*1 boards. Valentine v. Board ings liquor before the License Commissioners, AFFIRMED;
JUDGMENT APPELLANTS TO PAY THE COSTS.
958A.2d 295 STATE Raymond Leon ADAMS. Term., Sept.
No. 38 2007.
Court Appeals Maryland.
Oct. *4 Brockmeyer, Cathleen C. Attorney Assistant General (Douglas Gansler, F. Attorney General of Balti- more), brief, on for petitioner.
Bradford C. Peabody, (Nancy Assistant Public Defender S. Forster, Defender, Baltimore), brief, Public on for respon- dent. Bair,
Gary Bair, LLP, Greenbelt, E. Bennett & for Brief of Amicus Against Injustice Curiae Families of Re- Support spondent. *5 HARRELL, BELL, C.J., *, RAKER before
Argued (Retired, ELDRIDGE, BATTAGLIA, specially JOHN C. WILNER, (Retired, specially assigned) ALAN M.
assigned), (Retired, assigned), JJ. CATHELL, specially R. DALE and HARRELL, J.
I. Facts & Process sister, P.1 her February Kathy of 17 night On the parking in the lot of B., walking their car were Teresa leaving the Cuckoo’s Lodge, after George’s Prince Motor the bar are Lodge Motor Nest, nearby bar. and cornered County. approached A van George’s Prince out of got Three men cars. parked between several women them, Leon Raymond later identified van. One Adams, to shoot the Adams, gun. threatening carrying a was grabbed Adams women, into the van. get them ordered P., head, and, with other together her her over Kathy struck vehicle, P. Kathy with van. The men, her into the pushed Avenue the direction inside, sped off Branch on stipu- van. It was Adams drove the of Columbia. District half a mile and a a mile and lated at trial it between Lodge to the District of George’s Motor the Prince from Columbia border. P, van, Kathy was into the
Shortly being after forced of her jewelry forcibly stripped her ordered to remove van, occupants later clothing. of the other male One her gunpoint Raleigh Knight, raped as William identified first rape, after the Shortly minutes of the abduction.2 within * J., retired, Raker, hearing this participated in and conference of now Court; being pursu- recalled while an member of after case active IV, Constitution, 3A, participated also she Article Section ant opinion. adoption decision and of this present appears of the record that the victim in It from our review her years time We will accord old at the of the attack. case sixteen age. alleged anonymity any victim of a similar that we would accord proceedings post-conviction present in the noted that 2. The court kidnap- rape after the occurred within minutes "was clear that the first *6 right van turned off wrong of Branch Avenue and went the way one-way on a van street. The in was involved a minor accident with another vehicle. Kathy P. then endured a series of rapes and sexual attacks several men. She estimated that approximately elapsed fifteen minutes the kid- between and napping this series of sexual P. Kathy attacks.3 said she asked her they abductors whether still Maryland. were in They responded they in however, were Maryland, she testified that did she them they believe because laughed while over responding. abduction, Just two after hours P. out Kathy pushed was in van Prince George’s County, Maryland. She knocked on the door a nearby of apartment was able to George’s and contact the Prince County Police for assistance. Teresa B. identified the driver of the van as Adams and passenger also identified the in the van William Raleigh Knight. Kathy P. identified Adams in a photo array attack, shortly as well as again several after days later and at yet again trial. also Adams was identified by a police District of Columbia officer who stopped Adams while driving matching he was a van description van used in the abduction and attacks. A search the van used prophylactics, revealed three scarf and comb belonging Kathy P. It was at stipulated trial that P. Kathy physical injuries suffered consistent with a sexual assault. Adams charged with kidnapping, robbery deadly with a six weapon, degree counts of first rape, three -of counts degree first sex At offense. his 1979 trial the Circuit Court for Prince George’s County, Adams contended that the rapes Maryland, occurred outside State of and thus Maryland did jurisdiction not have him try for the crimes. The State presented counter-arguments. First, two the State contended that the rapes, fact, evidence showed that the did occur Second, Maryland. that, argued State even assuming that the rapes Columbia, occurred in the District the State could thus,
ping began, indisputably Maryland almost occurred inside the line." set stop parking Another of attacks commenced in a lot later. (1957, Repl. Code Maryland under jurisdiction assert 27, § 465 stated: Vol.), 465. Section Article means, with intent to transported any is person If a and the intent subheading offenses] [sexual this violate subheading, the defen- violation by actual followed court within whose appropriate be tried dant transportation was where the county lies jurisdiction offered, solicited, or ended. begun, continued (1957, 1971 § 465. Repl-Vol.)Article Maryland Code § addressed the matter of retorted that Adams venue, particular court.4 jurisdiction, not the territorial authority had “no contended that Adams further *7 over acts that do not jurisdiction legislate having itself into discussions of lengthy After several occur within the State.” trial, trial court stages of the jurisdiction at different be question that the would denied motions and ruled Adams’s following discussion jury. point, At that submitted took place: very problem I think I am to solve this going ...
Court:
statute,
and also add
easily.
going
I am
to instruct on
these acts
to
decided
where all
question
with
agree
At
time I
State’s
place.
may
[the
took
this
disagree
you.
time I
with
Attorney]. Maybe
may
at a later
a
might
it
solve
lot
finding
If the
can make a
Court of
or the
problems,
Appeals
if this case went
in
specific finding
a
Special Appeals
there was
regard by
jury.
that
Jones,
967,
See, e.g.,
Md.App.
State
634,
(holding
ripe,
Defense Counsel: Your I hate to Honor, interrupt Court, I very but think this is the issue we addressed earlier.
Court: Yes. Defense Counsel: The State has not upon shown anything which the can that make determination. And that is why I submit Court that this should passed not be jury. Court: ... that I is [A]ll know that the intent out in started George’s County Prince motel. All I in have front me at this time is that is it where started. I have testimony [Kathy from that sexual assaults were P.] inflicted on her motion, while the van was subsequent and that sexual assaults were inflicted on her at places, various and she was told were in they Maryland. Whether she believed what they her or told she didn’t believe that no makes difference. Nobody has me told that this incident didn’t occur in the State of Maryland. There no evidence in this case all that Maryland, this didn’t occur in juncture. at this And if does somebody testify they occurred in the District of Columbia that then becomes my judgment factual issue that a jury then can make a determination on.
At juncture all I know is it started out and I Maryland, occurred is all have front of me. *8 If gets up says someone it and occurred I think elsewhere that perfectly it is to a jury reasonable let make a—that is one jury of the issues may have to determine.
If case ever appealed, this is or he is I convicted and make a the subsequent ruling state, statute out applies of and the I Appeals says wrong, Court of am the jury says that it did District I happen wrong, and am that ends it right then there.
Do you Attorney] [to State’s think that is a solution? Attorney: I State’s really don’t It a good know. is proce- jury dure to get specific findings come back with of this, fact in a case like obviously, if this case is appealed to of Court Appeals. know how the Appeals would the Court Court: How In me? determination, you told based on what made the statute? on words, want me to instruct them you other Yes, Attorney: sir. State’s the intention if formed this defendant That
Court: formed that lady, and he assault on this a sexual commit find, fact they so Maryland, in the State intention no makes District Columbia it happened that he long as difference, anywhere as happen that it could intention, purpose you say is that what formed that is? the statute Attorney: correct, Honor. your That is
State’s in the District. If find it right. they happened All Court: absolutely you are you say I with suppose agree Now to the Court goes then this case your interpretation, right law, this is says Court of Appeals and the Appeals don’t jurisdiction happened they it any have because didn’t — the Court of it How does really happened. know where where it happened? know Appeals really I don’t Attorney: Well, guess they I don’t.
State’s to exist— any there is reason for the statute think any think there reason for statute You don’t is Court: right. You absolutely this? You to exist other than this, on issue special don’t want to submit you them instructed that— but want Attorney: Instruction as to statute. Special
States is you applica- all But think the statute right. Court: Well All right. ble. Yes, Attorney: sir.
State’s that, with there agree Counsel] Defense you Court: Do [to as to where this issue before the special should be a sexual act occurred? Assuming ruling
Defense Counsel: jury— goes this issue Yes, time. pretty good assumption is a
Court: your I understand that Honor. Defense Counsel: *9 Court: All right. I
Defense Counsel: would submit that the pro- Court’s posed method, method better and I would ask that, do get specific finding as to whether or not the incidents involving the sexual rapes acts took place Maryland. District of Columbia Court: All of them?
Defense Assuming Counsel: all of them to the go jury, your Honor, I questions would assume those would have to definitely. answered I think jury does have to find— Court: way, Let’s assume I do it that what is the burden of proof on that issue?
Defense Counsel: It is the same any burden for other—
Court: Anything else? You have to be beyond convinced reasonable doubt? Yes,
Defense Counsel: your Honor. Court: youDo agree with that Attorney]? [to State’s Attorney: If State’s the Court submits special issue? Court: Yes. Attorney: Yes,
State’s sir. right.
Court: All The trial court proposed special which verdict sheet asking jury included jurisdiction, whether it found proven beyond doubt, a reasonable upon based rapes occurring § or the application objected, 465. Adams arguing that there was insufficient evidence for the to find that rapes occurred in Maryland. The judge ruled that evidence was sufficient to send the jury. issue Adams then agreed special verdict proposed by sheet the trial court.5 During proceeding, requested granted spe- Adams and was two given jury regarding cial instructions to be certain incidents that occurred at trial. first instruction was that the infer was to nothing they from the wearing fact that had seen Adams handcuffs during the trial. The second instruction was that the was to infer *10 following jury the gave the the trial court
Accordingly, special verdict sheet: regarding jury instructions pertinent of these as each one will make a determination [You] benefit, your you for are numbered charges, they guilty or of each guilty either not the defendant will find is finding, you if find defendant below that one. And the offense either finding make a you will also guilty, in was obtained jurisdiction in or Maryland occurred Code, 17, 465, of Annotated Article our case under this I will tell about later. you which special question verdict elaborated on the judge
The later counts. For example, of the individual available as each follows: instructed the he or make
Now, you if you make that determination when will also make degree rape you as to first determination occurred, you will rape this as to where determination rape to check either that you there is a place see was obtained jurisdiction in our State or that occurred And our Annotated Code. Article Section under says regards enacted a statute that Legislature our has any means transported by if a is person offenses to sexual of- subheading, meaning sexual with intent violate fenses, of this intent is followed actual violation and the appropriate be tried subheading, the defendant county where the jurisdiction the lies court within whose solicited, continued, offered, begun, transportation was ended. statute how this
If of this you application find that that, you if will check you sex offense occurred particular doubt reasonable beyond are not convinced in our state. offense occurred closing arguments, after
In a final reminder noted, regard rape “And that in to both judge trial also it occurred charges you must determine whether and sexual co-defendant, Knight Knight, nothing of the at trial. from the absence pled guilty trial commenced and absent from defense after the trial. table for the remainder Maryland jurisdiction or whether there was under the statute. right.” All gave instructions, trial court “advisory” jury also based
on Article Declaration of Rights.6 Throughout twenty pages instructions jury, read judge the trial made repeated “advisory” references to the nature of his instructions. For he example, stated: Those you jurors know, who have sat previously as in a criminal case and for those of who not you previously have sat do and who know, that in our unlike other [forty-eight] states *11 country, in you our a criminal case the jury as sit not as fact, you what we the of call triers also sit as what we call the judge means, essence, of the law. And what this in is the that in you facts this case sat as have and listened for past the five days you be, be them will as find law in and the this case will as you be find it to be. you And because are both of judges the the fact and judges the of the law that anything may I tell you now about either the facts or the law purely is advisory. You may disregard anything you, that I tell pay you may absolutely no I you attention what tell concerning law, either the facts or the with this one admoni- concerning tion law. the You are not to apply you the law as be, think it it ought be what should but what it in fact is in particular this case.
And because of you judges the the law [the State’s Attorney] and trial in argu- counsel] their closing [Adams’s you you ments to tell think they what law in our the is State and how in you apply should this case. particular
I, therefore, in you advisory instruct in capacity that on, nature, this that will you case sit that is a criminal of the the places law the burden on of Maryland State to prove defendant, the and in this guilty [Adams] case beyond what we call a reasonable doubt. No defendant states, Rights 6. Article 23 the Declaration of "In the trial of cases, Law, Jury Judges all criminal shall as of well fact, except may pass upon sufficiency the Court of the evidence to sustain a conviction.” Accordingly, is innocent. prove has to he any criminal case you are is innocent unless will that [Adams] assume you you case that have from all the evidence convinced guilty. five that he is past days for the heard instruc- advisory nature court alluded to the The trial charge delivering course of ten times tions least object to the references to the Adams did not jury. to the instruction, promi- their jury despite advisory nature charge jury.7 to the nence on all guilty found Adams 7 December
On addition, special finding In made a counts. twelve Maryland. within the State of all counts occurred twelve sheet, on the verdict was available Although option finding under “jurisdiction” the option did not check life term for to one § Article 465. Adams was sentenced life sen- degree rape, multiple concurrent one count of first assaults, thirty and sexual remaining rapes tences for the twenty imprisonment kidnapping, for years consecutive robbery. years consecutive He Special Appeals. raised appealed
Adams filed in opinion In an eight unreported issues.8 *12 Adams, however, objections jury to the instruc 7. raised several other jury objected the to instruct the on He to trial court’s refusal tions. representing (perhaps a alleged cross identification difficulties in racial degree prescience the later discussed in Smith v. to matter much (2005)). objection was That overruled objected to the trial court’s failure to the trial court. Adams also they may give jury informing them choose the an to the that instruction lineup weight photographic array a and a identification. The to accord Finally, agreed gave judge Adams and the instruction. Adams with given objected "a the trial court that said trial is to the instruction that of a trial search for the truth.” Adams contended the definition to properly as a “determination as whether or not was more described proven beyond State a reasonable doubt the defendant the has objection guilty.” judge to the “search for the The overruled Adams’s truth” instruction. (1) was for a that: the evidence insufficient reason- Adams contended (2) Maryland; jury in- crimes occurred in the able to conclude the by Kathy P. B. should have been court identifications and Teresa trial, (3) Knight suppressed; absence of co-defendant from the after appellate
intermediate court affirmed Adams’s conviction. We denied Adams’s Petition for Writ of Certiorari from that Adams judgment. Md. 738 April 2004, On 1 some twenty-four years after his convic- tions and on appeal, affirmance thereof direct Adams filed George’s Circuit Court for Prince County an initial Peti- tion Post for Conviction four alleged Relief. Petition (1) bases for relief: improperly gave only trial court (2) instructions; advisory jury the trial in- court improperly (3) jury jurisdiction; structed the on the trial gave court instruction; (4) incomplete reasonable doubt Adams’s trial counsel support was ineffective. In of his claim ineffective counsel, assistance of alleged attorney Adams that his failed to object jurisdiction in- improper and reasonable doubt structions and failed to for file Motion Modification of post-conviction Sentence. The court granted the Petition on the grounds advisory jury jury instructions jurisdiction instructions on improper.9 were The Court also granted on the Petition based the ineffective assistance of counsel, specifically trial object Adams’s failure to to counsel’s assertedly jurisdiction erroneous instructions.10 (4) pled guilty, prejudiced he jury; prejudiced he when the courthouse; wearing saw hallway members him handcuffs in the (5) language the indictment was invalid because the of the indictment counts; (6) properly did not differentiate the various the trial court denying pro erred in Adams’s se to "Motion Dismiss Indictments Prosecute"; (7) Delay Because refusing trial court erred special posed by instruct on difficulties cross-racial identifica-
tions; instructing the trial court erred in that a trial is "search for truth.” post-conviction judge 9. The concluded that in- reasonable doubt proper struction was and that Adams’s trial counsel was not deficient object failing the reasonable doubt instruction. Adams does not judicial scrutiny rulings. seek further of these 10. The Court also found that Adams’s trial counsel was ineffective failing Modify days, permitted *13 to file a to Motion Sentence within 90 4-345(b) (former by Maryland Maryland (Maryland Rule Rule 774 Code, 1957, Repl.Vol., Cum.Supp.)). 1977 1983 The Circuit Court held that "[Adams] should be entitled to file a belated for motion modifica- holding Special tion sentence.” This was affirmed the Court of
255 af- appeal, on State’s Appeals, The of Special Court State opinion. reported post-conviction firmed the (2006). Adams, 668, granted A.2d 16 We 912 v. Md.App. 171 Adams, State v. for Writ of Certiorari. Petition the State’s (2007). three presents The 595, A.2d 634 State 925 899 Md. for our consideration: questions Act,
(1) has Procedure Maryland Post Conviction Under the trial complaint conviction post Adams waived his him constitu- denied his instructions advisory jury court’s right process? to due tional Act,
(2) Procedure has Post Conviction Under advising instruction right challenge to waived his Adams § under 465 of Article jurisdiction find could waived, in verdict this and, special light 27 if not case, harmless? was the instruction
(3) concluding conviction court err post Did the coun- because was deficient performance Adams’s counsel’s on jurisdiction instructions object court’s sel failed was not object to the instructions as counsel’s failure event, and, prejudiced? Adams any error
II. of Review Standard findings post- “will the factual of the We not disturb v. clearly erroneous.” Wilson they conviction court unless State, Oken 348, 675, 333, (citing 768 A.2d 363 Md. State, 30, Gilliam (1996)); 343 Md. (1993)). 685, 672, Although court reviewing post-conviction factual determinations standard, independent we make an clearly under a erroneous its the facts. application determination of relevant law and (2005); 366, 375, 879 A.2d Gray v. Peterson, State v. Md.App.
