*1 judgе explained thoroughly rights provided Wischhusen’s and him to him to with sufficient information enable his weigh an options. judge The trial informed Wischhusen that he had counsel, wished, and if he court right absolute until proceedings would defense counsel could be delay The court present. opportunity also offered Wischhusen by telephone agreeing pro- to consult with before counsel Furthermore, court ceed her absence. informed Wisch- jury husen the instruction to be read to the would be the Finally, same conclusion of the one delivered evidence. asked court if counsel had heard the Wischhusen his reinstruction, proposed responded that he had counsel, no read the instruction to defense and counsel offered circumstances, objection. light In of these we conclude that decision to waive the of his counsel at presence Wischhusen’s knowing intelligent. reinstruction was reasons, foregoing For the we shall reverse the decision Special the Court of and remand the for recon- Apрeals case remaining sideration of the issues raised before the intermedi- appellate ate court. OF THE
JUDGMENT COURT OF SPECIAL APPEALS CASE REMANDED THE OF REVERSED. TO COURT SPECIAL FURTHER APPEALS FOR PROCEEDINGS. BE PAID BY COSTS TO RESPONDENT.
No. 1995. Appeals Maryland. Court of June *4 (J. Ward, Attorney Assistant Kimberly Smith General Jo Jr., General, brief), Baltimore, Curran, on for seph Attorney Petitioner. (James Miller, Miller, Steinberg
Kevin Hessler Robert & G. brief), Rockville, Hessler, Respondent. on Butler, Curiae, Springs, P. for Amicus Ste Camp Russell Foundation, phanie Roper Against Driving Mothers Drunk (MADD), Center, The National Victim and the against Coalition Crime. C.J., ELDRIDGE,
Argued MURPHY, before RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
RAKER, Judge. in “in certiorari this case determine whether granted We depicting a homicide victim while the victim photographs, life” alive, may displayed jury be at trial. was
I. Broberg Paul Everett was April Respondent On County. road in Frederick The driving along two-lane miles hour. As speed fifty per Broberg limit was posted hill, eleven-year- over the crest of a he struck and killed drove Blank, Jr., who was a tractor across the driving old Thomas accident, Broberg’s speed road. At the time of the was approximately sixty-four per at miles hour. His estimated alcohol level measured at 0.17. blood was in Broberg wаs indicted the Circuit Court for Frederick on auto- County charges, including manslaughter thirteen mobile, intoxicated, driving homicide motor vehicle while intoxicated, limit, speed reckless driving, exceeding while to reduce speed greater prudent, than reasonable and failure accident, to avoid an and other related offenses. speed Broberg jury was tried before a in the Circuit Court for November, County During opening Frederick 1993. its statement, “in life” of the displayed photographs the State two sixth-grade picture, photograph victim: a school and a of the objected uniform. Defense counsel league victim his little mistrial, arguing photographs and moved for a that the were irrelevant, they jury and that could not be shown to the until they were introduced evidence.1 The trial denied the motion. brief, Respondent cross-appeal he notes this fact in his but does Court, argue the denial of his motion. Before this he does not that this eri'or, Although nor does he ask the Court relief on this basis. point dissent our contends that deсision not address indi- handed,” our "even we cates that treatment of issues is not do not appropriate evidentiary believe it would be to address an issue that was op. argued dissenting neither briefed nor before this Court. See n. 4. its during a second time State used the Blank, father, Thomas Sr. of the victim’s
direct examination asked to Mr. Blank was shown When *6 victim, objected again Defense counsel identify wept. the he mistrial, the were arguing photographs that moved for a to the parties’ prior stipulation in of the light irrelevant however, the disputed scope prosecutor, The identity. victim’s to, stipulated he “that’s not what stipulation, stating of the and note honor, IV.B for the record.” See Section your infra motion, prosecutor and the the trial denied 13. The jury. to the displayed photographs the two while by motor vehicle convicted of homicide Broberg was intoxicated, driving, exceed- intoxicated, reckless driving while limit, pru- than reasonable speed greater ing speed the He an accident. dent, speed to reduce avoid and failure eigh- with all but years imprisonment to five was sentenced suspended, with a fine suspended, teen months $3350 $1500 probation. years supervised and three Special to the Court of timely appeal noted a Broberg judg- court reversed the appellate intermediate The Appeals. concluding photo- that unreported opinion, ment in an were of they been excluded because should have graphs highly prejudicial. and were We probative minimal value to resolve for a writ of certiorari granted petition the State’s in “in life” admissibility photographs the issue of the criminal cases.2 presented question as: Writ of Certiorari framed
