Lead Opinion
I.
This is an action under the Maryland Uniform Postconviction Procedure Act, now codified as Maryland Code (2001, 2008 Repl.Vol.), § 7-101 et seq. of the Criminal Procedure Article. The action involves the Maryland constitutional provision, Article 23, paragraph one, of the Maryland Declaration of Rights, which provides in mandatory language as follows:
“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.”1
Before turning to the facts of the present case, a brief review of a few cases since 1980, dealing with the above-quoted provision, would be helpful.
In Stevenson v. State,
The Stevenson interpretation of Article 23 was reaffirmed in Montgomery v. State,
“is limited to those instances when the jury is the final arbiter of the law of the crime. Such instances arise when ... [there is] a dispute as to the proper interpretation of the law of the crime for which there is a sound basis.” (Emphasis in original).
In Montgomery, the trial judge had instructed the jury that “all ” of his instructions were advisory. This included instructions on the burden of proof in criminal cases, the requirement that the State prove guilt beyond a reasonable doubt, and the presumption that the defendant is innocent. This Court held in Montgomery that such instructions did not concern the “law of the crime” and that, therefore, they were binding upon the jury. We ordered a reversal of Montgomery’s conviction and directed a new trial.
Several years after the Stevenson and Montgomery decisions, the United States Court of Appeals for the Fourth Circuit in a habeas corpus case, Jenkins v. Hutchinson,
More recently, the majority of this Court in State v. Adams,
The issue of whether the Stevenson and Montgomery interpretation of Article 23 delineated a new constitutional standard is important in, inter alia, a postconviction case where the criminal trial occurred prior to the Stevenson opinion, where the judge at that trial instructed the jury generally that the judge’s instructions on the law were advisory and not binding, and where the defendant did not object to the advisory nature of the judge’s instructions. The “failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instruction was erroneous,” Walker v. State,
“(c) Effect of judicial decision that Constitution imposes new standard. — (1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived.
“(2) 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.”
In postconviction actions where the waiver provisions of the Postconviction Procedure Act are inapplicable, as well as in direct appeals from criminal convictions, our decisions have adopted and applied a principle similar to that embodied in § 7-106(c)(2). Numerous cases in this Court have held that the failure to raise an issue at trial was not a waiver of the issue when there was a relevant post-trial United States Supreme Court or Maryland Court of Appeals ruling changing the applicable legal standard. Many of these cases are collected and discussed in State v. Adams, supra,
In the case at bar, in Part V of this opinion, we shall hold that the Stevenson and Montgomery opinions substantially changed the state constitutional standard embodied in Article 23. Accordingly, failure to object to advisory only jury instructions
II.
In July 1976, the petitioner Merle Unger was indicted in the Circuit Court for Washington County on one count of felony murder, one count of armed robbery, and two counts of using a handgun in the commission of a felony. The charges were based upon the armed robbery of a store in Hagerstown, Maryland. During the robber’s escape, he was pursued by an officer of the Hagerstown Police Force. While pursuing the robber, the officer was shot and later died in a hospital. The case was removed to the Circuit Court for Talbot County, and was tried before a jury from November 22, 1976, through November 24,1976.
After the jury was selected at Unger’s trial, the trial judge began to give the jury instructions, stating (emphasis added):
“Now, Mr. Foreman, and Ladies and Gentlemen of the Jury, it is now the duty of the Court to instruct you on the law applicable generally to criminal cases. Under the Constitution of Maryland, the jury in a criminal case is the Judge of the Law as well as the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it. You may feel free to reject my advice on the law and to arrive at your own independent conclusions.”
After the above-quoted instruction, the courtroom clerk realized that the jury had not been sworn, so the trial judge interrupted his instructions for the courtroom clerk to swear the jury. Following the swearing of the jury, the judge resumed his instructions, repeating the above-quoted instruction as follows (emphasis added):
“Mr. Foreman, Ladies and Gentlemen of the Jury, it is now the duty of the Court to instruct you on the law applicable generally to criminal cases. Under the Constitution of Maryland, the jury in a criminal case is the Judge of the Law as well as the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it. You may feel free to reject my advice on the law and to arrive at your own independent conclusions.
“You are to make the sole determination as to what the evidence is and what the law is.... * * * ”
Shortly after giving the above-quoted instruction, the trial judge instructed the jury with regard to the burden of proof, the reasonable doubt standard including a definition of reasonable doubt, and the presumption of innocence. The burden of proof, the reasonable doubt standard, and the presumption of innocence instructions were not, however, stated to be exceptions to the instruction that the jury was free to reject any of the judge’s instructions on the law. Thus, under the trial judge’s instructions, the jury could place the burden of proof upon the defendant, could utilize a different standard than reasonable doubt such as preponderance of the evidence, and could adopt a presumption of guilt.
On the third day of trial, after the close of evidence, the trial judge gave the jury the final instructions. He began as follows (emphasis added):
“Mr. Foreman, Ladies and Gentlemen of the Jury, the time has now arrived for me to give you your final instructions on the law. These instructions are specific and pertinent to this case only, but are adviso'ry only. And are no more binding upon you than the preliminary instructionsthat I have previously given you.”
Unger’s attorney did not object to any of the instructions concerning the role of the jurors as judges of the law.
In his final instructions, the trial judge did reiterate that, in order to find the defendant guilty, the jury “must be convinced beyond a reasonable doubt as herein before defined.” The judge did not, however, repeat the definition of reasonable doubt.
