In Olsen v. relied on P.3d 214 dissent, Wyoming of Court of addressed burden weighing aggravating against mitigating persuasion process of statute; however, Wyoming’s did factors under the court Ring Wyoming's upon capital punishment not consider the effect of State, 536, 576, (Wyo.2003). v. 67 P.3d 590 scheme. Olsen

183 compelled part invalidation some their statutes writ- states, Alabama, California, Delaware, six The remaining ten. Florida, Illinois, Oklahoma, had no ill Ring concluded their statutory effect on schemes. For reasons to be ex- Ring plained infra, we determine does affect adverse- Maryland statute. ly

I. Court, present case is Mr. Oken’s fourth in this see State, 191, (2001), denied, v. Md. Oken 367 786 A.2d 691 cert. (Oken (2002) 1074, 1953, 122 S.Ct. 152 855 535 U.S. L.Ed.2d III) (application appeal for leave denials motion to re post-conviction illegal case and motion to open correct sen tence, 466, Jersey, both based on v. New 530 U.S. Apprendi 2348, (2000)); State, 120 S.Ct. 147 L.Ed.2d 435 Oken v. 343 256, (1996), denied, 1079, Md. 681 A.2d 30 cert. 519 U.S. 117 (Oken (1997) II) 742, 136 L.Ed.2d S.Ct. 681 (post-conviction case); State, (1992), 628, Oken v. 327 Md. 612 A.2d 258 cert. denied, 931, 1312, (1993) 507 U.S. 113 S.Ct. L.Ed.2d 700 (Oken I) (direct Oken III appeal).2 was the result of Oken filing pleadings three in the Circuit for Court Baltimore County, addressing all the applicability Apprendi to the (1) Maryland death penalty statute: a Motion to Correct Illegal Sentence Motion for New Sentencing Based on and/or (2) (filed Mistake or Irregularity; for Motion New Trial (3) Oken, se); pro Mr. a Motion to Reopen Post-Convic tion All Proceeding. were denied. This granted Oken’s and, Application 2001, Leave to on 14 Appeal December addition, Nuth, (D.Md.1999), F.Supp.2d 2. see v. aff'd, Oken Corcoran, (4th Cir.2000), denied, Oken v. 220 F.3d 259 cert. 531 U.S. 1165, 1126, 148 L.Ed.2d 992 Oken’s federal habeas Nuth, corpus petition. See also F.Supp.2d (detailing Oken procedural history corpus petition, including of Oken’s habeas Oken's Maryland non-opt-in motion to declare State under the Anti Terror Act). Penalty Subsequent ism Death his conviction in this case for Garvin, pled guilty the murder Dawn Oken the murder Patricia State, 258, Hirt. See Oken v. 327 Md. 644 n. 612 A.2d 266 n. 4 , denied, cert 122 L.Ed.2d 700 (1993). opinion Little more need be regarding said in this the facts underlying present Oken’s convictions case. 184 A claim.3 for Writ petition relief on the Apprendi

denied of May Supreme the U.S. Court 13 Certiorari was denied 1074, 1953, 152 122 Maryland, 2002. Oken v. S.Ct. (2002). L.Ed.2d 855 2003, Execution issued from January

On 27 a Warrant of County commanding for Baltimore Circuit Court day a five during period some time Oken executed March, in 17 2003. Also on 17 Oken filed commencing March a to Correct County for Baltimore Motion Circuit Court Sentencing for Based Motion New Illegal Sentence and/or Irregularity. argued motion Mistake The Upon silentio, overruled, Ring Court’s in sub decision State, 91, 367 Md. 786 in Borchardt v. this Court’s decisions 2309, (2001), 122 152 cert denied 535 U.S. A.2d 631 (2002) 2003, the January III. 29 and Oken On L.Ed.2d Illegal/Irregular denied the Motion Correct Circuit Court a Appeal. Oken thereafter filed Notice of On Sentence.4 of Stay in this a Motion for February Oken filed an February grant- we issued Order Execution. On execution, of pending a resolution ing stay for request ease. present III, his he Oken claims that death sentence As did Oken illegal for murder of Dawn November Garvin 4- Maryland Rule as those terms are used irregular, 345,5 statute unconstitution- Maryland’s because rejection Apprendi complete 3. rationale this Court's claim State, 367 Md. 786 A.2d 631 is contained in Borchardt day prior filing opinion our Oken III. to the decided one February Applica- Reopen was on 11 2003. An 4. The Motion denied on 11 Appeal for Leave to that decision was filed with this Court tion March 2003 denied. part: 5. 4-345 states in relevant Rule (a) illegal Illegal correct an sentence sentence —The court any time. (b) revisory or reduction —Time The court has Modification for. upon filed within power and control over sentence motion Court, (1) days appeal if an not imposition its in the District has after court, appeal perfected, been circuit whether or an ally for the if provides imposition the death sentence determines, sentencing authority preponderance evidence, miti- outweigh any gating Throughout years Maryland’s circumstances. since major last of its capital punishment overhaul statute obedi- Court, ence of holdings Supreme the U.S. and most III recently Borchardt and Oken Borchardt as (adopting dispositive), this Court has concluded otherwise.6 In the case, present argues Oken has been Borchardt overruled and, therefore, Ring judge Circuit Court erred when he declined invalidate Oken’s of sentence death.

II. Petitioner presents following for our questions consideration: Whether, Arizona,

I. in light Ring of v. this Court

should v. overrule Borchardt State and hold that the Maryland penalty death statute is unconstitutional its face it provides because that a sentence of death may be if imposed State proves only factors outweigh any factors by a preponderance the evidence. Whether, review,

II. on collateral this Court can reach

the merits of Mr. Apprendi/Ring arguments Oken’s the application of Court’s decisions Thereafter, revisory power has been filed. the court has and control fraud, mistake, over the sentence in case of irregularity, or or as (e) provided by section this Rule. State, 650, 712-13, 764, (2000); 6. v. See Ware 360 Md. 759 A.2d 797 State, 132, 197-99, 910, Conyers (1999); v. 354 Md. 729 A.2d 945 Ball State, 156, 206-07, 1170, (1997); v. 347 Md. A.2d 699 1194 Burch v. State, 299, 253, 443, (1997); State, 346 Md. 696 A.2d 466 Clermont v. 419, 456, 880, (1998); State, Perry 348 Md. 704 A.2d 898 v. Md. 344 204, 247-48, 274, (1996); State, 686 A.2d 295 v. Grandison Md. 341 175, 231-32, 398, (1995); State, 30, Whittlesey 670 A.2d v. 340 Md. 82-83, 223, (1995); State, Wiggins A.2d 248-49 324 Md. State, (1991); 269, 296, 597 A.2d Collins v. 318 Md. State, (1990); 695, 728-34, 568 A.2d Tichnell v. 287 Md. A.2d (1980). 848-50 Ring Apprendi Maryland penalty death law that a new rule constitutional represent scheme and the proof alters the standard fundamentally capital are sentencing hearings manner which in this conducted State. which Mr.

III. Do exist excuse special proof issue on failure to raise the standard Oken’s first previous post-conviction direct or his appeal proceeding? sentencing proceeding employs capital Whether

IV. proof results in unconstitutionally an low standard illegal irregular of an sentence. imposition issue, Ring Because, find as to Petitioner’s first we bears stat- Maryland implications no adverse shall ute, petitioner’s we do not reach other issues.7 We the of the Circuit Court. judgment affirm

III. been Supreme diligent developing The Court has U.S. in the since twenty-plus years penalty jurisprudence death Georgia, v. 238, 2726, 92 L.Ed.2d Furman 408 U.S. S.Ct. 33 issue, broadly regard to he asserts the 7. With Petitioner’s first that, argument Maryland beginning the death and end of his because provides weighing of penalty that the statute against mitigating preponderance the circumstances is of evidence standard, Fifth, Sixth, Eighth the and Fourteenth the statute “violates 16, 21, 23, and Amendments of the United States Constitution Articles 17, (Petitioner's 31). 24, Maryland and of the Constitution.” Brief at 25 however, argument, majority of is devoted almost The Petitioner’s Sixth, Eighth entirely arguing Amendment issues the Fourteenth rightfully Ring, Apprendi, were focus of and Borchardt and so. the principal case Court is to determine if reason this was taken the Ring presents meaningful, affects Borchardt. Petitioner no additional indicating arguments supporting Supreme that the Court’s decision in understanding Ring change previously of should this Court's articulated Amendment, Matyland provi- the constitutional the federal Fifth and/or Maryland way penalty death statute sions in a that would make the n.6, Borchardt, e.g. See 367 Md. at 127-28 786 A.2d at constitutional. (as Rights). Maryland We 652-53 n.6 to Art. 24 of Declaration of Sixth, Eighth, only Amendment therefore address and Fourteenth implications of Petitioner’s first issue.

187 (1972), law department with result that this of the 346 cradle, labyrinth. navigate now a In order this cat’s well our in the case underpinnings as to understand the of decision judice light Supreme jurisprudence sub Court’s arena, necessary this it is to review its since development much in a Fortunately, history Furman. of that is found Scalia in Walton single place, concurring opinion Justice Arizona, 639, 3047, 111 v. 497 110 L.Ed.2d 511 U.S. S.Ct. (1990), us. Al- import a case some matter before of, though quotations extensive block are bane readers we are moved at upon, appellate opinions, commentators in detail from concur- beginning quote Justice Scalia’s up rence because it traces to that of two lines point lineage jurisprudence regarding Court’s relevant statutes, which Ring. lines culminate in As explains: Justice Scalia years,

Over the course of the has past 15 this Court rulemaking the role of admin body assumed States’ of capital sentencing effectively capital istration requiring — separate adjudication from the proceedings see, Carolina, 280, v. guilt, e.g., Woodson North 428 U.S. (1976) 2978, 944 S.Ct. L.Ed.2d (plurality 153, 195, Georgia, opinion); Gregg v. 428 U.S. (1976) (opinion

49 L.Ed.2d 859 dic announcing judgment), tating type extent discretion the sentencer must see, have, Ohio, e.g., and must not v. Lockett 57 L.Ed.2d 973 (plurality opinion); S.Ct. 420, 100 Georgia, Godfrey L.Ed.2d requiring categories certain of evidence admitted, see, must and must not e.g., be v. South Skipper Carolina, 1669, 1, 476 106 (1986); U.S. S.Ct. 90 1 L.Ed.2d Maryland, 496, 107 2529, Booth v. 482 U.S. S.Ct. 96 L.Ed.2d (1987), 440 undertaking minute into the inquiries wording jury instructions to ensure that jurors understand their rules, see, labyrinthine duties under our e.g., code of Cald 320, 2633, well v. 472 U.S. Mississippi, 105 S.Ct. 86 L.Ed.2d (1985); 367, Maryland, 1860, 231 Mills v. 108 S.Ct. 100 L.Ed.2d 384 and prescribing procedural 188 follow, see, must e.g., decisions

forms Carolina, S.Ct. McKoy North (1990). development began The case that L.Ed.2d 369 Furman v. Eighth jurisprudence this Amendment was 33 L.Ed.2d Georgia, 408 U.S. curiam), come to stand for the principle which has (per must to return a death sentence a sentencer’s discretion standards, penalty so that the death by specific constrained in a random and fashion. capricious is not inflicted Furman, of two men we overturned the sentences to death in state courts for murder convicted and sentenced and under rape, one man so convicted sentenced for and discretion gave jury complete impose statutes that crimes, no factors it for those with standards to the death no per gave deem relevant. The brief curiam should decision, say other than “the reasons the Court’s out of these carrying penalty and imposition cruel and unusual violation of punishment cases constitute Id., 239-240[, Fourteenth Amendments.” at Eighth underlying To uncover the reasons 92 S.Ct. 2726]. Furman, to the opinions one must turn decision each of whom wrote forming majority, five Justices joined any none of Of opinion. whom other’s separately possible two rested on the broadest opinions, these the death was cruel and unusual ground —that id., 305[, 92 in all circumstances. See at S.Ct. punishment (BRENNAN, id., 369-371[, J., concurring); 2726] (MARSHALL, J., third, concurring). A that of 2726] S.Ct. ground on a Douglas, rested narrower Justice —that which sentencing systems under discretionary capital in a been manner petitioners operated had sentenced were against unpopular racial minorities and that discriminated id., 256-257[, (concurring groups. 2726] See opinion). however, subsequent opinions, light

The critical of our were those JUS- development jurisprudence, on the infre- They TICES Stewart and focused WHITE. which, seeming randomness with under the quency state discretionary systems, penalty imposed. was Justice Stewart wrote: in

“These death sentences are cruel and unusual way being by lightning same struck is cruel and For, unusual. of all people rapes convicted in 1967 many just reprehensible murders as these, petitioners among capriciously are selected whom in upon random handful the sentence of death has fact imposed.... Eighth been The and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems permit unique penalty this Id., wantonly to be so and so at freakishly imposed.” (footnotes 309-310[, 92 S.Ct. (concurring opinion) 2726] omitted). took

JUSTICE WHITE a similar view. In his opinion the death sentences Eighth under review violated the Amendment “as the statutes because before us are now administered, is so infrequently imposed the threat of execution too attenuated substantial Id., 313[, justice.” service to criminal at 92 S.Ct. 2726]. no meaningful “There is basis for distinguishing the few cases which it is from the imposed many cases which it not,” ibid., “pointless so that it constitutes a and needless only extinction of life with marginal any contributions to id., 312[, or public purposes,” discernible social at 92 S.Ct. opinions 2726]. both Justice Stewart and JUSTICE WHITE went out of the way say capital punishment was not itself a cruel punishment, and unusual and that a mandatory system capital sentencing, everyone which convicted of a particular crime received that punishment, Id., “present 310-311[, would quite different issues.” at (WHITE, J., id., concurring); 2726] see also 307- 308[, (Stewart, J., 92 S.Ct. concurring). 2726]

Furman led at least 35 to adopt capital States new sentencing procedures that eliminated some of the discre- tion previously conferred to impose withhold the death 179[, penalty. Gregg Georgia, See supra, 2909], we upheld against Eighth Amendment schemes,

challenge “guided three discretion” representative forms, measures, which, of these varying required sentencer to consider certain and specified aggravating reaching its decision. In the case, v. principal Gregg Georgia, supra three-Justice opinion announcing judgment read Furman as “mandat- that on a ing sentencing body where discretion afforded matter so as the determination of whether a human grave or spared, life should taken that must be be discretion suitably directed and limited so as to the risk minimize action,” 189[, id., 96 wholly arbitrary capricious and at Stewart, Powell, (joint opinion of and STE- S.Ct. 2909] added). id., VENS, JJ.) 221-222[, 96 (emphasis See also at (WHITE, J., J., joined by Burger, and S.Ct. C. 2909] J., REHNQUIST, judgment); v. Flor- concurring Proffitt (1976) ida, 251, 2960, 242, 428 96 U.S. S.Ct. 49 L.Ed.2d 913 Stewart, id., Powell, STEVENS, JJ.); (joint opinion of and 260[, J., (WHITE, J., joined by at 96 Burger, S.Ct. C. 2960] J., v. REHNQUIST, concurring judgment); and Jurek Texas, 276, 2950, 262, 428 49 U.S. 96 S.Ct. L.Ed.2d 929 Powell, (joint Stewart, STEVENS, opinion and JJ.); id., 279[, (WHITE, J., 96 joined at S.Ct. 2950] J., J., and Burger, REHNQUIST, concurring judg- C. ment). cases, routinely

Since 1976 we have read Furman standing proposition limiting for the and “channeling ... the sentencer’s discretion in imposing penal the death ty” requirement,” Maynard “fundamental constitutional 356, Cartwright, 362, 108 1853, 100 v. 486 U.S. S.Ct. L.Ed.2d (1988), 372 and have insisted that States furnish the sen “ tencer with ‘clear and standards’ that objective provide ‘specific guidance,’ rationally and detailed ‘make ” death,’ process reviewable the imposing sentence (foot 428[, v. 100 Godfrey Georgia, U.S. at S.Ct. 1759] omitted). Only actually Florida, 939, v. Barclay 960, 3418, 463 U.S. 103 S.Ct. 77 (1983) (STEVENS, J., L.Ed.2d 1134 concurring judg ment), and that “[States] must administer penal [the death] ty in a way rationally can distinguish between those individuals for whom death is an appropriate sanction and not,” Florida, those for whom it Spaziano 447, v. 468 U.S. 460, 104 (1984). 3154, S.Ct. 82 L.Ed.2d 340 See also v. Zant 862, Stephens, 877, 2733, 462 U.S. 103 S.Ct. 77 L.Ed.2d 235 (1983); Oklahoma, Eddings 104, 110, v. 455 U.S. 102 S.Ct. 869, (1982); Harris, 71 L.Ed.2d 1 Pulley 37, 51, v. 465 U.S. 871, 104 (1984); S.Ct. 79 L.Ed.2d 29 Booth v. Maryland, 482 502[, 2529]; at 107 Maryland, S.Ct. Mills v. 486 U.S. 374[, 1860]; at 108 231, S.Ct. v. Phelps, 484 U.S. Lowenfield 244, 546, (1988). 108 S.Ct. 98 L.Ed.2d 568

Shortly after introducing our doctrine requiring con- straints on the sentencer’s discretion to “impose” the death penalty, began the Court developing a doctrine forbidding constraints on the sentencer’s discretion to “decline to im- pose” 304[, it. v. McCleskey Kemp, supra, at 107 S.Ct. deleted). (emphasis 1756] This second doctrine —counter- doctrine would be a better word—has completely exploded 192 once discretion” “guided the notion

whatever coherence had. by making to Furman responded States

Some murder. categories for certain mandatory punishment v. North Car these statutes Woodson invalidated We (1976), 2978, olina, 280, 49 L.Ed.2d 96 S.Ct. 428 U.S. 325, 3001, 49 Louisiana, 428 U.S. S.Ct. v. and Roberts concluding (1976), of the Court plurality L.Ed.2d at least some consider must accord sentencing process offend record of the individual to the “character and ation Woodson, 304[, (plurality 2978] S.Ct. supra, er.” leaving the to Furman responded Other States opinion). defendants, but spare capital some discretion sentencer the sentencer mitigating circumstances the kinds of limiting v. statutes in Lockett invalidated these could consider. We Ohio, 57 L.Ed.2d 973 98 S.Ct. 438 U.S. that the requires Amendment saying Eighth plurality considering, mitigat as a from precluded sentencer “not be record character or factor, of a defendant’s any aspect ing defen of the offense that the any of the id., death,” for a sentence less than as a basis proffers dant J., joined by 604[, Burger, C. (opinion 2954] JJ.) STEVENS, omitted Powell, (emphasis Stewart, added). in these cases pluralities reasoning majority of the Court. See Sumner later adopted was Shuman, 97 L.Ed.2d v. Oklahoma, Woodson); Eddings supra (embracing Lockett). (embracing course, decisions, had no Furman. One basis

These eliminating or discre- curtailing supposed have might only not defendants was capital sentencing tion in the Furman, by it—as positively required with but consistent course, States, But Wood- suppose. did many Lockett, that uniform treatment emerged it son and not only crime was capital of the same guilty offenders Amendment, prohib- was all but but by Eighth required appli- to the “central Announcing proposition ited. a determination Amendment [Eighth] cation of the standards the infliction of contemporary regarding punish- Woodson, ment,” 288[, 2978], supra, at and pointing S.Ct. steady growth discretionary systems (those the previous years very systems over we had Furman), Woodson, found unconstitutional at supra, 291-292[, 2978], pluralities S.Ct. those cases deter- mined that a defendant could not be sentenced to death convinced, unless the an sentencer was unconstrained offense, unguided evaluation of offender and that death id., 304-305[, was the appropriate punishment, 2978]; Lockett, 604-605[, supra, 98 S.Ct. 2954]. short, practice which in Furman had been described as the discretion to pronounced sentence to death and constitutionally prohibited, was in Woodson Lockett renamed the discretion not to pro- sentence death and constitutionally required. nounced since, As in the years elaborated the Woodson Lockett principle prevented has from imposing States all but the most minimal constraints on the sentencer’s discretion decide that an eligible offender the death should have, nonetheless not it. place, receive We the first repeatedly States’ rebuffed efforts to channel that discretion by specifying objective factors which its exercise should rest. It would sweep misdescribe the of this principle say that “all mitigating evidence” must be considered objective sentencer. That would assume some criterion of what is mitigating, which is what we precisely have forbid- den. Our cases proudly announce that the Constitution effectively prohibits excluding the States from from the sentencing decision any aspect a defendant’s character or record, any circumstance surrounding the crime ...

To acknowledge perhaps “there is an inherent ten- sion” between this line of cases and the line stemming from Furman, 363[, McCleskey Kemp, 481 U.S. at 107 (BLACKMUN, J., dissenting), 1756] is rather saying like there perhaps was an inherent tension between the 194 II.

Allies and Axis Powers in And to refer World War v. objectives,” to the two lines as “twin pursuing Spaziano Florida, 459[, 3154], like 468 at 104 S.Ct. is rather U.S. referring objectives good They twin and evil. to the Furman, cannot be reconciled. Pursuant and in order rational equitable “to achieve a more administration 164, 181, the death v. 487 penalty,” Lynaugh, Franklin U.S. (1988), 2320, we 108 S.Ct. 101 L.Ed.2d 155 require the sentencer’s discretion ‘clear and States “channel objective provide ‘specific guid standards’ detailed ” ance,’ 428[, v. 446 at Godfrey Georgia, U.S. 100 S.Ct. 1759]. breath, “the however, say In the next we cannot State ... rele any channel the sentencer’s discretion consider defendant,” by the vant information offered [mitigating] 306[, at 107 S.Ct. McCleskey Kemp, supra, (empha v. 1756] added), enjoy sis and that sentencer must unconstrained whether any sympathetic discretion to decide factors bear or the crime indicate that he does ing the defendant death,” Penry Lynaugh, “deserve to sentenced to v. be 326[, at 109 supra, S.Ct. 2934].

Walton, 3059-63, 497 at 111 L.Ed.2d U.S. (Scalia, J., concurring); see v. (plurality) Ring 530-36 also Arizona, 584, 610, 2428, 2443, 536 122 153 L.Ed.2d 556, (Scalia, J., concurring). 577

IY. response Supreme evolving to the Court’s jurisprudence area, statutory in this scheme has Maryland’s penalty changes thirty-one in last Ma- undergone years. multiple 27, (1957, 413, § Article ryland RepLVol.), Code 1971 provided “[ejvery convicted person relevant of murder part death, the first ... shall a confine- degree undergo suffer period ment in the for a the of their the State penitentiary 27, § natural life.” This version Art. 413 was found to be regards Bartholomey unconstitutional as the death State, 175, v. Md. A.2d 696 to the response It decision Furman. was replaced Court’s (1957, Article Maryland RepLVol.), appli- § Code committed on or after 1 which in July cable offenses State, turn unconstitutional in was found Blackwell (1976).8 The statute declared Md. 365 A.2d replaced by unconstitutional Blackwell was renumbered (1957, Arti- Maryland ReplYol., Cum.Supp.), Code 1976 1978 27, 412, § cle on or after 1 applicable offenses committed July substantively 1978. This version has remained un- changed Maryland and is first of the current version scheme, (1957, along Maryland with Code 1976 Repl. Yol., 414, containing §§ 413 and the addi- Cum.Supp.), tional sentencing present and review elements at issue in the case. Additional minor amendments were made in 1995 and 27, 412, 413, §§ 1996. Article were Ch. repealed 26, 2002, Acts effective October 2002 and re-enacted without (1974, change Maryland substantive as 2002 ReplYol., Code Article, 2-101, 2-201, 2-202, 2003 Supp.), §§ Criminal Law 2- 203, 2-301, 2-302, 1-401.9 2-303 and prior

Because Oken was convicted to the 2002 re-enactment of the Code and to confusion by using avoid citation forms differing re-enactment, from our opinions prior decided to that we shall address Oken’s arguments referring to the Code they sections as prior existed re-enactment. Ma- (1957, ryland 1996 Repl.Vol., Code Art. 27 Cum.Supp.), murder, § 412 set forth the for punishment pertinent part, as follows:

(a) Designation degree by court or jury. person of —If murder, is found of or guilty the court that determined the person’s guild shall state in the verdict whether the person guilty of murder in the first degree or murder in the second degree.