(2004). Adams, Appeals. Md.App. 716 912 A.2d State v. here, challenge did not in its Petition Certiorari matter, present ruling. regardless in the Accordingly, of the outcome Sentence. entitled Motion for Modification of
Adams is to file belated *14 256
III. Stare Decisis flagship Adams’s contention is that the in- advisory employed structions at his trial violated the reasoning iterated State, by this Court in Stevenson v. 167, Md. A.2d 289 423 558 State, Montgomery v. 292 654 Md. however, facially . argument, Adams’s reasonable suffers The Stevenson from fundamental flaw. holdings Montgomery, terms, their by express did not announce new law. Stevenson,
In a defendant her challenged conviction for first degree ground murder on the that Article 23 of the Rights Declaration of violated Due Process Clause of the right Fourteenth Amendment and Sixth Amendment to a trial, jury. trial At gave Stevenson’s the trial court broad instructions, advisory advisory much like the giv- instructions Stevenson, however, in the present object- en case. narrowly constitutionality ed of failing object Article advisory that the broad at given instructions her trial exceed- essence, ed Article scope 23. In mounted a Stevenson challenge facial 23. constitutionality Article The because, of Appeals Court affirmed Stevenson’s conviction although advisory the broad scope instructions violated the 23,11 proper application Article 23 Article would not violate Thus, the Federal Constitution. 23 facially Article was not unconstitutional. majority noted that opinion12 “[ijmplicit
decisions of Court limiting jury’s judicial role to the ‘law of the is a recognition crime’ that all other legal issues Stevenson, judge for the alone decide.” 289 Md. at terms, at Stevenson 565. itsBy purported express she, 11. Stevenson’s conviction affirmed like because much case, present objection proper, timely did not make a at the time the given scope proper instructions were that the instructions exceeded of Article 23. dissented, Judge Eldridge joined Judge Judge Davidson and Cole (see Eldridge part. Judge argued, op. he does here Dissent Mary earlier jury implicit power on limitations See, v. e.g., Lewis decisions. appellate land v. (1979); Vogel Md. 705, 724, Bell, alias Kimball (1932); 267, 272, 162 A. State, Wheeler (1881); Md. it did Stevenson
(1875). “Rather,
court
clear that
always
law,
what has
merely clarified
make new
but rather
*15
Smith,
v.
F.Supp.2d
Jenkins
38
Maryland.”
the law
been
Hutchinson, 221
v.
aff'd, Jenkins
(D.Md.1999),
F.3d
417,
421
(4th Cir.2000).13
The Stevenson
pointed
Court
out
679,
684
interpreted this constitutional
consistently
that “this Court has
deciding power to
the
law
this
restraining
jury’s
as
provision
Stevenson,
178,
289
at
limited,
area.”
important,
albeit
highlighted, as an
majority opinion
564. The
423 A.2d at
applying
long
established
example, a then recent decision
331-32),
299-301,
facially
Article was
unconstitu-
958 A.2d at
that
23
Furthermore, Judge Eldridge
the record
contended that
indicat-
tional.
Judge
proper
at trial.
Cole
objection
ed
was made
Stevenson
that a
Judge Eldridge’s
discussing
joined only
portion
opinion
Steven-
appellate
objection
preserving
at trial
her
son’s
the instructions
as
argument.
factually
point.
op.
that
on
Dissent
13. The dissent contends
Jenkins
not, however,
point.
legally on
Md.App.
702 n.
n. 3
retrospective question
Stevenson
presented by
(1980)
merely
because it
affirmed
it found
long
to be
established law with respect
what
Prokopis v.
law-judging
jury.”);
function
Md.App.
(“Applicant
retroactive.”).
that Stevenson v. State
acknowledges
...
is not
Montgomery clarified the decision
Stevenson.
Mont
In
gomery, charged
defendant was
with
intent
assault with
The trial
gave
advisory
rob.
court
broad
instructions
similar
present
the instructions
in the
case. We reversed the
*16
conviction, holding
dispute
that because “there was no
be
crime,
tween the-State
Montgomery
and
the law of the
the trial judge’s instruction-thereon was binding.
.
89,
. .” Montgomery, at
292 Md.
657.
A.2d at
We
noted
also
on
doubt,
instructions
matters such as reasonable
the burden
proof,
prohibition
of
on an adverse inference from a
silence,
defendant’s
the Jury’s
and
restriction to considering
them,
only the evidence
were always binding
before
on the
they
because
were not
part of
“law of the crime.”
Furthermore,
in “those circumstances where there is no dis
pute
crime,
nor a
for a dispute
sound basis
as to
the law of
the court’s instructions are
.
on the
binding
jury.
89,
. .” Montgomery,
(quoting &
(1991)).
640, 645
decisis
devotion to stare
inertial and institutional
The
however,
strike down a decision
absolute,
for we will
contrary
principles.”
to established
wrong and
“clearly
that is
406, 417,
Shipyard,
Townsend v. Bethlehem-Fairfield
Bozman,
(1946);
Bozman v.
Court of the United
Supreme
of stare
that the rule
is common wisdom
notes that “it
States
”
“
Parent-
Planned
‘inexorable command.’
is not an
decisis”
*17
sure,
Montgomery have
majority opinions in Stevenson and
15. To
within,
289 Md. at
praised universally from
Stevenson
not been
J., dissenting), Montgomery
(Eldridge,
423 A.2d at
J.,
concurring),
(Eldridge,
and without the
at
Nonetheless,
we
although
ordinarily would continue with
our analysis because we have and will continue to reverse
Article,
Maryland
7-106(c)
pro-
§
Code
Criminal Procedure
relief,
post-conviction petitioner may
vides that a
obtain
even if the
finally litigated,
claim for relief
judicial
has been waived or
if a
decision
"binding”
imposes
from a
"procedural
court
a new
or substantive
applied
standard” that
retrospectively."
is "intended to be
Stevenson
"procedural
did not articulate a new
or substantive standard. There-
fore,
7-106(c).
event,
§
Adams
any
not obtain relief under
In
such
argument
properly
is not
before
attempts
this Court. Adams
reference,
adopt
regard, by
arguments
in this
contained in an
Against Injustice.
amicus brief filed
Maryland
Families
Adams cites
503(0,
provides
Rule
involving
which
that in a "case
more than one
8—
appellant
appellee, any appellant
appellee may
or
adopt by
or
reference
any part
present
of the brief of
only
single
another.” The
case
has
appellant,
single appellee,
and a
Adams. The rule
permits litigants
adopt
arguments
parties
litiga-
of other
Thus,
argument
properly
tion.
is not
before us.
op.
The dissent is critical of this footnote. Dissent
at
A.2d at
requires
338-39 n. 6.
Rule 8-503
that a case must
appellant
appellee”
party may
more than one
before a
"involved
Further,
adopt
arguments
in the brief of another.
the dissent
"arguments.”
conflates "issues” with
The two are not the same. The
applies
§
properly
issue of whether
7-106
to Adams’s case is
before this
arguments
7-106(c)
regarding
application
Court. Adams’s
event,
any
pointless.
not. In
a further footnote duel is
The dissent and
majority opinion agree
provisions
that "the waiver
of the Post Convic-
directly applicable
tion
op.
Act are not
to this case.” Dissent
7-106(c),
§
between the dissent's
and our own is
we
conclude that
*18
objection to
timely
makes a
where a defendant
convictions
instructions, see,
48 Md.
Davis v.
e.g.,
erroneous
holding
conviction
(reversing
IY. Advisory Instructions Relief, Adams con for Post-Conviction In his Petition on Article 23 of instructions based advisory that the tended right his to due Rights Declaration of violated Maryland Fourteenth Amendment to the U.S. of law under the process that Adams contends peremptorily The State Constitution. We challenge.17 agree. waived this (“UPPA”) (Ma- Procedure Act
The Uniform Postconviction Article, §§ (2001), 7-101 to Criminal Procedure ryland Code 7-301)18 for analy- framework arguably provides statutory Section challenges current to his convictions. sis of Adams’s post- where the challenge to a conviction permits 7-102 previously finally litigated “not been and conviction issue has resulting in the conviction or proceeding or waived that has taken secure any proceeding person other 7-102(b)(2). § An conviction.” issue person’s relief from the intelligently but petitioner waived when a could have made “is 7-106(b)(l)(i). § allegation.” failed to make the knowingly failed to make petitioner objected, could have but Where error, presumption “there is a rebuttable allegation such an failed to make intelligently knowingly petitioner 106(b)(l)(ii) 106(b)(2). § Section states allegation.” 7— 7— Montgomery they were were not “new law” when decid- Stevenson and ed. argument lacking or Adams’s waiver If its waiver were found to excused, challenged were the State concedes that instructions erroneous. noted, statutory subsequent references are to 18. Unless otherwise all Criminal Article. Code Procedure circumstances; in special waiver shall be excused howev- er, petitioner “the has the burden of proving special exist.” circumstances UPPA,
In enacting
legislature
“the
employed
concept
intelligent
of an
waiver in
knowing
the narrow
*19
Zerbst,
Johnson v.
employed by
sense
Supreme Court
458,
1019,
(1938).”
McElroy
304 U.S.
58 S.Ct.
Our cases make it clear because an asserted right is derived from the Constitution of the United States or the of Maryland, regarded Constitution or is as a “funda- right, necessarily mental” does not make the “intelligent Rather, knowing” standard of waiver most applicable. constitutional, common-law, rights, statutory whether be waived inaction or failure to adhere to legitimate procedural requirements. Rose,
State v. 238, 248, 345 Md. An instruction, erroneous even on reasonable doubt, is not such a fundamental right requiring an affirmative “knowing and intelligent” waiver under UPPA. See Bowman (1994) (holding that “review of a jury ordinarily permitted instruction will not the appellant objected unless has seasonably so as to allow the judge trial correct opportunity deficiency before the deliberate”); Foster, Evans & Huffington v. jury retires to (1986) 1326, 1330 314 503 A.2d (noting that object failing to erroneous instructions regarding the proof, case, waiver); burden of even in a capital constituted Carolina, Hankerson v. North U.S. n. 97 S.Ct. 2345 n. (noting L.Ed.2d 306 that states may enforce the “normal and valid rule that failure to object to a error”); any instruction is a waiver of claim of Cirincione *20 State, 471, 512, (1998) (“As 96, 115-16 119 705 Md.App. A.2d the Court of Appeals reconfirmed ... to a right correct instruction, jury jury even a instruction on the definition of doubt, reasonable is not a ... right fundamental [and] post waived for conviction purposes object to by failure at Rose, (citing 250, trial.” Morris 1320)); Md. at at State, 480, 517, (2003) 248, 153 Md.App. 837 A.2d (holding that challenge to erroneous jury instruction on rea sonable doubt Trim by object trial); was waived failure to ble v. (1990) (“The 582 A.2d [instruction] issue is not ... a in proper subject for review this [post-conviction] proceeding because the issue of the instruc tion was not State v. [previously] waived.”); raised and was Tichnell, 428, 465-66, (1986) 306 Md. 509 A.2d (“[The circuit that court] held because there was no objection instruction, to the the issue was waived properly and thus not the post before conviction court.... agree [W]e with the Colvin, issue.”); court’s disposition State v. of the 314 Md. (“holding that when a defendant failed object to to trial advisory court’s instructions after
Stevenson, had waived for claims been the defendant’s petition”). his post-conviction purposes in area waiver regarding the case law summarized We 629, 644-45, 436-37 in Walker v. (1996): or this Supreme Court aware of no decision
[W]e
accuracy of a
an issue over the
that waiver of
holding
re-
the elements of an offense
concerning
jury instruction
by the defendant
knowing
action
intelligent
quires
himself____[A]
make it
in this Court[ ]
multitude of cases
instruction ordinari-
object
jury
to
to a
clear that the failure
that the instruction
any
later claim
a waiver
ly constitutes
erroneous____
that the failure
Furthermore,
consistently held
we have
consti-
challenge
jury
instruction
to or otherwise
object
purposes
of the issue for
tutes a waiver
omitted).
(Citations
Act.
Procedure
Post Conviction
instructions
jury
erroneous
transparently
is true even of
This
For
to a defendant.
proof
the burden of
appear
to shift
19,
506, 516-17 directly point. on we stated: There Rose, 19. In we noted: any Supreme We are aware not decision the United States holding involving validity Court or that an issue of a instruction, objected reasonable doubt to at trial or raised on appeal, post direct nevertheless raised for the first time proceeding intelligent knowing conviction unless there was an personally. waiver the defendant
Rose,
years
elapsed
There represented by new when Colvin-El was direct appeal counsel, Md.Code presented. were not Under points 645A(c), (1957, part § the Post Art. Repl.Vol.), Act, is allegations failure to make the Procedure Conviction knowingly. intelligently have been done presumed to presumption. here to rebut the Nothing presented is Therefore, comparable as was fate of defendants’ Rose, Cirincione, Davis, Foster, Colvin, arguments Morris, jury to the challenges pertinent current Adams’s mounting challenges those were waived and instructions support not proceeding first time in a will post-conviction relief.
IV.
Appeal
Discretion
An
to Our
trial,
objection
repeated
At
Adams
no
his
raised
“advisory.”
Adams
description
instructions
knowingly
rebut
he
attempt
any presumption
makes no
that
Rather,
right
challenge
instructions.21
waived his
plain
was ad
error doctrine
cases abound with instances where
subsequently
vanced
failure to instruct and where
for a
however,
review,
review.”).
only
is
techni
error
available
denied
cally
Plain
Cirincione,
Md.App.
appeal from a
on direct
conviction.
("Precedent
plain
that
review is
dictates ...
error
Consequently,
(c)
645A [now
Art.
s
of
of “waiver”
subsection
spoke
106(b)
sense.
It
],
term in a narrow
using the
§
7 —
and know
(c),
“intelligent
with its
intended that subsection
in those circumstances
standard,
only
applicable
ing”
v.
Fay
v. Zerbst and
of Johnson
concept
the waiver
where
beyond
scope
situations
Other
applicable.
Noia was
any
(c),
by
perti
case law or
be governed
subsection
to
of
when made
Tactical
or rules.
decisions[23]
nent statutes
attempt
regarding
petitioner’s
to
factually
inquiry from that
distinct
7-106(b)(2).
endeavoring
§
In
presumption
under
of waiver
rebut the
waiver, normally
petitioner
attempt-
is
presumption of
to rebut the
ing
that,
preserve
to
an
although he intended to act
to demonstrate
review,
oversight
the issue not to be
an excusable
caused
issue for
Md.App.
preserved.
example,
Creighton v.
For
561(1991),
presumption
petitioner successfully
a
rebutted
appeal
his
by showing
to
and had directed
waiver
that he intended
however,
petitioner’s attorney,
abandoned the
attorney
appeal. The
to
Special Appeals
held
appeal
his client's consent. The Court
without
presumption
petitioner successfully
of waiver of
rebutted the
right
appeal.
his
to
"
authorizing
‘special
...
a court in a
circumstances’ doctrine
waiver,
applicable
to situa
post
to excuse a
is
conviction action
knowing
requiring intelligent
action before there is a
...
tions
Walker,
This Court has
Md. at
Curtis Court) added). Thus, (Eldridge, writing (emphasis J. for the contentions, all, if proceeding Adams’s reviewable above, must be governed by caselaw or rule. As discussed governing caselaw erroneous instruction challenges clear. flaw in Any imagined ordinarily later instructions object is waived a failure to at trial.