The jury on November 24, 1976, found Unger guilty of felony murder, guilty of armed robbery, and guilty of using a handgun in the commission of each of these felonies. On December 2, 1976, the trial judge sentenced Unger to the following terms of imprisonment: life imprisonment for felony murder, 20 years for armed robbery, 15 years for using a handgun in the commission of murder, and 5 years for using a handgun in the commission of armed robbery. The sentences were to run consecutively to each other.
Unger appealed to the Court of Special Appeals which, in an unreported opinion, affirmed the judgments for felony murder and use of handgun in the commission of murder. The intermediate appellate court, however, reversed the judgments for armed robbery and the dependent offense of using a handgun in the commission of armed robbery.
Unger, on August 9, 1995, filed in the Circuit Court for Talbot County a petition under the Maryland Uniform Post-conviction Procedure Act, § 7-101 et seq. of the Criminal Procedure Article. Five months later, Unger moved to withdraw this petition without prejudice, and his motion was granted by the Circuit Court.
On December 4, 1996, Unger, acting without an attorney, began the present action by filing in the Circuit Court for Talbot County another petition under the Postconviction Procedure Act. After a series of postponements, the postconviction case was, on December 4, 1997, transferred to the Circuit Court for Washington County. No hearings on the petition occurred for several years, “presumably because Petitioner was incarcerated in Florida,” according to the judge in the postconviction case.
Unger, represented by counsel, filed in the Circuit Court for Washington County, on May 1, 2006, an “amended/supplemental” petition for postconviction relief, and a hearing on the petition was held on December 8, 2006, before the Circuit Court. This was three days after the Court of Special Appeals filed its opinion in State v. Adams,
In State v. Adams, the defendant Adams had been convicted of several criminal offenses in a jury trial on December 3-7, 1979. In a later proceeding under the Postconviction Procedure Act, the Circuit Court in 2005 granted Adams a new trial. The Circuit Court decided, inter alia, that the trial court’s jury instructions at the 1979 trial deprived Adams of due process. The court held that telling the jury that all
At the December 8, 2006, postconviction hearing in Unger’s case, the principal matter discussed among the judge and the attorneys was the impact of the Court of Special Appeals’ decision in Adams, rendered three days earlier. Thereafter, the Circuit Court on March 16, 2007, filed an order vacating Unger’s 1976 convictions and granting Unger a new trial. In an opinion also filed on March 16th, the Circuit Court reviewed the Stevenson, Montgomery, and Court of Special Appeals’ Adams opinions, as well as the Fourth Circuit’s opinion in Jenkins v. Hutchinson, supra,
Subsequently, the Circuit Court filed a supplemental opinion dealing with other issues that had been raised in Unger’s petition for postconviction relief. See Maryland Rule 4-407(a). In his petition, Unger claimed that trial counsel at his 1976 trial and appellate counsel at his 1977 appellate proceedings had rendered ineffective assistance in several respects. None of the allegations of ineffective assistance related to the advisory nature of the jury instructions. One of the allegations was that trial counsel in 1976 was ineffective for not requesting a jury instruction, explaining reasonable doubt, at the close of the evidence. The Circuit Court’s supplemental opinion examined each allegation of ineffective assistance by counsel and held that neither trial counsel nor appellate counsel had rendered ineffective assistance for the reasons alleged.
On April 16, 2007, the State filed in the Court of Special Appeals an application for leave to appeal. Unger responded by filing in the intermediate appellate court an opposition to the State’s application and a conditional cross-application for leave to appeal.
While the State’s application and Unger’s conditional cross-application for leave to appeal were pending in the Court of Special Appeals, this Court on October 15, 2008, filed its opinion in State v. Adams, supra,
In November 2008, Unger filed in the Court of Special Appeals a “Supplement” to his opposition to the State’s application for leave to appeal and to his conditional cross-application for leave to appeal. In the Supplement, Unger argued, in light of the Court of Appeals’ majority opinion in Adams, that during Unger’s 1976
“trial, defense counsel reasonably should have objected ... to the ‘advisory only’ jury instructions. Consequently, [Unger’s] trial attorney performed deficiently by not objecting to the unconstitutional instructions.”
The Court of Special Appeals on July 6, 2009, filed an unreported opinion holding as follows:
“Unger did not object to the advisory instructions given in his case ... [U]nder the holding [of the Court of Appeals] in State v. Adams, supra, [Unger] waived his right to receive post conviction relief on the matter.”
With regard to Unger’s cross-application for leave to appeal, the Court of Special Appeals disagreed with Unger’s position on the merits, saying:
“Mr. Unger has filed a cross-application complaining about the hearing judge’s denial of relief on another allegation____ [The allegation] was a claim of ineffective assistance of counsel. That allegation was premised on the timing of the trial judge’s [reasonable doubt] instruction. The problem with the ... instruction was that the trial judge gave the instruction at the beginning of the trial but did not re-new it at the close of all the evidence. In 1976, when the trial was held, this practice was considered proper. In 1980, the Court of Appeals, in the case of Lansdowne v. State,287 Md. 232 [412 A.2d 88 ] (1980), ruled that a reasonable doubt instruction must be given at the close of all of the evidence and it is error not to do so. Mr. Unger argues that trial counsel’s failure to have objected to the trial judge’s failure to give the reasonable doubt instruction at the end of all of the evidence was ineffective representation. Courts should not, aided by hindsight, second guess counsel’s decisions. Gilliam v. State,331 Md. 651 , 666 [629 A.2d 685 ] (1993), cert. denied,510 U.S. 1077 [114 S.Ct. 891 ,127 L.Ed.2d 84 ] (1994). Counsel’s actions must be judged based on the law as it existed at the time the questioned action was taken. Wiggins v. State,352 Md. 580 , 604 [724 A.2d 1 ], cert. denied,528 U.S. 832 [120 S.Ct. 90 ,145 L.Ed.2d 76 ] (1999). At the time of Mr. Unger’s trial, it was considered proper to give the reasonable doubt instruction only at the beginning of the trial. Consequently, trial counsel was not ineffective for failing to have objected that the instruction was not given at the close of evidence.”
