Stevenson v. State

LOU DOROTHY STEVENSON STATE OF

MARYLAND Tеrm, 98, September [No. 1979.1 17, 1980. Decided December argued J., cause was before and Murphy, Smith, C. Digges, Eldridge, Cole, JJ. Rodowsky, Davidson Saunders, Defender, Thomas J. Assistant Public with brief,- Defender, Murrell, on the Public was Alan H. whom appellant. for General, Attorney with

Stephen Caplis, B. Assistant brief, General, Sachs, Attorney on the H. Stephen whom appellee. Digges, J., Court. opinion Eldridge, delivered dissent, J., JJ., filed Eldridge, Davidson, Cole infra, Cole, J., in which dissenting page opinion J., III, concurs. in Part and which Davidson, concurs "limited criminal cause granted We certiorari in this denied [the the trial court solely to the whether question by the XIV guaranteed due accused] the Constitution] when it States [to Amendment the United In binding [jury] instructions.” rather than gave advisory words, Article confined to whether other our review here is Maryland Rights to the 23 of Declaration of criminal case Constitution, that the in a provides which fact,” Law, as well as of Judges "shall be the by this provision, because the as construed unconstitutional federally Court, a of the secured facially deprives defendant legal Recognizing purely to due process law. summary of will suffice. nature of a brief the facts query, Dorothy was a Petitioner Lou Stevenson convicted J.) (Clark, County first in the Circuit Court Kent a fire while degree setting of her and of murder husband subsequently sentenced to perpetrating a crime. She was years, three imprisonment concurrent terms of life and Special Appeals, in an respectively. appeal, On the Court unreported these convictions. opinion, affirmed occurred on

The record shows that Mr. Stevenson’s death July degree burns as a result of second third which he from a fire in his home bedroom nineteen suffered trial, question was how the days earlier. At the the central started, testimony to resolve fire and extensive was taken evidence, may be that issue. facts following From fire, petitioner discovered morning distilled: On the her husband in bed on his boat with another woman. Follow- ing a argument, brief petitioner left the boat and returned family home where she awaited her Upon husband. later, his arrival five hours argument second erupted be- tween the Stevensons concerning the infidelity. husband’s According to a statement given by Mr. shortly Stevenson death, before his this heated discussion had ended with his house; wife leaving the he bed, then went to but was later awakened when the petitioner poured gasoline on him and ignited it with a match. Mrs. Stevenson’s version of the events of that morning dramatically: differed According to her statement given police day fire, on the which (she was introduced at objection trial without did not tes- tify), the wife and husband were arguing their bedroom when Mr. Stevenson advanced tоwards her in a threatening manner Stevenson, and Mrs. self-defense, threw a pitcher gasoline at her impede husband to approach. his Asked pitcher how the happened nearby, to be petitioner responded by saying that "I brought in the house yesterday, because I going up yard clean for a swimming pool and I didn’t take it out again.” Moreover, the — wife any disavowed complicity in starting the fire "I didn’t light no matches or nothing. gasoline] [The just exploded Iwhen threw jury, however, it.” The was not convinced and convicted Mrs. Stevenson both of the first degree murder of her setting husband and of the fire while perpetrating a crime. gravamen of petitioner’s claim of error is that she was

denied due when the trial give refused to her following requested pre post-evidence instructions to the jury:

Pre-evidence.

The law as given by this court in its instructions you to only your constitutes the law guidance, your duty and it is accept to and your it. It is follow duty to follow the I give law as it though you even may disagree with the law.

Post-evidence. the as stated jurors to follow law your duty as

It is court, apply and to the the in instructions of the you find them the as given law to facts rules of so to may in case. Counsel refer from the evidence the in their rules law governing of the some however, any appears to If, difference arguments. by and that law stated counsel

you between the as instructions, you of by in these the court stated by governed the instructions. course are to be directives, ruled which the court requested Instead of these State, Judge proceeded to Clark contrary the law of this were form, an in and written extensive jury, oral give the both a brief which included instructions” "preliminary set role in the unique constitutional jury’s explanation was informed jury State. The trial of criminal cases Maryland, [you are] the the Constitution "[u]nder Therefore, anything law of the facts. judge of the as well as law, including any instructions may say I the which about advisory you are not in may give merely I and you, which evidence, however, way At close of the any bound it.” actually jury to the the court "instructed” the when d, not judge Md. 757 the did applicable substantive Rule were concerning his law again mention that statements he of his guidance binding; for its rather couched all mandatory question been language. No has remarks individual concerning propriety raised here, than the failure inform given instructions other binding all the law were on it.2 instructions on recently any preliminary are remarks 1. This has held that such meaning Maryland post-evidence within not Rule "instructions” to 232, 243-48, Md. 412 A.2d 94-96 757. Lansdowne (1980). Moreover, preliminary extensive we believe that such here, ordinarily covering given matters that are as included in the court’s instructions record discloses were evidence, apt at the are conclusion discouraged. confusing giving of them is to be dissenting opinion on this 2. Because of extensive comments of particular petitioner’s point, set becomes advisable that we out appeal. objections first to this noted the trial court which relate prelimi- concerning us mention in the circuit court nary the issue before followed (delivered opening prior remarks to the the trial Consequently, only address, we requested as by the petitioner, which, whether Article 23 interpreted as by Court, requires jury instructions on the law be advisory evidence), any statements of counsel and pertinent the introduction of part petitioner’s attorney failure to just body of which opinion, we have set out in the of this wheré exception stated: "The defense takes to the Court’s give requested [(quoted instruction in #5 in the text labelled "pre-evidence”)] binding instructions, as to the nature of the Court’s rather advisory only than matter was noted "[T]he requested by objection instructions.” concerning The other subsequent to the final jury: court instructions to the except give defense wishes to to the Court’s failure to the instruction paragraph Request the defense in two of the for Final [(quoted "post-evidence”)], is, Instructions in the labelled text that the binding jury instructions of the merеly advisory.” Court are on the and not this, gravamen petitioner’s From the law process objection is clear to us that the of is that giving advisory required by regard instructions Article 23 with applicable to the case ais violation of fourteenth amendment due law, and that the trial court committed reversible error .therefore give when it requested. binding failed to petitioner instruction that requirements preservation appellate for review of objections to instructions are clear: n party objection any instructions, If a therefrom, objection any has an omission give or to the failure to an instruction he shall make the on the record before the retires to consider its verdict distinctly omission, and shall state the matter or or failure to (cid:127) objects grounds instruct [Maryland objection. to which he and the of his f.] Rule 757 If specific instructions in petitioner’s objection the dissent is correct that the basis of the was the given, unconstitutionality instruction rather than advisory general, properly presented that basis was neither to nor upon by and, thus, ruled the trial court appeal. is not before this Court on Maryland Rule 885. We are precise bolstered in our conclusion as to the petitioner’s objection by argument by nature of made her counsel at the following motion by jury: for a new trial her cоnviction point [T]he third perhaps raised in the Motion for New Trial is

really time, addressable this Court at this and that is the given advisory Court’s instructions were binding. as rather than I say bound, think it is fair to itself instructions were Nevertheless, as might that this Court is or Wellfeel bound, by requirements many Maryland cases that the given advisory binding. rather than give it is the Defense contention that to instructions advisory binding rather than violates fundamental process.... constitutional due elaborating Without upon on all of the cases which we base our argument, advisory Constitutional are in sum it is that their [a] nature violation of the due clause of the Constitution, 14th they Amendment to the United States in that guidance, offer a and law, no ignore that a is free to in that impose guilt is free interpretation based on its inadequate therefore there is notice as to what’s unlawful and the United States Constitution. violative only, itself right provides constitutionally This declared Maryland part: pertinent cases, Jury shall the allof criminal