(b) Penalty degree Except provided for first murder. — section, under of (g) person subsection this found of guilty death, degree murder the first shall be sentenced to Wooten, 8. See State v. 277 Md. 118 n. 352 A.2d 4n. Blackwell, (1976); 278 Md. at 365 A.2d at 549-50. provisions controlling 9. For application the effective date and of statu- revisions, Const., XVI, tory § see Md. Article 2. life, for life without or imprisonment imprisonment imprisonment shall be The sentence parole. possibility (l)(i) writing person the State notified for life unless: it to seek a to trial that intended days prior at least 30 death, aggrava- of each person and advised the sentence (ii) a rely, it intended upon circumstance which ting 413; or §with in accordance imposed of death is sentence (2) days at least 30 writing person notified the the State of imprison- a sentence to trial that it intended seek prior § 412 or under parole the possibility ment for life without article. § 413 of this If a

(c) penalty. to seek death Notice intent — of intent to seek a notice Attorney files withdraws State’s death, Attorney copy shall file the State’s a sentence of of the Court with the clerk notice or withdrawal Appeals.

(2) a sentence of a notice of intent to seek validity The manner shall timely in a that is served on a defendant death failure to file Attorney’s by in no affected State’s way be the clerk timely in a manner with of the death notice copy a of Appeals. of the Court Art. (1957, Cum.Supp.), Repl-Vol.,

Maryland Code upon finding sentencing procedure § forth the 27 413 sets as follows: to first murder guilt degree as (a) a per- sentencing proceeding required. Separate —If if the degree, in the first of murder guilty son is found 412(b), § a sepa- under required the notice given State had as conducted as soon shall be sentencing proceeding rate to completed determine after the trial been practicable to death. he shall be sentenced whether (b) proceeding conducted.—The proceeding whom Before conducted: shall be

(1) guilt; that determined the defendant’s jury Before the or

(2) pro- for the of the jury impaneled purpose Before a if; ceeding

(i) guilty; upon plea was convicted The defendant after a trial before (ii) convicted was The defendant jury; sitting without court has guilt

(iii) the defendant’s that determined The cause; or good court for by the discharged been a court of (iv) sentence of original Review remand for resen- in a has resulted jurisdiction competent or tencing;

(3) alone, sentencing proceeding if court Before the the defendant. is waived (1) follow-

(c) Evidence; The argument; instructions. — proceeding: this of evidence is admissible ing type list- (1) mitigating circumstance relating any Evidence section; (g) of this ed subsection (ii) circumstance relating any Evidence (d) had this of which State section listed subsection 412(b) § of this article. pursuant notified the defendant convictions, or (iii) pleas any criminal prior Evidence contendere, prior or of such or nolo the absence guilty in other extend admissible to the same pleas, convictions sentencing procedures.;

(iv) However, any investigation report. Any presentence in the report to sentence contained recommendation as admissible; (v) of probative that the court deems Any other evidence sentence, the defendant provided value and relevant any a fair to rebut statements. opportunity accorded or his counsel and the defendant State of for the sentence death. argument against or present (3) in proceeding of the evidence presentation After appropriate other instruc- jury, any before a addition law, instruct the the court shall permitted by tions in order to determined whether findings to the it must make life, death, and the imprisonment shall the sentence findings to these accordance applicable of proof burden (h) (f) of this section. or with subsection subsection (d) Consideration aggravating circumstances. —In de- sentence, or termining jury, the court as the case may be, whether, beyond doubt, shall first consider a reasonable any following circumstances exist: (1) One or more committed the persons murder of a law duties; enforcement officer performance while his (2) The defendant committed the murder at a time when institution; he any was confined in correctional (3) The defendant committed the murder furtherance of an or an from or escape attempt escape evade the arrest, custody, lawful or detention of or an officer or guard a correctional institution or aby law enforcement officer;

(4) The victim was taken or to be taken in attempted course of a or or an kidnapping attempt abduction to kidnap abduct; or

(5) The victim a child § was abducted in violation of 2 of article; this

(6) The defendant committed the murder to an pursuant agreement or contract for remuneration or the or promise murder; remuneration to commit the (7) The defendant or engaged employed another person to commit the murder and the murder was committed pursuant agreement to an or contract for or remuneration remuneration; promise murder, At the time of the the defendant was under sentence of or imprisonment for life.

(9) The defendant committed than more one offense of degree incident; murder in the first out of arising the same or

(10) The defendant committed the murder while commit- ting attempting to commit a carjacking, carjack- armed ing, robbery article, § § under 486 or this arson in degree, the first or sexual rape offense the first degree. (e) section, used in this following Definitions. —As terms meanings have the indicated a contrary unless mean- the term in which the context intended from clearly

ing is appears: except as (i)

(1) “person”, and “defendant” The terms (7) (d)(1) of this and in subsection appear those terms degree. in the first section, principal only include (d)(1) section, “person” term (ii) of this In subsection means: degree in the first

1. A principal degree who: A in the second principal 2. intend- premeditation and with deliberately, Willfully,

A. officer; death of the law enforcement ed the murder; and in the major participant B. Was place at the time and actually present C. Was murder. any insti-

(2) includes “correctional institution” The term charged persons or confinement tution for the detention Institution, crime, including Patuxent of a with or convicted juveniles or confinement for the detention institution any any adjudicated being delinquent, as -with or charged to an confined pursuant was person in which the hospital jurisdiction. criminal exercising of a court order (i) has the mean- (3) officer” The term “law enforcement § of this article. ing given in officer”, (ii) as used sub- enforcement The term “law (d) section, of this includes: section status; serving probationary An 1. officer officer; A probation 2. parole outside of jurisdiction officer of a A3. law enforcement Maryland; the uniform wearing officer is

4. If the law enforcement in an acting enforcement officer while by the law worn his official displaying or is prominently official capacity office, officer a law enforcement insignia or other badge or special policeman officer employed security privately through §§ 4-901 4-913 of Article provisions under of the Code. for life without the “Imprisonment possibility pa- imprisonment

role” means for the natural life of an inmate institution, custody under the of a correctional including Patuxent Institution.

(f) Finding aggravating that no circumstances exist. —If find, doubt, jury the court or a beyond does reasonable exist, that one or more of these circumstances it shall state that conclusion in and a sentence of writing, not be imposed.

(g) mitigating Consideration circumstances. —If the of finds, doubt, court or or jury beyond reasonable that one exist, of more these circumstances it sháll then whether, upon preponderance consider based of the evi- dence, of any following mitigating circumstances exist:

(1) (i) The defendant has not previously guilty been found (ii) violence; of a crime of of plea guilty entered or nolo violence; (in) to a of a of charge contendere crime or had a judgment stay probation entry judgement en- tered on a of a crime of As charge violence. used this abduction, “crime of paragraph, violence” means arson in degree, escape first the first degree, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, article, § § robbery under 486 or 487 of this car- or armed or or jacking carjacking, rape sexual offense in the first or or an degree, attempt any second commit of these offenses, or the use of a handgun the commission of a or felony another crime of violence.

(2) The victim was a participant the defendant’s con- or to the act duct consented which caused the victim’s death. (3) duress, The defendant acted under substantial domi- nation or provocation person, of another not so but substan- tial complete as to constitute a defense to the prosecution.

(4) The murder was committed capacity while the of the defendant to appreciate criminality his conduct or to conform his requirements conduct of law was sub- stantially impaired as a result of mental incapacity, mental disorder or emotional disturbance.

(5) at the time age of the defendant youthful crime.

(6) proximate was not the sole of the defendant The act victim’s death. cause

(7) in further engage will unlikely It that the defendant continuing threat that would constitute activity criminal society.

(8) specifical- or the court other facts which the Any circum- mitigating writing that it finds sets forth ly stances in the case.

(h) circum- mitigating Weighing aggravating one or more the court stances. — finds If exist, it shall determine these circumstances evidence, whether, aggrava- aby preponderance of mitigating circumstances. ting outweigh (2) out- circumstances aggravating it that the If finds circumstances, the sentence shall be mitigating weigh death.

(3) circumstances do not it that the If finds circumstances, a death sentence outweigh mitigating of be may imposed. not

(i) to be written and unanimous. —The Determination and, if writing, or shall be in jury of the court determination signed by and shall jury, a shall be unanimous foreman. in determination. —The determi-

(j) required Statements state, specifically: or shall jury nation of the court (1) Which, circumstances it finds to any, aggravating if exist;

(2) Which, it finds to any, mitigating if circumstances exist;

(3) found under any aggravating circumstances Whether (d) cir- outweigh of this section subsection section; of this (g) cumstances found under subsection (4) circumstances found under Whether (d) outweigh mitigating subsection do not (g); under subsection

(5) sentence, with determined accordance subsec- (f) (h). tion or

(k) (1) If the determines Imposition sentence. — of of imposed provi- that a sentence death shall be under section, this the court a sentence impose sions of then shall of death.

(2) time, If a is not to jury, within reasonable able a agree imposed, as to whether sentence of death shall be of may the court not a sentence death. impose (3) If the is conducted a proceeding before a the court shall determine a jury, court without whether of of imposed provisions sentence death shall be under the this section.

(4) If the determines that a of court sentence give not be and the State did not imposed, 412(b) § notice under of this article of intention to required of life without the imprisonment possibility seek sentence court parole, impose imprison- shall a sentence life ment. 412(b) § If gives required the State the notice under of imprison-

of this article intention seek sentence ment for life possibility parole without but does court give penalty,.the notice intention seek the death soon as separate sentencing proceeding shall conduct the trial has practicable completed after been determine for life or impose imprisonment whether sentence for life the of imprisonment possibility parole. without 412(b) (6) § If gives required the State the notice under to of this article of intention seek the death to intention to a of addition the notice of seek sentence for imprisonment possibility parole, life without the of court or that a of death jury the determines sentence section, not under the of this imposed provisions jury court or determine whether to a sentence impose shall the for life without imprisonment for life or imprisonment of of parole. possibility of

(7)(i) impose to a sentence determining In whether parole, of possibility for life without imprisonment of of a sentence unanimously imposition on the agree shall of parole. for life without the possibility imprisonment (ii) a sentence unanimously impose to jury agrees If the parole, of possibility for life without imprisonment of for life imprisonment of impose court shall sentence of parole. the possibility without time, (iii) able jury, If the within reasonable of im- imposition on the of a sentence agree unanimously parole, of possibility for life without prisonment a sentence impose court shall dismiss for life. imprisonment

(8) § 412 of required If the notice under gives the State intention to seek a sentence this article of the States possibility parole, life without the imprisonment sentencing proceeding separate court shall conduct completed has soon as after the trial been practicable of imprisonment a sentence impose determine whether for life possibility for life or without imprisonment parole. added). addition, for the provides Article 27

(emphasis mandatory of all death sentences this Court.10 review (1957, 414(e), § Maryland RepLVol.), Code Art. 27 part provides: pertinent

(e) Appeals. Consolidation the Court addition —In any properly to the consideration of errors before imposi- shall consider the appeal, Appeals the Court sentence, tion regard of the death sentence. With the Court shall determine: imposed the sentence of death was under Whether factor; arbitrary passion, prejudice, any

influence of other Maryland applicable capital Rule to review of cases 10. See also Appeals. in the Court of (2) supports jury’s the evidence the or court’s Whether statutory of a circumstance under finding aggravating 413(d); §

(3) jury’s the evidence the or court’s supports Whether aggravating outweigh the circumstances the finding circumstances. mitigating case, explained Apprendi

In the Borchardt we Borchardt’s 412(h) Maryland’s statutory § as to scheme: argument by issue Borchardt arises from Apprendi posited 413(h), § dealing weighing aggravating with the that, That if mitigating provides circumstances. section the exist, or more mitigating finds one circumstances whether, by preponderance “it shall determine evidence, miti aggravating outweigh the circumstances the added). If gating (emphasis circumstances.” finds do, death; the sentence is if it finds that they circumstances not aggravating outweigh mitigating do circumstances, a sentence of death imposed. be The ultimate must unanimous and in determination be contends[11] 413(i). that, § writing. See Borchardt under Apprendi, process requires due determination that any circumstances circum aggravating outweigh mitigating beyond by stances to made a reasonable doubt and not mere of evidence. preponderance Rule supplemented by Maryland

Section by for automatic review this Court when- provides appellate In imposed. ever the death addition consider- defendant, by errors we are ing any alleged required 414(e) § to consider the of the death sentence imposition (1) itself, including imposed whether the sentence was under factor, passion, prejudice, arbitrary the influence of other (2) of a supports jury’s finding whether evidence 413(d), statutory § circumstance under aggravating jury’s whether the evidence or court’s supports outweigh circumstances. present

11. As does Oken in the case. Borchardt, only based 367 Md. at 786 A.2d 638.12 we found analysis assessing impact Apprendi, on an factors constitutional the standard of whether mitigators of the evidence. outweigh preponderance here, nutshell, requires in a is that us to position Ring Oken’s 413(h) § in find that revisit that Borchardt and to holding because, view, holdings in his under the of unconstitutional cir- Apprendi Ring, and the determination circumstances must be made outweigh mitigating cumstances doubt, and not beyond based on the standard of reasonable by preponderance disagree. of the evidence. We Court’s legal reasoning Supreme

We discussed in our decision Borchardt as follows: holding Apprendi convicted, plea the defendant was on a Apprendi,] [In a firearm for an unlawful a second- guilty, using purpose, degree Jersey offense under New law that carried a sen- range years tence of five to ten There was prison. evidence, Apprendi disputed, which his offense was racially motivated —that he fired shots into the home of an family African-American because he did not want them as had a neighbors. Jersey separate New “hate crime” statute punishment second-degree increased the for a offense found, if prison years judge to a term of 10 to 20 evidence, preponderance that the defendant commit- underlying purpose ted the offense with a to intimidate an race, color, individual or group gender, because of handicap, orientation, religion, sexual ethnicity. Apprendi was law, and, charged under the hate crime though pleading offense, guilty underlying objected to the he to the sentence rejected enhancement under that law. the chal- judge The lenge years. and sentenced to 12 Apprendi Court believed that the case was controlled States, by the footnote statement made in Jones United [v. 227, 1215, 526 U.S. 119 S.Ct. 143 L.Ed.2d 311 ] — that State, (1985); 12. See Foster v. also Md. 499 A.2d 1236 Tichnell State, (1980). 287 Md. 415 A.2d 830 (as Sixth, the Fifth and 14th Amendment under under the Jones) “any prosecution to the Federal applied which conviction) (other the maxi that increases prior fact than indictment, in an charged for a crime must penalty mum beyond a reasonable jury, proven to a submitted at 120 S.Ct. doubt.” Apprendi, Jones, 6,n. at 243 from (quoting L.Ed.2d at 6). 6, 143 L.Ed.2d at 326 n. at 1224 n. Bor- Borchardt, 786 A.2d at 643-44.13 367 Md. Oken, weighing as does that the argued, chardt is a which increases “finding” against mitigating therefore, under Apprendi maximum penalty, beyond a reasonable doubt. by jury must be “found” Ring, Borchardt, holding out that our correctly points Oken Maryland not invalidate the does Apprendi scheme, reasoning. The first pillars rested on three indicating in Apprendi expressly on language these was based capital sentencing apply that its was not intended holding into conflict schemes, bring Apprendi would a result which in As we out Borchardt: pointed with Walton. in unequivocal answer lies state-

Perhaps the easiest its decision did not majority Apprendi ment schemes, as sentencing such capital render invalid State Walton, judge, sitting that allowed the approved fact, weigh specific aggravating to find and the trier holding Apprendi principal Court in is: 13. The area, sum, in this and of the our reexamination of our cases rely, opinion expressed history upon they that we which confirms conviction, any prior fact that Other than the fact of in Jones. statutory beyond prescribed penalty for a crime increases the beyond jury, proved a reason- must be submitted to a maximum exception, we endorse the statement able doubt. With that concurring opinions that case: "It is unconsti- set forth in the rule jury legislature to from the the assessment of tutional for a remove range prescribed penalties to which a facts that increase the exposed. equally facts is It is clear that such criminal defendant by proof beyond a doubt.” 526 U.S. be established reasonable must STEVENS, J.); (opinion S.Ct. see also 1215] at 252-253 [119 SCALIA, J.). (opinion of 1215] U.S. at 253 [119 2362-63, 120 S.Ct. at 147 L.Ed.2d at 455. factors. If it permissible Apprendi under for the law to that fact-finding process entirely remove and fact-weighing it judge legitimate from the and leave to the as a factor, without a reasonable doubt specifying standard, it can for a hardly impermissible has prerequisite aggravating found the factors a reason- beyond apply preponderance weighing able doubt standard against any mitigating them circumstances. The Walton scheme, words, greater other far direct conflict with than underpinning Apprendi Maryland approach. Thus, if circumstances do not constitute elements of the offense or serve to increase the maximum punishment context, for the offense in they the Walton cannot reasonably be found to have that status under the Maryland law. renders Apprendi Maryland law If unconstitutional, then, perforce, it likely renders most of the capital punishment laws in the country unconstitution- Court, al. We cannot conceive that the Supreme especially in light statement, of its contrary intended such a dramatic result to flow from a case did not even involve a capital punishment law. omitted). 121-22, (footnotes

367 Md. 786 A.2d at 649 Our second reason for relief in denying Borchardt was Apprendi applies only because when a defendant receives a sentence in excess of the statutory maximum. Borchardt noted that Apprendi required that “other than the fact of a conviction, prior any fact that increases the for a beyond crime the prescribed statutory maximum must be submitted to a jury, proved beyond a reasonable doubt.” 367 Md. at A.2d (quoting at 650 Apprendi, U.S. at 455) 120 S.Ct. at 147 L.Ed.2d at (emphasis removed). We observed that the statute established the for penalty murder as a of encompassing range potential three imprisonment, sentences: life life imprisonment without pa- role, or death. held We the determination whether aggravators outweighed therefore, the mitigators, not does serve to increase the statutory maximum or even the statutory of range possible punishment. Rather, the existence or non- existence of the statutory circumstances served only to assist in authority “determining the which sentence with- in is to be statutory range imposed.” the Md. removed).14 A.2d at 650 (emphasis Third, did apply we in Borchardt that Apprendi held jurors’ weighing aggravators mitigators the of because the of that issue is not one involves fact- determination judg- but is a finding, weighing process purely rather “[t]he one, balancing against aggrava- mental of mitigator[s] death is the appropriate punish- determine whether torfs] only in process ment case. This is a that not particular a traditionally, quintessentially pure but Constitutional- factor, one that does not ly legitimate sentencing require beyond made a reasonable determination to be doubt.” Md. at A.2d at 652. our Supreme Ring necessarily Court’s decision alters Borchardt, but to the

reasoning only and conclusions which rests. prongs upon first two the three Borchardt however, not, does that we reach a different Ring require result, it is necessary outcome. order to understand this development penalty sentencing juris- understand the death Furman, in turn influ- prudence developments since which death statute. development Maryland penalty enced only understanding history with of this limited It is an that the its holding and how fits within this framework impact Ring seen, infra, can be As will be when in the understood. taken penalty context of jurisprudence, Court’s circumstances, Ring only implicates aggravating against mitigat- and not process weighing factors. ing import jurisprudence Of which particular distinguishes sentencing process those elements which death-eligible from those involved make defendant elements death-eligible who will selecting actually those defendants be sentenced to death. Blackwell, involving prede-

14. We reached a similar conclusion statute, noting penalty 413 does "[§ ] cessor death not create new crime; degree, simply it is statute for murder first imposition punishments of two which authorized the of one imprisonment offense-life or death.” 278 Md. at 365 A.2d at 549. jurisprudence Court this area has forced systems sentencing to of which conform to adopt states the Walton, lines cases two described Justice Scalia two cases a sentencing process These lines of describe supra. two each phases, separate divided into distinct with cases, line of requirements. distinct constitutional The first Furman, running directly from first phase addresses the process, eligibility. the the determination of sentencing With regards phase, to the the Court made it eligibility has clear state must function limit statutes to the class individu death-eligible. usually als who deemed This is accom may be plished by sentencing authority the to find an requiring aggra It is vating aggravating factor. an factor which turns a defendant into a death-eligible convicted defendant.