The Court of Special Appeals failed to mention the Supplement to Unger’s cross-application. As previously pointed out, Unger argued in the Supplement that, at his 1976 trial, defense counsel’s representation was also ineffective because counsel failed to object to the “advisory only” jury instructions. The Court of Special Appeals’ judgment granted the State’s application for leave to appeal and vacated the postconviction trial court’s order granting
Unger filed in this Court a petition for a writ of certiorari, arguing that the trial judge’s instructions at Unger’s 1976 trial violated Unger’s right to due process of law because, inter alia, they “empowered jurors to ignore the law, including the reasonable doubt standard” and “freed them to disregard the constitutional requirement that the State prove Petitioner’s guilt beyond a reasonable doubt.” (Unger’s certiorari petition at 9). In his petition, Unger discussed this Court’s waiver holding in State v. Adams, supra, and argued that “the Court’s reasoning in Adams demonstrates that Petitioner’s trial attorney performed deficiently by failing to object to the unconstitutional, ‘advisory only’ instructions in this case” (id. at 10). Unger also argued that the attorney at his 1976 trial rendered ineffective assistance by not objecting to the trial judge’s failure to define or explain reasonable doubt in the instructions given after the close of evidence (id. at 14).
The State filed a motion to dismiss and an answer, arguing that the certiorari petition either should be dismissed for lack of jurisdiction or should be denied. The State did not, however, file a conditional cross-petition for certiorari. The State argued that the Court lacked jurisdiction over any issues concerning the alleged ineffective representation by counsel, raised in Unger’s cross-application for leave to appeal, because of Maryland Code (1974, 2006 RepLVoL), § 12-202(1) of the Courts and Judicial Proceedings Article. Section 12-202 provides as follows (emphasis added):
Ҥ 12-202. Exceptions.
A review by way of certiorari may not be granted by the Court of Appeals in a ease or proceeding in which the Court of Special Appeals has denied or granted:
(1) Leave lo prosecute an appeal in a post conviction proceeding;
(2) Leave to appeal from a refusal to issue a writ of habeas corpus sought for the purpose of determining the right to bail or the appropriate amount of bail;
(3) Leave to appeal in an inmate grievance commission proceeding;
(4) Leave to appeal from a final judgment entered following a plea of guilty in a circuit court; or
(5) Leave to appeal from an order of a circuit court revoking probation.”
In addition, the State asserted that Unger’s contention, that trial counsel in 1976 rendered deficient representation by not objecting to the “advisory only” jury instructions, was never presented to the postconviction court and, therefore, was waived. The State also argued that, if the issue was not waived, Unger’s trial counsel’s representation was not deficient.
This Court granted Unger’s certiorari petition, Unger v. State,
The State’s argument, that we lack jurisdiction over the issues that were raised in Unger’s cross-application for leave to appeal, is based on the Court of Special Appeals’ denial of Unger’s cross-application and on § 12-202(1) of the Courts and Judicial Proceedings Article. Section 12-202(1), quoted in Part II above, precludes our exercise of certiorari jurisdiction where “the Court of Special Appeals has denied or granted ... [ljeave to prosecute an appeal in a post conviction proceeding----” The State claims that the Court of Special Appeals’ denial of Unger’s application for leave to appeal brings this case within § 12-202(1). There are two answers to the State’s argument, either one of which compels the rejection of the argument.
First, Unger’s cross-application for leave to appeal was entirely unnecessary and, as a technical matter, was improper. Instead of treating it as a cross-application for leave to appeal, it should be viewed simply as a statement of alternative arguments for affirmance in the State’s appeal. The reason for this is that a litigant is not, under Maryland law, entitled to appeal from a judgment which is wholly in his or her favor. See Bowen v. Annapolis,
Second, even if a cross-application for leave to appeal were necessary for Unger’s arguments to be considered on appeal, the judgment of the Court of Special Appeals in this case would not come within the ambit of § 12-202. In Williams v. State,
“[T]he limitation upon this Court’s jurisdiction set forth in § 12-202 of the Courts and Judicial Proceedings Article relates only to the action of the Court of Special Appeals in granting or denying an application for leave to appeal. Except for the nonreviewability of that specific action, we have jurisdiction over the type of cases listed in § 12-202 to theextent that such jurisdiction is conferred by § 12-201 or other statutory provisions. Therefore, in the present case, although we may not review the Court of Special Appeals’ exercise of discretion in granting the State’s application for leave to appeal, we are authorized to review that court’s decision on the merits----” (Emphasis added).
The same is true where the Court of Special Appeals denies or dismisses an application for leave to appeal but goes on to rule on the merits or on the viability of the appeal or the status of a party. For example, Grayson v. State,
“The Court of Special Appeals’ decisions in the two cases at bar were not simply discretionary determinations that there should be no appeals. Rather, the Court of Special Appeals decided the merits of an issue raised by both Grayson and Jackson, namely whether the instant petitions were allowable under [the Postconviction Procedure Act]. Despite the insertion of the sentences stating that the applications for leave to appeal were denied, the intermediate appellate court did not simply exercise its discretionary authority not to entertain appeals. Instead, the Court of Special Appeals in both cases held that the post-conviction petitions were not allowable as a matter of law.”