In the trial the fact, except that Law, of well as as Judges of the the evidence sufficiency of the may pass upon a conviction. to sustain

(i)

Background form, was first 23, in identical although not this

Article by the this of State the constitution into incorporated X, Maryland Constitution 5 of the section adoption of Article 3 Convention, Constitutional the 1851 The debates of of 1851. article, do meaning of thаt on light little the shedding while by concern adoption for was a its the motivation reveal that uniformity Maryland in of the lack delegates regarding the II Debates and juries. See instructing practice in of the to Revise Convention Maryland Reform Proceedings of the 1851). 7, Judge Niles (May As 768 the State Constitution law: Maryland constitutional explains in his work on In the convention of were opposing there case, power views as of in a criminal state, prevailed which in parts different inadequate guidance decision-making. really in also That’s all I point. (Emphasis supplied). have on that certiorari, Moreover, case, petition filed this for in the briefs in nowhere in the or by petitioner than that Article 23 do we discern a contention other prohibition against itself violative fourteenth amendment’s denial due law. provision 3. A similar retained in the Constitution of 1864 as Article was XII, 4, XV, By § § as 5. amendment Constitution 1867 Article approved 1978, however, XV, § the voters in Article Constitution of was Article 23 of the Decla- transferred and became Rights ration of to that Constitution. During years provision simply first one hundred of its existence cases, judges read: "In the trial of all be the of law criminal shall By chapter as well as fact.” 407 of Acts of ratified voters this of does State on section amended to read as November today. guard in the against conflicts, future such

provision . .. was inserted in the [A. Constitution. (1915).] Niles, Maryland Constitutional Law 340 Accord, Jacobsohn, Right to Disagree: Juries, Judges, and The Administration of Maryland, Criminal Justice in U.L.Q. 571, 1976 Wash. 574. See generally State, Beard v. 275, 279, 71 Md. (1889); Prescott, 17 A. Juries as Judges of the Law: Should the Continued?, Practice be 23, however, Md. St. Bar Ass’n Article deeper reflects currents of administering concern relative to justice State, Judge noted in Delaplaine opinion Slansky his this Court (1949): A.2d 599 England

In whether question should have the to decide the law criminal cases subject controversy. was for centuries the But at the time of independence prevailing American England rule of the common that law law, judge court should and the should apply the law to the facts. This doctrine was statesmen, by condemned some of the Colonial notably Adams, juries John who believed that the arbitrary disregard should be entitled to and unjust judges by of the office rulings holding authority In of the Crown. ... some of New England fully Colonies was understood that the judges deciding held office not for the purpose of causes, questions for the decided all of both law fact, and merely preserve but to order and see that fairly parties jury. treated before the This were procedure patriotic justification received increasingly oppressive measures were taken royal officials.... uрon province judges

The restrictions of the English prac- this State were thus due less to the they tice had than to the habits to which themselves administering become accustomed in the law of the had experience Colonies. ... "The colonists had

175 politics. law with of criminal the close connection oppression fear of political constant [T]heir ... and the law led them

through the criminal power give excessive to following ... generation power even cut off the limit or juries the trial and hold judge to control 101-02, at 601-02 63 A.2d [Id. its province.” Pound, Law Spirit R. of the Common (quoting 122-23).] U.L.Q. at

Accord, Jacobsohn, 573-75. supra, Wash. designed power Article 23 was to curb Because long held if a trial should judiciary, this Court has that applicable as to necessary consider it to instruct do, may required be which since he 359, 365 State, 370, 383-84, 183 (1962), A.2d 229 Md. Giles dismissed, he should careful appeal prerogative, intrude and thus must jury’s not to on the advisory law form in couch his on the order may them of their jurors "subject own test State, independent Dick v. 107 Md. 68 A. judgment.” accord, (1907); State, 208 Md. e.g., Schanker v. (1955); State, 21-22, 116 A.2d Beard v. supra, 279, 17 1045; Md. at A. at Wheeler v. Maryland practice This now enshrined in Rule background, With this will now turn to the

757. brief we challenge presented by this specific appeal. constitutional Maryland Since its in the adoption people considered, Constitution has twice rejected, the 23 is in conflict with the contention Article to the United States Constitution as fourteenth amendment liberty an his due depriving accused of without State, 370, 183 (1962), appeal law. Giles v. 229 Md. A.2d 359 (1963); State, dismissed, 94, 192 Slansky 372 767 v. Md. U.S. 489, State, (1949). 193 Md. Hopkins v. 599 also 63 A.2d See (1950) (reaffirming Slansky analysis). 69 A.2d 456 without has likewise Appeals The Fourth Circuit Court Warden, rejected challenge, Wyley Maryland such a v. (4th 1967), denied, Penitentiary, 372 F.2d 742 cert. 389 Cir. Court, (1967), District U.S. 863 as has the United States 176 (D. 1975). Md. Supp. 402 F. 76 Maryland,

Wilkins v. State previous to review our again nonetheless asked We are because, in the words of concerning this issue decisions evolving standards of due "[subsequently] petitioner, changed federalism have a revised view of process and state which state trials and against the standards nature of agree that the measured.” While we procedures [now] are the due interpretation of Supreme Court’s United States ‍‌​‌​​‌‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌‌​‌‌​‌​‌​​​‌‌‍dramatically we last since changed clause has process Court, however, Giles, still question examined this this] anachronistic [that the contention... accept "cannot throughout the State for been followed procedure, which has many of the State century and in sections [over] of due a criminal defendant deprives two centuries” possibly 106-07, State, Md. at 63 Slansky supra, v. 192 oflaw. A.2d at 604.

(ii) 23 of Article Scope contentions, we specific analyzing petitioner’s Before jury is entitled it that a "law” determine what must first have 23, only after we because under Article "judge” can its federal mandate of the article’s sweep established Wainwright, See, e.g., Stone v. constitutionality be tested. (1973) (per 190, Ed. 2d 179 22-23, 38 L. 21, 94 S. Ct. curiam) depends on law (constitutionality of state court); Beyers, v. Mahoney highest construction of state’s (1946); v. State 604 81, 87, A.2d 48 187 Md. (1944). 36 A.2d Petrushansky, well breadth, postulate it is a Article 23’s facial Despite Court, one which decisions of prior in the recognized correctly observed Supreme States the United Ed. 2d 10 L. 83 Ct. U.S. S. Brady Maryland, 373 v. what precisely not mean 23 "does that Article State, supra, See, Giles v. e.g., 89. say.” Id. at seems Md. 365; Hitchcock 382-83, A.2d at Md. inception, its From 273, 283, A.2d right juries in of this State to decide the law not been has by all-inclusive, construed encompass this Court as but to a State, scope. E.g., much more limited supra, Giles 383, 183 A.2d at 365. The outer boundaries of what now Article 23 opinion by Judge were first set forth an Chief himself, LeGrand (speaking expressed but with the approval in this regard of all the other members of this Court) in the case of Franklin v. 12 Md. 236 just decided years seven after the adoption of this article’s predecessor organic Maryland. into the law of Faced with the specific question of whether the constitutionality of statutes was within province of jury under this new constitutional practiсe, the Chief Judge wrote:

It argued, that interpretation the true these words authorized the

constitutionality of Assembly. the Act of In this opinion I do not concur. The debates which took place in the Convention that framed the Constitution, show what were the reasons that induced the adoption of the section .... It was well members, known that some both judiciary profession, held, juries that in cases were judges fact, of law as well as whilst directly others held a contrary opinion. It is not now important inquire on which side there was a preponderance authority and reason. When the meaning of fixed, the terms are there is an end to controversy regard powers relative of court jury. know,