The second line of phase cases addresses second In sentencing the selection this process, phase. phase, sentencing authority identity is allowed to and consider factors in mitigation and is to to impose allowed elect a sentence less than death if it views the circumstances as warranting a lesser punishment. While the Supreme repeatedly has stated that there no are constitutional as to requirements how design states must they the selection other than that phase, may not sentencing authority’s ability curtail the to consider factors in mitigation, generally adopted the states have one In two methods. some states the authority, after determining the existence least one factor making the defendant is death-eligible, instructed to deter- mine if there are justify factors which imposing penalty. states, other “weighing” Maryland, like instructed, is sentencing authority after determining the existence of at least making one factor the defen- dant weigh death-eligible, mitigators against the aggra- vators.15 seem, blush, distinction at first predicated

semantics as in both scenarios sentencing authority 2733, Stephens, 15. See Zant v. & 873-74 n. 2741 & n. (noting 77 L.Ed.2d 247-48 & n. 12 that in a mitigation weight of circumstances the relative comparing distinction if but mercy appropriate, determine constitutional proper is real and critical between two that, states, “weighing” an appel- The reason is analysis. statutorily or more of defined late determination that one found a case fails to meet consti- aggravating given factors re-weighing remaining ag- a requires tutional muster mitigators, impermissible aggravator as the gravators and the during as a “thumb on the scales” potentially acted a not arise a non- original weighing.16 Such defect does state, may the defect be resolved under where weighing under the analysis. Regardless, “harmless error” post-Furman jurisprudence, weighing Court’s both schemes, it is of an non-weighing aggravating the death-eligible. makes the defendant The circumstance which determines, weighing that follows under both process selection statutes, whether, judgment in the the non-weighing sentencing authority, penalty actually applied. should be

y. 153, 2909, 96 Gregg Georgia, In v. 428 U.S. S.Ct. 49 L.Ed.2d effectively approved sys- 859 bifurcated the Court today. In the Court Maryland Gregg, tem we employ statute. That Georgia’s post-Furman penalty reviewed death five penalty statute17 retained the death murder and other state, only jury aggravating weighing "not must the find at least one sentence; power impose the death circumstance in order to have addition, weigh jury requires the law circum- against mitigating it decides stances circumstances when whether imposed”). or should be not death 518, 1517, Singletary, 16. See Lambrix v. 520 U.S. 117 S.Ct. 137 L.Ed.2d Florida, 1079, 2926, (1997); Espinosa v. 505 U.S. 112 S.Ct. 120 771 527, Florida, 2114, (1992); v. 504 S.Ct. L.Ed.2d 854 Sochor U.S. Black, (1992); Stringer L.Ed.2d v. (1992); Mississippi, 117 L.Ed.2d 367 Clemons (1990). 108 L.Ed.2d 725 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, §§ 17. Ga.Code Arm. (1972). 26-3301 stage crimes. or in the first Guilt innocence was determined or guilty plea, pre- of a bifurcated trial. verdict Upon hearing was held. At or hearing, judge jury sentence this hear extenuating would additional or evidence and statute, evidence in aggravation punishment. Under possible least one of circumstances was re- ten sentencing authority, to be found to exist quired or judge jury, beyond whether doubt before the reasonable The imposed. required sentence be defendant was given pre-trial notice the state’s intention to prove addition, specified aggravators. was authorized to any consider other cir- appropriate aggravating mitigating sentencing authority, cumstances. Where the was the it required any mitigating was find in order circumstance court, to make a binding recommendation to the trial mercy it was statutory but to find a required aggravating circum- recommending stance before a sentence of death. sen- tencing judge was bound the recommended sentence of the jury. sentence, its statutorily-required review of the death (1) Georgia required Court was to consider: whether the sentence was by passion, influenced or prejudice (2) factor; any arbitrary other whether sup- the evidence of ported circumstance; a statutory and, whether the death sentence was dispro- excessive or portionate cases, to the penalty imposed in similar considering particular both the crime and the particular defendant. The Supreme in Gregg began its evaluation of the Georgia by reviewing statute the impact of Furman. The Court observed that:

While Furman did not hold that the of infliction the death penalty per se violates the Constitution’s ban cruel and unusual punishments, it did recognize that the of death different kind from any other im- punishment under our of posed system justice. criminal Because of uniqueness of the death penalty, Furman held that it could not be imposed under that sentencing procedures created a substantial risk that it would be inflicted in an and arbitrary capricious Indeed, manner---- the death sentences exam- in Furman “cruel and unusual ined the Court were way by lightning that struck is cruel being same crimes], For, of of people [capital unusual. all convicted these, as reprehensible petitioners [in just as many hand- Furman were] a selected random among capriciously death has in fact been ful the sentence of upon whom Eighth and Fourteenth Amendments imposed____ [T]he under cannot tolerate infliction a sentence so unique penalty this be legal systems permit Id., 309-310[, imposed.” wantonly freakishly and so (STEWABT, J., concurring). 2726] a is afforded Furman mandates that where discretion so sentencing body grave on a matter determination life or spared, a human should be taken whether so as to and limited suitably discretion must be directed minimize capricious action. wholly arbitrary the risk of that discretion certainly proposition

It is novel be informed manner. sentencing the area of exercised an the determination long recognized We have “[f]or sentences, ... be taken justice generally requires there together into the offense with account the circumstances of offender.” propensities character be judge that the trial would The cited studies assumed authority. judge, If an trial who sentencing experienced sentences, has imposing faces the difficult task daily information about a defendant and vital need for accurate able to impose the crime he committed order case, in the criminal then accurate typical rational sentence to a prerequisite information an indispensable shall live reasoned whether defendant determination have made a die of who never before by jury people sentencing decision. in sentencing capital has

Jury been considered desirable a link contemporary “to maintain between cases order system link without community penal values and the —a hardly of could reflect punishment which the determination mark decency progress ‘the of evolving standards ” a maturing society.’ of

213 188-90, 2932-33, at at at Gregg, U.S. S.Ct. 49 L.Ed.2d (footnotes omitted). 883-84 omitted and some internal citations Thus, in we see the of the Gregg beginnings Supreme Court’s approval the bifurcated procedure reflected current death Maryland statutory scheme. In upholding constitutional, as Georgia statute the Court noted the critical function of what later would become identi- eligibility fied phase sentencing process, observ- that: ing basic concern Furman centered those defen- being

dants who were condemned to capriciously arbitrarily. Under the procedures before the Court case, sentencing authorities give were directed to atten- tion the nature or the crime committed or the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that only could be called freakish. The Georgia sentencing new contrast, procedures, the jury’s focus attention on the particularized nature the crime and the particularized characteristics of the individual defendant. While the jury permitted is to consider any mitigating circumstances, it must one identify least statu- find tory aggravating it may impose a penalty factor before death. In this way jury’s is discretion channeled. No longer can jury wantonly freakishly impose the death sentence; always it legislative circumscribed guidelines. addition, the review function of the Supreme Georgia Court of affords additional assurance that the con- cerns that our prompted decision Furman are not pres- significant ent to any degree in Georgia procedure applied here. 206-07,

Gregg, U.S. 96 S.Ct. at 49 L.Ed.2d at added). Thus, 893 (emphasis it aggrava- an factor ting which makes a defendant death-eligible, not that weighed facts are justify and found insufficient mercy. The Court reached a similar conclusion v. Flori- Proffitt

da, 96 L.Ed.2d decided In the Gregg. Proffitt, day

on the same Court decided penalty death reviewing post-Fw/mcm Court was Florida’s statute, many Georgia a from the differing respects statute Florida, Georgia, unlike implement- at issue in Gregg. statute a “weighing” to as statute. ed what would later be referred as the Florida statute workings described the The Court follows: 238[, Georgia, Furman v. response to Legislature the Florida 33 L.Ed.2d 346] imposition that authorize the new statutes

adopted At murder. penalty first-degree on those convicted new adopted capital-sentencing same time Florida a on Model Penal part patterned large procedure, statute, if a guilty defendant found Under the new Code. offense, is held separate evidentiary hearing a capital his judge jury trial and determine sentence. before the judge on deems may presented any Evidence be matter relating and must include matters relevant mitigating legislatively aggravating and specified certain prosecution Both the and the defense circumstances. shall be argument whether the death present imposed. is directed hearing

At the conclusion of mitigating sufficient circumstances exist “[w]hether consider circumstances found to outweigh ... which considerations, exist; ... on these whether [b]ased life [imprisonment] should be sentenced to defendant by majority is determined vote. jury’s death.” The verdict the actual sentence determined only advisory; It is stated, has howev- judge. trial The Florida er, following order to sustain a sentence of death that “[i]n life, suggesting recommendation of the facts sentence virtually no convincing of death should be so clear and could differ.” person reasonable statutory weigh The is also directed to judge trial he circumstances when deter- mitigating on a defendant. imposed mines the sentence to' that if the requires imposes statute trial court sentence death, in writing findings upon “it shall set forth its which (a) sentence of death is based to the facts: [t]hat ... sufficient [statutory] aggravating circumstances exist (b) [statutory] there are insufficient [t]hat ... outweigh circumstances to the circum- stances.” provides

The statute by automatic review the Su- of preme Court Florida of all cases in which a death sentence has been law from imposed. The differs in Georgia that it does not the require any court conduct Since, however, form of specific review. the trial judge must justify imposition a death sentence with written findings, such meaningful appellate review each sentence Florida, made possible, and the Court of like its Georgia counterpart, considers its function to be to “[guar- [aggravating antee] and mitigating] present reasons in one case reach will a similar result to that reached under similar circumstances in another If a case.... defendant is die, sentenced this Court can that case in light review the other decisions and determine or whether not punishment great.” is too

On their face procedures, these like used in those Geor- gia, appear to meet the constitutional deficiencies identified in Furman. sentencing Florida, authority the trial judge, is directed to weigh eight aggravating against factors seven factors determine whether the death shall imposed. This determination requires judge trial to focus on the crime and must, the character the individual defendant. He inter alia, consider whether the prior defendant has a criminal record, whether the defendant acted under duress or under disturbance, influence extreme mental or emotional whether the defendant’s role in was the crime that of a minor accomplice, and whether the youth defendant’s ar- gues favor of a lenient more sentence than might other- be imposed. wise The trial judge must also determine whether crime was committed the course of one of felonies, several enumerated whether it was committed for it to assist an whether was committed pecuniary gain, arrest, or to a lawful custody prevent from escape atrocious, heinous, the crime was especially whether are unlike questions, To answer these which cruel. Gregg see by Georgia sentencing jury, those considered 2909], ante, 197[, sentencing judge Georgia, circumstances of each homicide must focus the individual defendant. each system, between the Florida The basic difference in Florida the sentence is deter- system is that Georgia This jury. trial rather than judge mined capital in a case pointed has out that but it has junction, can an societal perform important constitutionally suggested jury sentencing never judicial sentencing And it required. appear would lead, anything, greater consistency if even should capital punishment, the trial court level of imposition at in than a sentencing trial is more judge experienced since a is better to sentences jury, impose and therefore able in imposed analogous to cases. similar those procedures thus seek to capital-sentencing The Florida in imposed will not be an penalty assure the death Moreover, or manner. to the extent arbitrary capricious exists, it minimized contrary by risk to the is any system, under which the evidence appellate Florida’s review is mitigating circumstances reviewed and Supreme of Florida “to deter- reweighed by of the ultimate independently imposition mine whether Florida, Court of like is warranted.” penalty to has not hesitated vacate a death sentence Georgia, that of it has determined that the sentence should not have when Indeed, it has vacated 8 of the death been imposed. it has sentences that reviewed date. sum, in procedures,

Under Florida’s capital-sentencing guidance to assist given specific trial are detailed judges or impose in whether to deciding them Moreover, their are re- imprisonment for life. decisions sen- they are consistent with other viewed ensure Thus, Florida, tences imposed similar circumstances. as in it no is ‘“no Georgia, longer is true there meaningful distinguishing basis for few cases which penalty] imposed many [the death from the cases which ” ante, 188[, 2909], Georgia, it at Gregg is not.’ 96 S.Ct. U.S., 313[, Georgia, Furman v. at quoting S.Ct. 2726] J., (WHITE, concurring). system On the Florida its face thus satisfies the constitutional deficiencies identified Furman. 247-253,

Proffitt, 428 U.S. L.Ed.2d added; (emphasis omitted; at 920-23 some internal citations omitted). footnotes

In addressing constitutionality process of the weighing in Proffitt, the Court observed:

In a similar vein the that it petitioner argues possible is not to make a rational determination whether there are “suffi- cient” circumstances that are not outweighed circumstances, the mitigating since the assigns state law no specific weight any the various be considered. hard, questions

While these they decisions require no more line than drawing commonly required in a example, juries fact-finder lawsuit. For have tradi- validity evaluated the tionally insanity defenses such as capacity, reduced both of which involve the consider- same ations as some of the above-mentioned circum- stances. While the various factors to be considered authorities do not weights have numerical as- them, signed to requirements of Furman satisfied are sentencing authority’s when the guided discretion is and by channeled requiring specific examination factors that argue in of or against imposition favor penalty, death thus eliminating total arbitrariness and in capriciousness its imposition. given judge jury

The directions to and the Florida sufficiently statute are clear and precise to enable the various to be weighed against result, sentencing the trial court’s ones. As that by system and channeled focuses guided discretion indi- on the circumstances of each individual homicide and in whether the is to deciding penalty vidual defendant death imposed. at Proffitt, 49 L.Ed.2d omitted). (citations Carolina, North Woodson v. In another at the same time 49 L.Ed.2d case decided Gregg, down Carolina’s Court struck North Furman. North Carolina had to statutory response chosen pre-Furman in the defects of arbitrariness its death eliminate all mandatory the death penalty by making penalty statute Obviously, of first murder. such persons degree convicted system required sentencing authority, knowing that the death, find in ques- would be defendant penalty guilty beyond rejecting tion reasonable doubt. such was scheme, sentencing a mandatory the Court observed: deficiency mandatory A of North Carolina’s separate provide is its failure to a constitu- death sentence statute response to Furman’s of unbri- tionally rejection tolerable jury imposition capital dled discretion in the sentences. Furman was the conviction in holding to the limited Central power of standardless in the vesting sentencing It Eighth violated the Fourteenth Amendments. jury is argued inadequa- that North Carolina has remedied the held penalty cies of death statutes unconstitutional Furman ju- all discretion from withdrawing capital long cases. But when one considers the ries penalty consistent American with death experience eases, it first-degree murder becomes evident mandato- Furman ry have response simply statutes enacted over problem unguided and unchecked papered discretion.... mandatory statute pro- Carolina’s

North no exer- guide vides standards its inevitable which power first-degree cise of determine murderers way live which shall die. And there is no under shall

219 law for judiciary arbitrary the North Carolina the check through of that a review of capricious power exercise rationalizing death Instead of the sentences. mandatory scheme exacerbate process, may prob- well lem by resting penalty identified Furman determina- tion on to act jury’s willingness lawlessly. the particular may reasonably be mandatory penalty While statute expected increase the number of sentenced persons death, it fulfill requirement by does not Furman’s basic replacing and wanton with arbitrary objec- discretion tive guide, regularize, rationally standards to and make reviewable the a sentence of process imposing death. Woodson, 2990-91, 428 96 U.S. S.Ct. at 49 L.Ed.2d (citations omitted). at 959-60

The above cases firmly requirements established eligibility phase It is not sentencing process. mere fact of which conviction makes a defendant death-eligi ble, but rather of an factor. The jurisprudence point Court’s this it clear that makes states must specify aggravating factors in to direct and order limit sentencing authority’s discretion as to class of convict ed defendants may to which the death apply. Only an when beyond circumstance is found a reason able doubt may death-eligible. defendant deemed Court, however, took a different tack when with dealing might circumstances mitigate which the actual imposition of the death penalty upon death-eligible defendant. In both Ohio, Lockett v. 57 S.Ct. L.Ed.2d 973 (1978), Oklahoma, and Eddings L.Ed.2d the Supreme Court reversed death (.Lockett) sentences because either statute or the judge (Eddings) impermissibly limited consideration mitigating factors. regard With the actual imposition the death Court, penalty, Eddings, that the states observed were free to assign weight whatever to the mitigating they felt were appropriate, stating: placed by upon find that the limitations these courts

We they would violated the evidence consider the State statute rule Lockett. Just as from (cid:127)preclude considering any mitigating the sentencer consider, factor, may sentencer refuse as a neither the law, In any this mitigating matter relevant evidence. of instance, jury it as if trial had instructed a judge was the on disregard mitigating Eddings proffered the evidence his sentencer, the of Criminal Appeals and Court behalf. review, the to be relevant may weight given determine they give weight by But not it no mitigating evidence. their consideration. excluding such evidence from 876-77, 71 L.Ed.2d Eddings, S.Ct. (footnotes omitted). at 10-11

In Zant v. Stephens, again the addressed the L.Ed.2d the it Georgia previously of death statute constitutionality in The issue the Court in Zant upheld Gregg. before was whether, state, an a death could non-weighing sentence factors which it aggravating upon survive where one the based was found to be invalid. The Court subsequently was sentence, upheld reasoning the the invalidation one not aggravating require several factors did reversal where the jury’s was to purpose the such circumstances in and imposing penalty, limit discretion death where that a designed state review was ensure appellate capricious. would set if it or arbitrary aside were subsequent The Court left of whether the open question of a factor would have the same result in a invalidation state, stating: as weighing Maryland, such ,we deciding that in not Finally, express note this case we do concerning the of a any opinion possible significance holding that a circumstance is “invalid” un- particular aggravating statutory judge der scheme which the weigh statutory instructed to and specifically aggravating its mitigating exercising circumstances discretion wheth- discussed, er to the death As we impose penalty. have not require adopt specific Constitution does a State instructing standards for its consideration circumstances, Georgia has such a adopted system. Zant, 462 U.S. at 103 S.Ct. at 77 L.Ed.2d at 258 (some omitted). Nevertheless, internal citations as the above in Zant makes language plain, analysis the Court’s roles of respective mitigating circumstances sentencing process weighing is relevant to states well. Zant analogizing sentencing process, the Court

noted with from approval responses Georgia Supreme question, Court to certified that: observing response In its to our question, Georgia certified Supreme Court ... explained premises state-law for its treatment of aggravating by analogizing body entire of Georgia governing law homicides to a pyra- mid. It explained:

All cases of homicide of every category are contained within the pyramid. The to the consequences flowing perpetrator increase in severity as the cases from proceed apex, the base to the with the penalty applying only death those few which are in just cases contained the space beneath the To apex. category reach that a case must pass through three of division planes between the base and the apex.

The first plane division above the base from separates all homicide cases which those fall into the category plane murder. This by legislature established murder, defining statutes terms such as voluntary man- slaughter, involuntary manslaughter, justifiable homi- cide. In deciding given whether case falls above or below this plane, the function of the trier facts is limited to finding facts. The plane remains fixed unless moved legislative act.

The plane separates second from all murder cases those penalty which the of death is a possible punishment. plane This is established by statutory definitions of aggrava- is again function of the factfinder circumstances. The ting certain facts a determination whether making limited to is treason or where there Except established. have been not move above this may case hijacking, given aircraft statutory aggravating least one unless plane second circumstance exists. from all cases in which plane separates,

The third in which it those cases imposed, of death be penalty in the an discretion There is absolute imposed. shall be not any given plane case below place factfinder the factfin- itself is established plane death. The impose all the factfinder considers establishing plane, der. extenuation, pun- mitigation aggravation evidence on the of the imposition is a final limitation ishment. There appeal procedure: automatic resting penalty death of death was penalty whether the This court determines any or passion, prejudice, the influence imposed under factor; statutory aggravating whether the arbitrary other evidence; and whether supported by are circumstances to the disproportionate is excessive the sentence of death of this Performance in similar eases. imposed penalty from the to remove a case may cause this court function opposite can never have the category but result. statutory aggravating circumstances purpose the factfin- completely, but not large degree,

to limit to statutory one of the ten Unless least der’s discretion. exists, penalty may the death If there exists at least one any event. imposed circumstance, may the death penalty statutory aggravating has a discretion to decline but the factfinder imposed be the decision as any making reason. giving do so without all takes into consideration the factfinder penalty, to the from the guilt-innocence before it both circumstances of the trial. These circumstances phases the sentence to the offense and the defendant. relate both that area in the second into pass plane A case at least one is authorized unless penalty which the death However, is found. this statutory aggravating circumstance statutory passed regardless the number plane found, long circumstances so as there is at least this case enters the area of beyond plane, one. Once discretion, in the factfinder’s which all the facts and circum- determine, stances of in terms of our metaphor, the case passes plane whether or not the case the third and into the area in which the death penalty imposed.

Zant, 2739-40, 77 L.Ed.2d at (internal omitted). 245-47 citations in Zant next turned its attention the sentenc- statute, ing set forth in it to process Georgia finding be so, In doing specifically pointed constitutional. the Court out constitutionally that it is not that there required specific be standards for balancing aggravating against mitigating circumstances in a sentencing statute. The Court stated: States,

In Georgia, unlike some other is not any instructed to give special weight any aggravating circumstance, to consider multiple aggravating circum- any significant stances more than a single such circum- stance, or to balance against mitigating circum- Thus, pursuant any stances special Georgia, standard. of an aggravating circumstance does not play any role in guiding sentencing body in the exercise its discretion, apart from its function of narrowing class persons convicted of murder who are eligible the death reason, penalty. For this respondent argues Georgia’s statutory scheme is holding invalid under the in Furman v. Georgia.

Respondent argues that the mandate of Furman is violat- aby ed scheme that permits to exercise unbridled discretion whether the determining should imposed after it has found that the defendant is a member of the class eligible made for that penalty by without accepted could not be argument But that

statute. For the Court holding Gregg. specific our overruling it though statute even Georgia’s capital approved enunciating jury’s discretion not channel clearly did of aggra- consideration guide jury’s standards specific circumstances. vating mitigating 2741-42, 77 L.Ed.2d at Zant, 462 U.S. at S.Ct. 247-49. footnote, further explained: the Court corresponding

In a Gregg specifically described joint opinion ] The [in terms: scheme these Georgia however, of murder- act, to narrow the class did “Georgia statutory by specifying subject punishment to capital ers found circumstances, one of which must be aggravating before beyond to exist a reasonable doubt jury . addition, In imposed. sentence can ever be other any appropriate authorized to consider not to find required The circumstances. mitigating make a recommen- circumstance in order to any mitigating court, trial but it binding that is mercy dation of circumstance rec- statutory before must find of death.” ommending a sentence Texas, day issued the same Jurek joint opinion 262[, 49 L.Ed.2d makes 929] balancing aggravating standards specific clear constitutionally are not circumstances against mitigating action we held State’s required. Jurek which a death of murders for “narrowing categories much the same served imposed” ever be sentence circumstances statutory aggravating as the lists of purpose had also held adopted. and Florida We Georgia sentencing jury questions presented one of the three bring mitigating the defendant permitted Thus, Texas, aggravating jury’s attention. not considered at the same circumstances were certainly were of the criminal stage prosecution other. against each explicitly balanced Zant, 13, 103 at 875 n. at 2742 n. 77 L.Ed.2d (some omitted). internal citations The Court also n. 13 states, distinction such as explained weighing between states, Maryland, non-weighing Georgia, noting such as dual, the function of factors separate, aggravating but illustrated, citing state. The four weighing Court further states, holdings state cases from in the weighing why to weighing applicable cases from the states would be situation where an factor was found aggravating subsequently to invalid a non-weighing under statute. The Court stated: cases, each these the State Court set aside a sentence based on aggravating

death both valid and invalid Respondent circumstances. advances these cases in sup- of his contention that a port required similar result here. However, examination of relevant state statutes shows States, that in each of not only jury these must the find at least one aggravating eligibility phase] circumstance [in sentence; in order to have the power impose addition, requires the law to weigh against mitigating circumstances when it decides whether or not the death penalty imposed should be selection phase]. [the

Zant, 12, 103 12, 462 at n. U.S. S.Ct. at 2741 n. 77 L.Ed.2d added; omitted).18 at 247 n. (emphasis internal citations The Court concluded its discussion aggrava- of the roles of ting circumstances, and mitigating weighing and the process, its reaffirming prior holdings that it is the of an circumstance, and not the weighing process, which makes a eligible penalty, defendant for the death noting that: indicate, then,

Our cases cir- statutory aggravating cumstances play constitutionally necessary function at seen, that, infra, 18. As will be explain the Court later would in a state, weighing weighing the inclusion of an invalid circumstance in the process can act as "thumb on the scale" of the authorities impose penalty during deliberations as to whether the death supra, phase. selection See note 16. the class they circumscribe definition: stage legislative But the Constitution penalty. for the death eligible persons possible aggrava other ignore require does not among from selecting, in the process factors ting actually be sentenced class, who will those defendants is an stage the selection important death. What character on the basis of the individualized determination of the crime. See the circumstances of the individual and Oklahoma, 10-112[,102 v. Eddings 1 Ohio, v. 586, 601- Lockett (1982); 438 U.S. 71 L.Ed.2d 1] opin 605[, (plurality 57 L.Ed.2d 973] 98 S.Ct. Louisiana, 633, 636-637[, v. (Harry) Roberts ion); U.S., Gregg, (1977); 637] 52 L.Ed.2d 97 S.Ct. Stewart, POWELL, 197[, (opinion 2909] Florida, 251-252[, U.S., at JJ.); STEVENS, Proffitt POWELL, Stewart, and STE (opinion 96 S.Ct. 2960] Carolina, 280, v. North JJ.); 428 U.S. Woodson VENS, (1976) 2978, 303-304[, (plurality 49 L.Ed.2d 944] 96 S.Ct. opinion). 2743-44,

Zant, L.Ed.2d at 103 77 S.Ct. 250-51.19 eligibility phase phase and the selection distinction between the

19. The 299, Pennsylvania, S.Ct. Blystone 494 U.S. v. was reiterated 255, (1990), 1078, weighing involving statute. The a 108 L.Ed.2d be a Pennsylvania provided that "the verdict must death statute unanimously aggravating finds at least one of death if the sentence mitigating unani- circumstance or if circumstance ... and no outweigh mously aggravating circumstances which one or more finds Cons.Stat. Pa. any circumstances.” 9711(c)(l)(iv)(1988). Blystone argued penalty statute § that the death a sentence of death based on because it mandated was unconstitutional summarily rejected weighing process. The Court outcome of the noting: argument, this purpose of aggravating serves the presence of circumstances The defendants, Eighth death-eligible Amend- limiting the class aggravating require circumstances be fur- does not that these ment by jury. Phelps, 484 U.S. weighed See v. ther refined 231, Lowenfield (1988) ("The 244[, 546, use of 568] 98 L.Ed.2d itself, a means of 'aggravating is not an end in but circumstances’ death-eligible thereby narrowing persons and genuinely the class of discretion”). requirement channeling jury’s The of individualized Florida, 463 U.S. 103 S.Ct. Barclay opinion), L.Ed.2d Court (plurality sentencing authority imposed where the considered situation factors, sentence on the of several basis which, one of constitutionally permissible, impermis- while was In reviewing requirements sible under the state statute. of the Florida statute and case law in question, observed: statute, Georgia

The Florida like the statute at issue in 862[, Zant v. 77 L.Ed.2d Stephens, (1983),requires the sentencer to find at least one valid 235] statutory aggravating penal- circumstances before the death considered, ty may permits even be the trial court to any admit evidence that be relevant to the proper statute, however, Georgia sentence. Unlike the Florida law requires statutory sentencer balance against all mitigating circumstances and does not permit nonstatutory aggravating circumstances to enter into this weighing process. statute does not establish any special weighing standard this process.