2. The Petition for concluding that the trial court Special Appeals err in Did the Court of allowing jury to become improperly exercised its discretion display through a of "in life” acquainted with the homicide victim photographs of the victim? require interprets question to us Although the certiorari the dissent may "human- solely photographs be used to to decide whether "in life” victim, interpretаtion agree with this narrow a homicide we do not ize” argued dissenting op. Petitioner at 567-568. While of the issue. See purpose to photographs be admitted for this that "in life" should victim, argued the trial rights Petitioner also vindicate the admitting photographs, properly court exercised its discretion probative value was not they were relevant and because their because II. photo- the “in life” admission of contends that
The State discretion, and therefore trial court’s within the graphs have reversed should not Appeals of Special the Court photo- that the argues The State also decision. trial court’s to “human- information background relevant provided graphs Code victim, purposes with the consistent ize” the § of Article Cum.Supp.) (1957, Repl.Vol., its discretion trial court abused that the Respondent argues “in life” to use the the State permitting stipulate parties agreed that the he contends because proba- eliminating photographs’ identity, thereby victim’s only to inflame the thus served tive value. preju- their outweighed value was probative their jury, and error Furthermore, that the Respondent argues effect. dicial *7 beyond harmless was not admitting photographs argues that neither Finally, Respondent reasonable doubt. § nor 761 of Rights Declaration of Maryland 47 of the Article repre- victim to be for a homicide right Article 27 creates a “in photo- use of an life” proceeding in a criminal sented graph.3 prejudicial for Writ of
outweighed by potential effect. See Petition Certiorari at 4-5. pertinent Rights provides in Maryland Declaration of Article 47 of the 3. part that: (a) by agents of State with be treated A victim of crime shall sensitivity during phases all of the criminal dignity, respect, and process. justice (b) originating by or information filed in a indictment In a case court, right to be informed of a victim of crime shall have circuit and, practica- upon request if Article and rights established in this the ble, attend, of, justice and to be heard at a criminal notified to be "crime”, rights implemented the terms proceeding, are аs these specified law. justice proceeding”, and “victim” are "criminal 1994, subsequent provision ratified in art. 47. This Md. Decl. Rts. to its enact- Md. Laws ch. 102. Prior Petitioner's trial. See 1994 however, 761(2) ment, § of Article provisions were contained in similar 27, should "be treated provides crime victims and witnesses which 761(4) courtesy, sensitivity.” Section also dignity, respect, with proceedings. of all court requires crime victims should be notified
552
III.
Admissibility
Photographic
A.
Evidence
has on
occasions considered the
many
This Court
See,
admissibility
photographic
e.g.,
evidence.
Johnson
State,
denied,
487,
(1985),
1
303 Md.
495 A.2d
cert.
474 U.S.
State,
1093,
868,
(1986);
106 S.Ct.
As we have
regarding
prejudicial
admission of
is that
their
value.4
substantially outweigh
probative
effect must not
their
See,
State,
659, 676,
111, 119
e.g.,
317 Md.
566 A.2d
Bedford
(1989);
225, 245,
637,
Harris v.
539 A.2d
3,
(1987),
(1988);
Mills v.
527 A.2d
grounds,
vacated on other
486 U.S.
108 S.Ct.
This
value
balancing
probative
against
L.Ed.2d
effect is committed to the sound discretion of the
prejudicial
judge.
trial
The trial court’s decision will nоt be disturbed
Johnson,
arbitrary,”
303 Md. at
“plainly
unless
the trial
is in
best
to make this
position
because
See,
e.g., Bedford,
assessment.
553
8;
v.
43-44,
at
Grandison
Mills,
527 A.2d
119;
310 Md. at
denied,
(1986),
580,
cert.
State,
685, 729,
A.2d
602
506
305 Md.
(1986); but see
38,
174
873,
93 L.Ed.2d
107 S.Ct.
479 U.S.
(1942).
313-14,
829,
Hulcher,
309,
23 A.2d
831
Buch v.
to be admissible.
also be relevant
must
Photographs
1102,
Maryland
§
at 578
Jr.,
Murphy,
J.
Handbook
Evidence
Wigmore
(2d
see also 3
Supp.);
ed. 1993 & 1995 Cum.
on
(Chadbourn
Supp.).
rev. 1981 & 1990
792,
§
at 237
Evidence
of
autopsy photographs
scene and
found crime
We have
issues, including
range
a broad
homicide victims relevant
intent,
modus
and the
wounds,
attacker’s
type
11, 21-22, 207
See,
v.
e.g., Clarke
operandi.
(1965).
are often
456,
“In life”
461-62
A.2d
Annot., Homi
identity.
victim’s
See
to establish the
relevant
(1962).
722,
Victim,
86 A.L.R.2d
cide:
Identification
to the trial
also committed
determination is
relevancy
The
Maryland
McLain,
discretion.5
5 L.
judge’s
Evidence
(1987
403.5,
Supp.).
& 1994
Supp.
§
at
evidence,
photographic
assessing
In
the relevance
proba
may
possess
be relevant and
we note
that has
something
illustrate
though they often
tive value even
Grandison,
Md. at
testimony.
already
presented
been
“all
in Johnson
A.2d
602. As we observed
at
cumulative,” 303 Md.
is in some sense
evidence
photographic
cumulative,
...
it should
“[a]lthough
495 A.2d at
at
supra,
for
reason.”6
excluded
seldom be
Murphy,
to be
allowing photographs
§
578. The rationale
determinations, photographs
relevancy
must also
In addition to these
5.
State, 317 Md.
to be admissible.
be authenticated
Bedford
provided
testify
photographer need
knowledge
photograph
personal
verifies that
that someone with
403.5,
§
subject.
accurately portrays
5 L.
it
McLain,
Evidence
(1987
Supp.);
Evidentiary
Cum.
at 317-18
& 1994
Imwinkelreid,
E.
(3d
1995).
§
supra,
at 578.
See also
ed.