Most recently, in Stachowski v. State,
In the case at bar, if a cross-application for leave to appeal were necessary for appellate consideration of Unger’s alternative arguments, (and it was not necessary), the Court of Special Appeals ruled upon the merits of Unger’s cross-application even though the appellate court purported to deny the application. Consequently, § 12-202(1) would not deprive this Court of jurisdiction.
IV.
In the Court of Special Appeals and in this Court, Unger maintained that, in light of this Court’s decision in State v. Adams, supra,
A.
Most importantly, the State overlooks the fact that Unger prevailed in the postconviction trial court. Unger’s 1976 convictions were vacated; he was awarded a new trial, and he was the appellee on appeal. The State’s and dissent’s argument is inconsistent with the principle, reiterated recently by Judge Adkins for the Court in State v. Cates,
The Cates opinion, quoting Robeson v. State,
As indicated in the Cates opinion quoted above, and as stated in numerous
Recently, Judge Greene for the Court in Elliott v. State,
Apart from the exceptions previously noted, this Court has consistently taken the position that an appellee is entitled to assert any ground adequately shown by the record for upholding the trial court’s decision, even if the ground was not raised in the trial court, and that, if legally correct, the trial court’s decision will be affirmed on such alternative ground. Our cases declining to uphold the trial court on an alternative ground are ones, in accordance with the above principle, where the record was not adequate or the ground was not legally correct. See, e.g., Elliott v. State, supra,
It is noteworthy that the United States Supreme Court has long acknowledged that an appellate court will affirm a trial court’s judgment on any ground adequately supported by the record. See, e.g., United States v. Arthur Young,
As previously mentioned, the issue of defense counsel’s alleged deficient performance at Unger’s 1976 trial, based upon counsel’s failure to object to the advisory nature of the trial judge’s jury instructions, was raised in the Court of Special Appeals in a “Supplement” to Unger’s application for leave to appeal, filed shortly after this Court’s opinion in State v. Adams. The belated nature of filing the Supplement in the Court of Special Appeals, emphasized in the State’s brief, has no bearing upon Unger’s entitlement to rely upon the issue in this Court. In Bowen v. Annapolis, supra, 402 Md. at 618,
“In the most basic form, the City contends that because Petitioners did not present the Court of Special Appeals with sufficient argument of this issue, they may not now raise the issue before this Court. This argument ignores a basic rule of appellate jurisprudence: A party may not appeal a judgment wholly in its favor. Paolino v. McCormick Co.,314 Md. 575 , 579,552 A.2d 868 , 870 (1989). Petitioners received a favorable judgment from the Circuit Court and thus had no duty to raise this issue or any other issue before the intermediate appellate court. Rather, the duty to raise issues for appellate review belongs squarely with the aggrieved party....”
B.
The State’s waiver argument is unsound for another reason. In the context of this and similar cases, the issue of whether trial counsel rendered ineffective assistance by not objecting to the advisory nature of the jury instructions, and the issue of whether a challenge to the non-binding jury instructions was waived because of no objection, are so intertwined that they should be treated as a single issue for purposes of preservation.
It is a settled principle of Maryland procedure that, for purposes of preservation in various contexts, where the issue raised by a litigant is sufficiently interrelated with another issue not raised, the court will treat them as if both issues were raised by the litigant. See, e.g., Delphey v. Frederick,
In this case, the ineffective assistance of counsel issue and the issue concerning waiver of a constitutional challenge to the non-binding jury instructions, are both dependent upon the question of whether the interpretation of Article 23 in the Stevenson and Montgomery majority opinions set
On the other hand, if the Stevenson and Montgomery interpretation of Article 23 did set forth a new state constitutional standard which was intended to be retroactive, Unger’s trial counsel’s failure to object to the non-binding nature of the jury instructions would not be a waiver under the principle discussed in Part I of this opinion, and reflected in § 7-106(c)(2) of the Post Conviction Procedure Act and in this Court’s opinions. Moreover, trial counsel’s failure to object would not constitute a deficiency in representing Unger. A lawyer trying a criminal case 4/6 years prior to Stevenson and Montgomery would not know that the non-binding nature of the jury instructions would be deemed erroneous under a new interpretation of Article 23 to be rendered in the future. Attorneys are not required to be clairvoyant.
The interrelationship of the two issues, i.e., whether Unger waived the federal constitutional challenge to the jury instructions at his 1976 trial and whether counsel at that trial rendered deficient performance by not objecting to those jury instructions, is illustrated by the efforts of counsel and the courts below to follow the most recent appellate opinions relating to Article 23.
As earlier pointed out, several years after the Stevenson and Montgomery cases, the United States Court of Appeals for the Fourth Circuit in Jenkins v. Hutchinson, supra,
Next, the Court of Special Appeals in State v. Adams, supra,
Three days after the Court of Special Appeals’ opinion in Adams, the hearing in the present postconviction case occurred. The trial judge, following the most recent appellate cases at the time, Adams in the Court of Special Appeals and Jenkins, held that the advisory jury instructions violated Unger’s Fourteenth Amendment rights and that there was no waiver. The postconviction trial court thus vacated Unger’s 1976 convictions and ordered a new trial. There would have been no basis for Unger’s attorney to have argued before the postconviction trial court that counsel’s “waiver” at the 1976 trial, by failing to object to the advisory nature of the jury instructions, constituted deficient representation. As held in the then most recent appellate cases, there was no waiver.
It is obvious that, in the context of the present case, the waiver issue and the deficient representation of counsel issue are inextricably interrelated. For this reason also, there is no merit to the State’s argument that Unger waived the issue of trial counsel’s deficient representation in 1976 by not objecting to the advisory nature of the jury instructions.
Therefore, we do have before us the merits of the issue concerning trial counsel’s alleged deficient representation of Unger at his 1976 trial, based on counsel’s failure to object to the advisory nature of the jury instructions.