Further, the rules which permit appellate court notice “plain technically error” do not apply post-conviction pro 4-325(e) Walker: Rules ceedings. As the noted in 8-131(a), a court authorizing cognizance “plain take issue, error” waiver despite literally apply only of an Moreover, appellate judgment. direct review a the similar *24 645A(c)(l) §in “special circumstances” doctrine set forth [now 106(b)(1)(ii)], § authorizing post a court a conviction 7 — waiver, action to excuse a is to applicable situations 7-106(b) ], i.e., 645A(c) § encompassed by § situations [now requiring intelligent and action knowing before there is a waiver. State, (1996).24
Walker v.
629, 647,
429,
343 Md.
684
438
advisory jury
"special
instruction as a
constitutional boon” to defen
Markell,
by Jury:
dants. Charles
Trial
A Two-Horse Team or One-Horse
Team,
72,
1976,
(1937).
Rep.
Gary
42 Md. St. Bar. Assc.
91
In
J.
survey
Maryland judges,
soliciting
Jacobsohn conducted a
of
their
opinions
advisory jury
regarding
thirty-eight
instruction. Over
percent
respondents
survey
advisory
of
said that the
instruction
help
respondents
helped
“tends to
the Defendant.” No
said that it
Jacobsohn,
Juries,
prosecution. Gary
Right Disagree: Judges,
J.
The
to
Maryland,
and the Administration
Criminal Justice in
1976 WASH.
571,
(1976).
data,
U.L.Q.
why
face
In the
of these
it is obvious
a
may
object
advisory jury
criminal defendant
decline to
to
instructions.
cause,
Recognizing
potential
its
benefits to their
some defendants
sought
advisory jury
have
to
instruction revived after Stevenson.
State,
694, 701,
321,
(1984);
E.g.,
Md.App.
Allnutt v.
478 A.2d
State,
69, 74,
484,
(1985).
Sibiga v.
Md.App.
499 A.2d
theory
rejected by
Special Appeals:
24. A similar
the Court of
Appeals
the Court
Nonetheless,
recognized
it is
§
waiver,
outside
excuse a
discretion
possesses
on Rule 8-
relying
Apparently
proceeding.
post-conviction
a
rule,
that,
appellate
noted
131(a),25
“[u]nder
we have
trial]
the waiver [in
to excuse
the discretion
possess
courts
volun-
knowing and
less than
or claim waivable
right
of a
1255,
State,
691 A.2d
Hunt v.
345 Md.
action.”
tary
273,
Similarly, Oken
applying the
First,
hearing judge erred in not
that the
he contends
post
suggests that a
He
Rule 757h.
plain
set forth in Md.
error
recognize plain error and
hearing judge
authorized to
is
conviction
however,
rule,
post
simply
applicable to
convic-
is
it. The
correct
proceedings.
tion
actually
applicant
plain
rule
is
apply
error
urging
we now
In
application for
proceeding, not as an
requesting that we consider
relief,
recognize
it as
post
but to
appeal
conviction
a denial
leave
so, however,
if we
empowered
do
even
appeal. We are not
direct
post conviction
Appeals has held that
were so inclined.
Kelly
appeal. See
direct
may
employed as a substitute
not be
Warden,
(1966).
may
post
Since
conviction
The Court itself noted the uncertain origin
authority
of this
excuse,
since waivers of
rights
non-fundamental
governed by the Act and since Maryland’s rules of appellate
procedure do not directly apply.
[Walker 684 A.2d
]
at 438. Although Maryland
recognized
courts have
distinction between waivers of fundamental and non-funda-
rights
mental
since
the first time the
Appeals
Court of
State,
ever spoke of such an excusal
inwas Oken v.
343 Md.
256, 273-74,
681 A.2d
when it claimed such
discretion
time,
under Rule 8-131.
Prior
finding
always
waiver had
been dispositive, and
Ap-
the Court of
peals
gone
had
so far as to hold that a waived claim was
...
“not
a proper subject for review in
post
[a
conviction]
State,
Trimble v.
proceeding.”
248, 257,
321 Md.
582 A.2d
794, Walker premised
its discretion
to excuse on Oken but also indicated some
measure
reliance on Foster v.
305 Md.
conviction relief remanding with instructions to affirm the circuit court’s denial without allowing for this Court waiver). consider whether to excuse the petitioner’s Cirincione v. 471, 513-515, 119 Md.App.
116-17 slate, Were we on writing a cleaner revisiting the evolution and basis of might this discretion be a principled undertaking; however, like the summer golf rule of (“play you the ball as
271 if at day, find all.26 it”), endeavor for another we shall save that Special case, and Court the Circuit Court In the present issue as if it waiver erroneously analyzed Adams’s Appeals above, pointed out § As noted governed by 7-106. Thus, if dissent, strictly. § apply 7-106 does not by excused, it must rest on exercise is to be Adams’s waiver shall explained, we For reasons to be of our discretion. Adams’s waiver. our discretion to excuse
exercise
imply
gone
far
a similar
only
that has
so
as to
26. We can
find one case
post-conviction petition.
when it considers a
discretion in a trial court
647-648,
("Nevertheless,
Walker,
at 438
as the
343 Md. at
A.2d
See
case,
recognized
present
this
has taken the
in the
Court
circuit court
court,
proceeding,
position
post-conviction
can excuse a
a
in a
upon
procedural
circumstances
default if the
waiver based
an earlier
effect,
upheld
application
we
such action.
In
have
warrant
'special
principles
type
to
'plain
waivers
error’ or
circumstances’
Cirincione,
involved.”).
upon by
relied
here
As noted in
the authorities
assertion, however,
support
support of
do not
Walker’s
Walker in
Oken,
judicial
expansive
Walker first cites
Md.
view
discretion.
Oken, however,
272-274,
Mary-
states
"[fonder
681 A.2d at
at
38.
8-131,
to excuse a waiver.”
land Rule
Thus,
this Court retains discretion
upon
only
appellate
applicable
rule
courts
relies
a
Oken
addition,
appeals.
only
considering
Oken states
direct
In
proceeding, possesses
Appeals,
post-conviction
not a
court in a
trial
a
to excuse waiver. Walker also cites Foster v.
discretion
306, support
A.2d
for its assertion.
appeal.
inapplicable
direct
Foster is
because it was a case decided on
Further,
supports
see how Foster
the assertion that
we
unable to
proceed-
post-conviction
excuse a
trial court has discretion to
waiver
ings. Foster states:
types
recognize
certain
We
that the failure of counsel
raise
decision,
appeal,
by
or
issues on
whether
inadvertence
deliberate
subsequent
necessarily preclude
consideration in a
would not
their
proceeding.
rights which
be waived
Such issues include
cannot
defendant,
knowing
rights
which
absent intentional and
action
defendant,
personally
can
be
matters which are
waived
subsequent
appropriate
proceedings
more
for resolution in
deemed
proceedings
Post
Procedure
appeal
such as
under the
Conviction
Act,
(1957,
seq.,
§
Repl.Vol.),
et
issues
Code
645A
Art.
excusing
See
special
exist
waiver.
where there
circumstances
in Curtis
A. Law at the Time Trial contends, Adams and the post-conviction court and the appellate intermediate court that agreed, “state barred” a law challenge jury to the contemporaneous instructions based on being advisory. their The use of word “bar” inappropri- is ate in A these circumstances.28 more accurate perception of legal throughout Adams and the State make the same error their argue respective “special § briefs. Both as if circumstances” 7-106 applied analysis to arguments of the waiver in this case. As noted above, Therefore, apply § 7-106 does here. not we treat shall Adams’s arguing support contentions as if he were of an exercise of our to discretion excuse his waiver. use 28. The Adams and the courts below the word “bar” overtaxes "Bar,” verb, proper prevent, especial- its definition. used as means "to (8th ed.2004). ly by objection.” legal Dictionary There Black's Law nothing raising objections to was "bar” Adams from to the instruc- Nothing prevented making objection tions. Adams from known to immediately given the trial court after the was the instructions. At best, asserting Adams’s should be contention understood as that had he proper objection regard, likely made a in this trial would court have case, objection. Assuming hardly his to be overruled Adams making objection preserving was "barred” from such an it for record, however, appeal. nothing There is in this that such indicate Inc., objection Allied-Signal, would have been futile. See Bobbitt v. objection (holding is impatience not futile absence of evidence in the record of oppressive part judge). conduct on of the trial [Tjhere instruction; objection objection must be an to the must record; appear objection accompanied by on the must be ground objection ground definite statement unless the for objection apparent is from the record and the must circumstances objection such that a renewal of the after court instructs would be futile or useless. at law the time the settled is that argument Adams’s Adams’s trial. at advisory jury instructions trial sanctioned waiver, i.e., object, his failure Therefore, Adams argues, be excused. should holding Reed Supreme Court’s
Adams points Ross, L.Ed.2d 104 S.Ct. 468 U.S. that its legal claim is so novel a constitutional
that “where counsel, defendant has reasonably available basis not claim accordance with failure raise the cause for his fails be argument Adams’s procedures.”29 applicable state trial presented he could have objection cause or federal law. novel, “[T]he under either developments have subsequent legal not whether question is *28 easier, at the time task but whether made counsel’s Murray, Smith v. 477 ‘available’ at all. default the claim was 2661, 2667, 434 527, 537, 91 L.Ed.2d 106 S.Ct. U.S. proce exception to novelty
“The contours of precise might hope.” as as one not clear dural bar doctrine are Cir.1992). (4th 1404, A F.2d 1424 Murray, 964 Poyner v. novel objection when debate theory of is constitutional years. for Pruett v. demonstrably percolating has been (E.D.Va.1991), aff'd, 996 Thompson, F.Supp. (4th Cir.1993) Wright, Arthur (citing 17A Charles A. F.2d 1560 H. Cooper, R. Miller & Edward. & Federal Practice Proce (1988)). § at n. 48 p. 4266.1 dure above, worthy most of consid-
As contention noted Adams’s improp- nature of the instructions advisory eration that the is prove its to that Adams was erly relieved the State of burden Montgomery, a reasonable doubt. See guilty beyond (1987) Gore Furthermore, relatively Montgomery both and were decided Stevenson proper objection a been contemporaneously Adams’s trial. Had with overruled, objection may found have been made and merit in appellate trial or an court. court exception proceedings novelty waiver in federal habeas 29. to sufficiently prejudice” synonymous with the standard is the "cause and deciding types we whether to exercise our of factors consider persuasive authority. that these federal cases serve discretion at (listing at 658 proof burden of as the first bedrock “indispensable characteristic to integrity every trial”). fails, argument however, criminal Adam’s because anticipatorily objection reasonable basis for an was available above, to Adams As Stevenson trial. discussed merely articulated what had implied been in the holdings decades of the Court of Appeals other courts.
The constitutional
requirement
the State
all
prove
beyond
elements of
crime
a reasonable doubt
well
was
In In re Winship,
established before
Adams’s trial
358, 361,
1068, 1071,
397 U.S.
90 S.Ct.
275 stated, “In this (1972), the Court 355, Supreme 34 335 L.Ed.2d trial, the that in a criminal case, held in effect the court below it unless testimony defense ignore instructed to is testimony that the true. doubt beyond a reasonable believes prior our fundamentally inconsistent with holding That in The Court reversed.” ... and must therefore be decisions any that “allow[edJ Cool also noted that instruction reasonable beyond a guilt failure to find despite its convict Cool, 103-04, 93 S.Ct. 409 U.S. at must be reversed. doubt” 354, 34 335.30 L.Ed.2d precepts federal accord with these law was
Maryland
Grady,
In State v.
276 Md.
trial
1979.
prior
Adams’s
436,
(1975),
“under the
182,
we held that
178,
A.2d
438
345
Maryland,
as
the law of
Constitution,
well as
Federal
alleged
of the
all elements
prove
the State to
burden is on
1971,
In
beyond a
doubt.”
to do
reasonable
crime and
so
Maryland
in the
law”
“judges
as the
describing
noted,
Constitution,
Appeals
Special
“[i]t
the Court of
however,
them,
untrammeled discretion
upon
does
confer
clearly existing
or
law
repeal
ignore
law or to
to enact new
dictate,
whim,
even
or malevolence should
fancy, compassion
Hamil
criminal
single
confines of
case.”
within the limited
State,
460,
91, 98,
v.
277 A.2d
464
ton
Md.App.
aff'd
(1972).
was re
language
That
265 Md.
(1976).
Dillon,
571, 581-82,
277 Md.
peated in
principles in our affirmance
expressly
these
approved
“We
State,
479, 365 A.2d
Blackwell v.
278 Md.
Hamilton.”
(1976).
of a
nature
Questions
of law
constitutional
Giles
jury.
always
were
off limits
(1858);
Franklin v.
(1962);
law; nor does it
the judge’s authority
diminish
rule
to
on the
applicable
process
Jacobsohn,
law
to the trial
Gary
itself.”
J.
Juries,
The Right Disagree: Judges,
to
and
Administra-
tion
in Maryland,
Criminal Justice
1976
U.L.Q.
WASH.
571,
In July
trial,
578
months before Adams’s
the Court of Special Appeals noted that the
provision
“curious
of the Maryland Constitution
to
respect
jury’s being
with
meant
that where there are
judges
the law has
law,
conflicting interpretations
jury
may have both
argued
it
interpretations
jury may
between,
to
and the
choose
and further
the jury
shall decide whether the law should
be
in
dubious factual situations.” Ehrlich v.
applied
730, 737,
added).
Md.App.
403 A.2d
(emphasis
continued,
The
of Special
“In
Appeals
deciding which of
conflicting interpretations
two
law
is correct
deciding
situation,
whether the law
in a
apply
should
dubious factual
the jury is still
out
sole
carrying
its
mission of determining
guilt
Overriding
or innocence.
limitations still abide
to
as
what
(by way
a
shall not hear
argument)
evidence or
” Ehrlich,
and what a
shall
do.
Md.App. at 737-
added).
at 376 (emphasis
duty
juror
of a
had been delineated
clearly
caselaw
Hopkins
Stevenson. See
prior
to
19 Md.App.
(1973) (“[W]hen
on jury,
one
sits
he
required
accept
apply
law as the
it
judge gives
him,
whether or not he
with
agrees
it and no matter what
his personal feelings are toward the
parties
question.”
Guzman,
(S.D.N.Y.1972),
(quoting United States v.
As discussed after was decided clearly prosecution established that prove must all of a crime beyond elements reasonable doubt. Prior his Hamilton, Dillon, Ehrlich, trial, Adams, based upon Hopkins reasonably expected could have been aware he any perceived instruction that permitting *31 law constitutional was established clearly such disregard to to in for defense counsel novel It was not improper. of the to all elements required prove that the State was argue similarly not novel It was doubt. beyond a reasonable crime be instructed must that the argue defense counsel crime all elements required prove the State is that reasonable doubt. beyond a at trial trial, preserved had been this issue
Prior to Adams’s reported appellate in for review recent occasions on several 55, 67, 182, 202, State, 29 348 A.2d Md.App. In Jones v. cases. 367 A.2d (1975), grounds, reversed on other the trial court (1976), requested that Bailey F. Lee attorney the instruct exclusive the sole and of the Court are
the instructions find law from no the jury may law and source of the of the Court and the instructions other source than instructions, absolutely obligated to follow those they are dimension; most those of constitutional particularly in on some unusual circumstances of which important [based is the of this trial in all the circumstances the Jones case] inference from the drawing an nature impermissible of the Defendant. silence (1975), 182, 202 348 A.2d Md.App.
