State v. Waine
122 A.3d 294
Md.
2015
Check Treatment

STATE of Maryland v. Peter Sutro WAINE.

No. 90, Sept. Term, 2014.

Court of Appeals of Maryland.

Aug. 28, 2015.

Reconsideration Denied Oct. 15, 2015.

122 A.3d 294

Cathleen C. Brockmeyer, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Andrew D. Levy (Brown, Goldstein & Levy, LLP, Baltimore, MD; Howard L. Cardin, Cardin & Gitomer, P.A., of Baltimore, MD), on brief, for Respondent.

Russell P. Butler, Esquire, Victor D. Stone, Esquire, Maryland Crime Victims’ Resource Center, Inc., Upper Marlboro, MD, for amicus curiae brief of Maryland Crime Victims’ Resource Center, Inc., et al.

Ann N. Bosse, Esquire, Assistant State‘s Attorney for Montgomery County, Office of the State‘s Attorney for Montgomery County, Rockville, MD, for amicus curiae brief of Maryland State‘s Attorneys’ Association in support of Petitioner.

Glen K. Allen, Esquire, Michael N. Bakhama, Esquire, DLA Piper LLP (US), Baltimore, MD, for amicus curiae brief of University of Maryland Carey School of Law Clinical Law Program and Law and Social Work Services Program and Maryland Restorative Justice Initiative, Inc. in support of Appellee.

Clifford M. Sloan, Esquire, Donald P. Salzman, Esquire, Breanna L. Peterson, Esquire, Paul M. McLaughlin, Esquire, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, DC, for amicus curiae brief of former State and Federal prosecutors, former State Attorneys General, former Senior Justice Department Officials, and a former Judge in support of Appellee Peter Waine.

Brian M. Saccenti, Esquire, Assistant Public Defender, Office of the Public Defender, Appellate Division, Baltimore, MD, for amicus curiae brief of Maryland Office of the Public Defender in support of Respondent.

Argued before: BARBERA, C.J.,* HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD, WATTS, JJ.

* Harrell, J., now retired, participated in the hearing and conference of the case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

BARBERA, C.J.

In May 2012, we decided , and denied a motion to reconsider our decision in August of the same year. We granted certiorari to consider the State‘s request that we overrule what we decided in little more than three years ago. We decline to overrule and return to what once was the law. To hold otherwise would depart from the principles of stare decisis, generate uncertainty, and, ultimately, undermine trust and confidence in the rule of law.

I.

In order to appreciate the legal issues and arguments of the parties, it is useful at the outset to understand what this Court held in . followed a series of cases, , , and , all of which involved the “advisory only” jury instruction prompted by Article 23 of the Maryland Declaration of Rights. Article 23 reads: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” This Court promulgated Maryland Rule 756b to implement Article 23.1 The Rule required judges, “in every case in which instructions are given to the jury, [to] instruct the jury that they are the judges of the law and that the court‘s instructions are advisory only.”

In 1980, this Court considered whether Article 23, as interpreted by prior decisions, ran afoul of the guarantees afforded State criminal defendants by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court in construed Article 23 to mean that only those instructions concerning “disputes as to the substantive law of the crime” are advisory; all other instructions to the jury are binding. . The next year, in , the Court reinforced its interpretation of Article 23, emphasizing that advisory only instructions are “limited to those instances when the jury is the final arbiter of the law of the crime.” .

Almost 28 years later, we decided , a postconviction case. We concluded in , essentially consistent with and , that, under Article 23, the jury‘s role as judge of the law in a criminal case is limited to disputes relating to the substantive law of the crime and “all other legal issues are for the judge alone to decide.” . Notable for present purposes, we held in that the interpretation of Article 23, as reinforced by , “did not announce new law.” . We further held in that trial counsel‘s failure to object to the advisory only instruction constituted a waiver of Adams‘s right to challenge the instruction in the subsequent postconviction action. .

We re-examined our holdings in three and a half years later in . It was clear to the Court that ” and were wrongly decided.” . The Court in overruled “[t]hose portions of the Court‘s , , and opinions, holding that the interpretation of Article 23 in and was not a new State constitutional standard.” We also overruled the waiver holdings in those cases, , determining that the “failure to object to advisory only jury instructions in criminal trials prior to will not constitute a waiver,” . We made those holdings fully retroactive. . The decision effectively opened the door to postconviction relief for persons tried during the era of the advisory only jury instruction—an opportunity that had been foreclosed by , , and .

Against this backdrop, we turn to the case before us.

II.

This case arises from the 1976 trial of Respondent, Peter Sutro Waine. Waine was tried before a jury in the Circuit Court for Harford County on two charges of first degree murder and a related larceny. At the close of all the evidence, pursuant to Rule 756b, the judge began his instructions to the jury with the following reference to Article 23:

Under the Constitution and laws of the State, the jury in a criminal case is the judge of both the law and the facts and anything that I say to you about the law is advisory only. It is intended to help you, but you are at liberty to reject the Court‘s advice on the law and to arrive at your own independent conclusion on it, if you desire to do so.