V.
For the reasons set forth in Parts III and IV of the dissenting opinion in State v. Adams, supra,
The Maryland constitutional provision stating that juries are the judges of the law in “all criminal cases” was initially adopted in the Maryland Constitution of 1851, and it has continuously remained part of Maryland’s constitutional provisions. The only substantive change in the provision occurred in 1950 when a constitutional amendment added the following language: “except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”
From 1851 until 1980-1981, when Stevenson and Montgomery were decided, no opinion by this Court held, suggested or intimated that the constitutional provision making juries the judges of the law in criminal cases was “limited to deciding ‘the law of the crime,’ ... as well as ‘the legal effect of the evidence’ ” (Stevenson,
An examination of this Court’s opinions regarding Article 23, rendered prior to Stevenson and Montgomery, demonstrates that Maryland juries had a broad function in deciding the law in criminal cases. There were only two court-created exceptions to juries being the judges of the law in criminal cases. The two exceptions under this Court’s opinions were (1) deciding the constitutionality of statutes enacted by Congress or the Maryland General Assembly and (2) rulings on the admissibility of evidence. Furthermore, cases in this Court prior to Stevenson took the position that the “presumption of innocence” instruction, the “beyond a reasonable doubt” instruction, and other instructions implicating federal constitutional requirements, were only “advisory.”
The first case discussing the provision which became Article 23 was Franklin v. State,
Several cases have recognized the admissibility of evidence as an exception to the constitutional provision making juries the judges of the law in criminal cases, without recognizing any other exception. These include Wheeler v. State, supra, and Beard v. State, supra, relied on in Stevenson. See also Lewis v. State, 285 Md. 705, 723-724,
Until the Stevenson case in 1980, this Court’s opinions regularly emphasized the breadth of the jury’s function of deciding the law in criminal cases. Thus in Dillon v. State,
“Under ‘our almost unique Constitutional provision any instructions on the law which the [trial] court may give’ are purely advisory and the jury must be so informed. Schanker v. State,208 Md. 15 , 21,116 A.2d 363 , 366 (1955).”12
See also, e.g., Bruce v. State,
Moreover, the cases in this Court prior to 1980, all holding that juries in criminal cases had the authority to decide almost all legal issues, included cases implicating constitutional rights. See, e.g., Davis v. State,
The wording of Article 23 is very broad, providing that “[i]n the trial of all criminal cases, the Jury shall be the Judges of Law....” (Emphasis added). The only exception contained in the constitutional provision itself is that the court may pass upon the sufficiency of the evidence for the case to be submitted to the jury. As the cases reviewed in this opinion show, prior to Stevenson and Montgomery, the opinions of this Court largely construed Article 23 as it read.
In addition, Maryland Rule 756, which was in effect in 1976 at the time of Unger’s trial, stated regarding jury instructions in criminal cases (emphasis added):
“Rule 756. Advisory Instructions.
b. How Given.
The court may and at the request of any party shall, give such advisory instructions to the jury as may correctly state the applicable law; the court may give its instructions either orally or in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. 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.”
The Rule made no exceptions to the requirement that juries be told that they are the judges of the law. While the Rule was subsequently re-numbered, the above-quoted language remained the same until after the Stevenson and Montgomery opinions.
Finally, the Stevenson and Montgomery opinions were intended by the Court in those cases to be fully retroactive. Stevenson and Montgomery were clearly intended to be retroactive because neither opinion purported to change the prior interpretation of Article 23. Apart from the Court’s intention in Stevenson and Montgomery, the new interpretation of Article 23 set forth in those opinions was retroactive under our cases. It is a well-established principle of Maryland law that a new interpretation of a constitutional provision or a statute is fully retroactive if that interpretation affects the integrity of the fact-finding process. See, e.g., State v. Colvin, supra,
In sum, the Stevenson and Montgomery opinions clearly held that “the Maryland Constitution [, in Article 23 of the Declaration of Rights,] imposefd] on State criminal proceedings a procedural or substantive standard not previously recognized.” § 7-106(c)(2)(i) of the Criminal Procedure Article. Therefore, defense counsel’s failure to object to the advisory nature of the jury instructions at Unger’s 1976 trial did not constitute a waiver.
Those portions of the Court’s Stevenson, Montgomery, and Adams opinions, holding that the interpretation of Article 23 in Stevenson and Montgomery was not a new State constitutional standard, were erroneous and are overruled. While we recognize that, “under the doctrine of stare decisis, a court’s previous decisions should not be lightly set aside,” nevertheless
It is undisputed that the trial judge’s instructions at Unger’s 1976 trial, telling the jury that all of the court’s instructions on legal matters were “merely advisory,” were clearly in error, at least as applied to matters implicating federal constitutional rights. Consequently, the post-conviction trial court correctly granted a new trial.
MOTION TO DISMISS DENIED. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY. COSTS TO BE PAID BY THE RESPONDENT.
HARRELL and ADKINS, JJ., Concur and Dissent.
Notes
. Hereafter in this opinion, all references to Article 23 of the Declaration of Rights shall be to the first paragraph of Article 23.
. Stevenson,
. In the present case, no one has raised the question of whether Article 23, as interpreted in Stevenson, violates the Due Process Clause of the Fourteenth Amendment and/or the Jury Trial Clause of the Sixth Amendment, applicable to the states by virtue of the Fourteenth Amendment. In this connection, see Sparf v. United States,
. In Squire v. State,
. See State v. Frye,
. This Court later reversed, for the most part, the judgment of the Court of Special Appeals, State v. Adams, supra,
. Because we shall rule in Unger's favor on other grounds, we need not and shall not reach the issue of ineffective assistance of counsel by counsel's not objecting to the trial judge’s failure to define or explain "reasonable doubt” at the close of the evidence.