Although change the Florida statute did not significantly below, between and the decision the Florida Su- Proffitt preme Court developed body has of case law in this area. question One that has arisen is whether defendants must be resentenced trial erroneously when courts improp- consider er If the aggravating factors. trial court found that some exist, mitigating circumstances the case will generally be for resentencing. remanded If the trial court properly circumstances, found that there are no mitigating the Flori- da Supreme applies Court a harmless-error In analysis. case, such a “a reversal of the death sentence would necessarily required,” be the error might because be harm- less. capital by allowing jury cases is satisfied to consider mitigating all relevant evidence. 306-07, 1083,

494 U.S. at 110 S.Ct. at 108 L.Ed.2d at 264. 3427, 77 L.Ed.2d at at S.Ct. Barclay, 463 U.S. omitted). omitted; (some footnotes citations 1146-47 internal law, the factor involved one of state the error was Because exist, to and no of found but one several was upheld judgment the Court present, circumstances were to be harm the error the Florida of the on the nature In the Court commented doing, less. so init sentencing process, distinguishing phase selection our third rationale support terms we used much the same (See 257-60). The Court observed: Borchardt. infra judg- for the exercise of decision calls Any sentencing person nor for a possible It is neither ment. desirable to decide important judgment entrusts an whom the State thrust of our vacuum, if he no experiences. a as had “ ‘discretion has been capital punishment decisions so to minimize the directed and limited suitably must be ” v. action.’ Zant wholly arbitrary capricious risk 2733, 862, 874[, 235] 77 L.Ed.2d 462 U.S. S.Ct. Stephens, 153,189[, 96 S.Ct. Georgia, v. quoting Gregg Stewart, POWELL, (opinion 859] 49 L.Ed.2d JJ.). in another STEVENS, very day This we said capital case: conviction, itself that jury satisfy must returning

“In crime have been necessary particular elements fixing penalty, a reasonable doubt. beyond proved however, ‘central issue’ from which the there is no similar finds that jury diverted. Once the jury’s attention category defined legislatively falls within the the defendant respondent’s for the death as did eligible penalty, of persons circum- alleged special truth determining stance, of factors myriad then is free to consider appropriate punishment.” death is the to determine whether Ramos, 992,] 1008, [103 [463 California (1983). 1185] 77 L.Ed.2d that the United States Consti- suggested have never We should be trans- sentencing process that the requires tution statutory parsing and mechanical rigid formed into the sen- attempt separate factors. But

229 do inevitably from his would experiences fencer’s decision moral, factual, fitting the entirely that. It is precisely meaning- a juries play and to judges judgment legal and will that sentencers sentencing. expect in We ful role to the way own and best their their discretion exercise guided in a as discretion is long As ability. their Florida, 428 v. see constitutionally adequate way, Proffitt long 2960, 242[, 913] 96 49 L.Ed.2d S.Ct. U.S. arbitrary as offend wholly not so as the decision is Constitution, cannot and should Amendment Eighth more. demand 950-51, 3425, 77 at L.Ed.2d

Barclay, 463 U.S. at added).20 1144 (emphasis specific con- leading into our importance, case of

The next Clemons v. framework, statutory is Maryland sideration of 738, 1441, 108 725 494 110 L.Ed.2d Mississippi S.Ct. Clemons, (1990).21 it the issue which In the Court confronted 302, 327-28, Penry 109 Lynaugh, 492 U.S. S.Ct. 20. See also v. (1989): 284 106 L.Ed.2d carefully must standards that narrow “In contrast to the defined sentence, impose death the Constitution discretion to sentencer's ability discretion consider a State’s to narrow sentencer’s limits might impose cause it to decline to the death relevant evidence that 304[, McCleskey Kemp, v. S.Ct. sentence.” Indeed, precisely (emphasis original). it is 262] 95 L.Ed.2d directly punishment personal to the should be related because jury culpability of the defendant that the must be allowed consider give to a effect to relevant defendant's evidence or the Rather than character record circumstances offense. creating unguided response, full the risk of an emotional consider- mitigates against essential ation of evidence that “ response give to the if is to ‘reasoned moral defendant’s ” U.S., character, Franklin, background, [108 crime.’ J., (O’Connor, concurring judgment) (quoting 2320] S.Ct. Califor- J., Brown, U.S., (O’Connor, 837] at 545 S.Ct. concur- [107 nia v. "reliability ring)). in the that death In order to ensure determination Woodson, U.S., case,” specific appropriate punishment 2978], give must be able to consider and [96 at 305 any mitigating defendant's back- evidence relevant to a effect ground crime. and character or added). (emphasis approximately prior to 21. three months Walton Decided Arizona. Zant, left open whether, namely, in a state, weighing such as Maryland, reversal was required where one of several aggravating factors was found on direct appeal to be constitu- tionally Clemons, invalid. the Mississippi Supreme Court determined that the harmless, error was and held that upon re-weighing by it of factors, the remaining the death penalty was appropriate.22 Because one of the aggravating factors remained intact after appellate scrutiny, the question of whether Mr. Clemons was death eligible was not before the Court; only questions concerning the selection phase of the sentencing process were at issue. Clemons argued that the Court, Mississippi Supreme in finding that a jury would have found death appropriate even without presence factor, invalid aggravating improperly applied the harmless- error rule. He argued also that he had a liberty interest having jury make all the determinations relevant to his sentence, and that an appellate court could not reweigh the balance of factors. The U.S. Supreme Court disagreed with issues,23 Clemons on both observing that: if Even law, under Mississippi the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless. As the plurality in Barclay v. Florida, supra, opined, the Florida Supreme Court could apply harmless-error analysis when reviewing a death sen- tence imposed by a trial judge who relied on an aggravating circumstance not available for his consideration under Flori- da law:

“Cases such as [those cited the petitioner] indicate that the Florida Supreme Court does not apply its harmless- Mississippi 99-19-101(3)(c) 22. § Code Ann. (Supp.1989) provides death, impose "[f]or the a sentence of unanimously it must find (c) ... circumstances, That there are insufficient as enumer- ated in outweigh subsection circumstances." Nevertheless, 23. because the record was unclear as to whether the state Supreme actually Court reweighing, conducted a the sentence was vacated. fashion, but or mechanical in an automatic

error analysis analy- this on the basis of upholds rather sentences harmless. the error is actually when it finds only sis Florida why is reason There no judge the trial the balance struck cannot examine ag- considered improperly decide that the elimination affect possibly circumstances could gravating individualized an ... important balance.... ‘What the individ- the basis of the character of determination on Zant, U.S.], crime.’ [462 ual and circumstances of the Id., 879[, (emphasis original).” 2733] 958[, 103 3418]. impres- convey is intended

Nothing opinion this or necessar- required courts are appellate sion state analysis reweighing in or harmless-error ily engage should capital sentencing proceed- occurred in a when errors have constitu- only procedures such are ing. holding Our that situations, In appellate some state tionally permissible. appel- in a make peculiarities that case court conclude extremely spec- analysis or harmless-error reweighing late ap- noted that previously ulative or We have impossible. determining in may face certain difficulties pellate courts Nevertheless, instance. sentencing questions the first courts, including the that decision is for state appellate case, to make. Mississippi Supreme Court this Clemons, 1450-51, 108 494 110 S.Ct. at U.S. (footnotes omitted; citations some internal L.Ed.2d at 741-42 omitted). factors holding reweighing factors did not offend federal Constitu-

against mitigating tion, the Court observed: 862[, 77

In Zant v. Stephens, S.Ct. U.S. (1983), in a like L.Ed.2d we determined State 235] only serve Georgia, aggravating where not to eligible make a for the defendant determine the punishment, the invalidation of aggrava- one ting circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury. We however, withheld opinion, “concerning the possible signifi- cance of a holding that a particular aggravating circum- stance is ‘invalid’ under a statutory scheme in which the judge jury is specifically weigh instructed to statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty.” Id. at 890[, 103 S.Ct. In Mississippi, 2733]. unlike the Georgia Zant, scheme considered of aggravating fac- tors is part jury’s [also] sentencing determination, and the jury is required weigh any mitigating factors against the aggravating circumstances. Although these dif- ferences complicate questions raised, we do not believe they dictate reversal in this case.

Nothing the Sixth Amendment as construed by our prior decisions indicates that a defendant’s right to a jury trial would infringed an where appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors out- weigh the mitigating evidence. Any argument Constitution requires that a jury impose the sentence death or make findings prerequisite to imposition of such a sentence has soundly rejected been by prior deci- sions of Bullock, this Court. Cabana v. 376[, (1986), 88 L.Ed.2d held 704] that an appellate court can make the findings required by Enmund v. Flori- da, 782[, L.Ed.2d 1140] the first instance and stated that “[the decision whether a particular punishment the death penalty appro- —even —is priate in any given case is not one that we have ever required be made a by jury.]” 385[, U.S. at Spaziano Florida, v. 447[, 689]. 468 U.S. 104 S.Ct. (1984), L.Ed.2d 340] ruled that neither the Sixth Amend- ment, nor Eighth Amendment, nor any other constitu- tional provision provides a defendant with right to have sentence; capital of a jury appropriateness determine

a judge’s on a prohibition a jeopardy is there double neither Likewise, the sentence. jury’s a recommended override of jury specify a require that Amendment does Sixth of capital the imposition that permit factors Florida, 638[, 109 S.Ct. 490 U.S. Hildwin v. punishment, jury require nor it 2055, 104 does 728] L.Ed.2d find- specific sentence turns sentencing, even where the 79, 93[, Pennsylvania, fact. v. ings of McMillan (1986). 2411, 91 L.Ed.2d 67] S.Ct. cases, argues that of these Clemons import To avoid authority to jury has the Mississippi only law under sentence, liberty and that he therefore has a death impose Fourteenth Process Clause of the interest under the Due rele- jury make all determinations having Amendment appellate that an argues vant to his sentence. He therefore the jury factors when reweigh court cannot the balance on an invalid circumstance. has found relied satisfy must course Capital proceedings Clause, recognized we have dictates of the Due Process for a a liberty when state law creates defendant that findings, specula- in having jury particular interest make will not suffice to that entitle- appellate findings protect tive However, gener- two ment for due these process purposes. to the seeks. al do not lead result Clemons propositions Oklahoma, Hicks [447 imposed L.Ed.2d 175 sentence had been under an ] provided mandatory invalid recidivist statute that for a 40- year Appeals sentence. The Oklahoma Court Criminal range it was within the affirmed sentence because jury validly imposed. sentences the could have possible claimed, conceded, Hicks the State Oklahoma sentence. held under only impose could We liberty having state law Hicks had a interest an interest could not be overcome impose punishment, have conjecture” jury “might” imposed the “frail that the statute. the same sentence in the absence the recidivist out, however, the Oklahoma specifically pointed We Criminal Appeals did not “purport cure the deprivation by itself reconsidering the appropriateness” of 40-year sentence, thus suggesting that appellate sen- if tencing, conducted, properly would not violate due process of law.

Contrary to Hicks, the situation in the state court in this case, others, as it had in asserted its authority under Mississippi law decide for itself whether the death sen- tence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied been, should not have or was improperly, presented to the jury. The court did not consider itself bound such circumstances to vacate the death sentence and to remand for a sentencing new proceeding a jury. before We have no basis disputing this interpretation law, of state which was considered the court below to be distinct from its asserted authority affirm the sentence on the ground of error, harmless and which plainly means that we must reject Clemons’ assertion that he an had unqualified liberty interest under the Due Process Clause to have the jury assess the consequence the invalidation of one of the aggravating circumstances on which it had been instructed. In this respect, the case analogous Bullock, to Cabana v. supra, where we rejected specifically process due chal- lenge based on Hicks because state law created no entitle- ment to have a jury make findings an appellate court also could make.

Clemons also submits that appellate courts are unable to fully consider give effect to the mitigating evidence presented by defendants the sentencing phase in capital case and that it therefore violates the Eighth Amendment for an appellate court to undertake to reweigh aggravating and mitigating an attempt to salvage death sentence imposed by jury. insists, therefore, He that he is entitled to a new sentencing hearing before a jury and that the decision below must be reversed. We are unpersuaded, however, that our cases require this result. Indeed, they point opposite direction. context Eighth Amendment concern primary facts on the be based that the decision

has been defendant, and his his background, and circumstances under procedures scrutinizing crime. the “twin Amendment, has emphasized the Court Eighth and fairness application of “measured consistent objectives” appel- process inherent in the Nothing the accused.” to with the pursuit inconsistent reweighing is late objectives. foregoing weigh- appellate that careful see no reason to believe

We in cases circumstances against mitigating ing aggravating appli- consistent “measured produce as this would such any way or in be unfair cation” of the death appellate courts decide It is routine task defendant. capital the evidence verdict supports whether States, the evidence to consider whether “weighing” cases the death could have arrived at such that sentencer And, opinion as the below imposed. that was sentence indicates, process weighing a similar pro- in an court’s is involved appellate evidence Furthermore, repeated- this has review. Court portionality of death appellate review ly emphasized meaningful It is also reliability consistency. promotes sentences supreme courts States note that state important many well penalty may the death review authorizing contrast, on jurors, and that will serve typical sentences Therefore, such we only during one case their lifetimes. give each appellate conclude state courts can and do an and reliable determi- defendant individualized circumstances, on his back- nation based the defendant’s and the ground, crime. Bullock, 474 surely

This is of Cabana v. U.S. import 376[, (1986), held that 88 L.Ed.2d which 704] Enmund make the appellate state court could Florida, 782[, L.Ed.2d 1140] v. S.Ct. i.e. for the death required imposition penalty, killed, kill, attempted the defendant had whether Goode, 78[, Wainwright intended to kill. curiam), is likewise (per 78 L.Ed.2d 187] There, instructive. a Florida trial judge relied on an alleg- edly (“future impermissible aggravating circumstance dan- gerousness”) in imposing a death sentence on Goode. The Florida an conducted independent review of record, reweighed the mitigating and fac- tors, and concluded that the death penalty was warranted. In a federal habeas proceeding, Goode then successfully challenged the trial court’s reliance the allegedly imper- missible factor. We reversed the grant of the writ and concluded that even if the trial judge relied on a factor not law, available his consideration under Florida the sen- tence could stand. “Whatever have been true of the sentencing judge, there is no claim that in conducting its independent reweighing the aggravating and mitigating the Florida Supreme Court considered Goode’s future dangerousness. Consequently there is no sound basis for concluding that the procedures followed produced State an arbitrary or freakish sentence forbid- den the Eighth Amendment.” We accordingly see in nothing appellate weighing or of reweighing the aggravating and mitigating circumstances odds with contemporary standards of fairness or that is inherently likely unreliable and to result in arbitrary imposition of the death sentence. Nor are we impressed with the claim that without written jury findings concerning circumstances, mitigating appellate courts cannot perform their proper role. In Spaziano Proffitt, upheld we Florida death penalty scheme permitting a trial judge to override jury’s recommendation of life even though there were no written An findings. appellate court also is adequately able any evaluate relating evidence to mitigat- ing factors without the assistance of written jury findings. Clemons, 744-50, 494 U.S. at 1446-1449, 110 S.Ct. at (some L.Ed.2d 735-739 omitted; internal citations footnotes omitted).24 also, Corrections, See Dept. Parker v. Florida 498 U.S.

24. of 731, 738, (1991) ("As noted, 111 112 L.Ed.2d Florida is a Arizona, case, Walton important The next impor- is of particular 3047, 111 L.Ed.2d 511 (and discussion, only specific specific portions as tance to our Walton, Ring. overruled holding were of its portions) court of Arizona trial an guilty found the defendant was sentenc- separate and was sentenced murder first-degree law. The by state required judge, before ing hearing that: provided Arizona statutes or “intending if murder first-degree commits person

[a] death, person such conduct will cause knowing that his if in the or premeditation” of another with causes the death and without certain offenses committing specified course for the com- required than what is state other any mental offenses, any person. the death of causes of such he mission murder, guilty first-degree found After a has been person determined accordance for such crime is the sentence 13-703(B). It is there directed §of with the provisions ... shall be conducted be- sentencing hearing “separate the sentence whether the court alone” determine fore of such In the course imprisonment. or life shall be death existence instructed to determine the judge hearing, mitigating or any or nonexistence (F) (G) § 13- defined subsections circumstances (F) 703. defines Subsection whether of them is be considered. One receiving expectation committed with the offense was is whether the defen- value. Another anything pecuniary heinous, cruel, in an especially dant the offense committed (G) defines manner. Subsection depraved are relevant deter- any circumstances as factors “which death, than a sentence less impose whether mining character, propensi- any of the defendant’s including aspect offense, of the any of the circumstances ties or record factors. The specified not limited to” five including but any aggrava- the existence of establishing burden of State; imposed only specified weighing where the death circumstances.”). mitigating aggravating outweigh circumstances all ting circumstances is on the while the prosecution, burden establishing mitigating circumstances is on the defendant. court special is directed to return a verdict forth setting its as to findings mitigating circumstances and then “shall if impose sentence the court finds one or more of the aggravating circumstances enumerated (F) of this subsection section and that there are no sufficiently substantial to call for leniency.”

Walton, 642-44, 497 U.S. at 110 S.Ct. at 111 L.Ed.2d (some omitted). at 521-22 internal citations primary argument Walton’s was that his Sixth Amendment statute, were rights by violated the framework of the Arizona in that it judge, jury, allowed a rather than a to determine killed, kill, that the defendant attempted intended to kill,25and to find the existence of aggravating factors. Walton argued these determinations were func- exclusively jury tions. rejected The Court Walton’s argument, observing: argument

Walton’s first is that every finding fact decision underlying must be made a jury, not and that judge, the Arizona scheme would be only constitutional if a decides what mitigating circumstances are in a present given case and the trial judge imposes then sentence based on findings. those assertion, Contrary to Walton’s “Any argument however: that the Constitution requires that a impose sen tence of death or findings prerequisite make the to imposi tion of such a soundly rejected sentence has been by prior v. Mississippi Clemons decisions of this Court.” 494 U.S. 738, 745, 110 1441, 108 (1990). L.Ed.2d 725 repeatedly rejected

We have constitutional challenges to scheme, Florida’s death sentencing provides which for sen- Florida, Hildwin v. tencing by judge, jury. Florida, 25. See Enmund v. 73 L.Ed.2d (1982) (a guilty felony defendant who was found murder could taking part robbery not be executed for in a where he intended never used). deadly force be

239 2055, (per 728 638, 104 L.Ed.2d 109 S.Ct. U.S. 3154, Florida, 447, 104 curiam); S.Ct. v. 468 U.S. Spaziano 242, Florida, (1984); 428 U.S. 96 v. L.Ed.2d 340 Proffitt (1976). Hildwin, 2960, example, 49 L.Ed.2d 913 S.Ct. with the again us once presents case stated that “this we to requires Amendment whether Sixth question permit imposition factors that specify aggravating Florida,” ultimately concluded and we capital punishment specif- that the require does not “the Amendment Sixth of the sentence of authorizing imposition ic findings jury.” death be made to draw between the attempts

The distinctions Walton not persuasive. schemes are statutory Florida and Arizona sentence, in Florida the recommends It is true that findings regard factual with specific it does not make but aggravating or the existence of A judge. on the trial binding is not and its recommendation of a jury’s trial court no more has the assistance Florida issues than does a respect sentencing of fact with findings trial in Arizona. judge Florida factors suggests

Walton also they in Arizona “considerations” while only sentencing are But as we observed are “elements of the offense.” Arizona, 147, 1749, 90 L.Ed.2d Poland v. S.Ct. (1986), Aggrava- an Arizona case: capital punishment offenses, separate penalties are ting circumstances making choice’ guide [the] but are ‘standards and life imprison- between the alternative verdicts death scheme, Thus, Arizona’s capital ment. under circumstance any particular aggravating judge’s finding (ie., the death require does not of itself ‘convict’ defendant to find any particular and the failure penalty), (ie., ‘acquit’ preclude does not a defendant circumstance penalty).” Bullock, 474 U.S. holding Our Cabana (1986), for our provides support 88 L.Ed.2d 704 further that an court could appellate conclusion. Cabana held Florida, make the Enmund v. constitutionally 73 L.Ed.2d 1140 —that killed, kill, kill—in attempted defendant or intended to “Enmund, the first instance. We noted that ‘does not affect offense, any the state’s definition of substantive even a ” (citations offense,’ 385[, at capital 474 U.S. S.Ct. 689] omitted), Eighth prohibits and that “while the Amendment defendants, supply the execution of such it does not a new element of the crime of murder that must be found capital Enmund “a by jury.” only places substantive limitation sentencing, and like other such it need not be limits If by enforced the Constitution does not jury.” require that the Enmund be as an element of the proved murder, offense of and does not a capital require finding, make that we cannot conclude that a State is to denominate required aggravating “ele- ments” of permit only jury the offense or to determine the existence of such circumstances.