The judge concluded his instructions with a reiteration of his opening instruction: “You are not partisans. You are judges, judges of the facts and the law. Your sole interest is to ascertain the truth from the evidence in the case.” Waine‘s counsel did not object to those instructions. After deliberating for less than three hours, the jury returned guilty verdicts on all counts. The judge imposed consecutive life sentences on the two murder convictions and an additional 14 years, consecutive to the second life sentence, on the larceny conviction.

Waine noted an appeal to the Court of Special Appeals, which, in 1977, affirmed the judgment. . Waine, representing himself, made initial efforts to seek certiorari review and postconviction relief but, in the end, did not file the petitions.

In 1997, Waine, assisted by counsel, sought postconviction relief for the first time. Waine claimed ineffective assistance of counsel at both the trial and appellate levels, and asserted, among 19 other claims, that the trial judge erred when he gave the advisory only jury instructions. The postconviction court, in denying relief, rejected Waine‘s claim that the erroneous jury instructions contravened fundamental constitutional rights and ruled that this claim was waived by trial counsel‘s failure to object to the jury instructions during trial. The Court of Special Appeals denied Waine‘s application for leave to appeal the denial of postconviction relief.

In September 2007, counsel for Waine filed a motion to reopen the petition for postconviction relief, relying in part on . Jenkins had sought federal habeas corpus relief from his 1975 Maryland conviction. . He argued that the advisory only jury instruction given at trial violated his right to due process by allowing the jury to disregard the State‘s burden to prove his guilt beyond reasonable doubt. The United States Court of Appeals for the Fourth Circuit agreed with .2 The court recognized the legal question as “whether the jury was effectively given any reasonable doubt instruction at all; for if the jury understood the advisory nature of the instructions as permitting it to ignore the reasonable doubt instruction, then the jury could fashion any standard of proof that it liked.” The court noted that, after , it was no longer an “open question” that “the jury must be instructed that the Government is required to prove the defendant‘s guilt ‘beyond a reasonable doubt[.]‘” . The court held, by application of , that Maryland‘s advisory only jury instruction violates due process.

Waine‘s motion to reopen his postconviction proceeding lay dormant until 2012, when the circuit court, citing our recently filed opinion in , granted the motion. The court found, based on , that “it would be in the interest of justice to allow a reopening of the Petitioner‘s postconviction application in this court ... on only one issue—the alleged erroneous jury instruction advising the jury that they were the judges of the law and the facts.”

Following a hearing, the postconviction court issued a memorandum opinion granting Waine postconviction relief. The court rejected the State‘s claim of waiver as having been “foreclosed by .” The court also rejected the State‘s contention that Waine was not prejudiced by the advisory only instruction because of other instructions to the jury. The court concluded that the advisory only instruction went “to the very core of due process of law” and, based on the full retroactivity conferred by , ordered that Waine was entitled to a new trial.

The Court of Special Appeals denied the State‘s application for leave to appeal in an unreported opinion addressing the merits of the postconviction court‘s grant of relief under . We granted the State‘s certiorari petition to answer three questions, which we have reworded:

  1. Should be overruled?
  2. Assuming is not overruled, did the circuit court exercise proper discretion in reopening Waine‘s postconviction proceeding, and more generally, does a circuit court retain discretion to deny reopening a postconviction proceeding to address a challenge to an advisory jury instruction?
  3. Assuming is not overruled, what is the proper standard by which a court should evaluate advisory only jury instructions?

III.

The State urges us to overrule , arguing that, in deciding , we departed from stare decisis in an unprecedented and improper manner. The State protests that the decision has left circuit courts across Maryland “in turmoil” and has resulted in “chaotic” litigation. The State asks us to calm these unsettled waters by resurrecting . Waine and amici in support of him and persons similarly situated urge us not to disturb as the case declares the current state of the law and should remain intact, as faithful adherence to the doctrine of stare decisis demands.

“Stare decisis means ‘to stand by the thing decided,’ and is ‘the preferred course because it promotes the even-handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.‘” (quoting ); accord . In , we reiterated: “The crux of the doctrine of stare decisis is that courts should reaffirm, follow, and apply ordinarily the published decisional holdings of our appellate courts even though, if afforded a blank slate, the court might decide the matter differently.” (citing ).

We have recognized two exceptions for departing from stare decisis. “We may decline to follow the doctrine when persuaded the prior decision is clearly wrong, or when the precedent has been rendered archaic and inapplicable to modern society through the passage of time and evolving events.” (citation omitted); see also (“[U]nder the doctrine of stare decisis, a court‘s previous decisions should not be lightly set aside, nevertheless the rule of stare decisis is not an absolute.“) (internal quotation marks omitted).

The State insists that deviated from the doctrine of stare decisis and that a return to , decided three and a half years earlier, is required. To the contrary, it is , not , to which the dictates of stare decisis must now apply. Unless we are persuaded that is either “clearly wrong and contrary to established principles” or “superseded by significant changes in the law,” we must leave the decision standing. (internal quotation marks omitted). The State has not persuaded us that either of these exceptions applies.