Murphy,
Foundations
judge to
authorize the trial
Although
new rules of evidence also
prevent
presentation of
necessary to
“needless
exclude evidence if
evidence,”
5-403,
interpret
rule
do not
Md. Rule
we
cumulative
photographic evidence.
to admit
alter the trial court's discretion
*9
to
in
testimony
used
illustrate verbal
is that
some cases
more
than
“photographs present
clearly
words what the wit-
Reid v.
attempting
nesses were
describe[.]”
(1985).7
that
lack
photographs
We have also noted
do not
merely
they
value
because
illustrate a
that is
probative
point
Grandison,
uncontested.
Applying
say
the facts before
we cannot
the trial
in allowing
abused his discretion
these
photographs into evidence. The photographs illustrated the
pattern
number of shots fired at each victim and the
of the
It is
gunshot
purpose
victims’
wounds.
immaterial for this
death,
stipulated
that Evans had
to the cause of
location of
wounds, etc., for
very purpose
photographic
“the
evidence
clarify
is to
and communicate facts to the tribunal more
accurately
than mere words.”
(citations omitted).
Id. Accord Gran
B.
“In
of
Life”
580,
685,
In
506 A.2d
we
Grandison
Md.
admissibility
for the
applied
two-part
photographic
test
of
person
The
of
"arose when a
8.
tort action
alienation
affections
leave
or
interfered
induced a married woman to
her husband
otherwise
adultery
relationship,
though
with the marital
even
no act of
was
Ansell,
Kline
committed.”
(1980).
required
plaintiff
prove
that an affirmative act
The
to
relationship.
the defendant caused harm to the marital
Prosser
&
(5th
§
Supp.).
at
ed.
1984 &
the Law of
Keeton on
Torts
Buch,
plaintiffs
merely
photograph
dupli-
In
wife did
presented
testimony,
cate
in the
nor was it offered to
evidence
wife's
photo-
prove
stipulated
The
an uncontested or
element of
case.
graph simply
prove any
did not serve to
element
the case.
evidence to “in
Id. at
729-30,
life” photographs.
506 A.2d at
defendant,
Grandison,
Anthony
contracted to have
Cheryl
David and
Piechowicz murdered
prevent
them from
him
testifying against
in a pending narcotics proceeding.
Id.
at
Objections the “in life” photographs] [to lodged were on grounds of perceive non-relevance.... no strength [W]e argument, because [the were central figures victims] the crimes that had been charged. They had to be identi- fied.
Id. at 429.
The majority
appellate
of
courts in
jurisdictions
other
that
have considered the
“in
admissibility of
life” photographs have
upheld
Annot.,
also
their admission.
Homicide:
Identifica-
Victim,
tion
(1962).
722,
86 A.L.R.2d
See also Drane v.
739
of
State,
Ash,
255,
265
State v.
(1995);
Ga.
557 Sullivan, 488, 296 81 1976); Mich.App. v. 97 N.W.2d People (1981). denied, (1980), 109 A 308 number cert. N.W.2d for two-pronged have a test admis jurisdictions adopted these similar to our own standard. sibility photographs “in life” See, Stevens, 833, 119, N.Y.2d 560 N.Y.S.2d e.g., v. 76 People (1990); Hendricks, 120, 1278, People 1279 v. 43 559 N.E.2d 584, 66, 71-72, 1350, 737 1356 Cal.Rptr. 238 P.2d Cal.3d “in taken that jurisdictions position A have minority prejudicial, and therefore photographs life” are irrelevant “in is photographs have that use of life” disfavored. concluded Rivers, (1994); See, 716 v. 537 Pa. A.2d e.g., Com. (Okl.Crim.App.1995). P.2d 381 & n. 83 Valdez higher standard for admission A few courts have articulated evidence; example, Pennsylvania courts photographic for inflammatory, they if are suggested have to be possess evidentiary must “essential value” admissible. McCutchen, A.2d Pa.Super. Com.
(1979),
grounds,
on other
499 Pa.
We found “in barring se life” When per photographs. rule use of “in have the admission life” appellate disapproved courts photo- either photographs, they generally have found irrelevant, value in the probative or that their graphs were 558
particular
outweighed
case was
their
prejudicial effect.
See,
Rivers,
State,
e.g.,
Parker v.
716;
C.
Effect of
We must next consider the relevance of
“in
life”
in this case in
light
Respondent’s
conten
tion that
the parties stipulated
identity
of the victim.
definition,
By
stipulation
is an agreement between counsel
Burke,
to a contract. See Burke v.