Walton, 647-49, 3054-55, at at 111 L.Ed.2d S.Ct. (some omitted). at holding 524-25 internal citations This was in part by Ring, to the extent that Walton only reversed but not require aggravating held that the Constitution did factors understatement, jury. found Employing multiple be Ring the Court in stated: “ ‘the doctrine of stare decisis is of Although fundamental law[,]’ to the ... our importance precedents rule are not prior sacrosanct.” “We have overruled decisions where the necessity and so has propriety doing been established.” are satisfied that this is such a case. We we hold that Walton and Appren- stated, For the reasons di are irreconcilable; our jurisprudence Sixth Amendment we overrule Walton Accordingly, cannot be home to both. sentencing judge, sitting it extent allows jurg, without a to find an circumstance necessary imposition for of the death Because penalty. Arizona’s enumerated factors as “the operate offense,” functional of an element of a equivalent greater 494[, Apprendi, 2348], the Sixth they Amendment be found requires jury. 2442-43, 153 Ring, 536 U.S. S.Ct. at L.Ed.2d at added; omitted). 576-77 (emphasis some internal citations 1990’s, By the mid the Supreme post-Furman Court’s penalty jurisprudence reached a point maturity relative stability. Tuilaepa California, 512 U.S. 129 L.Ed.2d 750 the Court reviewed its handi

work and explained and affirmed the distinctions it had devel oped between the eligibility phase phase and the selection apparatus. death sentence The Court stated: capital punishment

Our Eighth cases under the Amend ment address two aspects capital different decision- making process: eligibility decision and the selection decision. To eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. To render a eligible defendant case, the death in a homicide we have indicated that the trier must convict the murder of fact defendant of (or one “aggravating circumstance” equivalent) its find at guilt See, either the or penalty phase. e.g., v. Lowenfield 231, Phelps, 546, 484 U.S. 108 S.Ct. 98 L.Ed.2d 568 (1988); Stephens, 862, 878, Zant v. 462 2733, U.S. 103 S.Ct. (1983). 77 L.Ed.2d 235 The aggravating circumstance may be contained the definition of the crime or in a separate (or both). sentencing factor As explained, we have aggravating circumstance must meet two requirements. First, the may circumstance not apply every to defendant murder; convicted it must apply only to a subclass of defendants Creech, convicted of murder. See Arave v. 507 463, 474, 113 1534, 123 (1993) (“If U.S. S.Ct. L.Ed.2d 188 fairly sentencer could conclude that an aggravating circum stance applies to every defendant eligible for the death infirm”). penalty, the circumstance is constitutionally Sec ond, the aggravating circumstance not be unconstitu tionally vague. Godfrey 420, v. Georgia, 428, 446 U.S. 100 1759, (1980); Arave, S.Ct. 64 L.Ed.2d 398 supra, 471[, see “ (court 113 S.Ct. ‘must first 1534] determine whether the statutory language defining the circumstance is itself too ”) to vague provide any guidance to the sentencer’ (quoting Arizona, v. 639, 654, 3047, 111 Walton 497 U.S. (1990)). L.Ed.2d 511 for the selection separate requirement have imposed

We decision, whether a defen- the sentencer determines where should fact receive eligible dant for the death an important stage at the selection sentence. “What is character individualized determination on the basis Zant, of the crime.” of the individual and North see also Woodson v. 2733]; supra, 879[, 103 S.Ct. Carolina, 280, 303-304, L.Ed.2d 96 S.Ct. (1976) That is met opinion). requirement (plurality consider evidence mitigating when the can relevant circum- and record the defendant and the character Blystone Pennsylvania, stances of crime. (“require- L.Ed.2d 255 capital ment of individualized cases is satisfied to all relevant consider allowing evidence”). crime within a defined eligibility

The decision fits the of necessity require almost Eligibility classification. factors to an answer with a factual nexus the crime question rationally the defendant so as “make reviewable of death.” selection process imposing sentence The hand, decision, requires on the other individualized sentenc relevant ing expansive enough must be accommodate an so as to assure assessment of mitigating evidence objectives inqui defendant’s these two culpability. tension, inquiries ries can at least when the some principle occur at same time. There is one common decisions, both however: must ensure that The State as to bias process principled guard against neutral and so Georgia, v. Gregg sentencing See caprice decision. 153, 189, (joint 428 96 S.Ct. 49 L.Ed.2d 859 U.S. JJ.) Powell, STEVENS, Stewart, opinion (procedures arbitrary must risk of wholly capricious “minimize the action”). objective That is the when we examine controlling Indeed, it is eligibility vagueness. and selection factors for (at reason eligibility and selection factors least

243 schemes) Walton, some not sentencing vague.” be “too 654[, supra, at 110 S.Ct. 3047]. 971-73, 2634-35, 114

Tuilaepa, 512 U.S. at at 129 S.Ct. added; L.Ed.2d at 759-60 (emphasis some internal citations omitted).

Defendant Tuilaepa argued, among things, had other the California statute was unconstitutional it did not because require selection factors to meet the same requirements eligibility sufficiently factors and did not instruct the sentenc- er to weigh as to how the factors arriving appropriate at an sentence. The Court both of rejected arguments, these to regard weighing with stated:

A be to capital weigh sentencer need not instructed how any fact in In particular capital sentencing decision. Cali- Ramos, example, v. we upheld an instruction fornia jury informing power the Governor had the life commute sentences and stated that fact that “the jury specific no given guidance how the commutation figure factor is to into its no presents determination consti- 22[, problem.” tutional at U.S. n. 103 S.Ct. Likewise, Florida, upheld 3446]. we Proffitt capital Florida sentencing scheme even “the various though factors considered authorities sentencing [did] not weights assigned have numerical them.” U.S. at 258[, moreover, Gregg, In “approved 2960]. we Georgia’s capital statute it sentencing though clearly even did not channel jury’s discretion by enunciating specific guide standards to the jury’s consideration of aggravating Zant, 875[, and mitigating circumstances.” S.Ct. rejected objection 2733]. We also an “to the wide scope of evidence and argument” allowed 203-204[, hearings. sum, U.S. at 2909]. weigh “discretion evaluate and the circumstances relevant to the particular defendant and the crime he committed” is impermissible the capital sentencing process. “Once finds that the legislative- defendant falls within ly category defined of persons eligible for the penalty, ... myriad then free to consider a of factors to 244 appropriate punishment.” the

determine whether discretion Indeed, given sentencer be “unbridled the be imposed the death should determining whether is a member the after it has found that defendant Zant, 875[, at penalty.” supra, for that eligible class made Florida, 939, 2733]; v. 463 Barclay 103 see also S.Ct. 948-951, (plurality 77 L.Ed.2d 1134 cases, argu- of those petitioners’ contravention opinion). mandatory adopt ment force the States to kind would to jury sentence defendant sentencing requiring scheme or found, if it a certain kind number example, to death for facts, than statutory aggravating found more factors or required not factors. The States are statutory mitigating in that fashion. See capital sentencing process conduct 199-200, 50[, Gregg, 2909]. U.S. at n. 96 428 S.Ct. 2638-39, 979-80, 114 at 129 512 U.S. at S.Ct. Tuilaepa, omitted). (some L.Ed.2d 764-65 internal citations at its decision Harris point Court reiterated Alabama, 130 L.Ed.2d 1004 513 U.S. S.Ct. (1995), stating: “a method rejected specific

We have notion ain capital balancing factors ” constitutionally proceeding required. does corollary settled is the the Constitution Equally specific weight to ascribe any particu- State require factors, mitigation, be consid- aggravation lar either weight” To require “great ered the sentencer. here, one of criteria given to the recommendation sentencer, would offend these be considered place within constitutional ambit principles established tasks rest within micromanagement properly justice its criminal system. discretion to administer State’s Harris, 512, at L.Ed.2d 513 U.S. S.Ct. omitted). added; some citations internal (emphasis

And finally, Angelone, Buchanan v. 757, 139 Court explained: L.Ed.2d 702 must, as he that our initially recognizes, Petitioner cases distinguished have between two different aspects capital sentencing process, eligibility phase selection In the phase. eligibility phase, narrows the class of defendants for the death often eligible penalty, In through consideration of circumstances. the to phase, jury impose selection the determines whether on an eligible sentence defendant. Petitioner con- it only phase cedes that is the that at stake in selection is however, argues, his He that case. our decisions indicate that jury phase the the selection must have discre- both tion an to make individualized determination and have that discretion limited argues and channeled. He that further Eighth the Amendment requires therefore the court to jury instruct on its to obligation the and consider authority evidence, mitigating particular and on factors deemed the relevant State.

No rule such has ever been adopted by this Court. While petitioner appropriately the recognizes distinction between the and eligibility selection phases, distinguish he fails to differing the constitutional treatment we have accorded aspects those two sentencing. regard It to capital the eligibility phase that have we stressed the need for channeling limiting jury’s the discretion ensure that the death proportionate punishment and there- arbitrary fore not its capricious imposition. con- trast, in selection we phase, the have the emphasized need for a inquiry broad into all relevant mitigating evidence to allow an individualized determination.

In the phase, selection our cases have established that the may sentencer not be from precluded considering, and may consider, not refuse to any constitutionally mitigat- relevant ing However, evidence. may shape State and structure the jury’s consideration of it mitigation so does not long preclude from jury effect to giving any mitigat- relevant ing evidence. Our consistent concern has that been restric- tions jury’s sentencing on the preclude determination not jury from being give able to effect to mitigating evi- 380, 110 Thus, California, 494 U.S. Boyde

dence. held that the stan we 108 L.Ed.2d S.Ct. these jury satisfy instructions determining whether dard is a likelihood there reasonable was “whether principles challenged way instruction jury applied has relevant evi constitutionally the consideration prevents dence.” further held that the state.

But never gone we have way manner particular in a affirmatively structure must indeed, And mitigating evidence. in which consider juries discretion is consti- complete jury suggest our decisions 978-979[, supra, at Tuilaepa, See tutionally permissible. phase, at the selection State (noting 2630] submitting specific propositional questions is not confined discre- jury allow the unbridled indeed 875[, (rejecting tion); supra, 2733] Stephens, to exercise permitting that a scheme argument determining impose whether “unbridled discretion” eligible found the defendant after it has penalty death unconstitutional, that accepting argument that noting Gregg, supra). the to overrule would Court require 761-62, 275-77, at Buchanan, 522 U.S. at omitted). (some internal citations L.Ed.2d at 709-10 VI. Arizona, 584, 122 Ring now come to

We proper the case whose 153 L.Ed.2d 556 S.Ct. that Ring It is in present at issue in the case. application penalty juris death Amendment Eighth the Court’s the jurisprudence its Sixth Amendment prudence meets challenge Apprendi raised an subject. Ring, defendant sentence, Arizona death arguing penalty his death to findings his Amendment to have all right violated Sixth statute aby jury maximum made accord penalty him to the exposing doubt Specifically, to the reasonable standard. ing beyond scheme violated argued capital sentencing that Arizona’s Ring by entrusting trial to guarantee the Sixth Amendment’s Walton, factor, supra, of an see judge Ari thus the defendant’s maximum to death. raising penalty penal death argued previously upheld zona the Court its Walton, ty scheme in and had stated its Apprendi holding. decision that case did not its The implicate Walton Ring “to extent it allows a overruled Walton sitting jury, without to find an sentencing judge, death necessary imposition penal circumstance for the 609, 122 2443, 153 at at ty.” 536 U.S. L.Ed.2d 576-77. The Court described the of the Arizona death workings penalty statute as follows: law, death, Arizona Ring

Under could not be sentenced statutory murder, first-degree maximum unless further made. findings first-degree were The State’s prescribes murder statute that the punishable by offense “is imprisonment provided § death or life 13-703.” The section, § judge cross-referenced directs the who presided trial to a separate sentencing “conduct hearing determine existence or nonexistence enu- [certain circumstances ... for the purpose merated] of determining the sentence to be The imposed.” statute further instructs: hearing “The shall be conducted before the court alone. alone all court shall factual make determinations re- quired by this section or the constitution of United States or this state.”

At the conclusion of hearing, judge is to presence determine the absence the enumerated “ag- gravating any circumstances” and “mitigating circum- stances.” The State’s law authorizes judge sentence defendant if there is only aggrava- at least one ting circumstance and “there are no circum- stances to sufficiently substantial call for leniency.” 592, 122 Ring, 2434-35, 153 536 at at U.S. S.Ct. at L.Ed.2d 566 (footnotes omitted). omitted; some Having internal citations statute, workings described the of the Arizona death the Court observed: solely

Based on the verdict jury’s finding Ring guilty murder, first-degree felony the maximum punishment he 248 life imprisonment. question

could received was have may factor be found aggravating whether that presented is or whether the Sixth specifies, as Arizona law by judge, to the jury applicable trial made guarantee, Amendment’s Amendment, requires that the Fourteenth States to jury. entrusted factor determination be aggravating 597, 2437, 569 122 153 L.Ed.2d at 536 S.Ct. Ring, U.S. omitted). (footnote pointed As the Court and internal citation out, Ring’s tightly was delineated: claim jury Amendment only required

He that the Sixth contends against circumstances asserted findings on the past to convic- him. circumstance related No case; not Almen- challenge tions his therefore does Ring 1219, States, 224, 523 118 darez-Torres v. United U.S. S.Ct. that the of prior 140 which held fact L.Ed.2d 350 if it judge even increases conviction found He makes no Sixth Amend- maximum sentence. statutory respect to circumstances. See mitigating ment claim with 16, 120 n. Jersey, v. New Apprendi (2000) “the (noting 147 L.Ed.2d 435 distinction S.Ct. in aggravation facts recognized the Court has often between omitted)). (citation mitigation” punishment facts argue required the Sixth Amendment Nor does he to make the ultimate determination whether penalty. Florida, impose See Proffitt 242, 252, (plurality L.Ed.2d U.S. (“It suggested that sentenc- has never opinion) [been] question He does not ing constitutionally required.”). ag- authority reweigh Court’s Arizona after court gravating Clemons v. aggravator. Mississippi, struck one See (1990). 738, 745, 108 L.Ed.2d 725 S.Ct. was does contend that his indictment Finally, Ring 477, n. 530 U.S. at constitutionally Apprendi, defective. See (Fourteenth ... 3[, Amendment “has not 2348] right the Fifth Amendment been construed include ”). Jury’ of a Grand or indictment ‘presentment at 597 n. S.Ct. at 2437 n. 153 L.Ed.2d Ring, added). n. 4 (emphasis at 569 impact application

The Court next addressed the penalty its the Arizona death stat- holding Apprendi upon explained: ute. The Court of, was defendant-petitioner [Apprendi

The convicted ] alia, firearm, inter a an second-degree possession of offense carrying years Jersey a maximum of ten under New id., 2348], 469-470[, law. See On the prosecu- motion, tor’s sentencing judge by preponder- found ance of the evidence that crime had been moti- Apprendi’s vated racial animus. That finding triggered application enhancement,” Jersey’s New “hate crime which doubled maximum Apprendi’s authorized sentence. The sen- judge Apprendi tenced years prison, years over the maximum that would applied have but for the enhancement. held that Apprendi’s

We sentence violated his right “a jury determination that guilty every [he] element of the crime with which he is charged, beyond a reasonable doubt.” That right attached not only Apprendi’s weapons offense but also to the “hate crime” circumstance. observed, New Jersey, “threatened Apprendi with certain if pains unlawfully possessed he a weapon and with if additional he pains selected his victims with a purpose to intimidate them because of their “Merely race.” using label ‘sentence enhancement’ to describe the [second act] surely provide does not a principled basis for treating [the two differently.” acts] dispositive said, form,

The question, we “is one not of but If effect.” a State makes an increase in a defendant’s punishment contingent fact, authorized of a that fact—no matter how the State labels it—must be found by jury beyond reasonable doubt. A defendant ... “exposed to a penalty exceeding the maximum he if would receive punished according to the facts reflected the jury verdict “All alone.” the facts which must exist order to subject the defendant to a legally prescribed pun- ishment must be jury.” found the Court Apprendi, with could be reconciled

Walton distinction, according Ap- key finally asserted. murder Court, first-degree that a conviction was prendi of death.” Once a maximum “sentence in Arizona carried of an of all the elements guilty found the defendant jury has maximum the sentence carries as its offense which that to decide whether death, judge it left to the be one, to be ought than a lesser rather penalty, maximum imposed.

n called the Court’s distinction dissenters Apprendi makes claimed that “the The Court “baffling.” Walton to a defendant necessary expose findings all of the said, That, was “demon the dissent Ibid. death sentence.” untrue,” first-degree convicted for a strably “defendant a death sentence unless cannot receive murder in Arizona statutory that a determination makes the judge factual finding, that critical exists. Without aggravating factor exposed sentence to which maximum defendant life ” Walton, Ibid. penalty. not the death imprisonment, followed, insisted, if would properly dissenters Apprendi “If sentence. uphold Apprendi’s the Court required have from the a factual determination can remove a State death, as life and Walton the difference between makes cannot do can, why is inconceivable a State that it it holds that results to a factual determination respect the same with in the maximum sentence 10-year increase only ” exposed. a defendant is which recounted, Court, as we earlier The Arizona Arizona’s capital majority’s portrayal Apprendi found the incorrect, JUSTICE description and the sentencing law “Defendant’s death right: precisely dissent O’CONNER’S findings.” Recogniz- factual judge’s required sentence own construction of the State’s the Arizona court’s ing Wilbur, 684, authoritative, Mullaney see law is persuaded 44 L.Ed.2d 508 we are Walton, reasoning cannot survive part, relevant of Apprendi. 601-603, 122 at 153 L.Ed.2d 536 U.S. at S.Ct.

Ring, omitted). added; at some internal citations (emphasis 572-73 that: The Court concluded stated, hold that and Apprendi

For the reasons we Walton irreconcilable; jurisprudence our Amendment can- are Sixth not be home to both. we overrule Accordingly, Walton judge, sitting that it allows a without sentencing extent necessary to find an circumstance jury, aggravating of the Because Arizona’s enumer- imposition penalty. operate equiva- ated factors as “the functional offense,” greater lent of an element of a the Sixth Amend- jury. ment found requires they 153 L.Ed.2d at 576-77 Ring, 536 U.S. (internal omitted). citations Court, readily

As is from the apparent opinion Ring only eligibility phase addresses the process. Those factors which narrow the class of defendants for Amendment death-eligible Eighth purposes by beyond must be found proper authority reasonable doubt in order to with the of comply requirements the of Contrary present Sixth Amendment. assertions Oken, Ring holds no of implications phase the selection in Maryland’s sentencing process. emphasized This is Scalia, Thomas, of concurring opinion joined by Justice Justice noting that:

[t]oday’s judgment nothing jury sentencing. has to do with today’s says What decision is that the must find the existence of the that an aggravating factor existed. fact Those States leave ultimate life-or-death decision to do judge may by requiring continue a prior so— or, finding of factor in the sentencing phase by more simply, placing aggravating-factor determina- (where tion it in logically belongs anyway) the guilt phase. Ring, 536 U.S. at L.Ed.2d at 579. That Ring inapplicable Maryland’s death penalty by statute is further highlighted dissenting opinion O’Connor, observing Justice that the Majority Opinion effec- Montana, Nebraska, Colorado, Idaho, Ala- tively identified bama, Delaware, Florida, Indiana as the affected States. Justice O’Connor observed: in in Apprendi unjustified my the decision only was

Not effect on view, severely destabilizing also had a but it has in my I dissent justice system. predicted our criminal convicted petitions “unleash a flood the decision would in their sentences whole seeking to invalidate defendants of May [Apprendi].” As authority on the part announced, Apprendi after was years less than two approxi- had decided Appeals Courts of the United States chal- 1,802 in which defendants appeals criminal mately sentences, cases even their convic- their some lenged likely are Apprendi. tions, appeals These federal under criminal iceberg, prosecutions as federal only tip criminal of the total number of tiny fraction represent (“In ... federal criminal nationwide. prosecutions num- about 0.4% of the total represented only prosecutions courts”). in federal and state prosecutions ber of criminal corpus petitions or successive habeas The number second by 77% in the federal courts also increased filed Office of the United States the Administrative phenomenon bringing Apprendi claims. to prisoners attributes Courts after- similarly overwhelmed This has been A for certiorari Apprendi. survey petitions shocks raised indicates 18% past year we received simply beyond dispute claims. It is Apprendi-related criminal sentences into doubt and Apprendi threw countless workload of an increase thereby caused an enormous judiciary. already overburdened already to these today only going add The decision five States’ effectively The Court declares serious effects. ante, at unconstitutional. See sentencing schemes capital 2440, Colorado, 603, (identifying n. at 5] n. 5 S.Ct. [122 Montana, Idaho, having sentencing Nebraska as Arizona’s). on death prisoners like There are 168 schemes States, likely challenge each of whom is now row these many I of these chai- his or death sentence. believe her unsuccessful, because either ultimately be lenges will of harmless the standards satisfy will be unable prisoners because, review, having completed or error plain error advan- taking from barred they will be direct appeals, their None- review. federal collateral holding on today’s tage bur- greatly will these claims theless, to evaluate the need addition, I fear In five States. courts in these den the Florida, Delaware, Alabama, row in on death prisoners having hybrid Indiana, Court identifies which the advisory an jury renders in which the sentencing schemes sentencing deter- makes the ultimate judge verdict but 6, at also ante, 608, n. mination, 2442] at [122 see their sentences. challenge today’s decision seize States. on death row these 529 prisoners There are 2449-50, 619-21, 153 L.Ed.2d 122 S.Ct. at Ring, 536 U.S. omitted). (footnotes citations and some internal omitted 583-85 the find- already requires statute Maryland Because the must be circumstance of the existence of an ing doubt, Maryland a reasonable by jury beyond made by Ring holding. statute is unaffected

VII Borchardt, that: we observed 413(h) by process § violates due The issue of whether beyond of proving, from the burden excusing the State found doubt, circumstances that the reasonable it finds any mitigating jury outweigh on numerous by this Court has been resolved exist State, 695, Md. occasions, v. with Tichnell beginning (1980), most 830, ending, 729-34, 848-50 415 A.2d State, 759 A.2d Md. recently, Ware denied, cert. (2001). no consistently have found due We 148 L.Ed.2d that the directing weighing provision violation in the process That of the evidence. preponderance on a process be based and we have Legislature, is the scheme ordained declared, times, require that it with the complies at least 12 process. ments due

367 Md. at 786 A.2d at 648-49. Today again. we so hold here, According the Petitioner the rationale of Ring effec- tively overrules sub silentio our in holding Borchardt nothing in invalidates Apprendi Maryland’s capital sentencing conclusion, statutes. Petitioner is incorrect. Despite our however, that holding Ring inapplicable is to the selection phase Maryland sentencing and thus process, inapplicable weighing aggravating .and mitigating factors, Borchardt does not Ring totally survive unscathed. noted,

As we supra, presented three rationales supporting the conclusions reached Borchardt. Least important our these was observation that the Apprendi majority explicit- ly stated that its decision did not its holding render Walton invalid. 367 Md. at Obviously, 786 A.2d at 649. Ring holding specifically overruling requiring Walton factors must found the proper sentencing be doubt, authority beyond a reasonable compari- eliminates this son as a for holding Maryland rationale that the death penalty by Apprendi. unaffected

The second rationale advanced majority upon Borchardt relied a plain language reading Maryland’s 412(b) death majority § statute. The noted set sentences, range forth a of potential with life as imprisonment the low end and as high end. The majority stated: noted,