The State makes no argument that is archaic, superseded by a significant change in the law, or rendered inapplicable to modern society by the passage of time. The State concentrates solely on arguing that the decision was clearly wrong and contrary to established principles. The State argues that the Court wrongly held that set forth a new interpretation of Article 23. The State picks its way carefully around the analysis in both and to paint a picture of clear error, but neglects to include the full bore of the Court‘s analysis for determining that a new constitutional rule had been laid in .

The Court, in reaching the legal conclusions that it did, applied the very principles of, and exceptions to, the doctrine of stare decisis that the State relies upon in seeking a return to the holdings of the , , and cases. In , this Court analyzed the law existing at the time of , including Maryland Rule 756b3 requiring courts to give the advisory only jury instruction. See . We have reviewed independently the Court‘s extensive analysis and need not repeat it here. It is enough to say that the Court was not wrong, much less clearly wrong, in determining that and established a new State constitutional standard that could not be considered waived, requiring the overruling of and the portions of and that held to the contrary.

The State is in the unfortunate position of decrying the “ping-pong” between the Court‘s holding in and , decided three and a half years apart, and seeking just one more “ping” by urging that be overruled and resurrected. We must decline. Where the Court has previously recognized a new State constitutional standard as fundamental to due process, deference to that precedent ensures the constancy upon which due process endures.

IV.

We turn next to the State‘s contention that the circuit court erred by granting Waine‘s motion to reopen his petition for postconviction relief to entertain his claim. The State argues that the court‘s rationale for granting the petition demonstrates the court‘s failure to recognize that it had the discretion to deny reopening. We disagree.

The circuit court‘s written statement of reasons for reopening the postconviction proceeding to hear the claim demonstrates that the court both recognized that the decision to reopen is discretionary and properly exercised that discretion. It is evident that the court had carefully reviewed the record and relevant case law, including , and ; understood that has retrospective application to specific advisory only instructions; appreciated that the claim of error reached “to the very core of due process of law“; and concluded that reopening the proceeding to consider that claim for relief would be in the interests of justice.

The State also argues that, should we decline to overrule , as we have done, we should consider whether judges retain discretion to deny motions to reopen postconviction proceedings after . We recognized in that a change in the law intended to apply retroactively meets the “interests of justice” standard for reopening a petition for postconviction relief. . This is both independent of and consistent with Section 7-106(c)(2) of the Criminal Procedure Article:

Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:

(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and

(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner‘s conviction or sentence.

Md. Code Ann., Crim. Proc. § 7-106(c)(2) (2001, Repl.Vol. 2008). Given the nature of this claim and others like it, the legal landscape that prevailed at the time of Waine‘s trial, and the case law that developed in the decades between and suggesting the likelihood that an unobjected to jury instruction would be considered waived, it can hardly be said that reopening a postconviction proceeding to consider an claim would be an abuse of discretion.

V.

Finally, the State asks us to consider what test a court must apply in considering a challenge to an advisory only jury instruction. Rather than adopting the standard set forth in , the State urges that advisory only instructions be considered on a case by case basis to determine whether there is a “reasonable likelihood” that the jurors understood the court‘s Article 23 instruction as allowing them to convict a defendant on less than proof beyond a reasonable doubt. The State‘s reliance on the “reasonable likelihood” test is misplaced, as this was the test adopted by the Supreme Court for review of jury instructions that are ambiguous. (“[I]n reviewing an ambiguous instruction such as the one at issue here, we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (quoting )); see also .

Ambiguity is not the issue in Article 23 advisory only jury instructions; rather, such instructions are clear, but erroneous, as they give the jury permission to disregard any or all of the court‘s instructions, including those bedrock due process instructions on the presumption of innocence and the State‘s burden of proving the defendant‘s guilt beyond a reasonable doubt. See . This is illustrated by :

But the essential connection to a “beyond a reasonable doubt” factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury‘s findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, the wrong entity judge[s] the defendant guilty.

Another mode of analysis leads to the same conclusion that harmless-error analysis does not apply: In Fulminante, we distinguished between, on the one hand, structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards, and, on the other hand, trial errors which occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a basic protectio[n] whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function. The right to trial by jury reflects, we have said, a profound judgment about the way in which law should be enforced and justice administered. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.”

(alteration in original) (internal quotation marks and citations omitted) (citing ).

The rationale underpinning applies equally to advisory only jury instructions. We therefore hold that the trial court‘s giving the advisory only jury instruction was structural error not susceptible to harmless error analysis and that the conviction must be vacated.

VI.

In sum, we uphold as the law regarding advisory only jury instructions. The postconviction court properly granted Waine relief in the form of a new trial. The Court of Special Appeals affirmed that ruling. We, in turn, affirm the judgment of the Court of Special Appeals.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY HARFORD COUNTY.

HARRELL and ADKINS, JJ., join in judgment only.

WATTS, J., dissents.

Judges HARRELL and ADKINS join the judgment only. Judge HARRELL writes separately as follows, to which sentiments Judge ADKINS subscribes.

HARRELL, J.