akin
204 contracts,
A.2d
Like
stipulations are based on
mutual assent
interpreted
to effectuate the intent of the
Id.,
parties.9
559 Graff, Bloom v. by stipulations. their bound (1949). definition stipulation by a 313, Although 315 63 A.2d assent, dispute frequently parties on mutual be based must to which it and the extent scope stipulation of the both of the other evidence offering from parties precludes observed: Wigmore As fact.10 stipulated no needs [stipulated] admitted judicially A that is fact But the admission. benefiting by party from the evidence excluded; it, even be evidence, may if to offer he chooses his ...; to the issues first, now ... immaterial because it is merely cumber next, may superfluous it be because furthermore, dramatic ...; because the added trial from the examination gained be may force which sometimes (a force, indeed, the admission which of a to the fact witness obviate) which thing is not a designed especially is often to. always to be entitled party can be said may Nevertheless, opponent admission a colorless party depriving the effect of sometimes have furthermore, еvidence; judi- a moral his legitimate force of limita- grudging made with may cleverly cial admission be in criminal (especially or or insinuations tions evasions cases) a waiver of but not technically practically so as to be proof. 522, Warden, 519, 206 A.2d
acquiescence. See Henderson (1965); Graff, Bloom v. (1949). notes, may appear stipulation “[s]ometimes As commentator one so,” doing actually because an element without to eliminate poorly, especially when offered stipulations worded ... often ... are always to a trial argument. be clear heat of It will in the being disputed. conceding and what is exactly the defendant is what S. 9 Crim. Just. judge must fair to both In the defendant’s Saltzburg, Stipulations midst of theory parse sides. This is not arguments [*] of defense stipulation [*] the Defense over admission is 4* ambiguous. on the always easy to # to Remove Other spot [*] and decide [of evidence] do, especially if the [*] Acts whether it is ..., a trial Evidence, Wigmoee (Chadbourn § at 824-25 rev. on Evidence (citations omitted). 1990 Supp.) 1981 & *14 In to determining whether admit evidence is fact, stipulated offered to a courts must often balance рrove Gilmore, v. State interests of the competing parties. (La.1976). The party stipulate 795-96 who offers to So.2d i.e., of bargain, preventing is entitled to obtain the benefit his Id. evidence. inflammatory party benefiting the use however, may from the also be entitled to the stipulation, supra, moral force of his evidence.” “legitimate Wigmore, § at 824. believe, Wigmore suggests, as that because
We
considerations, “there should be no absolute
competing
these
subject
rule on the
...
the trial court’s discretion should
[and]
as to
particular
plenary
determine whether a
admission is so
the first
evidence
needless under
party’s
wholly
render
Gilmore,
Id. cited in
at 795.
circumstances.”
So.2d
(Ala.Crim.
Burgess
See also
123-24
So.2d
Fact,
Trial—Proving
Criminal
Conceded
Annot.,
App.1976);
trial
(1) if parties, any, regarding presentation the intent of the evidence; proffered of the
(2) as com- probative the incremental value the evidence (i.e., pared stipulation, provides where the evidence stipulation); detail than the greater (3) the unfair of the potential prejudicial impact proffered evidence. the trial decision in regard
We shall review court’s discretion. abuse of
IV.
Prejudicial
Versus
A. Probative Value
Effect
test for the admission
two-pronged
Applying
in this
photographs
“in life”
evidence to the
photographic
court did not abuse its
case,
the trial
we conclude
homicide
every
In
photographs.
admitting
discretion
killed.
person
of the
case,
identity
establish the
the State must
(1947) (“In
Jones
...
fact that
...
establish
the proof
[must]
homicide case
is
was instituted
prosecution
for whose death the
person
”).
tak
photographs
“in life”
or
Either
dead....
identity.
used to establish the victim’s
may
en after death
be
Grandison,
602 (upholding
N.Y.S.2d
prejudicial
autopsy
more
than
photographs
of the
neither
in homicide cases.
routinely
that are
admitted
photographs
(Okl.1957) (In a
B. Relevance the Respondent argues photographs pre also that the not the defense sented this case were relevant because princi of the victim. stipulated identity Applying to the III.C, supra, outlined Section we ples regarding stipulations en Respondent must next consider whether Petitioner and into a stipulation. tered conflicting regarding are faced with information
We began, Before the trial stipulation. nature and extent of conference, counsel Respondent’s at the conclusion of a bench stipulated had to the judge parties remarked to the victim, of the and thus no would be identity Attorney object, did not necessary.11 Although the State’s party whether he was still a record does establish however, indicates, bench discussion.12 The record also trial, Respondent disagreed regard- later in the Petitioner and hearing Respon- of the At the on ing stipulation.13 the nature stipula- Respondent’s counsel referred to an earlier discussion of the in chambers. There is no record of this tion with trial discussion. during opening photographs were first used the State 12. When the arguments, objected, Respondent’s counsel but not on the basis of the stipulation identify. supra See note 1. during dispute regarding stipulation the State’s 13. The first arose Attorney’s of the victim's father: direct examination Q: Exhibits, you I what's been marked State’s as well as show exhibits, Number 1 and 2 for identification "in life” [the defense you jury Judge you recognize if photographs]. Can tell the and the *16 those, are sir? those? What Honor, already stipulated to the Your we've [DEFENSE COUNSEL]: now, identity happening object. to avoid what’s Your Honor. I think, leading just question, I You can ask him [THE COURT]: who it is. it is son, Honor, say did it’s his Your in case [STATE'S ATTORNEY]: He you didn’t hear. that, Right. stipulate You to [THE COURT]: [Defense Counsel]? did, Honor, already We Your and I'll renew [DEFENSE COUNSEL]: my beginning that I made at the of the case at this time. motion understand, right. yes. All I [THE COURT]: to, stipulated That's not what he Your Hon- [STATE’SATTORNEY]: or, for the record. trial, for a Respondent’s again dent’s motion new counsel to a stipulation. Finally, argument, Respon- referred at oral parties agreed dent contended that both to to stipulate victim’s while the State identity, contended there was no stipulation. mutual assent to a