As Maryland law makes death the maximum penalty 412(b), for first degree § murder. Under death is high end of the statutory range has life imprisonment as the low end and imprisonment life without possibility of parole as the median. Neither the of an aggravating existence circumstance, nor the absence of any mitigating circum- stances, jury’s nor the determination that the aggravating circumstance(s) it has found to any exist outweighs mitigat- circumstances, ing serves to in any way increase “the pre- or, indeed, statutory scribed maximum” statutory range. The existence of those circumstances and the relative weight given them are than nothing more standards that, pursuant mandate, to Supreme Court the Legislature which sentence determining applied to be required has imposed. range is to be statutory within clear, makes Ring As now at 650. A.2d Md. correct, it both places entirely this statement weighing finding factors and sentencing side of selection on the mitigation in factors process. in rationale why our second arguments two advances

Oken dissenting turns to the for support incorrect and Borchardt is Ring. Petitioner language and to in Borchardt opinion the Borchardt from following language to the looks specifically dissent: stat- penalty Arizona death unlike the importantly,

More statute Walton, penalty Maryland death ute at issue basic, maximum as the default imprisonment life establishes Maryland that makes murder, a characteristic penalty In jurisdictions. among American death unique eligi- becomes “death states, essentially a defendant most crime, and the capital potentially of a conviction upon ble” which the through merely vehicle sentencing proceeding range of a potential from within authority selects sentencing and death. sentences, life usually imprisonment between however, to receive eligible is not a defendant Maryland, degree murder. convicted first being after death sentence met, including must be Rather, additional conditions certain that the authority finding by As a mitigating circumstances. outweigh the circumstances outweigh result, finding aggravators Maryland, finding aggrava- more akin to the is much mitigators beyond a exist, proven must be which ting circumstances there are doubt, finding to a than it is reasonable considered. Within to be mitigating that it therefore, requires process due holding Apprendi, a reasonable doubt. beyond be made omitted) (internal citations 786 A.2d at 367 Md. at J.). Bell, C.J., (Dissent J., Eldridge, Raker, joined by If, incorrect. in Borchardt is the dissent This assertion there, the dissent suggested defendants most States were death-eligible prior to the finding aggravating circum stances, the death statutes in those states would be unconsti tutional under the Supreme Court’s -Furman post jurispru out, however, dence. As we pointed supra, it is the finding least one circumstance makes a defendant death-eligible. The distinction the quoted passage from the is, therefore, Borchardt dissent attempts make factually incorrect, and legally and reflects a fundamental misunder standing of the requirements the Supreme Court’s death penalty jurisprudence, and particularly the distinction between the eligibility phase and the selection phase of the sentencing Buchanan, process. See discussion of supra 244-46. As both the Court’s Eighth Amendment jurisprudence and its clear, holding Ring make it is the finding of an aggravating circumstance, only of an aggravating circum stance, Thus, which makes a defendant death-eligible. Oken no gains traction from the Borchardt dissent to advance his here. position

Oken’s reliance on in language the Ring opinion for support of his contention that the second Borchardt rationale is no valid, however, longer is at least partially meritorious. In Ring, Arizona made an almost identical statutory interpreta- tion argument as the reasoning employed by the Borchardt majority, asserting that the Arizona statute set forth a range and, therefore, of possible sentences the defendant was death- eligible upon conviction. Under Eighth Amendment analysis, and for the same reason that the dissent in quoted Borchardt error, above is such an interpretation does not consider the post-Furman jurisprudence requiring that the class of defen- dants by be narrowed finding an aggravating factor during eligibility phase It process.26 sure, Borchardt, (at 2) Court, Reply 26. To be in his Brief in this flagship argument narrowed the basis of his relevant to that of a process challenge, Fourteenth Amendment due expressly eschewing ("The Eighth reliance on presented by Amendment. issue Mr. consideration, Borchardt is a process Fourteenth Amendment due consideration.”). Eighth an Amendment overlays Ring which requirement Amendment Eighth this rejecting the In requirement. Amendment with a Sixth rationale, Supreme sentencing options” “range Ring observed: that “the instruction Apprendi’s overlooks argument

This effect, form, of effect.” not of but is one inquiry relevant ex- circumstance] an finding aggravated [of “the required authorized than that greater punishment to a posed [Ring] first-degree Arizona verdict.” jury’s guilty by of death a maximum “authorizes murder statute cross-references the sense,” for it explicitly in a formal only aggravating of an finding requiring the statutory provision penalty. of the death imposition circumstance before (“First felony punishable is a class 1 and is murder degree § 13-703.” by provided as imprisonment life added)). its opening Arizona prevailed If (emphasis “meaningless ato would be reduced argument, Apprendi drafting. statutory rule of and formalistic” L.Ed.2d at 604, 122 Ring, 536 U.S. omitted). (alteration citations internal original; 573-74 § 413 Code, § 412 references expressly Art Maryland legisla- from the know sentencing. We regard capital with statute was drafted that the 1978 history, infra, discussed tive jurispru- post-Furman Court’s to conform with the in Borchardt was result, majority As a while dence. of sentenc- range § 412 observing prescribed correct during the an factor finding ing, it is finding mere § not the required by sentencing process This is so death-eligible. which makes a defendant guilt, the post- conform with designed was because the statute nar- class of defendants be Furman requirement circumstance order of an rowed in an not “arbi- imposed the death be penalty to ensure that makes clear Ring holding manner. The or “freakish” trary” in circumstance order aggravating an finding that the act Amend- Eighth class-narrowing requirements meet the time, purposes to ment, acts for Sixth Amendment at the same an for whom maximum sentence of an individual elevate the because, aggravating proven. factor is This is proven, once the existence of an aggravating circumstance removes a defen- convicted, from dant the class of the where the possibility crime, death existed as a potential punishment to the narrower class of those who are actually death-eligible. Be- Maryland statutory cause the scheme was in written to be conformance with the Court’s post-Furman jurisprudence, a defendant subjected be the death under Maryland statute unless an factor is aggravating proven beyond a Maryland reasonable doubt. Because the statute requires that the of an factor made by be doubt, proper sentencing authority beyond reasonable Maryland statute does not violate the Sixth Amendment in requirements recently explained most Apprendi Ring. The third and final rationale upon majority which the rested the Court’s decision Borchardt survives scrutiny under Ring pointed unblemished. As we out Borchardt: Although the dissenters had Apprendi perhaps some reason for concern as to whether a Walton-type scheme might jeopardized, in the sense that the determination of whether or mitigating circumstances exist is in the nature of a fact-finding process, which the ultimate evidence, determination must be it based is stretch to concern, do, as Borchardt apply and the dissent would 413(h). weighing §§ to the for in process provided Notwith- 414(e)(3) standing language §§ Article 27 directing Court, review, this on appellate to determine whether “the evidence ... supports jury’s finding that the aggrava- ting outweigh circumstances,” circumstances the mitigating weighing is not a process fact-finding one based on Mitigating evidence. circumstances do not negate aggrava- circumstances, ting negates as alibi criminal or hot agency negates blood malice. The statutory speci- 413(d) §§ fied or allowed under (g) are inde- entirely pendent from one another —the existence of one in no way confirms or from detracts another. The weighing process one, purely judgmental of balancing mitigator(s) against aggravator(s) determine whether

259 case. This is particular in the punishment appropriate is a traditionally, quintessentially, but only not that process factor, sentencing one Constitutionally legitimate pure beyond made to be not determination require that does Lewis, F.Supp. 898 v. Gerlaugh doubt. See reasonable (9th (D.Ariz.1995), 129 F.3d 1027 Cir. aff'd, 1388, 1421-22 237, 903, 142 L.Ed.2d denied, 119 1997), 525 S.Ct. cert. U.S. (1998) (Constitution weighing beyond require does not 195 900, Sivak, 674 P.2d doubt); 105 Idaho State v. reasonable 3591, 82 denied, 1220, 104 S.Ct. (1983), cert. State, N.E.2d (1984); Miller L.Ed.2d 887 not a fact to be (Ind.1993) balancing process, is a (weighing not apply). does doubt standard reasonable proven; this process Apprendi incongruity applying The that, requirement to the respect with apparent particularly circumstances out- aggravating if the determination treated as an element circumstances is weigh mitigating beyond a reasonable by the State proved that must be in the indictment. doubt, sufficiently alleged it also must be Federal due under both argument Borchardt has made Declaration Maryland 21 of the and Article process has case, knowledge, required to our No Rights. circumstances, circumstances, or a mitigating indictment, if yet, set forth weighing them be would so clearly applicable, and Jones are Apprendi would be so as well likely Federal due process under Article 21. under terms, 126-27, Ring, by only 652.27 its 786 A.2d at

367 Md eligi- during factors addresses dictated sentencing process, as bility of the phase Ring does jurisprudence. -Furman post Court’s sentencing process. phase to the selection pertain stated, out in the pointed has as consistently Supreme there are no undue long that so supra, eases reviewed to consider authority’s ability upon restraints Penry, Barclay, supra See discussion 27. supra at n. 109 S.Ct. 2934. circumstances, no there are constitutional require- selection, ments regarding the actual act of or regarding the weight relative attached to the factors.28

VIII final Oken’s contention relies on the semantic obser vations of the Borchardt when argues dissent he that the plain language of the Maryland statute that requires we view the weighing and, thus, as a process “factfinding,” subject to Apprendi. The dissenters in Borchardt wrote:

In of light Maryland the structure of the statute govern- ing of the death imposition penalty, and consistent with the State, Johnson [v. language 525, 529, Md. 766 A.2d (2001) 93, 96 finding the that the aggravating ] circum- outweigh mitigating circumstances, stances the pursuant to supra, In addition to those cases cited the distinction between the 28. eligibility phase phase sentencing and the selection of also was noted when the Court reviewed the South Carolina death statute in v. Shafer Carolina, (2001). South 532 U.S. 149 L.Ed.2d 178 explained: There the Court Carolina, States, gives South capital juries, in line with other at the penally phase, sequential Initially, capital discrete and functions. juries determining serve as alleged aggrava- factfinders in whether an ting passed, circumstance exists. Once that factual threshold is the jurors determining punishment exercise discretion ought the that imposed. judge to be recognized The trial in Shafer's case the charged critical difference in the two functions. He that "[a] statuto- fact, incident, ry aggravating circumstance is a an a detail or an occurrence,” beyond the existence of which must be found a reason- choice, App. Turning sentencing able doubt. 203. to the he referred mercy,” to considerations of "fairness and and the defendant’s "mor- culpability.” App. al 204. He also instructed that the was free any to decide "whether ... for reason or no reason at all Mr. Shafer imprisonment should be sentenced to life rather than to death.” App. 203. factfinder, jury, circumstance exercises no found, aggravator judge discretion itself. If no the authority impose mandatory takes over and has sole to the minimum heavily upon by so relied the South Carolina Court. See 45-46, 49[, 1270-71, 1272], supra, only 121 S.Ct. at It is when the judgment impose endeavors the moral whether the death penalty parole eligibility may that become critical. 50-51, Shafer, 532 U.S. at 121 S.Ct. at 149 L.Ed.2d at 191-92. poten- an increased 413(h), § a defendant clearly exposes for mere conviction beyond of range tial punishment degree murder. first Pennsylvania, [McMillan McMillan’s keeping

In with deference 79, 106 ] 91 L.Ed.2d a particu of elements of determination legislative crime, Maryland structure of the particular lar it penalty of imposition the death governing and rules statutes process due analysis requirements guides §§ 413 and 414 enacting Apprendi. under an inten statute, Assembly expressed the General Maryland tion to base death sentences factual first, ways: two meaning within the finding Apprendi aggravators by mandating that sentencer find evidence; mitigators by preponderance outweigh second, review and, requiring Appeals the Court factual the evidence. sufficiency state ordinarily, deference accorded broad While defining of offenses under Win legislatures in the elements 358, 1068, 25 L.Ed.2d re Winship, ship [In being its results in state statutes progeny ] 368 and of requirements due upheld against process, the minimal case, Maryland that General As way the present is sembly penalty procedures has chosen define death the strictures of the precisely implicates what offends Assembly Process The fact that the General Due Clause. a for of prescribed proof weighing process of burden 413(h) legislature § at all is the clearest indication that the a finding. as factual envisioned this determination at dissent 786 A.2d 669-70.29 The Md. legislative no history authority Borchardt cited other 29. dissent Borchardt further noted: The punishment range impris- life Unlike most states establish of delegate degree to death for first murder and then onment sentencing authority upon the two a nor- choice between based judgment, Maryland penalty prescribes statute that the for

mative degree imprisonment, life first murder unless series of additional met, including weighing conditions are and miti- insights its as to That support conclusory legislative intent. explained by the fact that no such support exists. A review of legislative history the relevant the Leg- indicates neither nor the islature Governor intended the ascribed to meaning by words the statute the Borchardt dissent. Maryland After we penalty declared unconstitu- Furman, tional in Blackwell for the second time since our Legislature writing set Maryland about new which statute post juris- would conform with the Court’s -Furman (S.B.) The prudence. fruit of those efforts was Senate Bill (H.B.) Bill and House which became the current bill, statute. a prior, related S.B. had been n vetoed II, then Governor Marvin Mandel. Vol. Laws A Maryland 1977 at 3771. proper understanding of the intent legislation of the 1978 requires years’ consideration of both efforts.

As message Governor Mandel’s 1977 veto regarding S.B. Blackwell, after our decision in explained, the Governor bill, the Attorney asked General’s office to as an prepare initiative, Administration “that underly would conform to the ing Constitutional that would free from requirements, be ambiguity problems, interpretive could effec tively administered.” at 3772. Legislature Id. ultimately bill, ignored the Administration’s and instead enacted S.B. which Mandel vetoed. Attached to Governor his veto was a 412(b). gating by § § circumstances mandated See 413. Death automatically sentences are then reviewed this Court sufficien- 414(e). cy § Assembly of the evidence. See The General could not have type "pure- conceived of this determination as choice, 126[, 652], ly judgmental” maj. op. at see A.2d at within a sentences, Walton, range permissible like the statutes issue in etc., but rather a death established sentence an enhanced upon (namely, based the establishment of additional facts there outweigh mitigating are that circum- stances) reviewable, by particular proof a standard of aas law, of appellate factfinding process matter level. It is this § brings Apprendi strictures within the of and the Due Process Clause, though open question even still an it is like whether statutes upheld Supreme the one in Walton will survive Court after review Apprendi.

367 Md. at 786 A.2d at 673. reviewing the bill Law Department from the State letter of letter first two Legislature. pages The adopted by a creating bifurcated concern with Legislature’s recite the the require with would be conformance which procedure Furman, Gregg, Supreme forth Court ments set Jurek,30 and considerations Proffitt, observing that “these the presently in the review of importance of paramount were conducted existing Maryland penalty statute death 9on Maryland opinion of in its delivered Court of Appeals 1976,in v. Id. at 3775. November Blackwell State.” clear perfectly Law letter makes Department’s The State re- understanding what would be Legislature’s what analy- muster. quired pass for statute constitutional insis the letter states: previous analysis our Court deci-

From punishment sions on we conclude the states capital enacting latitude in laws have afforded reasonable been Florida, The statutes of penalty. relating distinct and different and Texas utilized three Georgia penalty and each was the death procedures imposition through run requirements Three broad the Su- upheld. govern the statutes which preme analysis these statute, constitutional of a death viz: acceptability (2) (1) hearing guilt penalty, on the issue bifurcated (and judge to an importantly most what we absolute permits prerequisite), procedure which the circumstances of the judge focus both defendant, opportunity with the offense and individual the character and record the defendant with consider factors, meaning- reference to particular comparison ful which appellate permits review imposed with similar cases penalties sentence these factors we believe throughout upon State. Based requirements Bill 106 would Senate meets these basic face. scrutiny constitutional on its pass Texas, (1976). L.Ed.2d 30. Jurek must that all recognize We or other sen- found, in tencing particular statutes could be cases or cases, of have unconstitutionally applied. classes to been However, with to Bill respect Senate we believe statutory objec- the to to sentencing authority directions the (the consider nature of the offence tively aggravating the circumstances), more the importantly mitigating and factors to applicable particular person the and the circumstances of in question, the criminal action of provide type basic guidance focus deemed be of utmost importance by Supreme Use proceeding Court. bifurcated of imposition death penalty with limited to those cases specified aggravating where circumstances were estab- lished, coupled provisions with for a trial court report automatic, review, appellate gener- expedited represents by al regarded Supreme scheme Court as preferable from the viewpoint. Accordingly, constitutional we conclude would, Bill that Senate its fact meet the constitution- al of Gregg Georgia, supra, companion tests and its cases. added). Id. at 3779-80 (emphasis however, Law did Department, identify prob- State one dimensions, lem S.B. 106 it felt with had constitutional which, seen, problem as will be was rectified the 1978 The Department statute. observed that: A is particularly significant problem presented by the of Senate Bill 106 to identify failure the standards or burden by of proof which the or should judge determine the circumstances, presence aggravating mitigating either or two, balancing or the relative reach order to sentencing decision. The statute is silent as to whether the must prove State the existence of one more aggravating doubt, beyond by circumstances reasonable clear and evidence, by evidence, convincing substantial prepon- evidence, or by derance some other Simi- standard. the statute larly, proof does deal with the burden applicable a determination of one or miti- whether more are gating present. Finally, circumstances one or assuming demonstrated, by are more circumstances one or more proof applied, whatever burden established, whatever bur- are mitigating tell us what the statute fails applied, den of proof weighing applied standards should be circumstances. against present Bill 106 shares a defect respect this Senate statute, facially as constitutional upheld the Florida Prof- Florida, of The Florida Court supra. fitt Dixon, partially answered State v. 283 So.2d as follows: the Florida law burden of under proof question Fla. Stat. Sec. aggravating circumstances of “The 921.141(6) actually define those crimes—when read 782.04(1) and with Fla. Section conjunction Stat. 794.01(1) in the penalty applicable which the death —to must they of circumstances. As such mitigating absence being beyond doubt consid- be a reasonable before proved by judge jury.” ered or process to of in Dixon went on describe

weighing aggravating mitigating and circumstances without of or truly defining weight or evidence burden quantum disprove to or the existence of parties prove either do or not they circumstances to show the at do mitigating to It outweigh any aggravating circumstances found exist.31 may Maryland be that Court of would Appeals well holding follow the State v. Dixon that the doubt, proved beyond circumstances must be a reasonable if likely and certain. we consider such result While we view proof incline towards the burden with of respect mitigating weighing pro circumstances and the standard, predict cess will be some lesser we cannot with any just degree certainty Maryland what standard the Department's 31. Footnote 20 letter notes that “The Florida pattern jury beyond a instructions confirm the reasonable doubt stan- specifically dard do not circumstances but deal with weighing applicable pro- or the standard cess.” may Court of Appeals ultimately require.32 Just as we are speculate, so too will trial judges, they court as left preside punishment over least capital trials —at until occasion on which the Court addresses Appeals first resolved, question. question definitively Until as it should have been in Senate Bill court judges trial will proceed they instruction which believe to be fashion will appropriate apply and the burdens and standards which are they applicable believe to their own sentencing decision, but will do risk they so some There is no assurance whatsoever that one trial will judge adopt the same proof burdens instructions another trial judge, distinctly possible it is will be defendants tried in jurisdictions throughout various the State under burdens proof instructions. different different day While this all resolved on by the Court of Appeals, uncertainty meantime, which in the will exist application and the uneven the death statute occur, which is likely to will be conductive hardly to the kind and evenhanded administration a capital of fair of punishment the Supreme law which has set Court as forth the objective which be pursued constitutional must by a valid statutory scheme?33 added).

Id. at (emphasis 3793-95 noted, As was by S.B. 106 vetoed Governor Mandel. The successor, year, III, next his Governor Blair Lee signed into Department’s 32. Footnote 21 of proposed the letter notes that the Bill by "specifically the applied beyond Administration a a reasonable doubt test as to preponderance the a circumstances and weighing evidence test process.” as to the and Department’s 33. report Footnote 22 of the say observes: "We cannot any degree certainty Appeals, with conjunction of that the Court of in Committee, adopting pattern jury with the Rules would consider in- application proof structions for statewide on the of burden and other pertinent capital punishment matters to Appeals trials.” The Court of might power adopt well feel that lacks the governing it to a rule substantive matter as the proof capital sentencing such burden of in proceeding, possessed power adopt and it felt it even if the to such a letter, January dated In a legislation. law successor Francis B. Burch General Maryland Attorney then of the new constitutionality Lee as to advised Governor conforming of the Bill discussing focus law. After Jurek, Furman, Gregg, holdings Supreme Court’s concluded, 10-11: Attorney pp. Proffitt, the General noted, did Assembly As General previously we have session, did Bill at but not its last enact the Administration attempt provide Bill 106 was another enact which Senate for certain optional an sentence for the death as of an Following consideration types degree of first murder. office, by this Governor analysis of bill exhaustive of his our or Senate Bill because Mandel vetoed that it or failed facially belief that it was unconstitutional forth meet the broad outlines set cases, its but rather Gregg Georgia, supra companion con- ambiguities and uncertainties because of serious amended, which would have Bill as tained Senate consequent inevitably litigation resulted in substantial Bill. As noted delay actual we implementation in the Mandel, very infrequency in our to Governor opinion efficacy reduce its deterrent imposition could serve to See deficiency. force the veto and create constitutional Mandel, II, of Maryland Vol. Laws message Governor 1977, p. 3771. us the most with question one which concerned identify Bill 106 was its failure

respect to Senate jury or judge which the applicable proof burdens aggravating mitigating the presence should determine balancing of the two. circumstances as well as the relative following other concerns significant We also identified the (1) the our Bill 106 as uncer- analysis Senate amended: of a surrounding “hung jury” result the event tainties (2) the of a clear sentencing proceeding, require- at the lack ment will seek the pretrial notification the State rule, might simply well to do so but await it choose brought presentation up appeal. the issue of in a case with specific reference to each aggravating

circumstance on rely; which it will potential uncertainty surrounding degree specificity required in giving its recommendation. Since Senate Bill patterned was closely statute, after the Florida we believe that judicial extensive interpretation of that statute by the Florida courts played a great part in the Supreme Court’s approval that capital punishment stat- been, course, ute. There had no such period judicial interpretation in Maryland and we delays foresaw in the implementation of the statute while the interpretive ques- tions were considered seriatim by the Court of Appeals.

Both Governor Mandel I suggested last spring the legislature should consider a death penalty statute both, which is facially constitutional and more precise than amended, (this Senate Bill as at the next year’s) session Assembly. General I believe that the new Adminis- tration Bill (pre-filed 604) Senate Bill 371 and Bill House meets these criteria and will rectify the difficulties which we noted in our of last analysis year’s Bill Senate 106. Far from supporting the contentions of the Borchardt dis- sent that weighing was intended to be “a factual meaning Apprendi,” this history reveals exactly within the opposite intent. The requirements for mandatory review were deemed necessary by the Supreme post-Furman Court’s jurisprudence, viewed requiring as automatic and meaningful review, appellate nothing more. As for weighing, the legisla- history tive makes clear that the intention behind supplying a standard at all was an attempt insure that the statute would applied in a consistent manner between the various county circuit State, courts of the thus frustrating inconsistencies in the, application which would violate post-Furman require- ments and result in successful Eighth Amendment attacks on the statute.