Jones
In
grounds,
on other
reversed
Bailey argued that
Special Appeals,
brief to
Court of
his
permit
the law is to
determine
juries
generally
“to allow
which are
rights
defendants’
violations
criminal
possible
on the
binding
by the federal constitution
guaranteed
through the fourteenth amendment.”
states
(1981),
474,
826, 826 we held that the “defendant’s counsel made judge clear the trial even though was the judge of the law under Article 23 of Maryland Declaration Rights, he was entitled to an instruction that the court’s comments on the of proof burden were not merely advisory but binding jury. were upon Failure to give requested instruction constituted reversible error.” The trial in Robert- son on Stevenson occurred 24 November before addition, decided. In both Stevenson defendants *32 Montgomery had the to foresight object advisory to the nature of to prior instructions Stevenson. Court’s decision
Although the correct objection reasonably was available here to alone, trial counsel based on recent Maryland caselaw trial counsel also could have looked to of great the annals jurisprudence American inspiration. for Story Justice noted Battiste, v. U.S. (C.C.Mass.1835)31: 24 F. Cas. 1042 I ... it hold the most sacred constitutional of right every party crime, of jury accused that the should respond as to facts, the the to court as the law. It duty is the of the jury law; court to the instruct as to the it duty is the of law, the to follow as the it is laid by down the court. right citizen; This is every the of protec- is his only tion. If were at liberty settle the law for themselves, be, the effect would that the law itself uncertain, would be most views, from the different which it; different juries error, take of might but of case there remedy would be no or by redress the injured party; for the court any would not have right review the law as it Story's opinion far-reaching Justice diverting "had a influence in judicial opinion current of away juries American from the doctrine that judges Slansky in criminal cases are of the law.” statute, 63 superceded by 602 Wilson v. (1965). distinguished Maryland judge One reversed, described it as "never never modified and often cited with Dennis, approval.” Maryland’s Antique Samuel K. Constitutional Thom, 92 U. PA. L. REV. Indeed, it be almost would jury. been settled had law, as ascertain, settled what impracticable err, should contrary, if the court On the actually was. jury, an adequate there is jury, law to the laying down trial, or for a new injured a motion party, by remedy of the error, jurisdiction of the nature a writ as a Every person accused may require. court particular according to the law right to be tried has a criminal land; by the law as a land, law the and not fixed wantonness, choose, igno- it, or from may understand mistake, interpret it. rance, or accidental subject vigorous instruction also advisory Maryland Bench and members of the among debates notable to Adams’s trial. See Stewart prior decades for several Bar L.Ed.2d LaGrand, 115, 119, 119 S.Ct. U.S. novel claim is not (holding that a constitutional issue); Cole v. about ongoing debate where there is Cir.1980) (4th that a Stevenson, (holding F.2d waiver). of his At the time excuse change in law did not instructions, of advisory opposition practice published was, things,32 Chief among other Judge K. Dennis Samuel K. Samuel Den Bench Baltimore. Judge Supreme Thom, 92 U. nis, Constitutional Maryland’s Antique Pa. *33 (1943). the Court of Judge Chief Prescott of L.Rev. Association, to the State Bar Maryland an address Appeals, instruction: objection advisory his described I it violates the fundamental to it because opposed am repudi- jury; of it has been discarded and concepts by trial tried; where it retard- every jurisdiction has nearly ated law; contrary our criminal it is growth ed the of substantive law; outstanding maxims of the common such to the ancient Mansfield, Story, Lord profession leaders of our as Justice Markell, Chesnut, Judges and Den- Hughes, Evans Charles nis, and scores of others have McHenry Howard Charles it; juries by are not trained against or written spoken Maryland Attorney of served U.S. for the District 32. Dennis also as Bar President of the State Association. experience law; nor training interpret of manifold why other reasons such an anomalous situation should not permitted remain as blight a upon administration justice Maryland, archaic, of my In humble judgment outmoded, and atrocious.
Judge Prescott, Judges Juries as the Law: Stedman Rep. Continued?, Should the Be Practice 60 Md. St. Bar. Assc. omitted). (1955) (citations 246, 257 Judge Chief Henderson Judge and Chief Markell of the Court also their publicized objections practice treating juries the judges as Henderson, Jury law. Hon. William L. Judges as Lawof and Fact in 52 MD. Maryland, ST. BAR. REP. ASSC. (1947); Markell, by Trial A Charles Jury: Two-Horse Team Team, or One-Horse 42 MD. ST. BAR. ASSC. REP. 72 see also Judge (1937); Juries, Chesnut, Courts and W. Calvin Rep. 46 Md. St. Bar. Assc. sum, Stevenson
In merely an acknowledgment and law, application existing there existed reasonable basis for object Adams to at trial to the facially advisory nature of the Furthermore, instruction. Adams could have formulated an objection advisory objec- instructions based on similar trials, tions made other criminal earlier contemporane- ously published opinions, state court opinions landmark United Justices, States Supreme com- publicized ments distinguished members the Maryland Bench and Bar.
B.
Misconceptions within the Bench and Bar
Walker
Adams relies on dicta in
to support
proposition
relevant and contemporary
“misconception by
large
segment of the
bench and
bar concerning
[law]”
Walker,
special
constitute
circumstances excusing waiver.
*34
Walker,
atMd.
There
some facial
Stevenson,
of miscon-
to be some level
appeared
there
prior
contingent of the Bench and Bar
ception
among
afield
some
criminal cases. The
regarding
proper
role
Jenkins,
(1986) (discussing
Court of Appeals noted such confusion on at least two State, Allnutt In 694, 701, occasions. 59 Md.App. 478 A.2d (1984), the stated, intermediate appellate court “Until Stevenson v. 167, 179, 423 A.2d was 17, 1980, decided on December it was generally believed bench and bar that a judge’s comments as to the in a law criminal case advisory were binding jury. not on the A jury-twelve lay persons-was determine not the evi the Petric v. dence but law of the In case.” 66 Md.App. (1986), appellate our colleagues Stevenson, noted, “Ere generally thought by was bench and jurors bar alike that in criminal cases were judges the law and fact. Stevenson made clear that such not the situa tion, jury’s judicial but that a role was ‘law limited to the ” the crime.’
Furthermore,
trial,
at the
time
Adams’s
Rule
757(b) stated that
every case
which
“[i]n
instructions are
given to
court shall instruct
they are
judges
law and that
the court’s instructions
Guardino,
See
advisory only.”
at 701 n.
Md.App.
(“We
A.2d at
n.
note that Rule 757 b requires the court
‘(i)n
case in
every
which
are given’
instructions
to instruct
jury that
the instructions
are advisory only. Under
Montgomery
dictates of
A.2d at 1105.
Despite potential confusion within the bench and issue, bar over the we shall not exercise our discretion to Hunt, Walker, Oken, waiver. As Adams’s excuse unexcused. deemed waived shall be argument petitioner’s In apt comparison. provides particularly Oken ex his should be waiver Oken, argued the defendant35 argument: rejected We cused. however, waiver, is without excuse argument
Oken’s *36 510, Illinois, U.S. Witherspoon[v. The “reverse merit. (1968)]” right to exclude 1770, 20 L.Ed.2d 88 S.Ct. Supreme established jurors for cause was 2273, 101 Oklahoma, 81, 108 487 U.S. S.Ct. v. 1988 Ross (1988). in Hunt v. recognized right We L.Ed.2d State, 387, 583 321 Md. A.2d Thus, the law
Oken, 273, 681 A.2d 38. because at at 343 Md. pro in the post-conviction relied which the defendant upon at at was established to his issue waived trial ceeding support a form for trial, to the basis of his and hence available the time trial, discretion to exercise our objection we declined valid case, supra, In as discussed present to excuse the waiver. objection advisory jury regarding a valid basis for time of law at the instructions was available was decided after Adams’s Although trial. Stevenson Adams’s Stevenson, terms, what trial, its described express well law, cases decided before upon based already was discretion also decline to exercise our Adams’s trial. We In to State. potential prejudice for unfair because unpre to consider deciding whether to exercise discretion should consider wheth arguments, appellate “the court served to work prejudice of its discretion will unfair er the exercise 704, 714, 843 Jones parties.” either of the 189, Bell, (2004); see also State v. A.2d 107, 113 that “this discretion should (noting will an unfair that it not work only when is clear exercised court”). twenty- A delay parties or to prejudice to January 1991. trial in Oken ended in The defendant’s (which four years before Ms asserting arguments waived were on based two cases decided 1980 and respectively) a may be testimonial to patience, delay but the poses real potential for hardship prejudice serious to the State’s ability prosecution. mount new This delay is particularly inexcusable because originally “[a]s enacted in the [Post- Conviction Act did place any Procedure] limit on the of post number conviction petitions petitioner which a file.” Mason v. 215, 217-18, entitled (1987).36 1344, 1345 Creighton Dicta in 87 Md.App. is particularly apt to the “fairness” consider- regarding
ations our exercise of right discretion —“It is not for sit prisoner fade, back and wait for memories to disappear, records to for crucial witnesses die or otherwise become unavailable to rebut allegations of incompetence or procedural irregularity before his filing petition.” or her analysis applies same deciding second consideration in discretion, whether to exercise that “the appellate court should *37 consider whether the exercise of promote its discretion will State, the orderly Jones v. admimstration of justice.” 379 Md. 704, 715, 778, To 843 A.2d 784. do inso this case would not. Guardino, by As noted of Special Appeals where instruction occurred before Stevenson was handed down: appreciate
We that both the bench and the bar charged with having knowledge light of the law. But in of Rule 757 h, the failure of judge the trial to recognize that the Court of Appeals “consistently had interpreted” Art. 23 “re- straining jury’s law deciding power,” it to limiting crime, law cannot excuse the failure of defense 1986, Assembly prospectively prisoners In the General limited two 36. State, 215, 217-18, post-conviction petitions. Mason v. 522 1344, (1987). Assembly A.2d 1345 The General reduced that allowance 1, 1280, 4, petition Grayson to one v. (1999). 1281
285 timely interpose restraint and recognize that counsel to to abide it. judge the trial failed objection when 1101, A.2d 1106 Guardino, 440 Md.App. 50 C.
Plain Error
the fact
his
waiver
excused
Adams contends
“plain
constituted
jury instruction
complained-about
that the
because,
instance
fails in the first
argument
error.” Adams’s
above,
review under
“plain error”
as discussed
proceedings.
in post-conviction
not applicable
Rules is
an error
the fact that
argument fails also because
Adams’s
Stevenson,
In
we held
waiver.
does not excuse
was “plain”
had not
advisory instructions
objection
specific
that the
review,
the fact that
appellate
despite
preserved
been
objection,
upon
based
general
had
preserved
Stevenson
Stevenson,
Amendment,
advisory
instructions.
Fourteenth
Although the Court
IV. Jurisdiction Instructions post-convic that for petition also his argues Adams gave court granted should be because trial tion relief court, jurisdiction. erroneous instruction on The trial verdict, utilizing special the jury instructed that there were jurisdiction. possible First, two bases for jury may find beyond reasonable doubt that the crimes occurred Mary Second, land. the jury may jurisdic find that the State had prosecute (1957, tion to the crimes under Code 27, § 1971 Repl.Vol.),Article post-conviction 465. Adams’s conten score, however, tion on this also has been waived. above,
As clearly discussed established that failure to object to a instruction trial normally constitutes waiver ground that for purposes the UPPA. Adams failed to object at the time of instruction and also failed to raise an appropriate issue on direct appeal.37 Adams has not rebutted the presumption of waiver.
Furthermore, he has not shown any reason us to excuse The arguments upon waiver. which Adams relies his arguments regarding advisory jury instructions do not apply arguments jurisdiction his regarding the alternatives. jurisdiction Arguments were regarding reasonably available to his trial counsel. Adams’s counsel argued throughout the case point. about this At a preliminary hearing, counsel for Adams co-defendant, and counsel for Adams’s then Knight, demon- apt understanding strated of the distinction between venue jurisdiction. Now, Knight: think, Counsel for we we submit to the Court, conduct, those rapes which occurred outside Maryland, State of by virtue of the State’s own evidence, jurisdiction this Court does not have over and we ask the Court to that question determine as a preliminary matter, since present these counts are in the indictment and testimony would be allowed otherwise to come before the jury relating alleged criminal acts over which this jurisdiction. no has merely argued
37. Adams there was insufficient evidence for the Maryland. to find that the crimes occurred in *39 upon provi- the reliance of State think that We in of the question, light in Statute sions can deter- law facts, really make a of which question trial; therefore, if decided in favor of in advance mined in position put not the defendant of the defendant would respect to into this trial with having of evidence come rape in this of charges of indictment allegations the other in that would Maryland, have occurred alleged that to rapes great many of a the entire trial with evidence infect The jurisdiction. no introduction over which the Court has severely, if the defendant testimony prejudice of would that So, admissible, later. we and so determined otherwise not preliminary to determine that as would ask the Court matter. that, I join All in right. you [Adams’s
Court: assume Counsel]? Defense Yes, in join I would [Counsel
Adams’s Defense Counsel: And I add that it is for would also Knight’s] argument. jurisdiction given in order State to have basic law that for have basically act act must occurred over a criminal within the State. upon in case I think it incumbent particular this
Now element, wit, perpetra- show critical State Maryland. in the State of As rape tion of a occurred witnesses, out, own the State’s Knight] pointed [Counsel reports, clearly in indicate those acts preliminary least Maryland. in of place did not take the State All right. Court: Attorney: Honor, number I would out a point
State’s Your 465, I all, Article things. suggest First of Section in with actually transport it a crime to fact makes eventually regardless rape where the rape, intent out, all, particular I first of under that point occurs. would D.C., rapes if which we statute even all occurred concede, suggest do either that the any way [sic] that we jurisdiction, providing would have show State there, fact, was an intent to transportation at the time of clearly I made it a rapes. Legislature commit think intent, crime in to transport itself with made it crime equivalent to the actual of rape. act
Secondly, particular case I think it is without dispute that some of the rapes without a doubt occurred in the State Maryland.
For all those reasons we the deny ask the [to] motions. Knight: Honor,
Counsel for Your Attorney’s] State’s [the comment, first crime, that creates I separate don’t event, believe that is true. But in any they weren’t indicted for of if violation that us some of new that crime is created. any
Court: I don’t think 465 creates kind of crime. Knight:
Counsel He for indicates a crime.
Court: It creates jurisdiction. Attorney:
State’s That is I say. what meant to times, Court: I have read this four says and it that if somebody transports with any intent violate of provi- the sions, and that is of any provisions the of this subheading, offenses, which I all rape assume is and the intent followed an actual violation of subheading, this may defendant be tried in appropriate an court within lies, jurisdiction whose the county where the transportation offered, solicited, continued, has begun, I ended. think it If you describes this. form an intention eventually rape somebody, you start out in you Baltimore and inup Washington, you end the State of finally her rape there, I think says this statute that Baltimore has jurisdic- tion. Knight: Well,
Counsel for I would to the Court submit my statute, that interpretation that would hope accept statute, Court would this interpretation is that intercountry that statute relates to situations and intrastate situations; that Maryland would be constitutionally power- jurisdiction less to its extend for act which occurs outside merely if form the you by saying its boundaries substantive crime. guilty Maryland you intent I believe could which problems creates constitutional That way that section only by interpreting avoided be annotation to that that section interpreted Court has County section, City-Baltimore is a Baltimore and that where trial situation, place provides prob- be no constitutional certainly held. And there would that, right no there is constitutional lem to because limitation on is a constitutional certainly But there venue. beyond its jurisdiction extend power the Court the Court we would submit to boundaries. And physical is the problem that inherent only way to avoid I have been able to case that Court—and this is particular find section— on County to do with Baltimore
Court: That had —Baltimore City? *41 Knight: recognize I the facts That is correct.
Counsel for the circumstances. help are of under of that case little Court: I understand that. have in Knight: is the law that we for But it
Counsel basically jurisdictional I and Maryland. And think that Maryland us can’t constitutional law tells State jurisdiction beyond the boundaries for a substan extend its case, though And I it is a venue tive act. think even McBurney38 case is also instructive respect with to this case. when completed a crime. A crime is not
We have here [Actus reus] is rape. the intent is formed commit crime, really what integral also is part jurisdiction. establishes
So,
Attorney’s]
that on
State’s
I submit to the Court
[the
I agree
And
legal theory
separate
can’t create a
offense.
separate
create a
purport
with the Court
it doesn’t
a
I
think it creates
situation where Prince
offense.
up somebody
try guy
could
George’s County
picking
McBurney
Court: Is there motion here for me to decide preliminarily? Knight: Counsel for is That correct.
Court: All right. Anything you else want tell me? Adams’s Defense Counsel: Your Honor, I again would adopt for Knight’s] arguments, [Counsel and I like would argue to the Court line another of cases where situations did arise lines, particu- where acts were state crossing larly Maryland between State of and the District of Columbia. case, Honor,
In one the case of Bowen v. your (1955) ], Md. 368 A.2d 844 larceny [111 case of after trust embezzlement, where the acts were connected with Maryland, but conversion of the assets all transactions involving place the checks took in D.C. The conviction aby Maryland Court lack was reversed for jurisdiction. case Goodman v.
Another
Court: You didn’t have a statute, did you?
Adams’s Defense Counsel: No, your Honor.