. In addition to Bowen v. Annapolis, numerous cases in this Court have held that a cross-appeal by the prevailing party was improper because a party is not entitled to appeal from a judgment wholly in his or her favor, regardless of what may have been said by the trial judge in an opinion or with respect to alternative grounds. See, e.g., Rush v. State,
. There are a few other exceptions to the principle that an appellate court will affirm a trial court on any ground adequately shown by the record, none of which is applicable in the present case. For example, in reviewing a grant of summary judgment, " ‘Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment.' " Eid v. Duke,
Because there are exceptions to the principle of affirming on an alternative ground, many of this Court’s opinions use the word “ordinarily” in stating the principle.
. The dissenting opinion, in arguing that the principle of affirming on an alternative ground is an aspect of Rule 8-131, totally ignores the above-cited cases holding that the principle of affirming on an alternative ground is an exception to Rule 8-131(a).
. In a sense, the admissibility of evidence is not really an "exception” to the jury being the judge of the law. The function of the jury in deciding what the law is occurs after the evidentiary portion of the trial. That function does not begin until the case is submitted to the jury. Rulings on the admissibility of evidence, however, are normally earlier, during the evidentiary portion of the trial.
. Judge O’Donnell’s opinion did not mention any exceptions to the constitutional provision making juries the judges of the law in criminal cases. Many other opinions of this Court discussing the provision fail to mention any exceptions. See Hardison v. State,
Concurrence in Part
concurring and dissenting, in which ADKINS, J., joins.
Although I agree with the disposition in the Majority opinion of the State’s motion to dismiss, I dissent otherwise. The Majority opinion ignores the long-standing principles of stare decisis and executes a relatively abrupt and unjustified about-face from our holding in State v. Adams,
The Majority opinion concludes that our decisions in Stevenson v. State,
FACTS
Although redundant in certain respects to the Majority opinion’s recitation of the facts, I shall render my own “take” on them, which places emphasis on certain aspects given no consideration or short shrift by the Majority opinion. Unger was indicted in the Circuit Court for Washington County on one count of felony murder, one count of robbery with a deadly weapon, and two counts of use of a handgun in the commission of a crime of violence. The case was removed for trial to the Circuit Court for Talbot County, where Unger, represented by counsel, was tried by a jury. The trial took place over 22-24 November 1976.
Immediately after jury selection, the trial court made certain preliminary remarks to the jury regarding a notion of the jury’s role in the trial process popular in Maryland circa 1976:
Now, Mr. Foreman, and Ladies and Gentlemen of the Jury, it is now the duty of the Court to instruct you on the law applicable generally to criminal cases. Under the Constitution of Maryland, the jury in a criminal case is the Judge of the Law as well as the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it. You may feel free to reject my advice on the law and to arrive at your own independent conclusions.
Realizing that the jury panel had not yet been sworn, the trial court interrupted its preliminary statement to the jury so the courtroom clerk could swear the panel. The court resumed its remarks thereafter, repeating that the jurors were the judges of the law and that the court’s instructions as to the law were not binding upon them:
Mr. Foreman, Ladies and Gentlemen of the Jury, it is now the duty of the Court to instruct you on the law applicable generally to criminal cases. Under the Constitution of Maryland, the jury in a criminal case is the Judge of the Law as well as the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it. You may feel free to reject my advice on the law and to arrive at your own independent conclusions.
In addition, the trial court provided the jury with an explanation of the “beyond a reasonable doubt” burden of proof borne by the State.
The State’s case against Unger was summarized aptly by the Court of Special Appeals in its unreported opinion deciding his direct appeal from the convictions:
According to the evidence adduced at trial, on December 13, 1975, at approximately 9:00 p.m., a robber, wearing a CPO jacket and a ski mask, held up the owner of Kim’s Corner General Store in Hagerstown, Maryland, taking all the money in the cash register, plus checks and currency carried by the owner. While the robbery was in progress, an off-duty member of the Hagerstown Police Force, Officer Daniel Donald Kline, entered the store. As the robber started to leave, the officer identified himself and ordered him to halt. The robber,however, continued through the door and into a passageway between two houses with the officer in pursuit.
Soon thereafter there were flashes of gunfire, and the officer staggered out of the passageway. An hour later the officer died in the hospital; he had been shot three times. Found at the scene were four .25 caliber shell casings, a .25 caliber handgun, and a ski mask. The bullets removed from the officer’s body later proved to have been fired from the gun found at the scene. Maryland State Police canine dogs followed the. scent of the ski mask to the cellar of a nearby house. There the troopers found [Unger] unconscious and badly wounded, wearing a navy blue CPO jacket. He had been shot with a .38 caliber bullet fired from the officer’s service revolver. In [Unger’s] pocket a large sum of money and checks were found, including a money order made payable to Kim’s Corner.
The trial testimony reflected additionally that, following his arrest, Unger was treated in the intensive care unit of Washington County Hospital and then transferred to a private room for several days. During that time, Unger, during police questioning, waived his Miranda
On the third day of trial, after the close of all of the evidence, the trial court gave its instructions to the jury. It began by reiterating that its instructions about the law were not binding:
Mr. Foreman, Ladies and Gentlemen of the Jury, the time has now arrived for me to give you your final instructions on the law. These instructions are specific and pertinent to this case only, but are advisory only. And are no more binding upon you than the preliminary instructions that I have previously given you.