So far as I there is no instance which a words, court admitted that "judges of law as fact,” well as authorized the decide on constitutionality of a law. With those who insisted upon the enlarged power by conferred words Constitution, our there pretense was no it judgment authorized a a constitutionality of Congress an Act of or of the State Legislature. they was, All contended for in a criminal case the jury were not bound to abide meaning the court of the interpretation to construe and apply but were free They

according judgments. their never own to decide on pretended the had murder, constitutionality defining of an Act arson any crime, they the or other but that had particular law, the and meaning affix their own on themselves, the facts to determine for whether meaning. within that proven brought traverser greater have no The words in Constitution significance incorporation since their into organic they than and I think previously,[4J law had latitude ever given I have to them the broadest by any seriously sanctioned or countenanced authority. (Emphasis at 245-46 respectable [Id. added).] indicates, later and our

As this attribution lengthy 23, confirm, granted, not Article decisions correctly may be all to decide matters power — Rather, "law.” its generic label included under the crime,” of the authority deciding is "the law limited (1875), 563, or "the defi State, 42 v. Md. 570 Wheeler The crime,” legal as as "the effect well nition 275, 280, State, v. 71 Md. jury].” Beard [the evidence before (1889). consistently 1044, has And 17 A. 1045 restraining the provision as constitutional interpreted this limited, important, albeit deciding law jury’s power Thus, province it is have held that not within area. we repealed, a statute has been to decide whether (1929), 268, 332, 340, 271 State, Md. 146 A. v. 157 Nolan 237, State, effect, Slymer 62 Md. v. operative whether it has State, unconstitutional, Hitchcock v. 241 or if it 718-19; v. 283-84, A.2d at Franklin 213 131 supra, Md. at have, Moreover, juries are State, decided that supra. we such questions permitted upon preliminary to hear or act 87, 98-99, 133 State, Md. Kelly 151 jurisdiction. court’s v. Buchanan, practice Early found in The State v. are 4. references to (1806). 6, (1821) State, J. 7 Baker 2 H. & 5 & J. 317 v. H. 179 (1926). State, A. 903 See also Hitchcock v. supra; Dennis, Maryland’s Thorn, Antique Constitutional 92 U. Pa. restrictions, L. Rev. In addition to these has long recognized questions admissibility been competency evidence and are for witnesses the court alone to determine and were not transferred to decision E.g., State, 705, 724, Article 23. Lewis v. 285 Md. 1073, 1083 (1979); State, A.2d supra, Giles v. 229 Md. at 365; State, Vogel 272, 162 183 A.2d at v. Md. A. (1932); Bell, State, alias Kimball v. 57 Md.

(1881); State, Wheeler v. supra, Brady Md. at 570. See Maryland, supra, fact, 373 U.S. at 89-90. In viewed affirmatively, past decisions of this Court make it quite jury’s evident that the judging role in the law under Article 23 is confined "to resolv[ing] conñicting interpretations of [of law decidling] crime] and to th[at] whether law should applied situations,” in dubious factual nothing State, more. 571, 581, Dillon v. 277 Md. 357 A.2d (1976) (emphasis original); see Hamilton v.

256, 288 denied, A.2d cert. (1972); 409 U.S. 1006 21, 116 State, Schanker v. 208 Md. A.2d domain, however, jury’s Even this area of the exclusive has State, example, limitations. For in Blackwell v. denied, (1977),

365 A.2d 545 cert. U.S. we pointed upon [itl out that Article 23 "does not confer ... untrammeled law repeal discretion to enact new or to or whim, ignore clearly existing fancy, law as compassion or dictate, malevolence should even within the limited confines single of a criminal case.” Id. at 365 A.2d at 553. Moreover, duty since "it is the of a to decide a case if according to the established rules of ... it should accused, misapply the law prejudice of the and the power grant trial court has the to set aside the verdict and State, supra, a new trial.” Giles v. Md. at A.2d 365; accord, State, Beard supra. v. Implicit in the decisions of this Court the limiting jury’s judicial the recognition role to "law of the crime” is a that all legal judge other issues are for the alone to decide. Because of law-judging this division of the function judge between carefully to upon judge a trial it is incumbent jury,

and (i) dichotomy: that the following for the delineate as to disputes the final arbiter of under Article jury, crime,” "legal effect as well as the "law of the the substantive by evidence,” any judge and that comments (ii) that, by advisory only; and matters are concerning these aspects provision, all other same constitutional virtue of this of requirement (e.g., proof, the burden of law statute) beyond jury’s validity of a are unanimity, the matters are comments on these judge’s and that the pale, words, body. In other should that binding upon merely are the court’s instructions that all of be informed addressed to only portion charge that advisory; rather non-binding by may regarded "law” areas of the former may it, of the "law” which counsel only aspects it is these jury.5 On the arguments to respective in their dispute judge’s thаt hand, jury should be informed other binding and any legal other matter is regard with charge of this explicit example it. An disregarded may not be Court’s recent examination of this may be seen from an that, we held supra, where opinion Lewis jury may upon be called and the although both a confession, determine the voluntariness given to be type of consideration respect to the with it since binding are on body to such a confession jury may "law” which admissiblity of evidence is not decide. clause

Furthermore, supremacy from aside Constitution, States VI of the United contained in Article Court, any other or judges jurors, no less than points out Maryland’s jury practice under Article study of 5. A recent system positively the law contributes counsel’s discussion occasionally "may be such discussions justice State because in this criminal carefully judge’s than illuminating and educational more Juries, Judges, Jacobsohn, Disagree: and Right to explanation.” drafted L. Maryland, Wash. U. Q. 1976 in Criminal Justice of The Administration system Maryland examining the interesting after 571, 602. to note that isIt theoretical, Jacobsohn viewpoint, Professor practical, as a a as well from concludes the law” and critical, edge sharp of juries that, permits to "dull Article 23 because useful, case, if appropriate it "serves a equity an do in Maryland, and justice in of purpose in the administration Id. at 606. retained.” should be therefore

181 State, to, of the citizen owe paramount allegiance are by, through bound the Constitution of the United States Maryland 2 independent of Article of the Decla dictates Rights, by "ail People ration of which this State are ... of Lby Constitution]; anything bound federal ... contrary Constitution of State 6 added). is, notwithstanding.” course, of It a (Emphasis well-established maxim of interpretation constitutional that, possible, provision as far as each of the constitution be should construed to harmonize with of its all other provisions. E.g., Kadan Sup. Elections, v. Bd. of 273 Md. 406, 415, (1974); McKeldin, 329 A.2d 707 Reed v. 553, 561,

Md. Thus, 115 A.2d we believe if that even federal constitutional law part were otherwise a of the "law” which jury by is to decide virtue Article be, Article indicates that it was not so intended to because to so construe Article 23 would place these two provisions constitutional in conflict with each other. Consequently, harmonizing Articles and 23 of the Decla conflict, Rights they ration of so that do not see Price v. 670, 672-73, 154 A. supports our previously indicated conclusions that word "law” it is used Article encompassing not as all as it may otherwise when used some context. other