Court: Didn’t have kind of any statute like this. Adams’s Defense Counsel: I Urciolo [v. also cite would State1, (1974) ], with [325 which the be familiar. Honor, your
But I again submit that has no authority to into legislate jurisdiction itself over acts having do that not occur within State. P., counsel Adams’s Kathy direct examination
During the on occurred rapes testimony Kathy P.’s to objected approached the parties point, At that Avenue. Branch occurred: following discussion bench, Honor, going I am Defense Counsel: Your Adams’s I acts, because any sexual testimony about any object proffer position in a is not it now counsel understand IAs Maryland. in the State place those acts took any of poses that the State the evidence point it at this understand place took that all sexual acts being contrary, is to Columbia. the District of within have, we Honor, Attorney: Your the evidence
State’s follows: is as testimony, through out I it will come think on Branch while she was her to undress they started That Columbia; point but at some Avenue, the District toward she raped was first she When raped. later she fact said They was. van where she in the the individuals asked location, at moved to another was then She Maryland. She individuals. by other raped she was point which was. where she doesn’t know I rate, previ- statute which jurisdiction
any At under 465,1 clear Court, quite think it is Article cited the ously beginning, either county this transportation have the we is, in to commit a intent fact ending, and the continuing that occurs offense, when such action as sexual and that prosecute, county jurisdiction to gives statute we proceeding. the reason Honor, position Defense Counsel: Your it is Adams’s jurisdic- cannot extend the this statute of the defendant that borders, but Maryland beyond State of the State of tion the state. the counties within strictly within must be post-convic- that not was the exchanges illustrate reasonably available jurisdiction argument regarding tion trial, counsel but that Adams’s counsel at made Adams’s venue. jurisdiction and between understood distinction Therefore, instructions objection regarding Adams’s
and special jurisdiction verdicts regarding waived his failure object at trial or raise the issue on appeal.39 direct
y. Ineffective Assistance of Counsel Adams contends that his trial counsel was ineffective for failing object to the jury jurisdiction. instructions on claims, Unlike most of his other post-conviction this contention has been not waived inaction in the prior proceedings. Nonetheless, he shall not prevail with his arguments.
The trial court instructed the “If jury, you find that the application of this statute is how this particular sex offense that, occurred you will check if you are not beyond convinced reasonable doubt that the offense occurred in our state.” The instruction regarding special verdict was repeated several times throughout charge jury. Adams’s trial coun- sel object, did not actually but requested the court to jury instruct the on a specific finding. The following exchange is particularly relevant.
Adams’s Defense Counsel: I would submit that the Court’s proposed method, method is the better and I would ask the that, Court to do to get specific finding as to whether or not the incidents involving the sexual acts and the rapes place took in the District of Columbia or Maryland. All
Court: of them? Adams’s Defense Counsel: all Assuming go of them to the Honor, jury/[40]your I would assume questions those would import It is of no jury that Adams contends that the instruction jury have confused the Pennington "undercut” his defense. See Md.App. vacated on other grounds, review, (declining A.2d 447 under review, plain allegations error confusing). instructions were discussion, 40. At the time of this waiting Adams's counsel was on a ruling acquittal on a motion for argued where he had that there was go insufficient jury. evidence for the case to The motion was later Special Appeals denied. The Court of appeal, affirmed on direct holding that there was sufficient evidence from which a reasonable I does have think definitely. to be answered have to find— *44 burden of way, I what is the do it Let’s assume
Court: on that issue? proof the same as the burden It is Defense Counsel:
Adams’s other— any a beyond You have to be convinced Anything else? Court: reasonable doubt? Yes, your Honor. Defense Counsel:
Adams’s of counsel claims ineffective assistance Adams’s announced Strickland standard two-part governed 2052, 2064, 104 S.Ct. 466 U.S. Washington, (1984). L.Ed.2d must of counsel claiming ineffective assistance
A defendant i.e., (1) deficient, performance was that counsel’s show of rea- objective fell below an standard representation (2) sonableness, probability is a reasonable that there errors, the result of that, unprofessional but for counsel’s i.e., different, probability have been would proceedings confidence in the outcome. sufficient to undermine 586, 602, Borchardt, 914 A.2d 396 Md. State v.
(2007). however, is, heavy burden on the defen
“There
State, 303 Md.
deficiency.”
Harris v.
dant
establish
1074, 1080
“The ineffective assis
where,
given
is satisfied
prong
tance
of Strickland
time,
was so patently
known at the
counsel’s choice
facts
competent attorney
no
would have made it.”
unreasonable that
(citations
Borchardt,
Adams’s
First,
performance
both
of the Strickland test.
prongs
beyond
the crimes occurred in
could find
a reasonable doubt that
finally litigated
us
Maryland.
has
and is not before
That issue
been
here.
jurisdiction
Adams’s trial counsel
regarding
instructions
was not deficient. Adams’s claims that his trial counsel should
objected
jurisdiction
have
to the instruction on
necessarily
includes a claim that the counsel should have objected to the
special verdict.
It would be impossible for the trial court to
special
seek a
verdict on both the location of the crime and the
§
application of
465 if the trial court could not instruct
jury on
fail,
how come to such a verdict. Adams’s claims
however,
object
because
failing
special
verdict was
not deficient
A
performance.
special verdict
proper
is a
method to create an unambiguous record for appeal.
“We
recommended,
have
recommend,
and continue to
trial
judges
special
use
verdict to avoid ... ambiguity.” Dixon v.
245 n.
304 n. 33
(citations omitted);
Turner,
(1868) (hold-
Gover
(Where there is more than one ground for a verdict on a criminal but where charge, the ramifications of a guilty verdict on that will charge be different depending upon the ground by chosen .... jury the court should ... give them appropriate instructions so that ... basis of a omitted]). verdict will be revealed. [Citations case, In present the trial court explained ambiguity that otherwise could result from a guilty verdict absent the special finding. Any appellate review hampered by would be the lack of a clear finding by jury, likely necessitating a new trial or dismissal.41 permit
41. There is a basis for a tactical decision to
the trial court to
jury
§
jury
instruct
on
465. The instructions to the
were clear that
they
rapes
Maryland.
were to consider first whether the
occurred in
If
doubt,
they
beyond
they
could not find that
a reasonable
then were
proceed
potential
jurisdiction
jury
§
under
If the
found
jurisdiction
§
necessarily
under
would have
found
reasonable
rapes
Maryland.
appellate
doubt that the
occurred in
On
review of a
conviction,
position
Adams would be in a better
awith
conviction with
jurisdiction
general
§
founded on
465 than a
verdict.
If the review was
verdict,
general
likely
of a
the case
would be remanded for a new trial
here found that Adams’s trial
Special Appeals
Court of
he
performance
object
counsel’s
was deficient because
failed
McBurney
the fact that
despite
to the instruction
§ 465
“proclaiming
Md.
Court: Yes. Adams’s Defense Counsel: The State has not shown any- thing upon which can make that determination. And why that is I submit to the this Court that should not passed to the jury. Court: If this case is ever is I appealed, he convicted and a subsequent ruling state, make out applies statute says Court of I am or the Appeals wrong, jury says that it did in the District I happen wrong, and am that ends right it then and there. Attorney:
State’s ... It is a good procedure get this, come back with in a specific findings of fact case like obviously, if is appealed this case to the Court of Appeals. Court: How know Appeals would the how the jury determination, made a based on what told me? you I Court: Now suppose agree you say you with absolutely right your this interpretation, goes then case Appeals Court of and the Appeals says Court of law, is not any jurisdiction didn’t have because it happened they really happened. don’t know where it How — does the Court of Appeals happened? know where it discussion, Based on this apparent the issue would properly preserved have been if in appeal, fact the jury did not find rapes actually that the occurred Maryland. found rapes Maryland, however, that the occurred and thus the tactically preserved regarding issue the interpre- § of 465 tation became moot.
Adams also fails to probabil- demonstrate here a substantial ity object counsel’s failure to to the instruction altered the *48 The that clearly case.42 was instructed
outcome his find, beyond could if convinced reasonable doubt they evidence, Maryland. The trial rapes the occurred that affirmed, held, that the Special Appeals the Court of court Adams, the to so conclude. evidence was sufficient in his any authority, argues post-conviction without citation to “utterly object failed” to that his trial counsel proceeding undercut” “completely irrelevant” instruction “completely jury. The “extensively argued” the that he had the defense the lack of authori- use of adverbs does not obscure gratuitous reasonably simple special understand how a ty. We fail to that it so and confused the verdict instruction distracted the arguments regarding location undercut Adams’s Furthermore, for the enough is not defendant “[i]t crimes. on the errors had some conceivable effect show the the impaired or that the errors proceeding, outcome of the the defense.” Harris 303 Md. presentation of (1985). of “com- The bare assertion day here. undercutting” carry the defense does pletely APPEALS THE OF SPECIAL JUDGMENT OF COURT PART; IN IN PART AND CASE AFFIRMED REVERSED TO THAT DIRECTIONS REMANDED TO COURT WITH IN THE PART AND PART AFFIRM IN REVERSE THE COURT PRINCE OF CIRCUIT FOR JUDGMENT REMAND THE TO AND CASE GEORGE’S COUNTY THE FOR PROCEEDINGS CIRCUIT COURT FURTHER OPINION; TO WITH THIS COSTS NOT INCONSISTENT PAID BE BY RESPONDENT. JJ.,
BELL, C.J.,
ELDRIDGE,
Dissent.
BATTAGLIA and
against
typical
analysis,
we would review evidence
In
Strickland
if,
errors,
petitioner
"substantial
determine
but for counsel’s
proceedings
been
possibility”
would have
existed that
result of
416, 426-27,
different. Bowers
case, however,
we shall not
the substan-
instant
consider
In the
indicating
guilt
of his trial
Adams’s
because
result
tial evidence
doubt
if
able to raise
reasonable
would have been different
he was
proscribed
rape, the
harmful
element of the crime of
"vital”
West,
victim,
Maryland.
physical
contact with
occurred
at
I would affirm the County. George’s for Prince the Circuit Court Appeals in Ste- majority opinion like the majority today, opinion The mis-reads venson v. dealing with opinions of this Court pre-1980 of the law in making juries judges provision constitutional Moreover, in the case at majority opinion criminal cases. statements, unsupported asser- with erroneous replete bar is tions, faulty analysis. respon- whether the issue before this Court is principal though, relief even post-conviction Adams is entitled to
dent *49 trial, objection advisory no to the nature his 1979 there was cases, our if Under Steven- judge’s jury the trial instructions. State, State, 437 v. 292 Md. supra, Montgomery v. and son (1981), ruling or set 654 a new constitutional represented A.2d Maryland crimi- governing a new constitutional standard forth retroactive, Adams is entitled to a were proceedings, nal new trial. opinions, con- pre-Stevenson
An examination of this Court’s the state constitutional mandate that struing applying cases, in demon- judges are the of the law criminal juries major constituted a Montgomery strates that Stevenson and The Stevenson previous opinions. from this Court’s departure provision of the constitutional Montgomery interpretation in criminal cases was a making juries judges the law This interpretation, fully new and it was retroactive. Court’s governed by trial clearly entitled Adams to a new opinions in Montgomery. set forth Stevenson and principles
I.
case, however,
issue in this
turning
principal
Before
be noted. As set
preliminary
there is a
matter which should
in
in
v.
my dissenting opinion
supra,
forth
Stevenson
570-577,
my concurring
opinion Montgomery supra, v. in 292 Md. at 437 para- A.2d at 660 I continue to believe that the first graph Rights, of Article 23 of the Declaration of on face, its violates the Constitution of the United States.
The of Article 23 mandates: “In the trial of paragraph first cases, Law, all criminal Jury Judges shall be fact, except may pass upon well as of the Court sufficiency (Empha- of the evidence to sustain a conviction.” added). majority construes the “all criminal phrase sis mean criminal and the word “Law” only cases” to some cases only very portion applicable to mean small of the law. This with the approach sharp opinions contrast numerous holding statutory language this Court that constitutional or should not be distorted order to reach a result. particular See, Provident, 532, 543-544, e.g., Bednar v. Md. (2007) (The in a “any” word statute “does not mean ”); 587, 615, Annapolis, Bowen v. ‘some’ “ (The ‘meaning “any”
A.2d does [word] NationsBank, A, N. ”); Taylor 365 Md. imply limitation’ (2001) (This 166, 181, does not A.2d ... “engage interpretation attempt forced or subtle Montrose Christian School meaning”); limit the [enactment’s] Walsh, (2001) (To for the word in an “primarily” “purely” substitute word “ enactment, would ‘be to re-draft under the [enactment] ” Davis v. construction,’ guise quoting *50 (1982)). 107, 111 Stevenson case opinion, prior As shown later provision making jury the state constitutional judge largely of the law in a criminal case was construed as it Nevertheless, broadly read. whether construed in accordance 1980, or “construed” narrow- opinions with this Court’s before accordance with the Stevenson re-draft, ly Due provision constitutional violates the Process Clause of Jury Fourteenth Amendment and violates the Trial Clause of is provision the Sixth Amendment. The state constitutional Equal also inconsistent with the Protection Clause of Fourteenth Amendment. 191, 423 dissent, at Stevenson
As discussed of law’ is process ‘due principle essential “[a]n with in accordance and decided case tried to have a right in a jury A which allows system jurisdiction.” of the the law or even generally, law applicable to decide case criminal trial that the crime,” jury tells the “the law of the just that the “advisory” and on the law are instructions judge’s instructions, inconsistent flatly is disregard is free to jury with the law of land. in accordance to be tried right with the by for trial provision Furthermore, “the Sixth Amendment judge is the which contemplates in criminal cases from the on the law facts, binding instructions receiving 289 Md. at (dissenting opinion), court.” Stevenson addition, makes a determi- when one In A.2d at 572. that the is, jury decides another as to what the law and nation different, the circumstances though even totally same law same, being are not accord- the defendants are the both cases judge’s the trial long As as of the laws. protection equal ed instructions, from are free instructions, advisory including trial under the sufficient error, as the evidence is long law, of the correct court’s determination and appellate court’s record, different on the rulings appear if no erroneous juries different will the “same law” determinations be corrected. or as re- 23, either as written of Article paragraph
The first today, majority and the majority drafted the Stevenson re- federal constitutional reconciled with simply cannot be quirements.
II. discussing be addressed before Another matter should Montgomery retroactivity of the Stevenson novelty and making provision the state constitutional interpretation That matter in criminal cases. of the law juries judges law. body of “waiver” applicable concerns the the Court George’s County, for Prince The Circuit Court (State Adams, 171 Md.App. Appeals Special *51 16, (2006)), A.2d 24-25 and the parties proceeded have as if the waiver provisions Maryland of the Post Conviction Proce 7-106(b) (c) Act, § dure and of the Criminal Procedure Arti cle, are directly applicable this action under the Post They Conviction Procedure Act. are not. Whether Adams is relief, precluded post from conviction because of the failure to challenge advisory nature of the jury instructions at his trial, governed by is any Court’s case law and applicable provisions Maryland law, Rules.1 That case however, reflects principles § similar to those embodied in 7- 106(b) (c) of and the Post Conviction Procedure Act. Court, 132, 149-150,
This
Curtis
464,
after reviewing the language
history
and
Act,
Post Conviction Procedure
as well as
statute,
cases applying the
held as follows:
“Consequently,
Legislature,
we believe that the
when
(c)
spoke
of ‘waiver’ in
§
subsection
of Art.
645A [now
7-106(b)
(c)
§
Act],
of the Post
Conviction Procedure
using
the term in a narrow sense.
It intended that
(c),
‘intelligent
standard,
subsection
with its
and knowing’
applicable only
those circumstances where the waiver
Zerbst[,
concept
of Johnson v.
304 U.S.
58 S.Ct.
(1938)
Noia[,
S.Ct.