This case illustrates the need to state the precise of a on the record. are limited in stipulation terms We our review to the information that in the record. In appears cases, future of a proponent stipulation would be well to any stipulation advised ensure that the terms of are record ed, and that mutual assent is demonstrated. See McLaurin v. Md.App. A.2d 563 right, objection's [THE COURT]: All overruled. dispute again during arose the State’s direct examination of the Frasier, emergency physician, room Dr. who treated the victim follow- ing signed accident victim's death certificate. The State’s
Attorney offered to use the “in life” of the victim to person pronounced demonstrate that the Dr. Frasier dead was the victim, Thomas Blank: thinking [STATE'S ATTORNEY]:I don't want he’s [Defense Counsel] wrong person. identified the I have of the deceased. happy stipulate I’m more than to show it. If he wants it's the person, same that’s fine. already [DEFENSE I've done that. COUNSEL]: No, father, you it [STATE'S ATTORNEY]: did to the not to the doctor. Judge- [DEFENSE COUNSEL]: you [THE What do want to do? COURT]: Court, I [DEFENSE want to address the because that's COUNSEL]: proper stipulated thing to do. I to the identity the victim. The subject iswho deceased is the one who was involved in the accident. stipulated identity. photographs. I have He wants to show No, you're I don't. I [STATE'S ATTORNEY]: want to make sure going say person to then [not] that the that Dr. Roberts and Dr. dead, person stipulated Frasier declared I didn’t show that that was to back at the scene of the crime. already stipulated per- [DEFENSE COUNSEL]: I’ve that’s the same son. Okay, fine. [STATE’SATTORNEY]: (THE That's fine. That’s fine. Okay. COURT]: just [STATE'S I want ATTORNEY]: make sure it’s clear ... (inaudible). only identity stipulating [DEFENSE COUNSEL]: It’s that I’m to. right, stipulation All [THE COURT]: is noted. *17 Assuming, arguendo, parties agree stipulate that the did to consis- identity, they to the victim’s the record illustrates that the precluded by about was tently disagreed which evidence III.C, supra note 13. stiрulation. See noted As we Section supra, a of regarding particular piece the decision whether to is commit- may prove stipulated evidence be offered fact judge. to of the trial ted the sound discretion any does state Although the record not reflect direct identity trial judge stipulation ment the whether the Blank, Jr., “in life” photographs of Thomas rendered the issue on least four unnecessary, judge the considered the judge is for the practice occasions. While the better trial record, on court is state the basis for the decision the the trial Beales v. 263, 270, to do required so.14 (1993). 105, 109 privy A.2d The trial was to a discussion judge the the that included stipulation terms of chambers is not He in the record. was therefore in a better position “in life” photographs determine whether the were relevant. argued admissibility the "in Respondent’s counsel the issue of the again hearing photographs motion a new trial. life” at the on his motion, stating: court denied the trial pictures through morning I’ve the looked the exhibits viewed Blank, again. appeared to be [Thomas Jr.] He an attractive time, pictures 11-year old at the and as far as the are normal child pictures, testimony testimony, the even the concerned... absent the time, defense, already the unchallenged was in at the that level a .17..... blood alcohol was ... judge explicitly balancing Although trial did not state that he was the effect, probative against prejudicial this statement reflects the value impact judge’s potential prejudicial of the consideration of the unfair jury. on the fact, proof stipulated as of a the trial When are offered against judge applies balancing probative prejudicial effect the value First, probative against judge must value twice. the trial balance part two-part photo- prejudicial admissibility effect as of the test for Second, graphic supra probative/prej- evidence. See Section III.A. determining one consider to admit udice balance is factor to whether stipulated supra fact. See Section III.C. evidence of Although judge trial case on in this did not state the record twice, probative/prejudice balancing applying he test the state- required balancing. ment more, Further- above reflects that he conducted the correctly. presume applied the law I.W. we the trial Bros., Prop. v. Porter Berman addition, although In photo relevance of the graphs prove derived from their use to identity, victim’s stipulated, stipulation which was deprive did not *18 State, of all relevance. photographs See Grandison v. 506 A.2d at Photographs 602. are cumula inherently
tive,
or,
case,
testimony
whether used to illustrate
in
in
as
support
stipulation.
of
We reaffirm
position
we stated
Bedford, that photographs
possess
need not
“essential eviden
tiary
value” to be admissible.
Md. at
C. The Victim’s to Be Present at Trial Rights Under the Victims’ Bill of Finally, although photo we conclude that the “in life” case, graphs were admissible in this adopt per we decline to se “in rule that life” are admissible in photographs every case. Petitioner and suggest Amici15 that Article 47 of Maryland § Declaration of of Rights require 761 Article 27 “in automatic admission of life” order to effec tuate the policy representing the interests of victims criminal See proceedings. supra note 3. Both Article 47 and § 761 were intended to ensure the utmost respect and consid eration for the victims of crimes. See also Cianos 406, 421-413, not, 294-95 We do however, interpret these provisions preclude broad the trial Stephanie Roper An amicus curiae brief was filed on behalf of the Foundation, (MADD), Against Driving Mothers Drunk the National Cеnter, Against Victim and the Coalition Crime. exercising regarding from the admission
judge discretion evidence. photographic THE APPEALS OF COURT OF SPECIAL
JUDGMENT TO THAT CASE REMANDED COURT REVERSED. AFFIRM THE OF DIRECTIONS TO JUDGMENT WITH COUNTY. THE COURT FOR FREDERICK CIRCUIT OF IN COURT AND IN THE COURT SPE- THIS COSTS BE PAID BY RESPONDENT. APPEALS TO CIAL MURPHY, ELDRIDGE, J., in Opinion by which Dissenting C.J., BELL, J., join.