(iii) Contention that Article 23 Violates Strictures United

States Constitution Having examined the reach of Article we now deter- section, mine whether as interpreted prior our decisions, guaranties accorded to pass can muster under state criminal defendants the due clause of the Rights 6. Article Declaration reads in full: States, made, The Constitution of the United and the Laws or made, made, pursuance thereof, which shall be and all Treaties made, States, authority or which shall be United under are, Supreme State; Judges and shall be the Law of the 182 law,” phrase that process "Due of as

federal constitution. law, "is, in in the field of criminal generally understood against essence, right opportunity a fair defend 284, v. 410 U.S. Mississippi, State’s Chambers accusations.” (1973). 294, the time 1038, L. Ed. 2d 297 At of 93 S. Ct. 35 State, 94,Md. 63 A.2d 599 Slansky in v. 192 our decisions (1949) (1962), State, 370, 183 229 Md. A.2d 359 and Giles v. by a process due had been violated the test of whether how was determine particular procedure criminal during the time in was viewed practice question or state process due was a formative meaning when organic law. it was into our national incorporated and before Slansky at the time of prevailing with view Consonant the time of Giles, challenged practice if the existed at process due adoption, then fourteenth amendment’s 78, U.S. Jersey, 211 provided. Twining law v. New See (1908), Malloy 100-01, 14, L. Ed. overruled 29 S. Ct. 53 97 (1964); 1489, 12 L. 2d 653 1, v. S. Ct. Ed. Hogan, 378 U.S. 84 State, 100-01, A.2d 601. Slansky v. 192 Md. at 63 supra, is, however, no This due approach questions viable, following makes evident: longer passage as the longer questions regarding No are constitutionality particular procedures ques- by focusing alone on the element resolved system ascertaining whether a of criminal tion justice could might imagined in which fair trial particular ele- be afforded in the absence of be, Rather, is, it should on ment. the focus as fundamentality of element viewed Anglo-American jurispru- context of the basic system [Johnson dential common to the States. State, are, State, People be bound and shall and all the thereby; anything to the or Law of this State in the Constitution contrary notwithstanding. This war between the States. See decisions of ^[1864] constitution. Merrick v. (1978); 348, provision Md. Decl. of Baker, Whitfield first cert. United States Rts., became denied, 411 Art. 5. Included and Wilson v. State, part Anderson v. of our Supreme U.S. 969 organic Baker, 1, part 7 (1973). ‍‌​‌​​‌‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌‌​‌‌​‌​‌​​​‌‌‍n. 15 law in the aftermath of this 23 Md. 6, Md. construing 389 App. binding A.2d 531, 616-18 328, 78, the federal law are the 289 A.2d 331 n. 6 (1865); Louisiana, U.S. n. 92 Ct. v. S. (1972) (Powell, concurring).] 2d 152 J.

32 L. Ed. Accord, Louisiana, n. S. Duncan consequence, L. Ed. 2d 491 As a Ct. Rights Bill of

Supreme increasingly Court "has looked many rights guidance, [with that] the result of Amendments to guaranteed by eight [defendants] the first protected against the Constitution have been held to be state by action the Due Process Clause of the Fourteenth See, In re 397 U.S. e.g., Winship, Amendment.” Id. at 148. (1970) 358, 1068, (right 90 S. Ct. 25 L. Ed. 2d 368 to be doubt); beyond only proof convicted on a Duncan reasonable (sixth Louisiana, trial); supra right v. to a amendment California, 609, 1229, v. 85 S. Ct. 14 L. Ed. Griffin U.S. (1965) (fifth right amendment tо be free from 2d compelled self-incrimination; defendant’s no comment on testify); 1, Malloy Hogan, failure to v. 378 U.S. 84 S. Ct. (fifth (1964) 1489, 12 L. right Ed. 2d 653 amendment to be self-incrimination); compelled free from Gideon v. Wainwright, 792, 372 U.S. 83 S. Ct. 9 L. 2d Ed.

(1963) (sixth counsel); Ohio, right amendment to Mapp (fourth (1961) 367 U.S. 81 Ct. S. 6 L. Ed. 2d 1081 amendment right to be free from unreasonable searches and seizures and to have excluded from any criminal trial seized).7Thus, illegally evidence whether Article 23 violates due depends primarily on whether it undermines any of the specific safeguards which are applicable now to criminal in by trials this State of virtue the fourteenth amendment to the United States Constitution. rights 7. We should note that a number of these were afforded to long Supreme interpreted defendants in this State before the guaranteeing privileges fourteenth amendment as to them like as a matter See, e.g., (right of federal constitutional law. Md. Decl. of Rts.. Art. 21 to by jury); Rts., (right compelled trial self-incrimination); (no Md. Decl. of Art. 22 to be free from Vol.), (1974, Art., § Repl. Md. Code Courts 9-107 stand; part inference can be drawn from defendant’s failure to take the 1876; Court, however, prohibition of Code since this has held that this flows itself, Rights from Art. 22 of the Declaration Barber v. 191 Md. 566, 62 616, 621 (1948)); Grady, 178, 181, 345 A.2d State v. A.2d (1975) (proof beyond reasonable doubt standard was well-established Winship).

this State before In re allow petitioner In first contends that to regard, her to detеrmine the jury considering generally case it, advisory guide interferes with only with by jury, trial guaranteed her sixth amendment through state criminal defendants fourteenth Louisiana, supra. Duncan v. A interpreted amendment view, right, petitioner’s fundamental element by jury only questions is to be tried which decides fact guilt by innocence applying and then determines or these findings regard with to the law as binding instructions assertion, judge. support In of her explained Supreme relies on the decision of the petitioner primarily States, Court in v. United 15 S. Ct. Sparf that, in L. where it was held a federal Ed. 343 trial, fact, only questions to decide leaving judge’s issues for the consideration. While we legal limit agree Sparf with that the Court did petitioner trials, juries role of in federal criminal we do not believe that constitutionally aspect required it did so was a because challenged In right. Sparf, trial defendants refusal to tell the it was not bound court’s 59; thus, at instructions as to id. court’s by the was whether question posed for consideration Court charge "was an interference give requested the refusal to functions, and, therefore, jury’s] legitimate [the with with 8 right by jury.” tried a the constitutional of the accused (the 99; accord, (Gray, J., Id. at id. at dissenting) question 169 crime, is, rights persons of accused of and "what are the ... them, juries empaneled try under the of summoned States”). the United After an extensivе Constitution of jury of in relationship historical review of that, since the trial Court determined process, Supreme solely law a jury common was of function at factfinder, a in the federal right by jury to trial contained jury decide right did not entail the have constitution Thus, Sparf prohibit did not questions law. the Court of jury was trial Supreme of Article tlqe did whether it 8. The not indicate III, 2, or both provision which influenced the decision in or the sixth amendment section clause 3 Sparf. 185 juries deciding legal from issues of a because conflict with constitution, held merely jury right but that the of a did privilege defendant include additional permitting juries legal to determine matters.