I feel a little like Jabez Stone.1 Judge Watts‘s dissenting opinion in this case is quite tempting, given my dissent in (2012); however, more compelling here is my respect for the doctrine of stare decisis.2 One could say (and the irony is not lost on me) that I am hoisting myself on my own petard. Nonetheless, I will not require the services of Daniel Webster to fight for my soul.

I can articulate no changes in society between 2012 and now that would justify not honoring the stare decisis effect of in Waine‘s case. Similarly, no new jurisprudential principles or statutory changes have arisen during that time which would justify labeling “clearly wrong, contrary to established principles, or superseded by significant changes in the law.” To be certain, was decided wrongly, but I cannot label it “clearly wrong.”

By the same token, I do not subscribe to the overly reverential tone in the Majority opinion here of . For example, the Majority opinion states, “[t]he Unger Court, in reaching the legal conclusions that it did, applied the very principles of, and exceptions to, the doctrine of stare decisis....” Maj. Op. at 701, 122 A.3d at 299. To this, I respond, “Seriously???“—see my dissent in .

For these reasons, Judge Adkins and I do not join the Majority opinion, but join the judgment only.

WATTS, J.

Respectfully, I dissent. “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” (Frankfurter, J., dissenting). I would overrule ; reinstate , , and ; and hold that a petitioner for postconviction relief waives a challenge to “advisory” jury instructions by failing to raise any issue as to the “advisory” jury instructions in a prior proceeding.

Here, we are asked to overrule , whose holding regarding “advisory” jury instructions casually overruled decades’ worth of well-established case law. At its core, this case presents the paradox that the doctrine of stare decisis supports overruling a case.1 For more than three decades, , was the law of Maryland. The bench and bar relied on , and justifiably so; this Court reaffirmed one year after issuing it, see , and then once again twenty-eight years after issuing it, see . But then, a mere four years after , in , without valid reason, this Court overruled and decades’ worth of other case law in which we consistently recognized that Article 23 of the Maryland Declaration of Rights and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime.

In overruling this raft of case law in , this Court struck a blow to stare decisis, rocked lawyers’ and courts’ confidence that this Court would not lightly abandon its precedent, and gave members of the public reason to believe that this Court‘s decision-making is based on the views of the individual judges who decide a case, regardless of existing case law. Today, this Court has the opportunity to right these wrongs, restore stare decisis to its proper place, and make clear that, because this Court nonchalantly demolished decades’ worth of case law in , that case represents an aberration that thwarts the doctrine of stare decisis. Unfortunately, the Majority fails to take advantage of this opportunity, and instead reaffirms with barely any analysis, original thought, or consideration of historical context. See Maj. Op. at 700-02, 122 A.3d at 298-300.

Foremost, is disconcerting in light of the circumstance that this Court simply turned parts of the dissent in (Eldridge, J., dissenting) into the majority opinion in . As the Honorable Glenn T. Harrell, Jr. pointed out in (Harrell, J., dissenting), “more is required, before deviating from stare decisis, than simply re-potting those dissenting views as a Majority opinion here“; “[t]he only thing that appears to have changed in the few intervening years between Adams and [Unger] is the composition of [this] Court.” As Judge Harrell later demonstrated, a dissenting judge must realize that, as of this Court‘s issuance of the majority opinion from which the judge dissents, the judge‘s views’ opposite—i.e., the majority opinion—becomes the law of Maryland. See (Harrell, J., concurring) (“I did not join the reasoning ... of the plurality of the judges in ... Doe I. ... I concur in the judgment of [this] Court‘s opinion in the present case, assuming that Doe I was decided correctly. It is, after all, the law of Maryland.“).

Under the well-established framework of stare decisis, it is readily apparent that was clearly wrong and contrary to established principles,2 not only because this Court lightly cast aside stare decisis in , but also because, in , this Court erroneously reasoned that, in , this Court was wrong in concluding that this Court did not “announce new law” in or . To adequately explain why this Court did not “announce new law” in or , a thorough analysis is needed.3

In 1776, under English common law, in a criminal case, the trial court decided the law, and the jury applied the law to the facts. See . The English common law principle “was condemned by some of the Colonial statesmen, notably John Adams, who believed that the juries should be entitled to disregard the arbitrary and unjust rulings of the [trial] judges holding office by authority of the” King of England. ; see also (“In some of the ... Colonies[,] it was fully understood that the [trial] judges held office not for the purpose of deciding causes, for the jury decided all questions of both law and fact, but merely to preserve order and see that the parties were treated fairly before the jury. This procedure received patriotic justification as increasingly oppressive measures were taken by the royal officials; however, the fact that many of the [trial] judges had not studied law was probably an additional explanation for the procedure.“).

The Constitution of Maryland of 1776 did not expressly indicate whether the jury was the judge of the law in a criminal case. See . As a result, “opposing views as to the powers of [the] jury in a criminal case[] prevailed in different parts of” Maryland. (LeGrand, C.J., concurring). To secure uniformity of decision, the Constitution of Maryland of 1851 included Article X, Section 5 of the Maryland Declaration of Rights, which stated: “In the trial of all criminal cases, the jury shall be the judges of law as well as fact.” See (LeGrand, C.J., concurring) (“[T]o guard in the future against conflict, the provision was inserted in the constitution.“).