During its final instructions, the trial court did not repeat its earlier rendered definition of the reasonable doubt standard, instead referring the jury to its preliminary remarks. Unger’s trial counsel did not object to the trial court’s giving of any of the foregoing “advisory” jury instructions, nor did he request a reiterative explanation by the trial court at the close of the evidence of the meaning of reasonable doubt.
On 24 November 1976, the jury convicted Unger of felony murder, armed robbery, and use of a handgun in the commission of each of those offenses. The court sentenced Unger on 2 December 1976 to life in prison for felony murder, 20 years for armed robbery, five years for use of a handgun in the commission of armed robbery, and 15 years for use of a handgun in the commission of murder.
Unger noted timely an appeal from his convictions, contending that (1) the statements he gave to police were inadmissible and (2) the conviction and sentence for both felony murder and robbery violated the prohibition against double jeopardy. In an unreported opinion, filed on 2 September 1977, the Court of Special Appeals affirmed Unger’s convictions for felony murder and for use of a handgun in the commission of murder.
On 16 April 2007, the State filed with the Court of Special Appeals an application for leave to appeal from the post-conviction court’s grant of a new trial to Unger. In response, Unger filed, on 4 May 2007, an opposition and a conditional cross-application for leave to appeal. In the conditional cross-application, Unger challenged the post-conviction court’s rejection of the argument that his trial counsel was ineffective by failing to request that the trial court provide the jury with an explanation of reasonable doubt at the close of the evidence.
On 6 July 2009, the Court of Special Appeals issued an unreported opinion in which it granted the State’s application for leave to appeal and vacated the post-conviction court’s order granting Unger a new trial, finding that, under this Court’s decision in Adams, Unger’s failure to object to the trial court’s advisory jury instructions waived his right to post-conviction relief on that issue. The intermediate appellate court denied also Unger’s conditional cross-application for leave to appeal based on his claim that his trial counsel rendered ineffective assistance by failing to request an explanation of reasonable doubt at the close of the evidence, explaining that, at the time of Unger’s trial, it was considered proper to give the reasonable doubt instruction only at the beginning of trial.
ANALYSIS
As noted at the outset of this concurring and dissenting opinion, I agree with the Majority opinion’s conclusion to deny the State’s motion to dismiss. My focus hereafter is on presenting why the Majority opinion errs and my view of the proper disposition of Unger’s ineffective assistance of counsel claim. Unger contends that his trial counsel rendered ineffective assistance by (1) failing to object to the trial court’s giving of advisory jury instructions, and (2) failing to request, at the close of the evidence, an explanation of the reasonable doubt standard. I conclude, with regard to his first contention, that Unger waived any possibility of post-conviction relief by virtue of failing to present his claim to the post-conviction court. With regard to Unger’s second claim, I would hold that Unger failed to demonstrate that his trial counsel’s failure to request an explanation of reasonable doubt at the close of the evidence resulted in prejudice to his defense.
i. Trial Counsel’s Failure to Object to Advisory Jury Instructions
The Majority opinion relies to some degree on our recent opinions in State v. Cates,
Although I conclude that Unger enjoys no “entitlement” compelling us to reach the merits of the waived advisory-jury-instruction issue, this Court made clear in Adams,
It is well settled that the primary purpose of Rule 8-131 (a) is “to ensure fairness for all parties in a case and to promote the orderly administration of law,” and that the Court’s discretion should be exercised rarely and “should be exercised only when it is clear that it -will not work an unfair prejudice to the parties or to the court.” Bell,
A delay of twenty-four years before asserting his waived arguments ... may be a testimonial to patience, but the delay poses a real potential for serious hardship and prejudice to the State’s ability to mount a new prosecution. This delay is particularly inexcusable because “[a]s originally enacted in 1958, the [Post-Conviction Procedure] Act did not place any limit on the number of post conviction petitions which a petitioner was entitled to file.” Mason v. State,309 Md. 215 , 217-18,522 A.2d 1344 , 1345 (1987).
In his amended petition for post-conviction relief, Unger, through counsel, claimed that his trial counsel rendered ineffective assistance (1) when counsel failed to request sequestration of witnesses who could have offered testimony relevant to the voluntariness of Unger’s confession, and (2) when counsel failed to request that the trial court provide an explanation of the reasonable doubt standard at the conclusion of the evidence. Although Unger’s amended petition alleged additionally that “[t]he trial judge improperly instructed the jury that his instructions were advisory only and not binding on them,” he did not contend that his trial counsel rendered ineffective assistance by failing to object to the advisory jury instructions. Accordingly, in neither its 16 March 2007 memorandum opinion nor its 30 April 2007 supplemental memorandum opinion did the post-conviction court (nor could it) address the question of whether Unger’s counsel was ineffective for failing to object to the trial court’s advisory jury instructions.
In Unger’s conditional cross-application for leave to appeal from the post-conviction court’s judgment, he similarly did not raise any contention with regard to his trial counsel’s alleged ineffectiveness for failing to object to the trial court’s advisory jury instructions. Only after this Court issued its opinion in Adams did Unger allege, in his supplement to his conditional cross-application for leave to appeal, that his trial counsel provided ineffective representation by failing to object to the trial court’s advisory jury instructions. In response to Adams, the holding of which, as noted by the Court of Special Appeals here, undermined significantly Unger’s original contention by finding that a defendant’s failure to object to advisory jury
It is clear that, by failing to raise in the post-conviction court his claim that his trial counsel rendered ineffective assistance by failing to object to the trial court’s giving of advisory jury instructions, Unger waived, pursuant to § 7-106, any possible post-conviction relief based upon that issue. As such, 1 would not consider the merits of this aspect of Unger’s ineffective assistance of counsel claims.