Even if the Court’s could be Supreme Sparf decision prohibiting jury deciding questions read as a from of law jury, of a conflict with to a right because the constitutional yet Sparfto that Court has to extend the state holding See, trials despite opportunities e.g., (4th number of do so. Warden, Wyley Maryland Penitentiary, 742 v. 372 F.2d Cir.), denied, (1967); State, 389 863 cert. U.S. Giles v. 229 370, 183 (1962), dismissed, Md. appeal A.2d 359 372 U.S. 767 (1963) (lack of federal Bremer question); substantial v. 291, denied, App. 307 A.2d 503 cert. (1974); 83, Brady Maryland, 930 cf. v. U.S. 373 U.S. (1963) (discusses 1194, Maryland S. Ct. 10 L. Ed. 2d 215 law). provision making juries judges constitutional Moreover, we believe that Supreme recent Court decisions right with trial cast considerable doubt regard on whether this element of Sparf trial established would still be a viable сomponent of that federal trials, is, ifor now whether it extends as a matter of due process Oregon, 404, to state trials. See Apodaca v. 406 U.S. 1628, 92 S. (1972); Louisiana, Ct. 32 L. Ed. 2d 184 Johnson v. 356, 1620, U.S. 92 S. (1972); Ct. 32 L. Ed. 2d 152 Florida, v. Williams 399 U.S. L. S. Ct. 26 Ed. 2d (1970). Louisiana, v. generally See Burch (1979); S. Ct. 60 L. Georgia, Ed. 2d 96 Ballew U.S. 98 S. Ct. 55 L. Ed. 2d 234 Prior to its Florida, decision in supra, Williams v. Supreme in which the Court held juries composed persons than less twelve were constitutionally permissible, determining the content sixth amendment’s provision easy on assumption based "the .. . that if a given feature in a jury existed common law in then necessarily preserved in the United States 92; accord, Constitution.” Apodaca supra, Id. at v. Oregon, (Powell, 408-09; J., 406 n. 6 concurring); at id. at 370 U.S. (1977). 563, State McKay, 558, 228, v. Md. 375 A.2d 231 however, rejected Williams, Supreme In the amendment, sixth and instead approach historical jury amendment’s trial began scope examine the of that to its in our scheme of standpoint purpose clause from the thus, if feature of the common justice; particular purpose jury function and of a law is essential trial, is the sixth amendment. Williams required by then it Louisiana, 99-100; Florida, see Burch v. supra, v. 399 U.S. at 134; Oregon, supra, v. 406 U.S. supra, Apodaca 441 U.S. at by jury, purpose at 410. trial noted Because Duncan, by providing prevent governmental oppression tois or safeguard against corrupt "an inestimable biased, or against the prosecutor compliant, оverzealous Louisiana, at supra, 391 U.S. judge,” eccentric Duncan v. 156, determined that "the essential feature the Court has obviously interposition between accused jurya lies of a judgment group the common sense and his accuser of Florida, U.S. at 100. laymen supra, ....” Williams v. juries of than Court held that less Accordingly, Supreme constitution, do not conflict with the the traditional twelve id., unanimity indispensable an element of and that is not trials, at Apodaca Oregon, supra, v. U.S. state see unanimity remains a although 410-11 (plurality opinion), (Powell, J., requirement prosecutions. federal Id. 369-71 States, accord, v. 333 U.S. Andres United concurring); (1948); v. Patton United 748-49, 92 L. Ed. 1055 68 S. Ct. States, 276, 288-90, 74 L. Ed. 50 S. Ct. 281 U.S. Dow, (1930); 20 S. Ct. Maxwell v. Ed. L. aspects all

What these decisions demonstrate may be longer presumed common law no elements by the Of essential required sixth amendment. prior Supreme Court decisions of such a trial identified — jury, presence 12-person Apodaca Williams and instruct judge having power of a superintendence facts, and upon the and to advise them on law States, supra, 281 verdict, Patton United the unanimous Md. at 288; accord, McKay, supra, 280 State v. U.S. at — (the jury and 12-person of them 375 A.2d at 231 two 187 verdict) manda longer unanimous have been held be no tory, in state trials. Court particularly criminal While this yet recognizes Supreme that the has whether Court decide remaining by jury Sparf— elemеnt of trial identified in — juries only judges as triers of fact as is still and not law (if necessary component of the sixth amendment it ever was), it us in quite unlikely, light seems to of the standard i.e., adopted Apodaca, Williams and is the essen feature tial to purpose jury, the function and of a Court that the Furthermore, would still continue its fact-law distinction.9 question there is reason the Sparf whether requirement will imposed be state proceedings on as a matter of process opinions due of the light Supreme fact that Court suggested have states be permitted experiment operation juries long with the actual as so — purpose fundamental of the right safeguarding the — against oppression accused official remains intact. See Louisiana, 136-39; Burch supra, v. 441 at U.S. Johnson v. Louisiana, 359-60; 406 supra, Apodaca Oregon, U.S. at v.

supra, J., (Powell, cf., 406 at U.S. 372-75 Bloom concurring); Illinois, 194, 213, 1444, v. (1968) 391 U.S. Ct. 88 S. 20 L. Ed. 2d 522 (federal

(Fortas, J., concurring) requirements ofjury may trials not be essential to due not and thus obligatory states); Louisiana, on the v. Alexander 405 U.S. (1972) 625, 4, 637 1221, n. 92 S. Ct. L. Ed. 2d 536 (same). J., has, (Douglas, concurring) Supreme Court on occasion, more than expressly one stated that states' "ft]he are free to allocate functions they between York, fit.” 156, 179, 1077, see Stein v. New 346 U.S. 73 S. Ct. (1953); accord, 97 L. Ed. 1522 Texas, v. e.g., Spencer 385 U.S. (1967) (states 554, 560, 648, 87 S. Ct. 17 L. Ed. 2d 606 have leeway dividing wide judge-jury responsibilities); Jackson Denno, 368, 391 v. U.S. n. S. Ct. 12 L. Ed. (1964) 2d 908 reaffirming (spеcifically aspect v. Stein decision); New York overruling while otherwise 9. At Supreme least one member of the has indicated Sparf may today. Apodaca Oregon, decision viable U.S. (1972) 92 S. Ct. (concurring Powell, J., opinion 32 L. Ed. 2d 184 6). 406 U.S. 370 n. Cole, 56, 40 S. & P.R. Co. v. Ct.

Chicago, R.I. (1919). Louisiana, supra, 64 Ed. See also Johnson v. L. 359-60; Busch, Jury Law 406 U.S. at F. and Tactics Maryland’s § since Consequently, Trials at 332 juries provision, making judges constitutional jury by interposing a purpose of a trial enhances and the of the law between the accused interpreter neutral State, Md. government, e.g., Slansky supra, v. accusing 101-02, 602; v. Apodaca Oregon, supra, at 63 A.2d J., we (Powell, concurring), hold that this at 374 n. U.S. the organic law does not violate sixth provision of our by jury applies as it to criminal right amendment to trial process the under the due clause of trials this State fourteenth amendment. by of to trial alleged violation her

In addition following also contends that jury, Stevenson by Maryland practice rights infringed are constitutional (i) privilege against compelled under Article 23: self-incrimination, including prohibition against from the defendant’s failure drawing unfavorable inferences California, Malloy supra; Griffin v. testify, Hogan, v. (ii) innocence, Taylor Kentucky, of v. supra; presumption (1978); see 478, 56 L. Ed. 2d but 436 U.S. S. Ct. Ed. Whorton, 99 Ct. 60 L. Kentucky 441 U.S. S. (iii) beyond a (1979); requirement proof 2d Wilbur, doubt, Winship, supra; Mullaney v. In re reasonable 1881, 44 L. Ed. 2d 508 While 95 S. Ct. properly hеre did recognize that the trial she does matters, petitioner to these respect with instruct that, jury is not judges sole nonetheless asserts as and the of innocence only disregard presumption free to silence, from her but inferring anything prohibition on beyond a from may proof the State’s burden also lessen we level. As doubt to some much reduced reasonable however, matters such opinion, in this previously stated func law-judging Article 23 jury’s these are not within the by judge; tion, binding subject but are the further thus, may rejected without this contention comment.

(iv)

Conclusion holdings our explained, we reaffirm

For the reasons cases, juries, Slansky permitting Giles clause does not violate the due "Judges to be of Law” result, we reaching In of the fourteenth amendment. are, centruy ago over a predecessors as were our well context, that: by the realization similar comforted is to annul the object appeal The ultimate sovereign the act of a organic law of the or province Convention .... Our is not make them; Constitutions, interpret unmake but to alone, sense or by light of reason and common invoked, law which has been but which higher oracle, has no text of the Constitution of but States, its authorized United as construed expounders. conclusions, congratulate

If we err in we our Supreme ourselves there is a Court ‍‌​‌​​‌‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌‌​‌‌​‌​‌​​​‌‌‍erected expressly adjudicаtion for the final of such questions, judgment may our where be reviewed corrected, rights and of the citizen the cheerfully vindicated. To this we defer confidant cordially that none will more concur in the result. (1865).] Baker,

[Anderson v. Judgment Special of the Court of affirmed.