IX Our review of the Constitutional requirements set forth post-Furman Court’s jurisprudence, as well Mary- the of the modern iterations of history legislative the the Sixth conclude that statute, us to leads penalty death land Ring must be of Apprendi requirements Amendment Eighth Court’s Supreme of the the context within viewed statutes Maryland the to which jurisprudence Amendment the beyond dispute It is to conform. designed were approves jurisprudence Eighth Amendment Court’s Supreme separate is where system of a bifurcated the use beyond dispute equally It is trial and conviction. from involv- proceeding a bifurcated itself is sentencing process each of which phase, and a selection phase an ing eligibility jurispru- and distinct constitutional within a separate operates Amendment framework that the Sixth It is within this dence. Ring be viewed. must requirements stated, has as has repeatedly The statute, it Maryland of the legislative history which circumstance or circumstances aggravating of an finding finding It is this death-eligible. makes a convicted defendant eligible narrowing function of the class performs which Furman. By implication, reverse required by defendants the convicted defendant exposes also this which finding it is Ring, addresses by which its terms statutory maximum. circumstances, makes clear only finding coin. therefore that these are sides the same We opposite sentencing process, phase conclude that the selection requirements involving weighing, affected Ring. statute Maryland also conclude that

We by Ring under any theory of implicated cannot be read to be history indicates legislative legislative interpretation. a compo- never was intended weighing process that the the class of required to narrow finding” process nent of a “fact Rather, that the history shows death-eligible defendants. of an that the and Governor understood Legislature that Furman re- performed circumstance alone refine the designed from to further being Far quirement. defendants, a stan- assignment of death-eligible class dard to the was weighing process protect intended to statute from attack such Constitutional defendants.

AFFIRMED, WITH COSTS.

RAKER, BELL, whom Judge, Judge with Chief ELDRIDGE, Judge, join, dissenting:

I respectfully dissent. I would hold that portion (1957, Maryland Repl.Vol., Code 2001 Arti- Cum.Supp.), 413(h)1 27, § cle that shall provides punishment be death if sentencing authority2 finds that the factors aggravating outweigh mitigating preponderance factors of the process evidence violates due under the Fourteenth Amend- ment and the of the Sixth Amendment United States Constitu- Maryland tion and Article 24 of the I Rights. Declaration of my expressed adhere views the dissent in Borchardt v. State, J., (Raker, 367 Md. 786 A.2d 631 dissenting, Bell, J.), joined by Eldridge, stating C.J. and that the sentenc- ing authority must find that aggravating outweigh factors factors mitigating beyond reasonable doubt and not aby of the I preponderance evidence. would sever the unconstitu- statute, portion tional require the reasonable doubt law, standard to be as a applied matter and vacate appel- § lant’s sentence of death imposed pursuant 413. Summary of Discussion scheme, Maryland Under the death penalty the State must give notice of an intent to penalty seek the death allege notice, the existence of a statutory aggravating factor. With the of a contract exception killing murder and the of a officer, law enforcement jury must find that the State has majority opinion Maryland prior 1. The cites to the Code as it existed Maj. op. consistency, the 2002 recodification. at 195. For I will do the indicated, statutory Mary- same. Unless otherwise all references are to (1957, Repl.Vol., Cum.Supp.), land Code 27. Article sentencing authority jury, 2. Future to the references will be to a with recognition may right the defendant waive the to have the by jury sentence determined elect to have the court sentence. 413(b)(3)(k)(3). § See Art. doubt, was a that the defendant beyond a reasonable proven, find that the jury must degree. in the first principal doubt, the existence a reasonable beyond proven, State has must also find that jury factor. The aggravating at least one factors. The mitigating outweigh factors the aggravating if finds death that the sentence shall be statute states factors outweigh factors that the is a neces- This of the evidence. by a preponderance In my of death. to the of a sentence sary predicate imposition “finding” view, find this last and ultimate jury must a reasonable doubt. beyond Arizona, 2428, 153 L.Ed.2d v. 536 U.S.

Ring 466, 120 Jersey, New Apprendi (2000), in framework of the 147 L.Ed.2d statute, must mandate that the Maryland penalty factors be outweigh mitigating factors find that preponderance and not a mere doubt yond reasonable “[ojther fact of a than the held Apprendi the evidence. for a conviction, increases the any fact that prior maximum must be statutory the beyond prescribed crime a doubt.” proved beyond a reasonable jury, submitted to Ring L.Ed.2d at 455. 490, 120 Id. at S.Ct. penalty proceed to death Apprendi applied made clear that defendants, no than non- less ings, reasoning “[cjapital a determination of jury ... are entitled to capital defendants increase in conditions an any legislature fact on which the 589, 122 Ring, 536 U.S. at punishment.” their maximum 2432, 153 at 564. L.Ed.2d Maryland murder in degree maximum sentence for first The possibili- without the imprisonment is life Life imprisonment. may not be penalties of and death are enhanced ty parole statutory requirements unless the State meets the imposed re- statutory The scheme justifying Maryland enhancement. the imposed, that before a sentence of death quires the findings beyond make certain additional jury must the findings of the Those increase maximum guilt murder. from life to death. penalty Maryland penalty statute plain language

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

I. Death Statute “death, degree Maryland The for first murder penalty life, imprisonment imprisonment for life without the 412(b). § The possibility parole.” impris- sentence shall be onment for life unless a sentence of death is imposed § that the accordance with 413. Id. The statute mandates doubt, a jury find, beyond first consider and reasonable 413(d) § whether circumstances exist. any alleged aggravating (f). must jury find, by preponder- & The then consider and evidence, ance of the whether one or more circum- mitigating determine, § 413(g). Finally, by stances exist. must evidence, whether the preponderance outweigh mitigating circumstances.3 413(h)(1). § If circum- finds circumstances, stances “the sentence outweigh 413(h)(2). § trial shall be death.” court is then instructed 414(k)(l). § impose jury. sentence decided 4-343(k) Maryland After sentence is Rule imposed, requires the trial send to the judge promptly prepare, parties, file with the of the Court of Appeals report Clerk Rule, form a recommendation of prescribed including the trial court as to whether of a death imposition sentence is justified. requires Appeals The statute the Court to review and, alia, imposition the death inter to deter- “[wjhether supports jury’s mine the evidence or court’s that the miti- outweigh 414(e)(3) added). § gating (emphasis circumstances.” Maryland regarded "weighing” 3. is as a state.

II. Borchardt v. State State, In Borchardt v. 367 Md. 786 A.2d 631 Maryland divided Court held that the death penalty scheme not run Apprendi does afoul of and that the passes statute constitutional muster. The rejected appellant’s argu- (1) ments grounds: case three that Apprendi did (2) schemes; not apply capital sentencing that the maxi- degree mum for first in Maryland murder was death Borchardt did not receive a sentence excess of the statutory maximum; and that Apprendi inapplicable weighing aggravators against mitigators because the process purely judgmental one and the weighing process is a sentencing factor. rejecting appellant’s arguments in Borchardt, the majority reasoned as follows:

“Perhaps the easiest answer lies in unequivocal state- ment Apprendi majority that its decision did not render schemes, invalid capital sentencing State such as Walton, approved that allowed judge, sitting fact, the trier of to find and weigh specific aggravating factors. If it is permissible under Apprendi the law to remove that fact-finding fact-weighing process entirely from and leave it to the judge as legitimate sentencing factor, without specifying a reasonable doubt standard, it can hardly be impermissible for a jury that has found the prerequisite aggravating beyond factors a reason- able doubt to apply preponderance standard weighing them against any mitigating circumstances. The Walton scheme, words, in other inis far greater direct conflict with underpinning Apprendi than the Maryland approach. Thus, if the aggravating circumstances do not constitute elements of maximum the offense or serve to increase the punishment for the context, offense in the Walton they cannot reasonably be found to have that status under the Maryland law. Apprendi renders the Maryland law If unconstitutional, then, perforce, likely it renders most of the capital punishment laws in the country unconstitution- al. We Court, cannot conceive that the Supreme especially in light statement, of its contrary intended such a dramatic 274 not a to flow from a case that did even involve capital

result law.” punishment (footnote omitted). 121-22,

Id. 786 A.2d at 649 at wrong. majority The reasoning acknowledges That was 253, maj. result, a the wrong. that it was See at 255. As op. set out in Borchardt no majority’s reasoning foundation 589, Arizona, 122 In 536 at longer Ring exists. U.S. S.Ct. 564, 2432, expressly at Supreme 153 L.Ed.2d at the Court the is reasoning Apprendi overruled because “irrec- Walton holding with oncilable” Walton. to on third majority rely

The continues Borchardt Ring. finds to only majority one the survive See prong—the maj. “the majority weighing at 257. The maintains that op. one, balancing is a miti- process purely judgmental to whether gator[s] against aggravator[s] determine death in the case. is a appropriate punishment particular is the This is a process only traditionally, quintessentially but factor, pure Constitutionally legitimate sentencing one beyond a does not a determination be made require Borchardt, Maj. op. doubt.” at 208 367 (quoting reasonable 652). 126-27, Md. at A.2d at 786 Ring Jersey Apprendi III. v. Arizona and v. New Ring Apprendi capital entitle a defendant a for a eligibility determination the facts which death In predicated. at 120 Apprendi, sentence U.S. at 147 L.Ed.2d at 455 the Supreme S.Ct. State, labeling Court held that a regardless “other conviction, any than the fact of fact that prior a increases for a penalty beyond prescribed statutory crime maximum jury, must to a a proved beyond be submitted reasonable that “the inquiry doubt.” Court made clear relevant form, one not of required finding but effect—does the expose punishment the defendant than that greater jury’s guilty authorized verdict?” Id. at S.Ct. 2365, 147 at 457. L.Ed.2d at Arizona Ring, penalty held the statute,

statute unconstitutional because under judge, than a jury, required rather was to determine existence of factor, an the factual thereby making findings imposition prerequisite the death following jury determination degree of defendant’s first mur- guilt Ring, der. L.Ed.2d at The 576-77. Court held that the Arizona statute the violated by defendant’s Sixth Amendment trial right jury. to Id. The expressly Court of Apprendi’s overruled Walton favor Sixth approach, “[cjapital defendants, Amendment reasoning no less than defendants ... non-capital are entitled to a jury legislature determination of fact on which any conditions 589, an increase their maximum punishment.” Id. at 122 2432, at S.Ct. 153 L.Ed.2d at 564. Court The concluded that the Arizona statute was invalid because the “enumerated aggravating factors operate equivalent ‘the functional of an offense,”’ of a greater element and therefore “the Sixth Amendment requires they by be found a jury.” Id. at 609, 2443, 122 S.Ct. at 153 L.Ed.2d at 577 (quoting Apprendi, 19, 19, 530 U.S. at 494 n. 120 S.Ct. at n. 2365 147 L.Ed.2d at 19). n. 457

Thus, contrary majority’s to the assertion Borchardt that has Apprendi no application penalty death sentencing pro ceedings, the applied Apprendi holding that “the Sixth Amendment does not a permit defendant to be ... ‘expose[d] penalty a exceeding the maximum he would if punished according receive to the facts reflected in the jury ” alone.’ 2432, verdict 536 U.S. at 122 Ring, S.Ct. at 153 L.Ed.2d at (quoting 483, 564 Apprendi, 530 U.S. at 2359, 147 450). L.Ed.2d at

The Ring Court out that fact pointed every that the legisla- requires ture before death be imposed be found a jury beyond doubt. reasonable The Court reiterated that “the ” dispositive question form, ... ‘is one not of but of effect.’ Ring, S.Ct. at 153 L.Ed.2d at 572 (quoting Apprendi, 530 U.S. at 120 S.Ct. at 457). L.Ed.2d at The Court stated: “If an in a defendant’s authorized makes increase State fact, of that fact—no finding punishment contingent jury how the labels it—must be found matter State beyond a reasonable doubt.” Id. Ring/Apprendi Application

IV. vio- law weighing portion Maryland’s Amendment and Sixth lates under Fourteenth process due and Article United States Constitution Amendment balancing because the Maryland Rights Declaration a death sentence an absolute prerequisite serves as and, thus, doubt standard.4 subject must the reasonable the trier fact must Ring Apprendi, under Accordingly, factors outweigh find the aggravating reasonable doubt. beyond a death-eligible under Ma-

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

The imprisonment life or life without the imprisonment; history Winship, rule in In re 4. I need not recount the announced 1068, 358, process due 397 90 25 L.Ed.2d 368 that U.S. S.Ct. charged requires every necessary proven that fact to the crime 684, Wilbur, beyond Mullaney U.S. See v. 421 95 a reasonable doubt. States, 1881, (1975) through 44 v. United 526 L.Ed.2d 508 Jones S.Ct. 1215, (1999) 227, Apprendi 143 311 and and U.S. L.Ed.2d 151-52, Borchardt, (Raker, Ring. at 667 367 Md. at 786 A.2d See also 487, 550-51, 1261, J., State, dissenting); Md. 499 A.2d Evans v. 304 (McAuliffe, J., (1985) (reasoning dissenting) princi- "the basic that 1294 explicated Winship, Mullaney ples process and Patterson in] [due 2319, York, 197, (1977)] 432 97 53 281 [v. New L.Ed.2d persuasion require[ on this ultimate issue must be that State, burden ] upon jury persuaded beyond a and the must be reasonable aggravating outweigh mitigating cir- doubt that circumstances imposed”). penalty before of death can be cumstances

277 degree are for first possibility of enhanced sentences parole murder, dependent special circumstances. See upon are 253-54; Borchardt, maj. 367 Md. at 786 A.2d op. at J., State, (Raker, 525, Johnson v. 362 dissenting); 668-69 Md. (2001). It finding 95 is the jury A.2d outweigh circumstances mitigating penalty degree Maryland that increases the for first murder Johnson, beyond maximum. prescribed statutory See Md. at A.2d at for (holding “basic sentence” first life degree murder life and that without imprisonment State, parole penalties); are Gary and death enhanced 513, 520, Md. 671 A.2d (holding that maximum penalty degree for first is life imprisonment). murder Be- cause penalty degree the default for first Maryland murder is life imprisonment, a determination jury’s outweigh is an ad- circumstanee[s] circumstance[s] ditional beyond guilt that of that serves make a defendant eligible the enhanced of death. Ring and Apprendi require a finding beyond that such be made reasonable doubt. unique

It is the the Maryland structure of death penalty others, statute distinguishes the statute from if many all, law, country. Maryland are jurors Under factfin- ders throughout sentencing procedure. entire Before the commences, must guilty defendant be found first degree murder at least one aggravating circumstance must be alleged. The must State then evidence present supporting the aggravating cireumstance[s]. then engages in three-step process proceeds to each succeed- ing phase process of that after it only findings makes with respect First, to the preceding phase. jurors must find at least one aggravating unanimously beyond circumstance Second, reasonable doubt. determines the existence circumstances, vet non of any mitigating on a prepon- based derance of the evidence Third finally, jury standard. the weighs the the aggravating against mitigating circumstances. Thus, before a defendant is for the eligible penalty death Maryland, jury the must that determine the

278 the circumstances. Includ- outweigh mitigating

circumstances is that death is the that the conclusion ed within determination sentence. appropriate a jury mitigating the find as circum- permits 413 to

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

Ring contin- punishment one makes an increase authorized which the finding description, fact. this substan- gent Using on a Maryland jury’s murder are capital tive elements necessary to sup- finding aggravating circumstance[s] aggravators and the fact that port capital sentence aggrava- It is latter outweigh mitigators. finding, including the determination that outweigh mitigators, tors ultimately jurors authorizes to con- death is appropriate, is, That sider and then sentence death. impose from punishment imprisonment increase life contingent aggrava- on the factual statute, then, tors when outweigh mitigators. Under aggravating outweigh finds that the circumstances, increased exposed poten- the defendant is an beyond that for a conviction for first range punishment tial States, 545, murder. Harris v. United degree See (plurali- L.Ed.2d

279 (“Read together, Apprendi and mean ty opinion) McMillan sentence, of setting that those facts the outer limits a and of it, judicial impose are of the crime power the the elements the purposes analysis.”) (emphasis for the of constitutional added). § § It is and the reading evident Legislature a on a intended base death sentence factual first find finding, by mandating jury that the that the aggrava- i.e., outweigh mitigators by tors the a burden of specific proof, evidence, second, a preponderance of the by requiring this Court review that for sufficiency evidence. three, of

Step balancing the the mitigating factors, view, a my Unless, determination. factual until, the jury finds outweigh factor[s] faetor[s], eligible defendant is not for the it penalty. death Because is a factual determination which death, raises the maximum from life to Ring requires that the beyond standard be a doubt. reasonable

Three aspects of the statute all steps show that three in the Maryland First, death penalty scheme are factual nature. Legislature provided has proof for burden of in the Second, weighing process. this Court is mandated to review finding of sufficiency the evidence. Finally, repeated use of “find” the word suggests the fact, determination of an observable see Webster’s Third New Dictionary International (defining “finding” as “the result of or judicial quasi-judicial or examination inquiry especially into of fact matters embodied verdict of court, referee, decision of a or administrative body”).

A standard of has proof commonly applied been to factual State, findings. See Olsen P.3d (Wyo.2003) (stating language “that aggravating statute proved beyond a reasonable doubt and miti- gating proved circumstances be by a preponderance of the ”) (em- evidence references burdens assigned issues factual added). phasis The prescription by the General Assembly burden specific of proof, ordinarily reserved for factual find- Legislature indication that the envisioned ings, is the clearest finding. this as a factual determination bur- proof of two components: burden consists persuasion. McCor- forward and the burden going den as follows: “One burden mick on Evidence describes the term evidence, judge, of a satisfactory to producing is that of the of persuad- The is burden fact issue. second particular true.” McCormick is the fact ing alleged trier of fact that the ed.1999) (footnote 336, § 5th Evidence (Strong at omitted). of weighing In the context the of circumstances, persua- to the of we refer burden case, by a ordinary “proof preponderance, sion. In the civil find the leads the that’ proof seems to be which is more than its probable of the contested fact existence Id. at clear-and-eonvincing 422. burden The nonexistence.” a has to mean that fact is persuasion of been described if the the leads factfinder “proved” only the evidence probable. of highly that the truth the contention is conclusion re Winship, in In Harlan, at As Justice expressed Id. 425. 358, 370, 1068, 1075, 25 L.Ed.2d “choice of a of the (concurring opinion), expression the adjudication ... a of does particular variety standard for comparative very reflect a fundamental assessment of factual determinations.” discuss- social costs erroneous further noted: ing proof, function of a standard of he represents of an to instruct proof attempt standard “[A] of our society confidence concerning degree factfinder correctness of conclu- thinks he should have factual adjudication. Although a particular type sions for of ‘proof beyond of the evidence’ and phrases ‘preponderance they quantitatively imprecise, doubt’ are do com- reasonable concerning to the of different notions municate finder fact have in expected is degree confidence he correctness his conclusions.” factual Id. 25 L.Ed.2d at 379 (emphasis added). for a Maryland Legislature, providing specific

The bur- proof, recognized weighing process den of was a in part, factual at least that could be satisfied finding, preponderance the evidence standard. This statute was Supreme enacted before the Court and in spoke Apprendi correct, If Ring. majority’s view is weighing susceptible determination is not of a proof burden call, merely judgment why would the Legislature have provided for any particular proof? burden of As to the two burdens, Justice Stewart ob- Utah served:

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

State v. 607 P.2d (emphasis added). majority The regard characterizes 'Oken’s contention ing “factfinding” merely maj. semantics. See at 260. op. majority form resorting to over relying substance and on labels to avoid the application Ring of and Apprendi. Maryland

The Legislature provided has for automatic re- view the Appeals Court of of the jury’s sentence of death for of “sufficiency § the evidence.” 414. Legislature The could not have conceived of the death penalty sentencing determination as a “purely if judgmental choice” it provided for appellate evidence, review of sufficiency of traditional review of findings of fact. Legislature The estab- lished the sentence of death as an penalty, enhanced to be (with imposed upon establishment of additional facts ultimate factual finding that the aggravating outweigh factors factors) the mitigating aby particular standard of proof that is renewable, law, as a matter of at the appellate level.

Commentators recognize balancing that aggravating against mitigating circumstances is a For factfinding process. exam- ple:

“Although there are many variations among capital existence, statutes currently most of these factfinding process tripartite common, employ

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

B. Jury Capital Sentenc- Requisite Role ishment: added) (foot- 1091, 1121 ing, (emphasis Ala. L.Rev. Stevenson). See also id. omitted) (hereinafter at 1129 n. note mitigat- against balancing (recognizing Alabama, in Arizona “In finding: a factual factors is ing death penalty are not Florida, eligible defendants made that factfinding unless § 13A-5- circumstances. Ala.Code outweigh 46(e)(2) (2003) aggrava- that if determines (providing circumstances, outweigh mitigating circumstances do ting recommending impris- life advisory verdict ‘shall’ return parole)”). without onment Arizona nature of the death tripartite the

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

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

Other states have concluded that Ring/Apprendi applies and, result, balancing process as a cases have held that due process requires that the circum- outweigh mitigating beyond stances a rea- sonable doubt. Recently, Supreme recog- the Colorado nized that a factors balancing factors can go eligibility to defendant’s penalty. the death (Colo.2003), v. People, Woldt 64 P.3d 256 following Ring, Colorado Court concluded that the Colorado statute, statute, death penalty like the Arizona improperly of the Sixth judge role to a violation factfinding a assigned state, the trier of weighing that Noting “[i]n Amendment. miti- against all the factors weigh must fact for eligible if the defendant is to determine gating evidence applies a reasonable doubt beyond ... A standard of death statute has Id. at 263. The Colorado fact-finding.” eligibility court one. The weighing third step with the steps, four steps, process three Colorado’s “[t]hrough that the first noted continues eligibility phase state. ‘The weighing resembles a three, jury mitigating evidence weighs when the through step ” (citation omitted). Id. at 264 statutory aggravators.’ against circum- under all the determining whether step, The fourth stage. is the selection stances, imposed, should be death “[bjecause that requires the Sixth Amendment court held that eligible to make a defendant any necessary find facts jury statute], steps [the and the first three penalty, for the death a defen- of fact that render judges findings to make required death, under which Woldt for the statute eligible dant unconstitutional on death sentences is received their Martinez stage Id. at 266-67. balancing The court found the its face.” jury aby to be determined factfinding stage, required to be a Id. Ring. under required a reasonable doubt beyond at 265. eligi- stage includes elements Maryland, weighing concluding single stage, In that

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

“But, fails to note the State of his appeal on Mr. Whitfield’s opinion in its very argument trial at conviction, it for the new in which remanded initial decision, step this Court held here. In that issue discretionary not a by jury, of fact the ‘finding a requires holding is at 515. This Whitfield, 837 S.W.2d decision.’ In order to of the statute. plain language the supported to make a case- required of fact is duty, fulfill its the trier aggravating on all the based by-case factual determination This is are in the case. present facts trier of fact finds the on facts of each to be made necessarily a determination not Ring, permissible under it is Accordingly, case. jury is re- to make this factual determination. judge statutory aggra- and other to determine whether the quired imposition warrants the vators shown the evidence death.” omitted).