“Thus, Assembly purposes General the Act, (c) Procedure of the Post Conviction of subsection decided, provisions of the waiver the the Curtis case 2. When Maryland in Act were codified Maryland Conviction Procedure Post 27, 645A(c). By § the Acts (1957, Repl.Vol.), Ch. of Art. Code Proce provisions Maryland Post Conviction the the waiver of of 7-106(b) (c) § of Proce the Criminal as and Act were re-codified dure ’’ Note, the 2001 re- pointed out in the Revisor’s As dure Article. change.” provisions was "without substantive the waiver of codification 7-106(b) (c) provides as follows: Section (l)(i) Except provided sub- "(b) allegation in Waiver error. — of of (ii) allegation when paragraph, of is waived an error paragraph of this knowingly intelligently and failed to petitioner have made but could allegation: make trial; before 1. trial; 2. appeal; petitioner took appeal, an on or 3. direct whether on a appeal a conviction based application for leave to 4. in an plea; guilty began corpus proceeding or coram 5. in a habeas nobis petitioner; subtitle; petition or prior under this in 6. petitioner began. proceeding any that the 7. (ii) other allegation error shall be excused if to make an of Failure special exist. circumstances special proving that circum- petitioner has the burden of 2. The stances exist. imposes "(c) new stan- judicial that Constitution decision Effect of (l) of applies the merits an after a decision on This subsection dard. — allegation allegation proceeding error which an or of error after may been waived. have title, allegation any provision Notwithstanding other finally litigated or waived considered to have been error not be binding on lower this title if a court whose decisions under holds that: courts of the State (i) Constitu- or the United States Constitution procedural substan- imposes proceedings a or on State criminal tion previously recognized; and tive standard not (ii) retrospectively applied the standard is intended petitioner’s validity of conviction or thereby would affect sentence.” waiver there described assumed the restrictive character which Supreme Court had it. ascribed This has neces sarily to a post-conviction led dual framework under which a petitioner Maryland may certain, endeavor to assert specific rights claims or not previously raised. is to That say, nature the right will involved determine whether 645A(c), § is governed by decision Art. or pertinent law, statutes, hand, case or rules. On the one if a defen encompass dant’s claim does of rights narrow band traditionally required courts have knowingly an individual intelligently relinquish abandon order to waive *53 State, claim, Walker v. right 629, 642, 343 Md. 684 A.2d 429, (1996), 435 knowingly failure do so intelli and gently will not preclude raising the matter on post-convic Courts, however, tion review. do not apply the stan same dard array decisions, of waiver to ‘the vast trial strategic tactical, and which must be made before and trial.’ during Williams, Estelle v. 501, 512, 1697, 425 1691, U.S. 96 S.Ct. 126, 135 (1976). . . .” 48 L.Ed.2d State, In Walker v. 629, 641-642, 429, 343 Md. 684 A.2d 435 (1996), the Court stated:
“The circuit court’s application of the definition of waiver
(c)
in the Post Conviction Act’s
subsection
well have
correct if
been
the waiver issue in this
were governed
case
(c).
by
court, however,
subsection
our
overlooked
whole,
interpretation of the statute as a
set forth in Curtis
State,
v.
132,
(1978),
284
A.2d
Md.
395
464
and reaffirmed on
See,
State,
v.
e.g., Oken
256,
numerous occasions.
343 Md.
State,
270-272,
30,
v.
(1996);
681 A.2d
McElroy
37-39
329
136, 140-142, 147-149,
1068,
Md.
1070-1071,
617 A.2d
1073-
State,
(1993);
Trimble v.
248, 259,
1075
321 Md.
582 A.2d
Romulus,
794,
(1990);
State v.
526,
799
539-540,
315 Md.
State,
494,
v.
(1989);
Martinez
124,
555 A.2d
500
309 Md.
Calhoun,
141,
State v.
950,
(1987);
522 A.2d
958-959
306
denied,
692, 702-704,
461,
Md.
cert.
465-467
A.2d
910, 107
1339,
v.
(1987);
U.S.
State
S.Ct.
L.Ed.2d 528
1197, cert.
Tichnell,
denied,
428, 464,
1179,
306 Md.
(1986); Foster,
479 U.S.
107 S.Ct.
93 L.Ed.2d 598
306, 315-316,
v.
Huffington
Evans
denied,
1010, 1023,
1326, 1331,
106 S.Ct.
478 U.S.
A.2d
cert.
(1986);
v.
92 L.Ed.2d
Williams
(1981);
215-216,
State
622-623,
449-450
Magwood,
the Post
Proce
in an action under
Conviction
Consequently,
Act,
presented
ordinarily
issue
will
the nature of the
dure
(c).
7-106(b)
§
For exam
applicability
determine
was so
representation
trial counsel’s
of claim that
ple, waiver
denied his constitutional
that the defendant was
inadequate
requires
“intelligent
to the assistance
counsel
right
defendant;
the waiver
by
accordingly,
knowing waiver”
Act
applica
Conviction Procedure
of the Post
provisions
150-151,
Ordinarily,
majority points
challenge
as the
by
provision
instruction is not covered
the waiver
contained
7-106(b)
Act; instead,
§
of the Post Conviction Procedure
object
normally consti-
jury
failure at trial to
to a
instruction
any challenge
a waiver of
to the instruction. See Walker
tutes
State,
645-646, 684 A.2d
437. For
supra,
v.
343 Md. at
at
32-37,
Davis v.
relieved the
of its burden of
criminal
proving
a
agency beyond
reasonable doubt. Even though the reason-
able doubt
reflects
standard
fundamental
constitutional
Curtis,
in Davis held
right,
that,
the Court
in light of
waiver
section
the Post Conviction Procedure Act
not
“is
Davis,
applicable
the advisory jury
instruction here.”
See,
Rose,
33,
v.
Md. at
In
governed
§
cases not
by
the Post Conviction
Act,
7-106(b)(1)(ii),
§
Procedure
provision
excusing
exist,
if
waiver
“special
directly
circumstances”
does not
apply.
Moreover,
“plain
error”
under
concept
Maryland Rule 8-
131(a), applicable in direct
from
appeals
judgments,
criminal
not technically
post
does
conviction actions. Walker
apply
opinion
majority
present
3. The
position
in the
case takes the
rights” require
"fundamental
"knowing
intelligent
constitutional
personally,
waiver”
the defendant
"[n]on-fundamental
whereas
rights”
require
do
(Majority opinion
such a waiver.
at
309).
majority
A.2d at
The
states that an erroneous
instruction on
therefore,
and,
right”
reasonable
is not a
doubt
"fundamental
(Id.
309).
object
waived
a failure to
at
958 A.2d at
In the
matter, however,
of its
majority,
middle
discussion
somewhat
Rose,
inconsistently, quotes State v.
"
‘that, simply
right
because an asserted
is derived from
regarded
right,
the Constitution ... or is
as a "fundamental”
does not
necessarily
“intelligent
knowing”
make the
standard
waiver
” (Id.
309).
applicable.’
quotation
958 A.22d at
The
from Rose
correctly
majority’s
sets forth
law. The
fundamental/non-
dichotomy
fundamental
is not
correct.
standard is whether "a
encompass
rights
defendant's claim does
that narrow band of
traditionally required
knowingly
courts have
[that] an individual
intelligently relinquish
right
or abandon in order to waive the
inquiry
claim.” Hunt
307 647-648, 438. State, 684 A.2d at Never- 343 Md. at supra, v. cases waivers when theless, have excused post our conviction “plain of a error” justified application have circumstances 139, See, State, at 691 supra, v. e.g., Hunt concept. action, (In that “the conviction we stated post at a A.2d 1263 under issues unpreserved review otherwise may Court 8-131”); v. Oken by Maryland Rule granted discretion (A 273, conviction action post at 681 at 38 supra, 8-131, Maryland Rule this Court held: in which we “Under waiver”); v. to excuse a Walker retains discretion (“[T]his 438 Court has 684 A.2d at Md. supra, court, in proceeding, a conviction post that a position taken procedural default upon waiver based an earlier can excuse a action”).4 such if the circumstances warrant 629, 642, right.” Walkerv. deemed to have waived the is 429, discussing principle majority opinion, a court in a Post in waiver, excuse a proceeding has discretion to Conviction Procedure Act asserts that the court prejudice light in may to the State consider the filing post delay of a the accused’s conviction between that, proceeding majority says in in conviction action. The effect Act, Maryland applicable is Conviction Procedure laches under Post reasons hereafter the exercise of to excuse a waiver. For in set discretion forth, case, and, consequently, present in the there is no waiver Nevertheless, question applicabil- is waiver to I do there no excuse. Maryland ity proceeding Post to a under the Conviction laches Assembly exceptions Act. The General has enacted numerous Procedure and limitations to the Post Conviction Procedure Act, many of which not, however, Assembly recently. The have been enacted General has provision. principle It is that where an enacted a laches a sound limitations, exceptions courts or should enactment contains numerous not insert additional ones. See the cited cases in footnote infra. respect corpus many post With to both federal habeas statute states, is corpus statutes in other laches embodied conviction or habeas regard, applicable in the statutes or rules. In this statutory rule statute differs from those statutes and rules. Absent a provision, post concept inapplicable is of laches conviction See, Teets, proceeding. e.g., Chessman U.S. S.Ct. 1127, 1132, overriding responsibili “[T]he 1 L.Ed.2d States, no ty of this is to Constitution of the United matter late a violation of the found to how Constitution exist”); Claudy, 350 U.S. 76 S.Ct. Herman (1956) (After long periods reviewing involving L.Ed. cases actions, filing post and the conviction time between convictions case, including years premise the Court stated: "The sound one flagrant upon holdings rested is men which these incarcerated rights remedy”); United States v. violation of their constitutional have *56 is There one situation where the failure to defendant’s trial, object to a or instruction failure otherwise to trial, an preserve issue at is not a waiver for purposes of a Post Act Conviction Procedure or other proceeding post-trial § That is 7- proceeding. situation set forth 106(c)(2) of the Post Conviction Procedure Act which states:
“(2) title, Notwithstanding any provision other of this an not allegation error be considered to have been finally waived litigated or under this title if a court whose binding decisions are on the lower courts of the State holds that:
(i) the Constitution of the Mary- United States or the imposes land Constitution on proceedings State criminal a or not procedural previously recog- substantive standard nized; and
(ii) the standard is to be applied retrospec- intended tively and thereby validity petition- would affect the er’s conviction sentence.” applicable,
When a principle preserve failure issue waiver, and, at trial does not constitute a a consequently, court’s discretion to excuse a is not waiver involved. More- over, under this opinions, principle Court’s embodied in 7-106(c)(2) § applies not directly governed by to cases 7-106(b) Act, § of the Post Conviction Procedure applies but Conviction Procedure governed Post Act proceedings 7-106(b), § by post-trial as well other types proceedings. Colvin, For example, State (1988), 517-518 was a post involving conviction proceeding challenge to the jury instructions and verdict form submitted in a capital case. Since waiver of jury instructions require knowing
does not and intelligent action the defen- dant, the Colvin Post Conviction Act was not proceeding 7-106(b) directly governed § the waiver now in provision the statute. The defendant Colvin had failed object
Smith, 331 U.S. 67 S.Ct. L.Ed. (‘‘[Hjabeas corpus provides remedy jurisdictional trial, time”). constitutional errors at the without limit Subsequent at his trial. form instructions and verdict Maryland, Court Mills trial, Supreme to Colvin’s held that L.Ed.2d 384 108 S.Ct. U.S. were verdict form constitu- similar instructions similar Court, conviction post in Colvin’s This tionally defective. and, that Mills a new standard imposed held proceeding, fact-finding process, integrity affected because (314 concluded retroactively. applied new standard *57 518): 25, death “Consequently, at Colvin-El’s at Md. added).5 must (emphasis vacated” sentence portion majority opinion present case does not discuss this the 5. The Instead, part majority of Colvin the discusses of the Colvin case. jury judge of dealing judge's that the is the trial instructions with the "directly point,” is on majority Colvin law. The states that the opinion stating portion of that the defen- quotes a the Colvin selected jury concerning any challenge the had instructions dant waived 265, (Majority opinion advisory judge’s at of the instructions. nature however, Colvin, 311.) quotation from shows that A.2d at The full 958 jury Stevenson and Mont- there in accord with the the instruction was Maryland provision. gomery The Court re-draft of the Constitutional 516-517, Colvin, as Md. 548 at follows: stated in 314 at submitting guilt jury, "When innocence trial court Rights of made the Art. 23 of the Declaration instructed that law, judge the court’s instructions of the and that as result binding. advisory only and not In with Stevenson v. were conformance 167, however, (1980), 423 the court went on to A.2d 558 judge juiy perform role of the instruct that the was its as a law Further, suggested the court where there was a conflict. instructed proof precepts of that on the constitutional such burden need unanimity, binding disregarded. and could not be its instructions were 403, Colvin-El, 399, citing Pennsylvania, Giaccio v. 382 U.S. 86 S.Ct. 521, 447, 518, (1966), thereby he L.Ed.2d 450 contends that was 15 process deprived due he was not tried in accordance with of because confusing. instruction was He also the law the land because the criticizes the reasonable doubt instruction. exceptions "There to these instructions. On direct were no taken counsel, represented points appeal new when Colvin-El was 27, (1957, presented. Repl.Vol.), not 1987 Art. were Under Md.Code Act, 645A(c), part § the Post Procedure failure to make Conviction allegations intelligently presumed been done and know- is to have presumption. ingly. Nothing presented is here to rebut his ineffectiveness of counsel "To the extent that Colvin-El rests instructions, exceptions argument any to these we on the absence of representation light prejudice in of the in- find structions, deficient nor neither whole.” taken as a Evans, State v. In case, a homicide defendant Evans his trial did object instruction “that the accused had the ‘showing
burden of the elements which reduce would the crime to manslaughter justifiable or which would make the homicide and excusable.’” After Evans’s conviction second degree during murder and pendency appellate proceedings, Wilbur, Mullaney Supreme United States 421 U.S. alia, inter (1975), held, S.Ct. L.Ed.2d such instruction due process principles. violated This Evans, Court in Md. at A.2d at held “that Mullaney, involving as it integrity fact-finding does function, given must be full retroactive effect view of our in Wiggins recent decision A.2d 80 (1975).” though Even case not covered the Post Act, Court, Conviction Procedure opinion in an by Chief Judge Murphy, utilized the Post Conviction Procedure Act in Special that the determining Appeals’ Court of reversal of the (278 637): justified conviction was Md. at 362 A.2d at Act, “Under the Post Conviction Procedure ... no error have deemed to been waived a case where a decision *58 the Court Supreme imposes upon State crimi- subsequently nal ‘a proceedings procedural or substantive standard not recognized, theretofore such is which standard intended to and applied retrospectively thereby would affect the the validity petitioner’s conviction or sentence.’ Un- Mullaney Evans considered that the the doubtedly, court subject errors were to collateral attack this under section event, and any proceeded recognize them on its own motion____” cases, of the Evans other applying principle
Numerous the case, have held that the failure to raise an at trial issue did not constitute waiver when post-trial there was a relevant Supreme Maryland Court of Appeals ruling changing Court issue, the legal standard the or have held concerning that the If the at trial had the instruction Adams's been like instruction above, probably discussed this case would not be here. when to a waiver the amounted to raise issue failure previous ruling did Appeals Court or Court of Supreme subsequent the State, See, supra, v. e.g., Hunt standard. change legal not the (Defendant’s 151-152, at 1269-1270 atMd. court’s “reasonable the trial challenge failure to previous post-trial waiver because the constituted a doubt” instruction law”); existing case Hunt not alter upon by “did case relied State, 637-640, 433- 684 A.2d at at supra, v. Md. Walker (The the trial court’s instruction objection of an lack was a waiver charged offense concerning an element the did opinion upon relied post-trial Appeals Court of because the State, law); at supra, v. 343 Md. Oken modify existing 37-38; 272-274, Squire 681 A.2d at opinion chang (Although Supreme
A.2d 1019
an issue was filed
legal
regarding
standard
ing
applicable
trial,
Court held that the
four
before the defendant’s
days
excusing
legal
ground
standard was a
modification
issue).
also Franklin v.
to raise the
See
failure
(1990);
Wainwright
Hays
6. The asserts Act, 7-106(c) § argument of the Post Conviction Procedure under standard, properly dealing procedural "is not with new or substantive adopt” argument "attempts to before this Court” because Adams brief, 8-503(f) "only permits an amicus Rule from litigation.” litigants adopt arguments parties to of other argument As procedural devoid merit for several reasons. This *59 discussed, (c) 7-106(b) applicable previously directly § not and 7-106(c) 8-503(f) controlling, § Even Rule does not this case. if were preclude adoption argument amicus The Rule of an from an brief. party may adopt an or whether a simply does not address amicus brief majority holding argument an amicus The cites no case from an brief. adopt party argument an an amicus brief. that a from 312
III.