Appeals by petitioner. paid Costs to be J., Eldridge, dissenting:

The majority Maryland has construed Article 23 of the Rights juries Declaration of to make in criminal cases the circumstances, judges only finding of the law in certain under the Fourteenth Amendment to the United permissible upholds Constitution. The Court then a murder States which is an instruction upon empowering conviction based any the reject judge’s or all of trial the other instructions, relating whether well-established crime, who has the of particular proof, elements of a burden rights, the For several proof, the standard of defendant’s etc. reasons, grounded I a such upon believe that conviction be with Fourteenth squared instruction cannot the Amendment.

First, by Rights, Article 23 of the Declaration of judge’s the trial authorizing disregard a with process the is inconsistent the due embodying requirement that one is entitled to be tried in accordance that, jurisdiction. the It is true applicable with law the jury’s the majority’s under the construction of Article disregard authorization to the law is confined to situations law of involving "conflicting interpretations the the Nevertheless, of a crime.” violation due by limiting justifiable does not become the circumstances upheld. violation under which the will Second, limited given scope Article even delineated trial the Sixth by majority, violates the clause of Amendment, applicable proceedings deemed to state court Louisiana, by the Fourteenth Amendment. See Duncan v. L. Ed. 391 U.S. 88 S. Ct. 2d 491 States, 15 S. 39 L. Ed. Sparf v. United Ct. Third, given empowered in this case the instruction panoply specific rights guaranteed disregard Amendment, testify, the right not to Fourteenth such innocence, right to "reasonable presumption majority, apparently while proof, doubt” standard of etc. instruction, constitutionality or of upholding an like Maryland Rule 757 which mandates instruction case, validity given one in this asserts actually neither raised at given properly instruction court, trial, nor presented nor upon ruled consistently view, my In the defendant’s counsel Court. advisory rather than objected giving the trial court’s law; and on the the trial court binding instructions clearly rejected court understood appellate intermediate position, and this was very presented by issue petition certiorari, for a writ of briefs and oral argument this Court.

I. An essential principle of "due of law” is the to have a case tried and decided in accordance with the law jurisdiction. As Justice Black has stаted for the Court (Giaccio v. Pennsylvania, 399, 403, 86 S. Ct. (1966)): 15 L. Ed. 2d

"Certainly one of purposes the basic of the Due Pro- cess Clause always has been protect person a against having the Government impose burdens upon him except accordance with the valid laws of the land.”

Throughout the United States the judge, trial because of position, his learning and experience law, in the is relied upon to insure that the correctly is instructed in the By means, law.1 necessary presumption that jurors judge’s instructions, follow the legal American system insures as best it can that a criminal defendant is tried accordance with the applicable law of jurisdic tion. appeal Where an provided by cases, as in most the correctness of the judge’s instructions with respect any "conflicting unresolved interpretations of the law of the crime” can be tested exception an appeal, and an ultimately highest jurisdiction. If, court of the upon resolution highest court, it turns out that the trial judge incorrectly resolved a "conflicting interpretation ofthe crime,” law of the the defendant will a receive new trial with proper binding jury. instructions Maryland today, 1. In entitled, upon defendant in a criminal case is

request, correctly such applicable instructions as state the law. This includes opinion, which, those majority areas of law under the jury’s province fall within Maryland as the of the law. See Rule 757. insuring

This that a criminal defendant is tried system virtually present with the law is all accordance alone, In except Maryland. Maryland jurisdictions American lay jury "judge to the is the as those matters where judge, than trial there is much less law” rather tried in the defendant will be accordance assurance judge may give jurors advisory with law. While the trial stating applicable standard correctly instructions interpretations of the law of the concerning "conflicting crime,” jurors in the same breath that the emphasizes he is may province, his and that it their disregard instructions his, existing example, not law. For trial to determine the jury "anything present in the case instructed may say including any which instructions I about you, merely advisory you are not in may give which I free any way may it.” He went on: "You feel to bound your law reject my advice on the and to arrive at own You are to make the sole independent conclusions. as what the law is this case.” Such determination to ... law as explicit ignore for the to set authorization with the forth in the court’s cannot be reconciled laws of the right tried "in accordance with valid to be land.” U.S. at 403.

Furthermore, appeal rectify affording right of does judge’s Although the trial deprivation process. due reviewed, way may no "advisory” instructions be there is determination of the appellate jury’s an court to review the be, existing finds the law applicable law. What authority by Article and the trial pursuant granted instruction, appear if seldom ever will implementing court’s way Moreover, no reviewing on courts have the record. time, same juries, whether different knowing two existing opposite concerning have conclusions come Conflicting views law fact situations. applicable identical law can resolved on judges different conflicting juries cannot. appeal; views different 23, by a criminal the license to granting Article law, and instructions on the find disregard legally correct is, the law to be otherwise than violates a defendant’s and, to be tried in jurisdiction accordance with the law of the therefore, violates the Due Process Clause of the Fourteenth Amendment.

II. I also believe that Article 23 is inconsistent with the Amendment, trial clause of the Sixth deemed applicable state court proceedings by the Fourteenth Amendment. In Sparf States, 51, v. United supra, Supreme 156 U.S. the Court settled the proceedings, holding matter for federal proper jury that the role of a at common law and under the judge only Constitution was to be the of the facts and not the Although law. precise Sparf the bаsis for the at the decision may time controversy,2 be a source of signalled some the dispute, State, end of except for this the legitimate over role jury. courts, of the relying Several state upon Sparf, have jury held that under trial clauses of state constitutions comparable Amendment, to the Sixth proper role of the jury is limited finding Gannon, the facts. State v. 75 Conn. 576, (1902); Bruner, 52 A. 727 People 146, v. 343 Ill. 175 (1931); N.E. 368, Roesel v. 62 N.J.L. A. 408 (1898). Furthermore, regardless original of the basis for Sparf, the decision in today that case is viewed delineating the role of the under the Sixth Amendment. Louisiana, See Johnson v. U.S. 370-371 n. (1972) S. 1635, 1637-1638, (Powell, J., Ct. 32 L. Ed. 2d 152 concurring).

Consequently, I believe that the Sixth Amendment provision by jury contemplates for trial in criminal cases Supreme ease, lengthy opinion Sparf including 2. The Court’s in the quoted cases, approval material to the constitutional U.S. at with from other makes several references Constitution, suggesting holding required that the was under federal provisions applicable proceedings. then to federal court 64, 74, 75, 78,83, time, 86. At the same the Court seemed to indicate states) provisions (presumably that statutes or constitutional could authorize the in the several judge Compare to be the law. 156 U.S. at 102. Simon, Jury System: Skeptical View, A G. Tex. Rev. 370-371 n. concurring). Nullification in the American Louisiana, L. 489-490 with Johnson v. (1972) 1635, 1637-1638, (Powell, J., 92 S. Ct. 32 L. Ed. 2d 152 facts, binding receiving which is

instructions on law from court. Because Dunсan Louisiana, U.S. held that the Sixth supra, 391 Amendment jury clause to state court applicable is Maryland of Article 23 of proceedings, provision Rights, making juries judges Declaration of ground. also on this is invalid

III. above, II I and I believe For the reasons set forth Parts given meaning literal or as Article whether its today, facially deprives a criminal construed pro- defendant of his Amendment to due Fourteenth However, assuming 23 as arguendo cess of law. Article constitutional, facially now the instruction construed actually empowered disregard case given protected by the specific rights constitutional several federal Furthermore, was Fourteenth Amendment. instruction to; rejected by the trial objected position the defendant’s court; validity question concerning and the this reason fully presented instruction was this Court. For federal also should be reversed on the defendant’s conviction grounds. constitutional