ELDRIDGE, dissenting: Judge, opinion holds that majority’s “[t]he Jr., Blank, he alive probative Thomas taken while was were identity,” trial had “[t]he the deceased victim’s *19 of infor- whether this alternative form discretion to determine identity ‘wholly the of victim need- regarding mation the was ” circumstances,’ judge’s that trial under the the less in “was an abuse of discretion.” regard decision this 565). at (Opinion majority an issue above-quoted holding by
The the decides in a cross- petition, was not raised in a certiorari which Therefore, of under any or in order this Court. petition, 8-131(b) and this by numerous decisions Maryland Rule Moreover, Court, majority the the issue is not before us.1 8-131(b) provides as Rule follows: “(b) Appeals-Additional In of Limitations.- Court “(1) by Appellate provide otherwise the or- Prior Decision.-Unless certiorari, reviewing granting writ decision rendered der the of in a Special acting Appeals by the or a circuit court in an Court of Appеals only appellate capacity, ordinarily the Court of will consider petition any issue has raised in certiorari or an that been the for preserved cross-petition that for the of has been review Court petition Appeals. certiorari or a Whenever an issue raised in involves, cross-petition expressly implicitly, the either or assertion error, Appeals may court of trial committed Court non-prejudicial was or even consider whether the error harmless though prejudice petition of or was not raised in the the matter harm cross-petition. or in a fails to resolve the sole issue in presented petition the State’s for a writ of certiorari. Because majority’s decision flatly long violates a established and consistently applied limitation upon this Court’s exercise of its certiorari jurisdiction, I dissent. case,
The Court of in Special Appeals alia, held this inter that, although “[pictures of a homicide victim taken before his or her death will sometimes be relevant tо the issue of identity,” the pictures here were not on admissible this basis because “the parties stipulated to the victim’s identity prior to trial.” (Broberg Court of Special Appeals No. 6). Sept. Term slip opinion at in petition State’s this Court for a writ certiorari did
not in any way challenge holding by Special the Court of Appeals. The State its certiorari petition argue did not or even intimate that the trial had discretion to admit the on theory they were identity. relevant to fact, In petition the State’s did not even mention the word “identity” “Question either the portion Presented” or the petition entitled “Reasons For Granting the Writ.”2 The issue concerning admissibility of the photographs which the petition State raised its certiorari whether admissible, they were in the discretion of judge, the trial jury acquainted “allow[] become with the homicide victim ‘in through display life’ photographs of the victim.” (Petition Certiorari, 1). Presented, For Question Writ The State’s arguments for set forth in admissibility the certio- petition rari were that the “homicide victim may bе ‘human- ized’ the trial during stage through the ‘in photo- use of life’ *20 “(2) Appellate Decision-Except provided No Prior as otherwise 8-304(c), Appeals Rule when the Court of issues a writ of certiorari to pending Special
review a case in the Appeals Court of before a Court, by decision has been rendered that Appeals the Court of will consider those cognizable by issue that would have been the Court of Special Appeals.” "identity” appears only 2. The word once in the State’s certiorari Facts,” petition, in the Of simply "Statement where the State sets forth Special Appeals’ some of holdings the Court of in the case. “jury and is with the defendant graphs,” acquainted the courtroom, is ‘faceless being in the but the victim a virtue ” offer a that the “State should be allowed to stranger,’ of the life the chose to extin- ‘glimpse [which defendant] ”3 context, that, is jury “in the non-homicide the guish,’ times, often the testi- to the victim because victim introduced (Id. at 3- fies. is not the case with a homicide victim.” Such 4). on the statutеs and specifically The State relied relating impact the to victim evidence provision constitutional of a representation of fair treatment and importance “the (Id. 4). at during victim a criminal trial.” The State charac- it “a the as novel issue.” presenting terized issue which was Court, an issue believing presented This the State had public importance, granted petition. the State’s There Furthermore, grant- no in this our order cross-petition case. add issue or the ing change the certiorari did not an petition however, Today, majority the presented by issue State. the the important question prompted does not resolve the which Instead, take the an issue majority Court to the case. reaches the petition; holding by not in certiorari it overturns a raised challenged was not Special Appeals Court of which Court.4 Maryland. Quoting 486 U.S. 108 S.Ct. from Mills v.