This Court consistently recognized that Article X, Section 5 and its successors mean that, in a criminal case, the jury is the judge of the “law of the crime;” in other words, the jury applies the law of the crime (e.g., the law against murder) to the facts, and cannot make any other legal determination (e.g., that a statute is unconstitutional). For example, in , the very first case in which this Court mentioned Article X, Section 5, this Court stated that Article X, Section 5 did not enable the jury in a criminal case to conclude that a statute is unconstitutional. As to that issue, a majority of this Court adopted the concurring opinion of Chief Justice John Carroll LeGrand, , who stated that, under Article X, Section 5, “in a criminal case[,] the jury [is] not bound to abide by the interpretation of the [trial] court of the meaning of a law, but [is] free to construe and apply it according to [the jurors‘] own judgments“; in other words, instead of having “the right to decide on the constitutionality of an act defining murder, arson[,] or any other crime, [the jurors] had the right to affix their own meaning on the particular law, and to determine for themselves, whether the facts proven brought the [defendant] within that meaning[,]” (Le Grand, C.J., concurring) (emphasis added).

In several cases after , this Court reaffirmed the principle that Article X, Section 5 and its successors: (1) mean that, in a criminal case, the jury is the judge of the law of the crime; and (2) do not enable the jury to make any other legal determination (e.g., whether a piece of evidence is admissible). See (“[A]ny instruction given by the [trial] court, as to the law of the crime, is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence.” (Some emphasis in original)); (“[I]t was the duty of the [trial] court to leave it to the jury to say[] whether the evidence was sufficient in law and in fact to prove the [crime] charged.” (Emphasis added)); (“The [trial court] ... cannot, by any instruction given in a criminal case, bind the jury as to the definition of the crime, or as to the legal effect of the evidence before them.” (Emphasis added)); (same) (quoting ); (“[T]he jury in criminal cases are the judges of the law, and of the legal effect and legal sufficiency of the evidence, and the [trial] court ... determines [only] the admissibility of the evidence.” (Emphasis added)); (same) (quoting ); (“The statement in Dick [, 107 Md. at 17, 68 A. at 288], and Beard [, 71 Md. at 280, 17 A. at 1045], that the [trial] court could not bind the jury as to the ‘legal effect of the evidence,’ referred to the effect, in law, of admitted evidence upon the issue of guilt or innocence[.]” (Emphasis and italics added)); (Article X, Section 5 and its successors “‘contemplate[] that it is within the proper province of the jury to resolve conflicting interpretations of the law and to decide whether the law should be applied in dubious factual situations,’ but ‘it does not confer upon them untrammeled discre-tion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.‘” (Quoting (Moylan, J.), aff‘d, ) (emphasis added) (parentheses and internal quotation marks omitted)); (same) (citation omitted).

It may seem inconsistent that: (1) this Court construed Article X, Section 5 and its successors to mean that, in a criminal case, the jury is the judge of the law of the crime; whereas (2) Article X, Section 5‘s language that “the jury shall be the judges of law” suggests that its purpose was to supersede the English common law principle that, in a criminal case, the jury only applied the law of the crime to the facts, see . There is, however, no such inconsistency; Article X, Section 5‘s purpose was actually to codify the English common law principle. As noted above, the English common law principle was in effect in 1776. See . In that year, Maryland received the English common law, see Md. Decl. of Rts. Art. 3 (1776) (“[T]he inhabitants of Maryland are entitled to the common law of England[.]“), and the Constitution of Maryland of 1776 was otherwise silent regarding whether the jury was judge of the law in a criminal case, see . Thus, despite the “opposing views as to the powers of [the] jury in a criminal case” between 1776 and 1851, (LeGrand, C.J., concurring), Maryland received in 1776 the English common law principle that, in a criminal case, the trial court decided the law, and the jury applied the law to the facts. Indeed, as this Court expressly recognized, Article X, Section 5 of the Constitution of Maryland of 1851 did not supersede the English common law principle; to the contrary, Article X, Section 5 codified it. See (This Court stated that Article X, Section 5 “is merely declaratory, and has not altered the pre-existing law regulating the powers of the [trial] court and [the] jury in criminal cases.” (Emphasis added)); see also (Article X, Section 5 is “only declaratory of the pre-existing common law upon the subject.” (Citing ) (emphasis added)). Thus, Article X, Section 5‘s purpose was to secure uniformity of decision in favor of the English common law principle, not against it. See (LeGrand, C.J., concurring) (“[T]o guard in the future against ... conflict, the provision was inserted in the constitution.“).