Id. at 259 (emphasis State, Court, v. in Johnson Similarly, the Nevada (Nev.2002), weighing 59 P.3d 450 held a factual circumstances is determi- against mitigating part stated: Ring rubric. The court falling nation within “Moreover, two distinct find- statutory requires Nevada law or death-eligible: jury ‘The ings to render a defendant Missouri, jury step requires the to assess and 5. four of the statute all of punishment imprisonment if it decides under declare the at life punishment at death. the circumstances not to assess declare give gives a life Step the discretion four in Missouri statute, steps Maryland Missouri three and sentence. Under the Thus, Maryland step-step step collapsed three. three in four are into one finding. is a factual panel judges may impose only sentence of death if it finds least one circumstance and further no mitigating there are circumstances sufficient finds outweigh aggravating circumstance found.’ This finding regarding mitigating second circum- necessary stances is to authorize the death penalty Nevada, and we conclude it is in part factual determination, merely discretionary weighing. So even though Ring expressly abstained from on ruling any ‘Sixth Amendment claim with respect mitigating circum- stances,’ Ring we conclude that requires make this finding as well: ‘If a State makes an increase a defen- dant’s authorized on punishment contingent of a fact, that fact—no matter how the State labels it—must be ” aby jury beyond found a reasonable doubt.’ (second added) (footnotes omitted). Id. at 460 emphasis Wyoming, a state like weighing Maryland, recently ad- dressed the burden of persuasion process weighing aggravating factors against mitigating factors under State, state’s death statute. See Olsen 67 P.3d 536 (Wyo.2003). Wyoming The statute not assign does a specific burden the to directing jury “consider aggravating Nonetheless, circumstances.” Id. at 587. the court that jury directed the should be instructed that before the death, sentence may juror be each “must persuaded be that aggravating the circumstances are so substantial in compari- son the mitigating with circumstances that it warrants death instead of a life sentence.” Id. at 588. The court went state that the of in a proof capital necessary burden case for a state, sentence death remains on the if jury and that to “weigh,” be instructed the defendant produce must evidence of mitigating circumstances. Id. at 589. court The that, “just defenses, concluded as with affirmative the ultimate of negating burden such defenses by proof beyond a reason- able remains doubt with the State.” Id. at n. 12. See also Rizzo, 171, 236, 363, State v. 266 Conn. 833 A.2d (noting “Imposing the reasonable doubt standard on the moreover, weighing process, all of fulfills the functions of that its level instructing jury By of persuasion. burdens weighing process at the outcome arriving of certitude a reasonable beyond demanding standard must meet the error, and we communicate risk of doubt, minimize the we that we importance society large and to to the both capital a convicted of whether on the decision awesome place die.”). live or felon shall Arizona, v. Ring, in State Court

Finally, Supreme from the 534, on remand 65 P.3d 915 Ariz. the Arizona death Court, rejected argument the state’s aggravating against judge weigh a requiring statute not a factual determina- require did mitigating circumstances court, Ring required concluding Arizona tion. The necessarily concluded that jury, made to be at 942-43. was a factual one. Id. the determination Majority’s “Eligibility” Distinction The V. find- “Ring only implicates maintains that majority The circumstances, not process ing Maj. op. factors.” against mitigating weighing aggravating not Court did address Ring It is correct that 207-08. whether, weighing aggravators the issue of specifically or whether mitigators, Apprendi applies against doubt before beyond convinced reasonable must be so, however, not most did do imposed. argue anything respect with likely Ring because did “tightly delineat- balancing. Ring presented or mitigators claim, n. at 2437 n. Ring, 536 U.S. at 597 ed” raising only question n. whether 153 L.Ed.2d at 569 alone, presence could determine the judge, sitting trial factors Arizona law required absence of the 588, 122 536 U.S. at penalty.6 Ring, of the death imposition 584, 597-98, Arizona, Ring 6. Footnote 556, 569, weighing process the was 153 L.Ed.2d makes clear that stated: not before the Court. The Court tightly only "Ring's He contends that the Sixth claim is delineated: jury findings aggravating required on the circumstances Amendment aggravating past to against No circumstance related asserted him. Ring S.Ct. at 153 L.Ed.2d at 563. argued Arizona death statute violated the Sixth Four- teenth Amendments because it entrusted to a judge the finding raising of a fact the defendant’s maximum penalty Id. at from life to death. 122 S.Ct. at 153 L.Ed.2d Ring Nonetheless, at 568. set out the general principles courts must issues apply deciding may what be decided judge and those for which a defendant entitled to a determination, applicability higher as well of the rea- to finding aggrava- sonable doubt standard least as Moreover, earlier, remand, tors. as noted the Arizona rejected the Supreme requirement contention that mitigating weighed circumstances be considered and against not a aggravators predicate was factual for imposition Ring, See State v. penalty. 65 P.3d at 942-43.

The majority’s upon thesis rests the view that due process only requires finding aggravating beyond doubt, a reasonable and not the process weighing aggrava- (stat- See ting against mitigating maj. factors. op. 207-08 “Ring only ing implicates circumstances, and not the process weighing aggravating factors”). against mitigating It is the majority’s view that the Supreme Court death penalty jurisprudence requiring the applies only reasonable doubt standard to the part sentencing process which makes a defendant death-eligible, as to opposed those elements involved in selecting those death- eligible actually defendants who will be sentenced death. majority concludes that the selection process, that which case; Ring challenge convictions in his therefore does not Almenda- States, prior v. United which held that the fact of conviction rez-Torres judge statutory be found even if it increases maximum respect sentence. He makes no Sixth Amendment claim with mitigating argue circumstances. Nor does he that the Sixth Amend- required ment to make the ultimate determination whether impose penalty. question the death He does not the Arizona authority reweigh Court's aggravator. Finally, Ring circumstances after that one court struck constitutionally does not contend that his indictment was defective.” (citations omitted) added). (emphasis

Id.

289 the death jury, of the judgment in the whether determines constitutionally be determined applied, should penalty maj. op. See of the evidence. preponderance on the based 209-11. of the eligibility phase upon sole focus is majority’s

The [Su- concludes that “the majority The sentencing process. its and jurisprudence Amendment Eighth preme] Court’s clear, of an finding it is the Ring make holding circum- circumstance, of an only Maj. op. at stance, death-eligible.” makes a defendant which must recognizes specify that “states majority 255-56. The limit the in order to direct and aggravating factors to the class of convicted defendants discretion as authority’s 219. maj. may apply.” op. See penalty which the death selec- eligibility versus The Court’s discussion Supreme requirement of the tion arose in the context Court’s narrow the class genuinely scheme must capital sentencing The Court penalty. for the death persons eligible Eighth of the prohibition has the cruel and unusual stated that penalty from the death imposing Amendment state prohibits manner. arbitrary capricious Accordingly, in an which must be with standards sentencing authority provided persons class of crimes and the genuinely will narrow the it by allowing against penalty imposed whom the death an on the basis of the make individualized determination and the circumstances of the crime. character individual 2733, 862, 878-80, 2743- Zant v. 462 103 S.Ct. Stephens, U.S. (1983); 44, 235, v. Gregg Georgia, 77 L.Ed.2d 250-51 859, 153, 206-07, 2909, 49 893 96 S.Ct. L.Ed.2d 238, 293-94, (1976); v. Georgia, Furman U.S. (Brennan, J., 2726, 2754-55, 33 L.Ed.2d 380-81 concurring). several considerations. majority ignores important

First, and reach of majority impact underestimates the “clearly It v. Arizona that it is Ring. Ring has been said of the U.S. Su- significant penalty the most death decision v. Georgia, since the decision Furman preme invalidating 33 L.Ed.2d 346 virtually schemes of all states.” Bottoson v. penalty Moore, (Fla.2002) (Anstead, C.J., concurring). 833 So.2d 693 has called a “monumental decision that Ring been will have Note, implications country.” extensive across the The Death Penalty System the Sixth Amendment: How Will the Arizona?, Ring Look After John’s L.Rev. St. (2003). Ring discusses the death for the first time within the framework of the Sixth Amendment. It has been that the Court’s of suggested Supreme overruling Walton questions viability raises about the of earlier cases. capital Stevenson, 1111, See that “A central supra, (noting difficulty in these that resolving second-stage issues is the tools that one would jurisprudential naturally analyze use the Court’s decisions on the questions-the prior jury’s role in now capital sentencing-are inherently suspect of light Ring”).

But if “eligibility” even the versus “selection” distinction holds in context of the weighing process, language the the Maryland structure of the statute the put weighing process the rather than I eligibility side the selection side. reiterate my analysis Borchardt: 412(b), §

“Under a defendant is not ‘death-eligible’ merely by having been found of first guilty degree murder. Rath- er, at the conclusion of the guilt/innocenee phase and a murder, of of finding guilty degree first the defendant eligible only for a of imprisonment. sentence life defendant cannot receive a sentence death unless the i.e., met, § additional requirements 413 have been that at least one factor has aggravating proven, been that the is a first principal degree, defendant and that the outweigh any mitigating cir- circumstance[s] 413(h). § cumstances. See presence Just the hate crime enhancement in Apprendi transformed second de- into a gree degree offense first offense under the New statute, Jersey hate crime outweigh circumstances trans- under into a death sentence

forms a life sentence penalty death statute.” Maryland A.2d at 668-69. Md. at Grounds

VI. State of federal due affronting guarantee pro- In addition Article 24 of cess, scheme violates Maryland’s penalty death principles and the basic Rights Declaration Maryland Constitution. by fairness State guaranteed fundamental Maryland Rights provides, 24 of the Declaration Article of his deprived ... ought “That no man to be part, pertinent ... the Law of the land.” life, but liberty property, fact any Maryland recognized law Long Apprendi, before exposed of an offense that to the circumstance relating determined to enhanced had punishment defendant See, Fisher e.g., beyond trier of fact a reasonable doubt. 218, 280-82, State, 786 A.2d 743-44 v. 367 Md. Utley & (2001) under of enhanced (holding imposition must be causes child abuse statute where abuse doubt); beyond a reasonable Wadlow alleged proven State, (holding 642 A.2d 335 Md. statute, penalties, provided seeks enhanced when the State distribute, the State for of cocaine with intent possession of the amount necessary concerning fact allege must substance, beyond that fact a dangerous prove controlled State, 32, 37, doubt); 595 A.2d Jones v. 324 Md. reasonable (1991) 463, penal- that for of enhanced (holding imposition 465 all must by Legislature, prove the State ty provided doubt). precedent beyond conditions reasonable statutory on a to death based Permitting person sentence i.e., standard, of the evidence preponderance not, process due Maryland more than offends appropriate Biegenwald, fundamental fairness. State principles of Cf. Wood, 151, (1987); 13, 130, State v. 648 524 A.2d N.J. (Utah 1981). 71, P.2d 80-81 of reflects the proof of a burden particular

The allocation factfinder, impor- the relative of the task before the gravity decision, tance of and “a value fundamental determination of our In re society[.]” Winship, U.S. (Harlan, J.,

1077, 25 In concurring). Adding L.Ed.2d at 380 Texas, ton v. 99 S.Ct. 60 L.Ed.2d 323 Burger for the expressed Chief Justice of significance highest requisite proof level as follows: “The function of a standard of as that proof, concept embodied the Due Process Clause and the realm of factfinding, is to ‘instruct the factfinder concerning degree society of confidence our thinks he should have in of factual conclusions for a of particular type correctness 358, 370[, In adjudication.’ Winship, re (Harlan, J., concurring). 25 L.Ed.2d 368] standard serves to allocate the risk of error between litigants and to indicate the relative importance attached the ultimate decision. area of

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

In a criminal on the other the interests of the magnitude historically defendant are such and with- any explicit they out constitutional requirement have been protected by designed standards of proof exclude nearly as possible judgment. the likelihood an erroneous justice, the administration of criminal our society imposes almost the entire risk of error upon itself. This is accom- plished by requiring under Due Process Clause that the prove guilt beyond state an accused a reasonable doubt. In re Winship, supra.” (footnote 423-24, 1808, Id. at 99 60 L.Ed.2d at 329 omitted). error, The more serious the risk of higher the the standard of requisite proof.

293 statute, Maryland of the step three the Included within that is the death provision, is the ultimate decision weighing standard com- doubt The reasonable appropriate sentence. certainty possess of it must degree the to the municates is the the decision death ultimate arriving before Rizzo, 171, 833 A.2d v. 266 Conn. sentence. See State proper (Colo. Tenneson, 786, P.2d 795 (2003);7 v. 788 People 363 1990). that death is to the pay lip principle service

We mere certainty lower level of impose continue to a yet different than do other lesser context we penalty the required has a Maryland. Maryland important interests of the preponderance of than evi- higher persuasion burden than far less severe the involving penalties dence situations See, § 1986 Mer- e.g., ultimate at stake under 413. (1994) State, 1164, 264, 1173 v. Md. 638 A.2d cedes 334 to the requisite state elements under (requiring prove evidence); Mack convincing laws clear and drug forfeiture Mack, 188, 207, (requiring v. 618 A.2d Md. Rizzo, n. 833 A.2d In State Conn. n. 7. argument rejected the dissent’s Connecticut judg- jury’s weighing process a in the is moral determination ment, with a doubt standard. The court rea- inconsistent reasonable soned as follows: Sullivan, J., that, disagree suggesting of C. "We with dissent judgment, jury’s is a it is somehow because determination moral assign persuasion inconsistent to burden of to that determination. understanding on its The dissent’s contention relies reasonable quantitative as a of the evidence. We have doubt standard evaluation meaning already explained opinion in this that the traditional focuses, quantification on a reasonable doubt standard or, evidence, degree certainty of the fact in this but on finder case, Therefore, jury’s the nature of the determination sentencer. application judgment render of the reason- as a moral does not confusing. determination inconsistent or able doubt standard sense, and, indeed, common, quite contrary, On the it makes when determination, certainty making degree assign moral particular judgment. way, another the notion of level Put certainty process arriving at a with the moral not inconsistent simply demanding judgment; assigns the law's most our conclusion demanding certainty jury’s moral level of most irrevocable judgment.” 294

clear convincing evidence for the of withdrawal life- Zenobia, treatment); Owens-Illinois v. medical sustaining 325 469, 420, 633, (1992) Md. 601 657 (requiring A.2d the clear and evidence standard for convincing proof punitive damages); Clark, Washington County Serv. v. Dep’t 190, 296 Md. of Soc. 197, (1983) 1077, 461 A.2d (requiring proof parental 1081 convincing unfitness clear and evidence in order termi State, v. 523, 525, nate parental Coard rights); 288 Md. 419 (1980) 383, (requiring A.2d 384 clear proof convincing Delia, in civil Berkey proceedings); evidence commitment 302, 170, 287 Md. 413 A.2d 178 (requiring heightened standard of clear evidentiary convincing evi slander). Stewart, Summerlin v. dence for libel and Cf. (9th Cir.2003) F.3d (stating that do not “We legal execute people according ordinary principles that good be enough our more routine decisions. When the state assumes the role of the it must Deity, greater exercise see also care.”); Addington, (stating at 330 L.Ed.2d eases involving “[i]n individual

rights, civil, whether criminal standard of a proof ‘[t]he [at reflects the value society places minimum] individual liber ty.’”).

VII. The Reasonable Doubt Standard It is correct states must narrow the class of persons deemed to be death-eligible, order total eliminate arbi- capriciousness imposition trariness and death penalty. But reliability equally important. Even assum- ing arguendo weighing portion Maryland’s death penalty selection, scheme is a purely matter of I do not which accept, I nonetheless hold that finding aggrava- would ting outweigh mitigating factors factors should be determined beyond a reasonable doubt. A jury engaging in the relative comparison of aggravating factors to mitigating factors is final making the determination of whether to grant mercy and spare a It entirely defendant’s life. seems incongruous that we require should highest proof standards a jury when executed, decides whether a is “eligible” defendant to be yet or not the whether when the decides lower the bar life and death These “eligible” spared. to be defendant they should be coin and two sides of same decisions are proof. level of subject to the same that a doubt” “beyond reasonable Requiring entirely in line sentence is given death defendant should Maryland’s safeguards procedural with the markedly penalty sentencing phase differs scheme. A death Maryland, jury in a sentencing Maryland. a typical from penalty proceeding. only a in a death may sentence impose cases, In the the judge imposes In all a sentence. other jury is sentencing phase, presented, evidence capital case evidence, rules of evi- on this and pass judgment must If dence, relaxed, in the State are force.8 although somewhat doubt, element of a every prove, beyond must a reasonable crime, element of a every it not need to why prove should in proceeding punishment phase? murder capital un throughout jurisprudence Supreme Reflected that is is the death derlying Eighth principle Amendment See, 584, 2428, 122 153 e.g., Ring, 536 U.S. S.Ct. different. 411, 106 399, 556; Ford 477 U.S. S.Ct. Wainwright, v. L.Ed.2d (1986) 2595, 335, 2602, opinion) 91 (plurality L.Ed.2d 347 reliability in capital “This (noting especial [for that concern knowledge consequence is natural proceedings] of penal execution the most and unfathomable is irremediable Florida, different.”); ties; Gardner v. 430 U.S. that death (1977) 393, 349, 357, 1197, 1204, 401 51 L.Ed.2d Carolina, 280, 428 v. North (plurality opinion); Woodson 944, 2978, 2991, 305, (plurality 96 49 L.Ed.2d 961 S.Ct. Furman, 289, 2752, 92 at 33 408 U.S. at S.Ct. opinion); (Brennan, J., proceed death concurring). In a L.Ed.2d 378 “the ing, recognized Eighth Court has accuracy fact- requires greater degree Amendment and Gilmore v. noncapital than would be true case.” 2112, 333, 342, 2117, 124 113 L.Ed.2d Taylor, 508 U.S. S.Ct. question Ring requires A arises to whether strict rules evidence 8. during post-conviction part penalty death trial. entire of a 296 (1993).

306, 318 Kennedy Justice has observed that “all of our Eighth jurisprudence Amendment concerning capital sentenc- ing is directed of reliability toward enhancement Smith, accuracy 243, Sawyer 227, some sense.” (1990). 2822, 2832, 193, S.Ct. 111 L.Ed.2d Ring dealt Sixth right with the Amendment to a trial. overlooked, however, Not to right be is the to a fair and reliable sentencing Throughout determination. the jurispru penalty dence on the recognition death is the universal Zant, is different. See U.S. at 2747, 77 at 255 (noting L.Ed.2d that “because there ais qualitative any difference between death permissi other ble form punishment, ‘there is a corresponding difference determination reliability need that death is the ”) appropriate punishment a specific (quoting case.’ Wood son, 961); U.S. at S.Ct. at 49 L.Ed.2d at Gardner, 430 U.S. at 97 S.Ct. at 51 L.Ed.2d at 401. Because the death penalty qualitatively different from a sentence, prison Supreme Court, Court, our requires the death unless the imposed makes an individualized determination that death is appro sentence priate particular Woodson, defendant. 428 2991, U.S. at 96 S.Ct. 49 L.Ed.2d at 960-61. In Furman, 306, 2760, 408 U.S. at 92 S.Ct. at 33 L.Ed.2d at 388 (Stewart, J., concurring), Justice Stewart stated: penalty

“The of death differs from all other forms of crimi- nal in punishment, degree in kind. It but is in unique irrevocability. its total It in rejection its unique of rehabilitation of the convict as a of purpose basic criminal justice. unique, finally, And it is in its absolute renunciation of all that is in our embodied of concept humanity.” different, Because fundamentally death is heightened relia bility is required stages at all of a trial. That includes the guilt/innocence phase, and the entire sentencing discussing In process. unique nature of capital punish ment, Justice Murray Stevens dissent noted in v. Giarrata no, 1, 9, 2765, 9, 492 22 n. 109 S.Ct. n. 106 L.Ed.2d 1, 19 n. 9 as follows: decided, 1983,

“In Furman had been Justice years after ‘Court, as that the majority opinion O’Connor observed the individual majority of a of opinions well as the separate difference Justices, recognized that the qualitative has a corresponding punishments requires death from all other scrutiny capital ly greater degree Ramos, 992, v. 463 U.S. 998- determination.’ California id., 999, 9[, 999[, 3446, 1171]; n. 77 L.Ed.2d see 103 S.Ct. cases). also, Ford (citing e.g., See v. Wainw 103 S.Ct. 3446] 41[, 2595, 91 L.Ed.2d right, 335] 477 U.S. 106 S.Ct. (‘In (1986) (Marshall, J., opinion) capital proceed plurality factfinding this has demanded ings generally, Court reliabili procedures aspire heightened standard consequence ty.... This concern is natural especial is the most irremediable and knowledge that execution different’); that death is Ake penalties; unfathomable Oklahoma, 87[, 470 U.S. L.Ed.2d 53] (‘In (1985) C.J., concurring judgment) capital (Burger, finality protec cases the the sentence warrants imposed cases’); in other may required tions that not be Florida, 349, 357-358[, Gardner v. (‘From (Stevens, J., plurality opinion) 393]

L.Ed.2d defendant, point of view of the is different in both its it society, and its From the of view of severity finality. point life of of its sovereign taking the action of the one dramatically any legitimate citizens also differs from other state It is of to the importance action. vital defendant community any impose to the decision to the death be, be, on reason rather than appear sentence based emotion’).” caprice or sum, capital Apprendi, applied the touchstone of cases Ring, requisite finding to decide whether a exposes than higher imposed solely

defendant to a sentence can be stated, As Ring the basis of criminal conviction. “If a an authorized State makes increase defendant’s fact, that fact—no punishment contingent on the matter found aby how the State labels it—must be beyond a Ring, reasonable doubt.” 153 L.Ed.2d at 572. Because in Maryland the finding that aggravating factors outweigh mitigating factors ais nec- essary predicate for the imposition of the penalty, Apprendi Ring require that this finding made, by jury, and not by preponderance evidence, beyond but a reasonable doubt. Judge

Chief BELL Judge ELDRIDGE authorize me to state that they join in this dissenting opinion.

835 A.2d 1175 Stephanie SMACK DEPARTMENT OF HEALTH AND MENTAL HYGIENE. 118, Sept. Term,

No. 2000. Appeals

Court of Maryland.

Nov. 2003. notes twice since 1976 we have invalidated a sentence of inadequate guidance because sentencer, 362-364[, Maynard, to the see 486 U.S. 1853]; 433[, Godfrey, S.Ct. 100 S.Ct. U.S. 1759], repeatedly principle but we have incanted the unacceptable, Penry Lynaugh, “unbridled discretion” is v. 302, 326, (1989), 492 U.S. 109 S.Ct. 106 L.Ed.2d 256 capital sentencing procedures must constrain and guide the sentencer’s discretion to ensure “that the death penalty is not out arbitrarily capriciously,” meted v. California Ramos, 992, 999, 463 U.S. 77 L.Ed.2d 1171 (1983), that “the State must establish rational criteria that narrow judgment,” McCleskey the decisionmaker’s v. Kemp, 279, 305, (1987), S.Ct. 95 L.Ed.2d 262 that “death penalty statutes be structured so as to [must] prevent the from penalty being administered in an arbitrary fashion,” Brown, unpredictable California 538, 541, 107 93 L.Ed.2d 934 that our cases require “procedural protections ... to ensure that the death consistent, will imposed manner,” in a rational

Case Details

Case Name: Oken v. State

Court Name: Court of Appeals of Maryland

Date Published: Nov 17, 2003

Citation: 835 A.2d 1105

Docket Number: 117, Sept. Term, 2002

Court Abbreviation: Md.