3. C.J., (1988) (Rehnquist, dissenting). L.Ed.2d addition, majority’s very While approach the is not even handed. In presented majority favorably in a for the State an issue decides petition crоss-petition, majority expressly or refuses certiorari defendant, namely an issue that the reach noted into evidence and never received into evidence.” “were never offered 3). majority justifies position (Respondent’s its on the brief ground cross-appeal "not the denial of his defendant did (Opin- argue and did or the issue before this Court. motion” not brief 1). ion at 549 n. course, "cross-appeal” Of the defendant did not have to the denial appeal judgment his His from the trial court’s final motion. notice up prior rulings by brought appeal all the trial court in the case. 132-133, 8—131(d); Leaf, B Rule & K Rentals v. Universal (1990), Although the and cases there cited. argue cross-petition defendant did not file a for certiorari and did not above, beyond noting quoted the matter in his brief issue as identity State neither raised nor "noted” issue its certiorari *21 majority question The asserts that the of whether the photographs ground were admissible on the that they were to was raised in identity relevant the State’s certiorari petition argued” because the “also in petition State the that the photographs “were relevant and because their probative value was not the outweighed by potential prejudicial effect.” 2). 550-551, (Opinion at n. The State’s reference to “relevant” petition its certiorari had nothing “identity.” to do with Rather, previously explained, as argued the State that the photographs were relevant so as to jury allow the to become acquainted better with the victim. weighing The of probative against value the likelihood of prejudicial unfair effect is consideration regard with to almost all evidence issues. See Evidence, 10a, (1983); § Wigmore, McLain, at 674 Evidence, 403.1, § at 297 it Once is determined that evidence is law, admissible under some principle of evidence ordinarily a trial judge has the discretion if to exclude it judge determines that the probative value is outweighed by the unfair prejudicial effect. The State’s argument its petition certiorari relevancy that the and probative value of the evidence to “humаnize” and acquaint jury with the homicide victim outweighed by was not an prejudicial unfair effect.
Under majority’s reasoning, whenever a petitioner uses effect,” the words “relevancy” “prejudicial the petitioner has thereby virtually any raised issue might that exist in the entire field the law of evidence. The issue of whether the photographs were admissible they because were relevant to the element of identity offense, the homicide and the issue of whether were admissible they because allowed jury to acquainted become with the homicide victim in the same way jury is acquainted with a
petition, argue opening and did not in its brief that the ground were they admissible on the identity. were relevant suggesting I am not that the Court should address the issue noted Instead, the defendant. the Court should treat the State and defendant and, both, respect alike with should not decide issues which are not properly raised in this Court. case, clearly separate are and distinct
victim in a non-homicide only the latter petition certiorari rаised issues. State’s issue; the former issue. majority only decides *22 this years, since the time when twenty
For more than dependent upon the issu- jurisdiction largely became Court’s that, certiorari, in a consistently have held ance a writ of we court, not shall by appellate intermediate we case decided an a petition, issue it raised a certiorari consider an unless was certiorari.5 granting or order this Court cross-petition, Inc., v. Group, Ins. Co. ARTRA Recently, Am. Motorists 1295, (1995), 560, 568-569, regard with 659 A.2d 1299 338 Md. petition in a or cross-petition, an not certiorari issue raised is flatly “That issue Judge for the Court stated: Chasanow also, McEl- e.g., See not before us....” properly therefore (1993) State, 146, 1068, roy v. 136, 617 A.2d 1073 329 Md. not ... in his petition first made (“McElroy’s argument Consequently, Court. addressed this certiorari 684, Shiflett, 325 Md. Batson v. us”); 700- issue not is before Handelsman, v. (1992); Ungar 701, 1191, A.2d 1199-1200 602 v. (1992); Stinnett 135, 147, 1159, 1164-1165 A.2d 325 Md. 599 Furniture, 2 448, 2, 1226, 1227 n. Cort n. 554 A.2d 315 Md. 452 97, Wagner Doehring, 315 (1989); n.4, Md. 103 A.2d v. 553 Fisher, n.5, v. 685, Neal 684, (1989); 312 n.4 Md. 690-691 687 State, 85, Maus v. 1314, (1988); 311 n.5 Md. 541 A.2d 1317 State, 58, Allgood v. 106, 1066, (1987); Md. A.2d 1077 309 532 State, (1987); 483, Clark 82, 917, 491- 522 A.2d 929 306 Md. denied, 492, (1986), 1084, 107 cert. 243, 479 U.S. 510 A.2d 247 Allnutt, Inc. v. (1987); Fred W. 1286, 144 94 S.Ct. L.Ed.2d Ind., 289 35, 2, 1360, n. 1362 Comm’r Lab. & 39 421 A.2d Md. State, 4, (1980); 62, 355 McMorris n. 2 70-71 n. subsequent category an added last would include issue This Court, having amending granting the effect of the order order of this by an order of the Court Whenevеr an issue has been added certiorari. argument, parties given the briefing and have been issued after supplemental supplemental oral opportunity to briefs submit and/or 717, See, 725, argument. e.g., 320 580 A.2d Schochet v. Md. 176, 177, 181
571 (1976); 4 Co., v. Sun A.2d n. Walston Cab Md. (1973).6 298 A.2d general The set forth in the above-cited cases has principle repeatedly applied been circumstances like those here. Where, case, as in Court particular holding by Special was not in a Appeals challenged certiorari or petition cross-petition, holding. we have refused to review that As Judge for the Orth stated Court in Gonzales v.
62, 69, (1991), A.2d obviously persuaded by reasoning
“Gonzales was not Special Appeals. holding. Court He did his challenge not in his writ of petition [issue] was raised for a certiorari, presented was it in our granting nor order us____” Consequently, writ. the issue is before See, Thomas, e.g., Middle States v.