Given that Article X, Section 5‘s purpose was to codify the English common law principle, one may wonder why Article X, Section 5‘s drafters chose the words “the jury shall be the judges of law[.]” The reason is simple: Article X, Section 5‘s drafters wanted to make clear that, in a criminal case in which a jury trial occurred, the jury, and only the jury, applied the law of the crime to the facts; in other words, the trial court could not apply the law of the crime to the facts by ordering a directed verdict (whether guilty or not guilty), and an appellate court could not could not apply the law of the crime to the facts by reviewing the sufficiency of the evidence. See (Citing Article X, Section 5‘s identical successor, this Court noted that a trial court cannot order “a directed verdict in [a] criminal case[]“; this Court disapproved of , in which the Supreme Court held that a trial court did not err in telling a jury: “I cannot tell you, in so many words, to find defendant guilty, but what I say amounts to that.“); (“The [trial] court is given no authority to decide as to the ... sufficiency of [the] evidence.... It is expressly denied the right to determine a question of that nature by” Article X, Section 5‘s identical successor. (Citing ; )); (“Under the Constitution of [Maryland] .... [i]t is ... not within our jurisdiction, as an appellate tribunal, to determine as to the legal sufficiency of the evidence[.]” (Citing ; )). Of course, it is no longer the law that, in a criminal case in which a jury trial occurs, a court cannot apply the law of the crime to the facts; today, a trial court can enter a judgment of acquittal, and an appellate court can reverse a conviction that is based on insufficient evidence. See Md. Const. Art. XV, Sec. 5 (amended 1950) (“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” (Emphasis added)); Md. Decl. of Rts. Art. 23 (2010) (same).4 That said, it remains the law that a trial court cannot order a directed verdict of guilty—as Article 23 and its predecessors have contemplated.

In sum, this Court consistently recognized that Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime. Thus, in , this Court was correct in noting that, under more than a century‘s worth of precedent, in a criminal case, the jury‘s “authority is limited to deciding ‘the law of the crime,’ Wheeler[ ], 42 Md. [at] 570[ ], or ‘the definition of the crime,’ as well as ‘the legal effect of the evidence before (the jury).’ Beard[ ], 71 Md. [at] 280, 17 A. [at] 1045[ ]. And this Court has consistently interpreted [Article 23 and its predecessors] as restraining the jury‘s law[-]deciding power to this limited, albeit important, area.” See also (This Court quoted (LeGrand, C.J., concurring) for the principle that “the jury was not granted, by Article 23 [and its predecessors], the power to decide all matters that may be correctly included under the generic label ‘law.‘“). One year after , in , in accordance with and earlier precedent, this Court correctly reaffirmed that, in a criminal case, the jury‘s “authority is limited to deciding the law of the crime, or the definition of the crime, as well as the

legal effect of the evidence before the jury.” (Quoting ) (citations, parentheses, and internal quotation marks omitted).5

Twenty-seven years after , in , writing for this Court, Judge Harrell correctly and cogently explained that ” and , by their express terms, did not announce new law.” See also (“[T]he Stevenson court is clear that it did not make new law, but rather it merely clarified what has always been the law in Maryland.” (Citation and internal quotation marks omitted)). Appropriately taking stare decisis into account, Judge Harrell declared: “We shall not here disturb the holdings of Montgomery and Stevenson.” .

In , the dissent disputed that this Court consistently recognized that Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime. Specifically, the dissent accused this Court of “re-draft[ing]” Article 23 in both and . (Eldridge, J., dissenting). The dissent attempted to support its accusation with multiple unpersuasive contentions.

The dissent asserted that none of this Court‘s precedent “support[s] the proposition that the jury‘s right to decide the law in criminal cases is limited to the ‘law of the crime’ and the ‘legal effect of the evidence.‘” (Eldridge, J., dissenting) (footnote omitted). The dissent attempted to reconcile its assertion with (“[A]ny instruction given by the [trial] court, as to the law of the crime, is but advisory, and in no manner

binding upon the jury, except in regard to questions as to what shall be considered as evidence.” (Some emphasis in original)) and (“The [trial court] cannot, by any instruction given in a criminal case, bind the jury as to the definition of the crime, or as to the legal effect of the evidence before them.” (Emphasis added)) by myopically fixating on the circumstance that this Court did not use the word “limited” or a similar term. See (Eldridge, J., dissenting).

Respectfully, the dissent‘s observation was beside the point. In , , and voluminous other cases, this Court did not need to use the word “limited” or a similar term in interpreting Article 23 and its predecessors; by definition, if Article 23 and its predecessors mean one thing, then Article 23 and its predecessors do not mean anything else. By way of comparison, generally, where a statute expressly defines a term as “X, Y, or Z,” that statutory definition excludes any meaning other than “X, Y, or Z.” See (Under the doctrine of expressio unius est exclusio alterius (“the expression of one thing is the exclusion of another“), “statutory lists are often interpreted as exclusive, so that a court will draw the negative inference that no other items may be added.” (Citation omitted)). Thus, if Article 23 and its predecessors mean that the jury is the judge of the law of the crime, then Article 23 and its predecessors do not mean that the jury is able to make any other legal determination. It follows that this Court did not “announce new law” in , by accurately noting that, under more than a century‘s worth of precedent, in a criminal case, the jury‘s “authority is limited to deciding ‘the law of the crime,’ Wheeler[ ], 42 Md. [at] 570[ ], or ‘the definition of the crime,’ as well as ‘the legal effect of the evidence before (the jury).’ Beard[ ], 71 Md. [at] 280, 17 A. [at] 1045[ ].”