(a) in In and final instructions preliminary the course his case, jury trial on numerous judge instructed proof, that had the burden of both occasions the State matters. generally regarding specific as well various Thus, jury that the had the e.g,, judge told State killing legally justifiable, not- prove burden to that the was self-defense, that there was an that it was not done reduce the mitigating absence of circumstancеs which would manslaughter. proof’ These "burden of instructions crime to by the requirements due set forth process embodied the Wilbur, 684, S. Mullaney v. 421 U.S. Supreme Court (1975). 1881, Similarly, general 44 Ed. both in Ct. L. 2d 508 matters, respect many with particular judge the trial jury proof "proof beyond told the that the standard of was reasonable doubt.” This is the standard mandated Fourteenth Amendment’s Due Process Clause under the holding Winship, of In re 397 U.S. 90 S. Ct. 25 L. (1970). addition, In judge Ed. 2d 368 the trial instructed the jury guilt that the defendant’s or innocence must be only "through trial,” established evidence introduced at thereby reflecting process principle the due set forth in Williams, Estelle v. 425 U.S. 96 S. Ct. 48 L. Ed. 2d 126 and other cases. The trial judge additionally instructed innocent, jury presumed that the defendant was to be Taylor Kentucky,

a due standard under (1978). 98 S. Ct. 56 L. Ed. 2d 468 U.S. judge jury trial also admonished the that it could not "attach any significance any guilt or draw inference of from the testify” presume defendant’s failure to and that it "must not any guilt inference of because she chose not to take the Supreme stand.” This instruction was in accord with the California, holding Court’s Griffin v. 85 S. 1229, 14 Ct. L. Ed. 2d 106

At the same time gave that he the above-mentioned expressing federal process principles, due jury further instructed anything he might say law, including any about of his other instructions, merely advisory, was not "in any instructions, way” bound his that the was 'Tree law, reject” his instructions on the that it could arrive at own independent its conclusions as to the and that the jury was to make the sole determination as to "what the law inis this case.” While such may empower an instruction apply be, what it ought clearly believes the law such an instruction authorizes the to find that existing law is different than that judge’s set forth judge’s instructions. And as the trial instructions on such proof, matters as burden of standard of proof, presumption of innocence, etc., testify, not to holdings reflect the ofthe Court, United Supreme challenged States the instruction authorizes the existing to find that the law on these is different than that set requirements federal due process appear This result would to be Supreme forth the Court. sixty years of American with one hundred inconsistent history, dating at least from Cohens constitutional Virginia, 5 L. Ed. 257 6 Wheat. majority’s

Under of Article 23 of construction in a criminal case is the Rights, Declaration of "conflicting only respect interpretations with law construed, might That as so the law of the crime.” Article Amendment, is to the not the Fourteenth no answer violate instruction in instant presented by due issue instruction, may that narrow case. Because a crime, interpretations of the law the conflicting resolve might unobjectionable process grounds, on due have been given case that the instruction in this does mean broad comports process. due with

(b) its majority purpоrts justify refusal to review "advisory” by asserting given broad instruction case concerning no been in this Court that issue has raised instruction that at trial the defendant propriety given, of the specific given, "[i]f did not to the instruction and that object petitioner’s objection specific ... was the basis given, properly . .. that basis neither instruction upon by majority ruled the trial court.” The presented to nor declaratory judgment treats if it action the case as were face, 23 on than a criminal challenging Article its rather A complaint instructions. review involving a over objection there was an to the. of the record demonstrates that advisory given, and that the issúe has instruction continuously preserved appellate review. been gave preliminary

After trial court jurors were the jury, including the instruction merely law, that the court said was judges everything reject advice advisory, jurors free to the court’s were ás to the independent at their own conclusions arrive between the court colloquy occurred etc., following 127-128): (transcript pp. counsel defense any have Falcon, you do Mr. "Judge Clark: instructions? preliminary ‍‌​‌​​‌‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌‌​‌‌​‌​‌​​​‌‌‍exceptions to Yes, Attorney]: Your "Mr. Falcon IDefense to Court’s exception takes Defense Honor. in to the give requested #5 to Instruction

failure instructions, rather the Court’s binding nature аdvisory than instructions. well, overruled.” Very you are

"Judge Clark: instructions, final Later, of the court’s at the conclusion 2350-2351, emphasis (pp. follows transcript reads as supplied): conclusion, not to you In are allow

"[The Court:] way any prejudice or to influ- sympathy, passion verdicts you reaching unanimous based ence solely upon that has been adduced the evidence it to you law as determine be and this case and the by you have found to you to the facts that be applied facts of this case. true

"Now, Attorney], you [State’s do Campen Mr. any to the Court’s Instructions? If exceptions have I’ll exceptions jury. are excuse going there consult? have a May "State: we moment you exceptions? "Court: Yes. Will have Yes, Your "Mr. Falcon: Honor. Falcon, you. I’ll Mr. hear

"Court: all, Honor, the defense "Mr. Falcon: First of Your give failure except wishes Court’s requested paragraph instruction the defense Instructions, is, Request two of the for Final that the instructions ofthe Court are binding on the jury and not merely advisory.

"Court: You’re overruled there. You well know the law of Maryland. Well,

"Mr. Falcon: let me note an exception to that.

"Court: Right.” Following the State’s argument to jury, defense counsel at a bench conference stated that he had certain exceptions to the argument. State’s Before say more, he could the trial court made it clear that it was "only interested in misstatements of fact” and that counsel could "argue the law 2421.) any way [they] ... want to.” (Transcript p. Finally, at argument on the defendant’s motion for a trial, new argued counsel give "that instructions as advisory rather than binding violates fundamental 12.) process.” constitutional due (Transcript, Vol. p. Defense counsel went on to assert that advisory instructions are violative of the Due Process Clause of the Fourteenth (Id. 13.) Amendment. p. at The trial rejected court argument ground on the that the appellate courts of Maryland had upheld the giving advisory of instructions. (Id. 12-13.) pp. at The attorney’s defendant’s reply to the trial (id. court was as follows emphasis supplied): Maryland "The pattern instructions have never been passed on a court as far as counsel is aware years of in the ten is, last or so. That during that period when the Federal began Constitution play a large part.”

The court rejected argument nevertheless this on the ground appellate every courts "had opportunity to declare (Ibid.) if they unconstitutional so desired.”

In light record, I great have difficulty understanding majority’s conclusion that attorney defendant’s was not objecting to specific "advisory” instructions given in this case but was raising only the question, as stated the majority, of "whether Rights ... is unconstitutional Article 23 ofthe Dеclaration Court, facially by provision, as construed because right to due federally secured deprives a defendant or the trial At no time did defense counsel law.” constitutionality, Article 23 or this "facial” judge mention Rights provision. construction of that Declaration Court’s instructions, actually those dispute The related to both one which was refused. Twice the given proffered and the there were court asked defense counsel whether given, and twice counsel exceptions to the instructions attorney explained defendant’s answered "Yes.” The given, been proffered binding instruction should have binding "the instructions ofthe Court are on the and not merely advisory.” advisory actually given, The instructions mutually binding requested, and the instruction were Clearly objecting giving exclusive. counsel was advisory binding in lieu of the requested instruction. trial, which upon for a new argument on the motion 2) (footnote great weight, such places majority opinion objection and the trial the defendant’s

confirms the nature of of Article 23 or ruling. Again there was no mention court’s Instead, constitutionality. the defendant referred to "facial” having validity Maryland pattern instruction years, ten and the trial court upon during been ruled the last had appellate the courts rejected argument the because that the defen every consider it. It is clear opportunity to actually in given instruction was about an complaining dant validity a constitutional of criminal cases and not the facial meant Presumably, by the defendant "pattern,” provision. case, in this advisory given instruction type standard of the Maryland Rule by type required the of instruction as that is involving jury every in case mandates that 757 b. Rule 757 b they are instructions, jurors that the court shall instruct in rule exceptions the law. There are no judges anything or requirements excluding federal constitutional else.3 added): g Maryland provide (emphasis

3. Sections b Rule 757 "b. How Given. shall, may, any party give request those The court and at the

Moreover, by pointing out to the trial court that it has "past years been over ten or so” that federal constitutional requirements "began play large part,” a prong one of defense process argument counsel’s due became It obvious. was that the standard type Maryland advisory jury instruction, authorizing jury to disregard all of the judge’s law, other instructions on the was inconsistent with federal requirements constitutional that in recent years have been held applicable to state proceedings.