5, (1995) (“these 6-7 Court rulings by Special Appeals the of challenged have not in Court not been this and are before us”); Edmonds, 342, 375, 102, Murphy v. 325 Md. 601 A.2d (1992). 118
Moreover, in by Special criminal cases decided the Court of Apрeals, issue has forth put where an been as an alternative conviction, basis for this upholding consistently the Court has refused to issue if it was in a consider not raised certiorari a or petition, cross-petition, the order of this Court Furthermore, parties fully even where the have in briefed an issue this Court, presented we have to consider issue refused the unless it was in See, petition, cross-petition, e.g., a certiorari order of this or Court. 540, 562-563, 914, Zeigler, v. State Police 330 Md. A.2d 625 (1993); State, 1066, 925 Maus v. 311 Md. 532 A.2d 1077 State, 587, (1987); 552, 1157, (1986); Wright v. 307 Md. 515 A.2d 1175 1, 36-37, Crawford, Cap. Md-Nat’l P. P. & Comm’n v. 307 Md. 511 A.2d 1079, (1986); Elza, 208, 4, 1097-1098 Clark v. 286 Md. 406 219 n. A.2d 922, (1979); Correction, 355, Dep’t 928 n. 4 v. State Md. 279 Mazor 8, 82, 370-71 n. 369 A.2d 92 n. 8 8-131(b) Although application it makes no difference in the in Rule case, noted, present previously opening the State's as the brief argue they Court did not the were admissible because Instead, identity. upon
were expanded relevant to State in its brief the argument petition the in its certiorari and also made a harmless error argument. 572 See, State, Clark v. Md. e.g., supra, 306 petition. the
granting however, (“In us, 491-492, at 249 the case before 510 A.2d issue” cross-petition [raising the] to file a the State has failed State, 126, v. McCray it”); not 305 Md. “we will consider (1985) (the 135-137, 856, an doctrine that 501 A.2d 860-861 any ground court on court will affirm the trial appellate is a case applicable the record by shown adequately the ground unless by Special Appeals the Court decided or the cross-petition, certiorari a presented petition, this case petition, “[i]n the granting order this Court filed the cross-petition [by State] no there was conditional State, 198, v. issue”); 202, Dean 434 raising the ... Md. (the 552, (1981) State’s A.2d Court refused consider petitioner’s failure to raise argument, based on alternative trial, failed to file cross- issue at because the State an 251, 8, petition); Temoney v. 262 n. 429 A.2d 538, State, (1981); Coleman v. 1018, n. 8 1023-1024 (“The (1977) however, not, file a State did 380 A.2d issue, and cross-petition raising [alternative] for certiorari it”); Dempsey Md. consider we therefore will not (1976) (“If 134, 142-143, 459-460 State 355 A.2d of Special Appeals’ that we should review Court believed if granted Dempsey’s error doctrine we plain invocation of cross-petition filed a conditional petition, the State should have Lancaster, certiorari”). See also State for a writ of (“In (1993) n. 12 a case 402 n. before Special Appeals, decided the Court of us which has been any that a trial court will be affirmed reason principle only if the applicable the record is adequately shown *24 certiorari, in in a for a writ of a ground petition presented was certiorari”); granting or in this Court’s order cross-petition, State, 1221, 502-503, 498, 1223- Robeson v. Md. 403 A.2d 285 1021, 680, denied, 62 (1979), 1224 cert. 444 U.S. 100 S.Ct. (1980).7 L.Ed.2d 654 exception principle expressly contained in an There is one to this
7. 8-131(b), namely issue harmless error. to Rule amendment setting exception, to of the forth this howev- Prior the amendment rule it of harmless error unless er. this Court refused to consider issue
573 8-131(b) “ordinarily” that this will Rule does state Court an raised in a a only petition, consider issue certiorari cross- or this Court. word “ordinarily” an order of The petition, Nevertheless, indicate are exceptions. does that there neither 8-131(b) “ordinarily” of the in nor the use word Rule rule,8 as principle granting embodied has been treated a discretion to reach an issue whenever the Court so general did, If the interests of “fairness.”9 it the amendment desires 8—131(b), an express to Rule the “harm- adopting exception issue, Instead, unnecessary. error” would have been we less “exceptions” principle have held that the embodied in 8-131(b) “extraordinary to Rule are limited circumstances.” 355, Correction, 8, v. Mazor State 279 370-371 n. Dep’t Md. 82, (1977); State, A.2d Dempsey supra, 369 92 n. 8 v. 142, Co., 459, 355 A.2d supra, at Walston v. Sun 267 Cab 569,
Md. at
able,11
the Court to
non-constitutional issue that -willenable
a
question presented,12 whether the case
avoid a constitutional
moot,13
court has
the
whether the trial
question
has become
required
type
judgment
a particular
either failed
render
declaratory
or has rendered
judgment)
(e.g.,
action
the
authority,14
is
Court’s
state
beyond
that
type
judgment
law,15and
immunity
under
sovereign
government
an
would
failure of the Court to consider
issue
where the
important public policy,
of an
such as
result in the violation
remedies be exhausted.16
that administrative
requirement
majority today, namely whether
The
decided
issue
they were relevant
were admissible because
recognized
princi-
identity,
exception
falls within no
in a
only
will
consider issues raised
this Court
ple
order of the
or
Court.
petition, cross-petition,
certiorari
policy
is
the basic
decision
inconsistent with
majority’s
authorizing
jurisdiction.
our certiorari
As
statutory provisions
Co., supra,
v.
out
Court Walston
Cab
pointed
Sun
569,
397,
A.2d
Chief MURPHY have authorized me to state that concur they expressed with the views herein.