The dissent interpreted snippets of dicta in an attempt to support the proposition that there were only two “exceptions” to Article 23 and its predecessors: the admissibility of a piece of evidence, and the constitutionality of a statute. See (Eldridge, J., dissenting). For example, the dissent misplaced its reliance on the word “except” in (“[A]ny instruction given by the [trial] court, as to the law of the crime, is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence.” (Emphasis in original)) and the word “only” in (A trial court “can only bind ... the jury as to what evidence shall be considered by” the jury.). See (Eldridge, J., dissenting).

The dissent‘s strained interpretation of these isolated words is undermined not only by the bevy of cases in which this Court consistently recognized that Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime, see, e.g., (“[I]t was the duty of the [trial] court to leave it to the jury to say[] whether the evidence was sufficient in law and in fact to prove the [crime] charged.“), but also by the circumstance that the admissibility of a piece of evidence and the constitutionality of a statute are far from the only “exceptions” to Article 23 and its predecessors; for example, this Court has long held that Article 23 and its predecessors do not enable the jury to determine: (1) when a statute became effective, see ; (2) whether the General Assembly has repealed a statute, see ; or (3) whether the trial court has jurisdiction, see .

The dissent asserted that “[t]his Court has never explained what legal issues precisely fall within the phrases ‘law of the crime’ and ‘legal effect of the evidence.‘” (Eldridge, J., dissenting). The dissent was mistaken. In , a majority of this Court adopted part of the concurring opinion of Chief Justice LeGrand, who equated “the law of the crime” with “an act defining murder, arson[,] or any other crime,” (LeGrand, C.J., concurring). In , this Court defined “legal effect of the evidence” as “the effect, in law, of admitted evidence upon the issue of guilt or innocence[.]” (Citations omitted).

The dissent listed multiple cases in which this Court stated that, if a trial court instructs the jury, the trial court must label the jury instructions as “advisory.” See (Eldridge, J., dissenting). For example, the dissent noted that, in , this Court affirmed a conviction where a trial court instructed a jury about the presumption of innocence and the burden of proof beyond a reasonable doubt, but told the jury that the jury instructions were “advisory“; this Court stated: “[T]he [trial] court cannot give [the jury] binding instructions in [criminal] cases.” See (Eldridge, J., dissenting). The dissent failed to mention that this Court‘s statement in , was dicta; the issue of the jury instructions’ propriety was “not ... properly before” this Court because the defendant “fail[ed] ... to point out the specific instructions to which he objected.” . Indeed, in no case, including , has this Court ever held that a trial court did not err in giving “advisory” jury instructions that implicate federal constitutional rights (such as the presumption of innocence).6

Thus, the dissent‘s reliance on and similar cases was misplaced.7

Tellingly, the dissent did not even mention, much less address, stare decisis, see (Eldridge, J., dissenting); instead, the dissent acted as though it were writing on a blank slate, when in fact and had already been carved into the law of Maryland.

A mere four years after , in , this Court pummeled stare decisis by overruling and decades’ worth of other case law and reasoning that ” and ... set forth a new interpretation of Article 23[.]” . In , instead of meaningfully attempting to meet the high burden of establishing that was clearly wrong and contrary to established principles, this Court simply adopted parts of the dissent in , see , and essentially copied-and-pasted several passages from the dissent in into , compare (Eldridge, J., dissenting) with . Tellingly, in , without any careful analysis, this Court stated that , , and were merely “erroneous,” not “clearly wrong and contrary to established princi-

ples.” . Thus, the Majority is simply wrong in stating that “[t]he Unger Court, in reaching the legal conclusions that it did, applied the very principles of, and exceptions to, the doctrine of stare decisis, [on which] the State relies ... in seeking a return to ... Stevenson, Montgomery, and Adams[.]” Maj. Op. at 701, 122 A.3d at 299. Indeed, as Judge Harrell perceptively noted, this Court in , much like the dissent in , acted as though it were addressing “an open question requiring an answer, which, based on our holding in Adams, it clearly is not.” (Harrell, J., dissenting) (citation omitted).

The dissent in was clearly wrong and contrary to established principles in disputing that this Court consistently recognized that Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime. And, in , this Court was even more clearly wrong in overruling . The only correct result is to overrule and restore , , and to their rightful place as good law consistent with more than a century‘s worth of this Court‘s precedent.

Regrettably, this Court‘s precedent was not the only thing that disturbed eons after it was thought to be settled. opened the floodgates for individuals to exhume decades-old convictions for murder, rape, and other serious crimes. As a result, victims and their family members have been forced to relive traumatic experiences long after they thought that they had finally achieved closure. Additionally, dozens of individuals have been released in wake.8

Despite consequences, the Majority refrains from overruling it, ostensibly based on good intentions and the honest belief that the Majority‘s decision bolsters stare decisis. See Maj. Op. at 695, 699-702, 122 A.3d at 295, 298-300. In actuality, however, the Majority condones the blow to stare decisis that was brought about in , and undermines even further “the evenhanded, predictable, and consistent development of legal principles, ... reliance on judicial decisions, and ... the actual and perceived integrity of the judicial process.” (citation and internal quotation marks omitted). The Majority‘s decision will injure not only all of this Court‘s precedent, but also the public by permitting the reopening of serious criminal cases on unsound legal grounds.