Stevenson v.
and Montgomery
State
v. State
clearly
estab-
in Steven-
lished a new
legal
majority opinion
standard.
son,
178,
564,
“is limited crime,’ Wheeler v. The deciding ‘the law of the State, 563, (1875), 42 crime,’ Md. 570 the ‘definition of the well legal as as ‘the effect jury],’ evidence before [the Beard v. 275, (1889).” 280, 1044, 71 Md. 17 A. 1045 added).7 (Emphasis Furthermore, 7-106(c) § Post Conviction Procedure Act is not dealing a "stand section separate alone” of the statute with a issue. Instead, integral part provision, delineating it is an waiver 7-106(b). exception §to importantly, majority’s argument Most overlooks the facts that appellant the State Special Appeals was the in the Court of and is the Adams, petitioner upon appellee in this Court. It was not incumbent respondent, any particular to raise issues. Under Rule 8-131(b), petition the State’s certiorari determines the issues petition question Court. The State’s raised the overall "waiver” 7-106(c), specifically § arguing Special addressed that the Court of opinion 7-106(c). Appeals’ "simply wrong” relying upon § (Petition 8, 11, etseq.). for certiorari at 13 Moreover, majority’s procedural argument is inconsistent with " ‘principle judgment settled ordinarily that a will be affirmed on record, any ground adequately by the shown whether or not relied on ” Lamone, by party,’ the trial court or raised Abrams v. 398 Md. 146, 19, See, (2007). 161 e.g., n. 919 A.2d 1231 n. 19 Rush v. 68, 103, (2008); 939 A.2d 709 YIVOInstitute v.
Zaleski,
(2005); Dorsey
874
411
Md.
v. Bethel A.M.E.
Church,
59, 68-69,
(2003);
Robeson v.
498, 501-502,
denied,
Md.
cert.
(1980).
U.S.
100 S.Ct.
L.Ed.2d
was,
Finally,
Special Appeals’
the Court of
decision
this case
to a
extent,
that,
trial,
large
grounded
principle
on the
after
Adams’s
new
imposed Maryland
proceedings
standard was
on
criminal
the new
Hutchinson,
standard affected Adams’s conviction. While Jenkins v.
(4th Cir.2000), may
played major
In the case at
Stevenson
to
prior
that
Court’s
namely
opinions
this
theory,
of Article 23
paragraph
role
the
jury’s
the
under
first
limited
argu-
Underlying
of
various
deciding
the “law the crime.”
repeated
the
assertions
majority today
made
the
are
by
ments
Montgomery
...
Stevenson
and
did
“holdings
that the
305),
at
958 A.2d at
(majority opinion
new law”
announce
“
the
always been
clarified what has
that Stevenson
‘merely
” (id.
305),
that “Steven-
at
Maryland’
law in
at
(id.
306),
son
rule”
at
958 A.2d at
not announce
new
did
advisory
Adams to the
pre-Stevenson
objection by
that a
“novel,
not have been
the
instructions would
nature of
(id.
316),
at
...
...
under
law”
at
been
that “Stevenson
merely
implied
articulated what had
(id. at
holdings
...”
Appeals
the
of the Court
decades
316),
etc.
Stevenson
majority
the
and
by
assertions
above-quoted
The
today
flatly
pre-
erroneous. None
majority
either the Stevenson
Court,
Stevenson
by
opinions
cited
pre-Stevenson
no
today,
other
majority
majority
attention,
my
which have come to
opinions
this Court
of the crime.” The
that the
is entitled to decide
"law
stated
authority
only "exception”
jury’s
to decide the law in criminal
Wheeler,
cases,
admissibility
related to the
mentioned
Beard,
pointing
opinion,
out
entitled
The
after
evidence.
evidence,
stating
legal
the trial
to decide the
effect of
continued
judge
only
jury as what evidence” shall
"can
bind and conclude the
admitted,
added).
(emphasis
Md. at
Those who in this Court’s pr e-Stevenson opinions, very role juries judges limited as law in of the (with cases, criminal of remind me the crowd the of exception child) one purported who to see and admire Emperor’s the clothes, better, although they new knew in story the Hans Christian person Andersen. No rational examining this (Decem- Court’s the Stevenson opinions prior to date was filed 17, 1980), ber can see more than two exceptions the provision making juries judges constitutional of law in criminal cases. explained legal
8.
precisely
This
has never
what
issues
fall within
phrases
"legal
"law of the crime” and
effect of the evidence.”
Literally,
phrases
encompass
range
legal
could
broad
of
issues.
563-566,
opinion,
The Stevenson
A.
juries are
stating that
provision,
The constitutional
cases,
initially adopted
was
in criminal
of the law
judges
The first case
Maryland Constitution
of the
part
dicta,
State, 12
was Franklin
discussing
provision,
was reversed
Franklin
conviction
Md.
Bartol delivered
indictment.
Justice
defective
because
(12
249-250),
agreed
which
Md. at
the Court
opinion
(12
LeGrand
concurring
Chief Justice
opinion
dicta with a
246)
making
provision
juries
that the constitutional
Md. at
authorize the
in criminal cases did not
of the law”
“judges
of the
Congress
an Act
or
constitutionality of
“the
decide
did not discuss
opinion
The Franklin
Legislature.”9
State
provision
to the constitutional
any
exception
other
recognize
law
trials.
in criminal
judges
are the
juries
provision
discussing
constitutional
opinion
The next
law
criminal cases
authorizing juries to decide the
noted,
earlier
at 570. As
supra,
Wheeler
*62
280,
State,
Between
when
decided,
was
17, 1980,
decided,
until December
when Stevenson opinions
recognized
this Court
no more than two exceptions
to the constitutional
juries
mandate that
were the judges of
the law
criminal cases. Some of this Court’s opinions
discussing the
provision
constitutional
failed to
any
mention
exception.10
opinions
A
recognized
ruling
number
on
constitutionality
of an Act of
Congress or
an Act of the
Assembly
General
constituted an exception.11 Sev-
State,
571,
(1976);
See
Dillon v.
277 Md.
317
ruling
a
on the
indicated that
by this Court
opinions
eral
to the constitutional
exception
anwas
admissibility of evidence
There
exception.12
other
mentioning any
without
provision,
of this Court
e-Stevenson
pr
opinions
to be
two
appear
exceptions,13 and
of the above-mentioned
recognize both
which
exception”
just
there is
“one
stated that
which
opinion
one
is.14
exception
what the
specifying
without
1867,
XV, §
of
5 of the Constitution
people adopted what is now Art.
Rights,] they
of
[subsequently placed
23 of the Declaration
in Article
meaning
accepted
used the words as
have
be deemed to
must
they
Where a
Appeals said
1858
meant.
of
in
what
the Court
judicial construction and then
provision
received a
has
constitutional
constitution,
presumed
will be
incorporated
revised
it
into a new or
knowledge
previous
the
of
construc-
re-adopted with the
been
have
meaning given by that
to have the
have been intended
tion and to
construction.”
quotation, it seems clear
above
light
principle
of
set forth
the
In
exception
23 is limited to the
in Article
the “constitutional"
Maryland
Congress
General Assem-
constitutionality of
or of
Acts
bly.
only exception
recognizing
admissibility of evidence
Cases
1073,
State,
705,
404
1083
A.2d
v.
285 Md.
include Lewis
664,
815,
State,
658,
(1942);
(1979);
26 A.2d
818
v.
180 Md.
Jackson
State,
State,
11, 17-18,
286,
(1907);
Beard v.
68 A.
Dick v.
107 Md.
State,
521,
1045;
48 Md.
supra,
17 A.
Bloomer v.
71 Md. at
State,
State,
(1876);
(1878);
supra,
Wheeler v.
Broll v.
Md.
sense,
really
admissibility
evidence is not
In a
B. e-Stevenson opinions of this Not the pr do recog- nize just exceptions two to constitutional mandate con- in 23, but, tained the first paragraph Article previously as e-Stevenson opinions repeatedly indicate that the noted, pr constitutional is extremely broad. Thus in Dillon v. mandate State, 571, 277 580, 360, Md. (1976), 357 A.2d 366 Judge explained O’Donnell for the Court in (emphasis original): “Under ‘our almost unique Constitutional provision any on law instructions which the may give’ court [trial] are purely advisory and the so informed. Schank- must be State, er v. 21, 15, 208 Md. 116 A.2d 366 As State, v. Jackson 658, 667, observed 180 Md. (1942),
819 judge may ‘[t]he tell jury] what he thinks [the is, the law but he must tell them it is merely advisory and it____’ are
they not bound follow State, v. predecessors “Our Slansky Md. pointed judge, out that a trial in instructing case,
in a criminal ‘should be careful couch the instruction form, advisory in an so that the jury are left free find their verdict with accordance their own judgment as law well as the facts. When such an given, instruction is jury simply goes enlightenment, means not, cases, as in civil as a binding rule for their government. State, v. (1876) Broll Swann v. ]; Md. 356 [ Md. (1885) 423,1 ]; Dick [ A. 872 68 A. ” (1907) [ ].’ a sampling see, For of other opinions effect, to the same e.g., Bruce (1958) (An “instruction on every question essential or point of law” is an involved) judge
not here
is the
of the law as
as of
well
the facts in
*
**
Furthermore,
"[ujnder
criminal
unique
cases----"
our almost
any
provision
constitutional
instructions on the law which the court
give
(subject
mentioned)
exception already
purely
one
advisory
jury”).
and the court must so inform the
instruction)
State, 163
added); Vogel v.
(emphasis
“advisory”
(1932) (“
settled
is too well
267, 274, 162
‘[I]t
A.
*65
judge
the
authority
that
production
the
require
to
this State
he
jury,
to
provided
of the
the
views
law
may
his own
state
advisory only, and that
his utterance is
them that
informs
also
independent
judgment,’”
their own
free
they
adopt
are
to
286,
(1907));
19, A.
State,
11,
289
Dick v.
quoting
(1907)
State,
66 A.
Esterline v.
merely
may
are
(“Such
give
trial court]
instructions as [the
in
(emphasis
jury”)
the
may
disregarded
and
be
advisory,
State,
279-280,
C.
Moreover, the
prior
cases
this Court
holding
all
juries
had
criminal cases
authority
decide almost
issues,
all legal
involving
included cases
constitutional
rights.
In
before Stevenson the year
decided,
Davis v.
supra,
24-31,
In 97-98, 145 218 Md. at A.2d at 433- that, stating after requested case,” “when in a criminal advisory the trial court every “give should an instruction on law,” essential question or of point this Court decided that the trial “court properly advised the jury the [that] defendant ‘presumed to be innocent guilty beyond a reason proven until doubt, able and that presumption attends him throughout trial until overcome proof establishing his guilt beyond a ” reasonable doubt and to a moral certainty.’ (Emphasis added). . Klein v.
Similarly, 484, 489, 135 151 Md. A. (1926), Court, upholding conviction, criminal set forth with apparent approval part of the trial judge’s instructions as added): (emphasis follows
“It seems that
which
jury
heard the case had been
in the
engaged
cases,
trial of civil
jury
and after the
sworn,
anything
done,
but before
further was
the court
jury
undertook to advise the
of some of the differences
For a detailed discussion of the unconstitutional
instruction in
Davis,
Grady,
see
State
case in
in a civil
case and
duties in a criminal
their
between
presumption
to the
called their attention
He
Maryland.
of
case,
in a criminal
the accused
which surrounds
innocence
conviction, gave
for a
needed
degree
proof
discussed
doubt,
told
reasonable
of the doctrine
explanation
of both
they
judges
were the
several
times
them
case,
with the
and concluded
in a criminal
the facts
law and
merely advisory
told them was
he had
that all
statement
facts,
both the law and the
judges
jury, being
and that
had said.”
bound what he
were
in criminal
“juries
on to reiterate
opinion went
The Klein
facts,
hence
both the law and
judges
cases
in such cases.”
instructions
give
binding
them
court cannot
489,
The Court Wilson case for new and remanded the a conviction reversed defense counsel to would not allow judge the trial trial because law arrest. law and the and seizure argue to the search (239 explained for the Court Judge Sybert 828): A.2d at be reversed because must judgment think
“We from counsel prevented he defense erred when judge trial had appellant whether the arguing questions seizures, or the searches voluntarily consented to by an had been induced apparent acquiescence whether his were of law of questions arrest. these unlawful Whether *67 both, fact, they within the domain of were combination the facts was entitled to discuss jury the and counsel of the law. jury applicable of relative thereto and inform unique provision, almost constitutional our “Under in criminal as of the facts judge is the of the law well cases.” State,
A criminal conviction was reversed Wilkerson judge trial would because the 171 Md. 188 A. argue principle of self-incrimi not allow defense counsel to (171 289, 188 stated Md. at law to the This Court jury. nation 814): A. at counsel, during
“[Defense]
the course of his
argument to
that,
jury, made the statement
‘No presumption of guilt
arose from the fact that traverser failed to
take
witness
stand,’ whereupon
Attorney
the State’s
objected to the
court,
statement and was sustained
re-
who also
marked that it
proper
was ‘not
for counsel to comment in
way
any
on the
of
failure
the defendant to take the witness
action,
course,
stand.’ The court’s
of
prevented traverser’s
from stating
counsel
the law
applicable to
consideration,
situation under
...
notwithstanding
the Ma-
Constitution,
ryland
which
‘in
provides,
the trial
all
of
cases,
criminal
the jury
Law,
shall
the Judges
of
as well
”
as of fact.’
(171
opinion
Wilkerson
continued
atMd.
“Since, therefore, by constitutional provision jurors are judges fact, made the of law as well as of it is difficult to they understand how are to know in any the law particular if case counsel are to privilege be denied the stating of it to them, for the court will judicial take knowledge the fact jurors laymen, that most and therefore do not possess knowledge of the law.”
See also Wilson v. supra, Md. at at 829. legal
Another issue implicating federal constitutional rights was held to be for to 1950. prior A 1950 state constitutional amendment added the following language to provision juries the making judges of the law criminal cases: “except pass that the Court may upon the sufficiency the evidence.” Before took the position that the sufficiency evidence was for the jury. It was held that not even the Court Appeals “pass could upon ... sufficiency of evidence to establish the crime charged.” Slan- sky 94, 109, See (“[T]he Dick v. A. motion testimony to strike out the State in legal effect a demurrer to the evidence and an attempt to obtain
323 a verdict for jury to the to render from the Court instruction defendant, settled that this cannot be done and it is well judges criminal cases are Maryland, where the evidence, and law, sufficiency ... of the legal and of the evidence.”) admissibility of the the Court determines added) State, supra, v. 48 Md. at See also Bloomer (emphasis 539-540.16 law in a case also jury’s judge
The
role as
criminal
being
with counsel
able
statutory interpretation,
extended
textbook,”
“to
from
legal
from a
or
read
“to read to
prius
or “to refer to nisi
opinions
Appeals,”
of the Court
statute,”
decisions,
of a
directly
interpretation
relevant to the
581,
277
at 367. The
Dillon v.
Md. at
357
supra,
A.2d
Law,’
Judges of the
‘to construe
“jury
[a statute]
‘as
free
” Dillon,
their own
277
apply
according
judgments,’
it
267,
583,
163 Md.
Vogel
Md. at
In Dick v.
“We think an jury agent to the that whether the defendant was ney tell something statute was with which meaning within the of the if, manifest that as we have they nothing had to do. It is cited, pro- from our own decisions the Court cannot seen legal the effect of the evidence and upon nounce decide jury and conclude the as to what evidence can bind them, Attorney the State’s cannot shall be considered fact, in jury to the that the had undertake declare Court the of its constitu- by admitting testimony deprived jury the interpret apply to construe and the statute and power tional judgments. apparently to their own It be according in passing upon admissibility when the Court the anomalous interpretation meaning its of the of testimony given of has statute, adopt the should still be free to its jury the anomaly but is the result- interpretation; precisely own this law and administering from our the criminal ing system in instructs the which results whenever case, not in accord criminal and the verdict which follows is Court; and it is too well expressed by with the view require production authority, in settled this State law to the Judge may state his own views of the he also informs them that his utterance jury, provided free their own they adopt and that advisory only, independent judgment.” in issues have been involved
Many
types
legal
other
making
regarding
provision
the constitutional
opinions
Court’s
cases, and,
in criminal
juries
prior
of the law
judges
province
to fall within the
such issues have been deemed
See,
at 582-
supra,
Dillon v.
Md.
juries.
e.g.,
(It
held to be appropriate,
criminal
juries Maryland,
such
are not
courts,
bound
instructions
trial
the same being
*70
We, therefore,
only advisory
nature.
conclude that
it is
for
permissible
counsel in
argument
criminal cases to refer
to the
of the
opinions
Appeals,
Court of
even if
opinion
the
in the same case in a
appeal,
they
former
insofar as
relate to
State,
law,
Slansky v.
questions
alone”);
of
supra,
D.