In the Special Appeals, Court of argument first in the 19) (p. advisory defendant’s brief was that the instruction given by the trial him court denied due In the law. petition certiоrari, defendant’s for writ of the complaint was over the actually given instructions in this case. The question presented first was: "Did deny the trial court Petitioner the right process guaranteed by to due the XIV gave advisory Amendment when it binding rather than principal argument instructions.” The set forth in peti that, years, tion in recent since this Court considered State, the matter in Giles v. 229 Md. 183 A.2d 359 (1962), Slansky 63 A.2d 599 the Supreme held has that several federal requirements constitutional applicable are to state court criminal proceedings, and that telling instruction jury any way that is not "in bound” the other on the permits ignore federal constitutional standards. This issue presented peti- advisory correctly applicable instructions to the state the may or, give orally law. The court its instructions with the consent parties, writing. grant any requested The court need not fairly instruction if the matter covered the instructions actually given. every given In case which instructions are they judges the court shall instruct are the advisory only.” law and that the court’s instructions are "g. Argument. Nothing precludes any party arguing this Rule from applicable law to the case is different from the law described in the advisory instructions of the court.” (Petition argument Certiorari, 4. The defendant’s went on for a Writ of 5): p. "Hence, proof beyond ignore requirement is free to the constitutional doubt, Winship, a reasonable the defendant’s grant was the reason for certiorari this case. It tion certainly properly an issue before this Court under Rule was question 813. the Court declines to decide the on the Now theory challenged specific that the defendant has never advisory given instructions this case.

There no logical treating reason for the defendant’s objection advisory to the an instructions this case as only upon constitutionality attack the facial of Article 23. Even if Article 23 does not make the ofthe law respect matters, with to federal constitutional and thus is facially ground, advisory invalid on this the broad given in facially instructions this case were unconstitutional they because authorized the jury disregard other embodying instructions process requirements. federal due clearly The defendant objected advisory to the in this process grounds; objection case on federal due court, overruled the trial and the defendant has continuously preserved position the same throughout appellate process.

If the majority’s basis for the narrow view of the issue is the defendant’s request totally trial binding instruction, rather than a partially binding partially advisory instruction reflecting present this Court’s construction of Article majority’s reasoning would still be fallacious. There "conflicting were in this no case interpretations of the law of the crime” which would fall jury’s within the province under the majority’s construction Therefore, of Article 23. majority’s opinion, even under the the defendant was entitled to the requested instruction that judge’s binding merely instructions are and not advisory. The instructions given to be are to reflect the issues, evidence and and not abstract principles not applicable case. See Blackwell v. silent, Malloy, Chapman, proof every remain the standard of element, Mullaney. Obviously standard, to leave a constitutional presumption such as the of innocence to the whims of a minimum, process.

violates due At a a defendant is entitled to an requires, instruction which rather than advises a that there presumption exists a of innocence and the State has the proof every burden of element of a crime.” denied, 477-478, (1976), A.2d 545 cert. and cases there cited. Ct. 53 L. Ed. 2d 229

S. Furthermore, arguable if had been in this case there crime,” I of the law of the would "conflicting interpretations objection tailored to this attorney not an to have his expéct requested of Article 23 and present Court’s construction advisory instruction partially binding partially position This Court’s on the reflecting that construction. in the consistent. After the decisions anything matter is but majority for its narrow prior cases relied on 1, 1977, Court, July Article this effective construction of Maryland Rule 757 b present version of promulgated every that in case the requires, qualification, without which instructions on the law are to be told that the court’s is Therefore, rule-making in its only advisory.5 sitting when lawyers and trial capacity, providing "precise rubrics” follow,6 its literal the Court accords Article 23 judges to hand, adjudicatory capacity, meaning. On the other its differently. today quite Court construes Article 23 (c) constitutionality Article as The the facial question a theoretical majority opinion largely construed in the matter, trial criminal relationship little having years I been a Maryland. In the seven have cases cases,7 Court, criminal I have reviewing hundreds of with this comporting never come across a instruction Maryland Article 23. present Experienced Court’s view of never encountered such an lawyers have Instead, given in typical instruction instruction. challenged instruction in the case criminal cases is like the b, July 1, prior contained the same 5. Former Rule 756 effect requirement. 368, 372, Comm’n, See, A.2d 267 e.g., King 6. v. State Roads (1979) J.), principle (per Digges, pointing to "the established strictly Maryland precise rubrics that are to be followed.” Rules are argument, briefing full In decide after 7. addition to the cases we reviews, recеives, petitions for writs member about 500 and each fifty per year. Approximately them are in criminal cent of certiorari each cases. Although jurors may told, bar. they were case, they instant arbitrarily should not interpret law to make it conform they to what it ought believe to be they or that should "arbitrarily law,” make new they nevertheless invariably are told entirely that it is their province to determine existing that all of the court’s merely instructions are advisory, and jurors that the "are any way not in by any bound” of the court’s instructions. Article 23 of Maryland Rights flatly Declaration of states, in unambiguous language, that in "all criminal cases the Jury shall Judges be the . . .” only Law . limitation is that the empowered pass upon court is to sufficiency of the evidence. Supreme The United States Brady Court in Maryland, v. 83 S. Ct.

1198, 10 L. Ed. 2d 215 observed that Article 23 "does precisely mean say.” what it seems to The observation is an accurate characterization of theory set forth in some of this Court’s opinions, including majority opinion However, the case at bar. is not an accurate Maryland characterization of practice. given The instruction case, in this the instruction required by this Court’s Rule 757, and the standard instruction given virtually all Maryland jury trials, upon language is based Article 23 if provision precisely says. meant what it majority

The opinion fends оff a federal constitutional challenge instructions reflecting the literal language of Article 23 and by misreading record, Rule 757 viewing the issue as if it were an attack upon the facial constitutionality of Court, Article 23 as by construed this and giving a narrow construction to Article 23 which is not supported by the language of Article 23 and which has no relationship to actually given instructions in this case. The majority upholds then Article 23 as so construed and affirms the conviction on this basis. I believe Article 23 face, be invalid on its even as construed majority, for the reasons set forth in I Parts and II of dissenting this opinion. However, assuming for the purposes argument that Article construed, as now facially constitutional, the defendant’s conviction should nevertheless be reversed. advisory objection given, instructions which

made, disregard authorized court’s regarding federal constitutional several requirements. challenged actually Because the instruction the Due given the trial court was inconsistent Pro- with Amendment, cess Clause of the Fourteenth the defendant new should awarded a trial.

Judge has me to state that he Cole authorized concurs with the in Part III of expressed dissenting views ground, would and that he opinion, that he reverse on would not with I and II. reach issues dealt Parts ‍‌​‌​​‌‌‌​‌​​‌​​​‌​​​‌‌‌‌‌‌‌‌‌​‌​​‌‌‌​‌‌​‌​‌​​​‌‌‍Judge has me that she Davidson authorized to state expressed dissenting opinion. concurs in this with the views ALAN LEONARD SAV-A-STOP RICHARD et al. SERVICES, INCORPORATED et al. Term, 21, September

[No. 1980.1 January Decided 1981.

Case Details

Case Name: Stevenson v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 17, 1980

Citation: 423 A.2d 558

Docket Number: [No. 98, September Term, 1979.]

Court Abbreviation: Md.