In short, although the Majority purports to avoid “generat[ing]” “uncertainty,” Maj. Op. at 695, 122 A.3d at 295, the Majority actually cultivates a lack of consistency in case law by sanctioning the undermining of the doctrine of stare decisis that was perpetrated in .

For the above reasons, respectfully, I dissent.

Notes

1
Maryland Rule 756b was promulgated in 1961. Earlier versions of this Rule were similar in substance but were numbered differently. See infra n. 3 (explaining, in more detail, the renumbering and restructuring of this Rule). The New Hampshire farmer tempted by (and succumbing to) Mr. Scratch‘s blandishments in Stephen Vincent Benet‘s short story “The Devil and Daniel Webster” (1937). “Under stare decisis, absent extremely narrow exceptions, an appellate court does not overrule its precedent. Stare decisis promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” (citations and internal quotation marks omitted).
2
Had the Majority in Unger paid more than lip service to stare decisis, , would not have been reversed and would still be the law of Maryland. I agree with Judge Watts‘s surmise that the different outcome in Unger on the identical question decided in Adams had all to do with the changes in who sat on the Court in 2012 than in 2008, and little to nothing to do with any intervening sea change in the modernity of society or the creation of new jurisprudential reasons from which Adams could be said (with any legitimacy) to have been “clearly wrong.”
3
Whether this Court “announced new law” in Stevenson or Montgomery determines whether a petitioner for postconviction relief waives a challenge to an “advisory” jury instruction by failing to object to the “advisory” jury instruction in a prior proceeding. See Md.Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) (“CP“) § 7-106(b)(1)(i) (“[A]n allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, whether or not the petitioner took an appeal; 4. in an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that the petitioner began.” (Paragraph breaks omitted)); CP § 7-106(c)(2) (“[A]n allegation of error may not be considered to have been waived if a court whose decisions are binding on the lower courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner‘s conviction or sentence.” (Emphasis added) (paragraph breaks omitted)).
4
In 1978, through a constitutional amendment, Article XV, Section 5 was recodified as Article 23 of the Maryland Declaration of Rights. See 1977 Md. Laws 2743-49 (Ch. 681, H.B. 463).
5
Tellingly, the dissent in (Eldridge, J., dissenting), and the concurrence in (Eldridge, J., concurring) failed to dispute that this Court consistently recognized that Article 23 and its predecessors mean that, in a criminal case, the jury is the judge of the law of the crime.
6
It is true that Maryland Rule 757b (1963 Repl.Vol.) stated: “The court shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court‘s instructions are advisory only.” However, Maryland Rule 757b does not necessarily stand for the proposition that this Court condoned giving “advisory” jury instructions that implicated federal constitutional rights. This Court rejected facial challenges to Article 23 and its predecessors based on federal constitutional rights in , , and , but this Court did not consider an as-applied challenge to Article 23 and its predecessors based on federal constitutional rights until (“[I]t was error [for a trial court] to instruct [a] jury that [its] instructions were advisory and that the jury could pay absolutely no attention to [its] instructions.“). In other words, until Montgomery, this Court never addressed whether a trial court erred in giving “advisory” jury instructions that implicated federal constitutional rights; and, in no case has this Court ever condoned giving “advisory” jury instructions that implicated federal constitutional rights.
7
As another example, the dissent noted that, in , this Court stated: “[A]s [a trial] court properly advised [a] jury, the defendant is ‘presumed to be innocent until proven guilty beyond a reasonable doubt, and that presumption attends him throughout the trial until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty.‘” See (Eldridge, J., dissenting). This Court‘s statement in Bruce was dicta; at issue was the propriety of jury instructions regarding the difference between murder and manslaughter, not jury instructions that implicated federal constitutional rights.
8
Peter Sutro Waine, Respondent, and multiple amici note that, if this Court overrules Unger, some individuals will have benefitted from Unger, while others will have not. I am unpersuaded by the contention that this circumstance would create undue disparity. Because Unger was clearly wrong and contrary to established principles, those who have been released from incarceration were not entitled to relief in the first place. Now is the time to correct the error that is Unger; it is better to close the floodgates late than to never close them at all.
9
As an aside, although I strongly disagree with the Majority‘s decision to reaffirm Unger, if Unger remains the law, I agree with the Majority that, here, the Circuit Court for Harford County did not abuse its discretion in reopening the postconviction proceeding based on a challenge to “advisory” jury instructions. See Maj. Op. at 702, 122 A.3d at 300. I also agree with the Majority that a challenge to “advisory” jury instructions is not controlled by the “reasonable likelihood” test. See Maj. Op. at 703, 122 A.3d at 300.
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