The Stevenson opinion,
179,
564,
“The majority opinion highlighted, ] as an exam- ple, a then recent decision applying long established principle that ‘law jury serves as a judge ’ the crime. See Lewis 404 that instructions on the voluntari- (holding advisory, on the binding, merely are of confessions
ness such).” be instructed jury, and the should “law of the phrase never mentioned the opinion The Lewis by Lewis was only “exception” recognized The crime.” evidence, admissibility exception for long-recognized the admissibili- issue in Lems concerned admissibility and the portion opinion of the Lewis pertinent ty of a confession. (285 723-724, 404 A.2d at follows Md. at reads as added): emphasis Maryland, implemented ... the Constitution
“Under
b,
in a criminal trial
Rule 757
by Maryland
facts,
of the law as well as the
judge
it is the
instructed that
merely advisory.
are
See
the court’s instructions
and that
An
A.2d 360
Dillon v.
of the law
is that determinations
principle
to this
exception
the sole
evidence are within
admissibility
governing
Maryland, 373 U.S.
judge, Brady
trial
domain of the
Mary-
“Here,
by instructing
the defendant contends
admissibility of confes
pertaining
as to the law
that the instructions
sions,
telling
generally
later
them
light
In
error was committed.
merely advisory,
*71
whole,
say
are not
prepared
as a
we
instructions
Nevertheless, we agree
error was committed.
reversible
that,
consideration of
jury’s
since
with the defendant
to it to
delegation
involves
of the confession
voluntariness
evidence, Demp
this
admitting
propriety
determine
143-150,
A.2d
[355
sey
supra,
v.
(1976)
excep
fall within the
],
regard
in this
the instructions
binding upon
Brady
consequently
in
and are
tion discussed
involving
cases
in all criminal
jury.
Henceforth
confession,
of a
admissibility
of the
jury’s consideration
retrial,
instruc
appropriate
on
the instant case
including
jury.”
to the
given
effect should be
tions to this
above,
in
was not reversed
the conviction Lewis
As indicated
The Lewis convic-
jury instruction.
“advisory”
because
reversed,
awarded,
tion was
and a new trial
because of viola
tions of the common law rules
concerning
trial of accesso
Lewis,
713-717,
ries.
In
that the Stevenson
support
argument
its
did
opinion
not “make new law” in its interpretation of the Maryland
constitutional provision mandating
juries
are the judges
of the law in
cases,
criminal
the majority quotes the United
States District Court for the
in Jenkins
Maryland
District of
Smith,
38 F.Supp.2d
(D.Md.1999),
motion to
denied,
amend or
judgment
alter
(D.Md.
Jenkins, like
Adams,
the respondent
was convicted of vari-
ous criminal
offenses
the Circuit Court for Prince
opinion,
17. The Lewis
Maryland
connection with
law on the admissi-
confessions,
bility
and voluntariness of
Dempsey
referred to
“Here, court clearly explained beginning the trial jury judge that was the charge jury its sole given by law the court were and that instructions instruction, advisory each the court only. With individual nature of advisory reminded the the instructions. that We conclude that there a reasonable likelihood allowing ignore these instructions as interpreted proof of the court should find ‘advice’ beyond Accordingly, doubt. we conclude a reasonable right instructions Jenkins’ to due advisory violated process. relieves of its in an instruction that the State
[A]n error never be beyond a reasonable doubt can proof burden of harmless.” that Jen- case the instant asserts majority opinion Nonetheless,
kins is not Jenkins could not point.” on “legally advisory jury precise legal analysis more in its rights the accused of his constitutional deprived instructions noteworthy to relief. It is and that the accused entitled *73 on, Appeals that of in case at bar Special the Court the relied alia, inter the of in Appeals’ United State Court decision Adams, 698-704, supra, Md.App. Jenkins. See State v. at 34-37. A.2d at argu- for the Judge opinion Harrell’s Court advances other ruling his not a novel and theory ments for that Stevenson was depart Appeals not from Court of The did earlier cases. arguments and persuasive briefly can answered. majority suggests
The
and
opinion
because Stevenson
relatively
“were
with
Montgomery
contemporaneously
decided
trial,”
objection by
the
nature
advisory
Adams’s
Adams to
judge’s
the
instructions would not have been “novel” under
272-273,
Maryland
(Opinion
law.
at
The majority opinion argues also because require- ments the State prove guilt beyond a reasonable doubt and that the be properly regarding instructed the State’s burden, trial,” were “well at established the time Adams’s attorney Adams’s presumably objected should have advisory nature of the (Opinion instructions. at 317). agree I that these matters were well-established and trial, that the judge, trial at the time of Adams’s should have and did instruct the jury concerning the reasonable doubt standard and State’s burden. he also Whether should telling these refrained from instructions have “advisory,” Maryland is another matter. Constitu were including the three tion, Appeals cases in the Court of (Lewis, Davis, Dillon), time recent ones at the most Court, all told the Maryland promulgated Rules attorney in that the and the defense judge trial judge’s instructions judge of the law that all It trial was not “advisory.”18 were applicable Adams’s Maryland trial gave judges until 1980 that this Court Consti depart language from “license” *74 and limit the nature Maryland advisory and the Rules tution the “law of the concerning instructions to instructions jury crime.” upon language for the Court relies
Judge opinion Harrell’s 581-582, A.2d at opinion, in 277 Md. at the Dillon that the Special opinion, Maryland an Appeals earlier Constitution “ however, (jurors], untrammeled upon ‘does confer repeal ignore clearly new or to or
discretion to enact
law
whim,
compassion or malevolence
existing
fancy,
law as
dictate,
single
limited
of a
even within the
confines
should
”
criminal case.’
entity
huge
person
between which
or
There is
difference
or
should
person
entity
what the law is
how that
decides
Maryland
in
criminal cases
Today,
the function.
perform
issue,
an
well
in civil
the “law the crime” is not
as
as
where
cases,
who
what the law
the trial
is
decides
judge
person
function,
Nevertheless,
judge
the trial
performing
is.
in
this
or to
or
similarly
repeal
is
not authorized “to enact new law
whim,
compassion
law
clearly existing
fancy,
ignore
trial,
Court,
prior
just
in
in
months
Adams’s
Also
Dudley
opinion by Judge
Digges,
court because the
J.
reversed a trial
rules,
these
an action that
...
flies
judge "violated the mandate of
trial
Maryland
that
are
principle
established
Rules
in the face
” King
precise
strictly
to be
followed ....
v. State Roads
rubrics that are
Comm’n,
368, 371-372,
Judge
principle”
Digges ignored
when he authored for
this “established
opinion
majority the Stevenson
in 1980.
Dillon,
supra,
opinion “objected] at trial attorney for Adams’s have able” at facially advisory (Opinion nature instruction” 320), “advisory the fact 958 A.2d at relies on was “the required by Maryland instruction” Constitution notable members of the subject vigorous among debates to Adams’s prior Bench and Bar for several decades (Id. 319). legal trial.” 958 A.2d at The fact that a *75 subject vigorous has been the of debates does not principle tenuous, firmly mean that is or that it is not principle law, might the established principle embedded our that judge. particularly not be followed a trial This is true legal principle compelled by unambiguous when language Maryland Many of the Constitution. critics of the provision making juries judges state constitutional advocating proper law criminal cases have been a non- judicial judicial holding state amendment or constitutional a provision the state constitutional violated the federal urging constitution. There is no evidence that the critics were Appeals provi- the Court of to re-draft the state constitutional sion.
Moreover,
legal
there are numerous
which have
principles
debates,
subject of
presently
vigorous
been and are
and
which have been
legal
criticized
notable members of the
Nonetheless,
profession
society.
as well as other members of
few trial
would undertake to
a trial
to
lawyers
persuade
judge
encouragement
such
at least absent some
principles,
abandon
if
opinion.
a recent
For
few
Appeals’
example,
from
Court
been
much
any
legal principles
other
have
criticized as
as this
in negligence
Court’s continued adherence
actions to the doc
contributory negligence
trine of
Court’s refusal
adopt comparative negligence. See Harrison v. Mont. Co. Bd.
Furthermore,
of Educ., 295 Md.
E. discussed, only pre-Stevenson As earlier substantive juries judges are the change the constitutional mandate amend- the 1950 constitutional cases was in criminal of the law sufficiency of pass upon authorizing the court ment two were also there 1851 and Between evidence.19 of the constitution- affecting operation changes procedural provision. al amendment, this Court the 1950 constitutional
Following in a requested “when judge a trial requiring rule adopted a every on essen- instruction case, advisory give an criminal by the evidence.” supported lawof point question tial (empha- A.2d at 433 State, at 218 Md. supra, Bruce v. rule, any added). giving of this adoption Before the sis discre- judge’s the trial within had been advisory instructions tion. a rule adopted also 1, 1950, predecessors our January
On
advisory
giving
the court’s
provides
expressly
“which
case shall
argument
to the
prior
instructions
v.
contrary.” Schanker
arguing
from
counsel
preclude
See also
A.2d at 367.
State,
208 Md. at
supra,
256-257,
F. that, prior evidence strong Finally, practical there determining jury’s role Montgomery, Stevenson broad, and very criminal cases law drastically changed opinions Montgomery Stevenson *78 of the inception the in such cases. From jury function Montgomery opinion until the in provision constitutional no it that appears years 130 later on December filed on the a criminal conviction of Court reversed decision this mat- on particular instructions judge’s the trial grounds that “advisory” have been but should not have been ters should too a large instructions judge’s gave the trial binding, that the making jury judge the provision to constitutional scope the criminal case. of the law in a hand, in this Court reversed the several cases
On other cur- rulings in the trial courts criminal convictions because jurors judges to right of be of tailed the constitutional cases, right to hear including jurors’ in law criminal See, e.g., Wilson v. the law from counsel. arguments on (“Thus 257, 210 A.2d at the denial supra, Md. law searches applicable [regarding to state the right counsel’s Wilkerson plainly prejudicial”); was and seizures] (Conviction A. reversed supra, law was for self-incrimination legal involving because issue 68 A. supra, Dick v. jury); (Conviction statutory interpre- on the that a ground reversed court). for tation issue was shown, many jurors criminal years As for previously trial were judge’s were told that all instructions cases jurors could them. Rule advisory disregard and that decided, was former Rule effect when Stevenson b., they court shall instruct the that mandated “the that the court’s instructions judges are the the law and exceptions. advisory Rule 757 contained no Consider- only.” given jurors to regularly this instruction ing sweeping Stevenson, if, cases, jurors’ constitutional prior criminal law as narrow as the Stevenson judges function as were claimed, Montgomery majorities be would inconceivable conviction, years, that no criminal reversed this ground Court on the the trial court’s instruction with respect particular to a matter should have been binding. majority Court,
Although from 1980 to it, been present, unwilling has acknowledge truth opinion Stevenson was novel which re-wrote what is now the first paragraph of Article 23 of Maryland Declaration of Rights. opinion The Stevenson did so in an effort salvage an invalid provision. state constitutional
IV. The Stevenson and Montgomery opinions were intended retroactive; addition, the Court in those fully cases law, a matter of settled Maryland Stevenson and Montgomery fully were retroactive. Court,
This in numerous opinions, explained has when a decision shall be applied prospectively. The first criteri- *79 “prospective only” on for application is that the decision prior overrules law a legal and establishes new or standard Co., principle. In v. Houghton County Com’rs Kent 307 of 220, 216, 291, (1986), Md. 293 the Court stated added): (emphasis
“As both the
Court and
Supreme
this
have made
Court
clear,
particular judicial
the question of whether a
decision
applied
should
prospectively
retroactively,
be
or
in
depends
the first instance on whether or not the decision overrules
a
prior law and declares new
of
principle
law.
a decision
If
does not declare' a
legal principle,
question
new
no
aof
arises;
‘prospective only’ application
the decision applies
retroactively in the same
court
manner
most
decisions.
Johnson,
537, 548-549,
United States v.
457 U.S.
102 S.Ct.
2579,
(1982);
2586, 73
202
L.Ed.2d
Oil
v.
Company
Chevron
Huson,
106,
355;
supra,
“Our
cases in this Court.”
any
not overrule
earlier
Goldstein,
Associations v.
Trucking
The Court American
(1988),
583, 591,
958-959
further
whether a deci-
determining
question
the initial
explained
effect:
given only prospective
is to
sion
cases,
judicial
decision
majority
“In
overwhelming
that existed both
forth
the rule
law
applies
sets
In this usual
the date
the decision.
before and after
situation,
applied
precedent
settled
‘where a decision has
situations,
always
the decision
new and different factual
567, 577, 479
retroactively.’ Potts v.
applies
case,
(1984). Thus,
ordinary
no issue of
A.2d 1335
See, e.g.,
arises.
Hanover
‘prospective only’ application
Shoe,
496, 88
Corp.,
Inc. v.
Shoe Mach.
392 U.S.
United
(1968);
Houghton
S.Ct.
L.Ed.2d
Co.,
216, 220-221, 513 A.2d
Kent
County Com’rs of
and cases there cited.
“When, however,
interpretation
prior
a court overrules a
statutory
and renders
new
provision,
a constitutional or
arises as
interpretation
provision,
question
retroactively
pro-
ruling
operate
whether the new
new
only. Generally,
determining
whether a
spectively
*80
provision
a
is
interpretation of
federal constitutional
a court must assess
various
operate retrospectively,
Walker,
618, 85
in
v.
381 U.S.
factors set forth
Linkletter
1731,
See the
progeny.
It is clear that the
majority
the Court
Stevenson and
majority
the Court Montgomery intended that those
opinions
two
be fully retroactive.
is
the majority
This
because
in each
purported
case
believe that the two cases
did
legal
declare a new
“If
principle.
a decision does not
declare
...
legal
new
principle,
applies retroactively
the decision
the same manner as most court
Houghton
decisions.”
Co.,
County
supra,
Com’rs Kent
339 in and Mont- the intent Stevenson Regardless of Court’s however, that Stevenson’s firmly our cases establish gomery, Maryland Consti- interpretation and new Montgomery’s Under well-established fully tution was retroactive.
law, provision of a constitutional or interpretation a new if affects the interpretation fully statute is retroactive in This State v. fact-finding process. the integrity of Hicks, at summarized at Md. supra, added): (emphasis of new retroactivity rulings principles governing
“The extensively ... were dealt with by courts criminal cases v. dissenting opinions Wiggins majority both the (1975), and we Md. shall it Briefly, in detail what was said that case. repeat initially retroactivity out in of pointed Wiggins was rule application required where the involved affects or it is a fact-finding process, where non- integrity of constitutionally a trial procedural rule that would render impermissible (e.g., jeopardy ruling), a new double where punishment certain of type impermissible, renders a 701-707, criteria, 732-737, 344 these Md. at A.2d 80. Under retroactivity interpretation it is clear that of the new an- required. in the case is not It does not nounced instant fact-finding process but integrity affect the compel prompt with the compliance policy sanction to disposition of criminal cases.” jury concerning
A trial court’s instructions con- facts, law, trolling jury’s application law In a clearly integrity fact-finding process. involve the function, ruling jury’s where a new related to the situation Colvin, Rodowsky supra, Judge the Court State 517-518, explained: A.2d at “In 108 S.Ct. Maryland, Mills U.S. poten- Supreme
L.Ed.2d 384
Court held that
uncertainty
jury’s interpretation
tial for
in a
sentenc-
by former Rule 772A
ing
capital
specified
form for
cases
eighth
prohibition against
violated the
amendment’s
cruel
punishments.
unusual
“The Mills
analysis
affects ‘the very integrity of the fact-
with
finding process’
respect
finding
an absence of miti-
Mills
gating
applies
factors. Therefore
retrospectively.
*82
Walker,
See Linkletter v.
381 U.S.
85 S.Ct.
14 L.Ed.2d
Consequently, Colvin-
El’s death sentence must be vacated.”
See also Jones v.
(the
In and Montgomery adopted Stevenson a new interpretation provision making of the state constitutional juries the judges law criminal cases. Under cases, uniform line of Stevenson Court of Appeals and Montgomery Therefore, fully retroactive. judg- ments below should be affirmed. joins
Chief Judge dissenting BELL this opinion. Judge joins dissenting opinion BATTAGLIA with the exception of Part II.