The Majority opinion posits that whether there was a waiver of the advisory jury instruction challenge and whether Unger suffered from ineffective assistance of counsel are issues so inextricably intertwined or “dependent” that they must be considered together for the purposes of preservation. Majority op. at 407-08,
The “inextricably intertwined” invocation proffered by the Majority opinion, while applicable admittedly in some cases, is flawed fundamentally here. In the cases cited by the Majority opinion, in support of its assertion, the Court addressed an issue related closely, or one rising from the same operative facts, but only after the related issue was preserved properly. Majority op. at 407-08,
Conceptually, I can understand disagreement on the issue of whether this Court should excuse Unger’s waiver, by exercise of the Court’s power of discretion to decide the issue of ineffective assistance of counsel for failure to object to the advisory jury instructions. I can not excuse, however, the Majority opinion’s abrogation of the principles of stare decisis in order to overturn directly the holding of Adams that Stevenson and Montgomery did not announce a new principle of state constitutional law.
The members of this Court in the Majority bear the burden of upholding the
Stare decisis means to stand by the thing decided and provides “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.” Livesay v. Baltimore Cnty.,
Acknowledging that stare decisis is not an inexorable command, deviation from its principles should be done only in extraordinary circumstances, when this Court finds changed circumstances (not just personnel), or increased knowledge that “the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.” Harrison v. Montgomery Cnty. Bd. of Educ.,
We do not have before us here a situation where society has evolved to such a new order that requires us to disrupt or dispute the long ago holdings of Stevenson and Montgomery. What we have here is simply the resurrection of previously rejected views. Whether Stevenson and Montgomery announced a new constitutional standard is not before the Court properly in this case. Hillery,
The Majority opinion, concluding that the issue of ineffective assistance of counsel for failure to object to the advisory jury instructions was preserved properly and is before the Court, does not proceed to analyze the merits of that issue. Instead the opinion diverts to whether Stevenson and Montgomery announced a new state constitutional standard and concludes that Unger did not waive his right to appeal the advisory jury instructions under T — 106(c)(2). Indeed, this departure into overturning Adams may surprise the parties here, both of which briefed the issue of ineffective assistance of counsel under the Strickland standard, infra, and relied upon the holding in Adams as a basis undergirding the claim. Unger’s surprise at the Majority’s twist will undoubtedly be somewhat more muted than that of the State.
ii. Failure to Request Reasonable Doubt Instruction at Close of Evidence
In Strickland v. Washington,
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot besaid that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland,
In order to satisfy the performance prong of the test, a defendant alleging ineffective assistance of counsel “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland,
Regarding the prejudice prong of the ineffectiveness inquiry, “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland,
The Supreme Court, illuminating the prejudice component of the ineffectiveness inquiry, noted that, “[i]n certain Sixth Amendment contexts, prejudice is presumed.” Strickland,
As observed by the Supreme Court, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,
In addressing the prejudice prong of the Strickland analysis, Unger eschews any attempt to demonstrate actual prejudice resulting from his trial counsel’s failure to request that the trial court provide a reiterative explanation of the reasonable doubt standard after the conclusion of the evidence. In other words, Unger does not contend that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” This is likely due to the fact that, as noted by the State in its brief, the evidence of Unger’s culpability in the robbery of Kim’s Corner and the murder of Officer Kline was overwhelming. Rather, Unger maintains that his trial counsel’s alleged error resulted in “structural error,”
Unger directs our attention to a number of cases from federal Courts of Appeal in support of his contention that “[i] f a defendant meets his burden with regard to the
Despite some disagreement among the federal appellate courts, the decision of the Supreme Court in Strickland suggests convincingly that prejudice satisfying the second prong of the ineffective assistance of counsel inquiry will be presumed only in the narrow situations described by the Court, namely, where there is evidence of actual or constructive denial of the assistance of counsel or actual conflict of interest. Strickland,
The error of counsel identified by Unger in this case as constituting deficient performance is that trial counsel failed to request that the trial court provide the jury, at the conclusion of the evidence, with a redundant explanation of the reasonable doubt standard. It is beyond dispute, and Unger does not contend otherwise, that that “error” does not constitute either the actual or constructive denial of counsel contemplated by the Supreme Court in Strickland and Cronic, nor does it present any conflict of interest concerns. As such, under the clear dictates of the Supreme Court, the “error” of which Unger complains is not one that would give rise to a presumption of prejudice for purposes of an ineffective assistance of counsel claim. Likewise, counsel’s “failure” in this regard is not of a similar magnitude to the narrow categories of presumed prejudice situations described by the Supreme Court, particularly in light of the fact that the trial court, in its initial remarks to the jury, outlined specifically the beyond a reasonable doubt standard and provided an explanation regarding the meaning of “reasonable doubt,” and referred the jury back to those initial remarks at the close of the evidence, advising the jury that it “must be convinced beyond a reasonable doubt as herein before defined that the State has proven each and every element required by law to constitute the offense charged.”
Judge ADKINS authorizes me to state that she joins the views expressed in this concurring and dissenting opinion.
. See Miranda v. Arizona,
. The intermediate appellate court reversed, however, Unger’s conviction for armed robbery on the ground that the imposition of multiple punishments for felony murder and the underlying felony of armed robbery would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. In addition, as Unger committed only one felony, the Court of Special Appeals reversed his conviction for use of a handgun in the commission of armed robbery.
. Unger’s amended petition contained a lengthy list of claims, which, according to him, entitled him to post-conviction relief in the form of a new trial. Specifically, Unger’s amended petition alleged that:
(1) Unger’s appellate counsel provided ineffective assistance by failing to raise on direct appeal an issue regarding an improper amendment of the charging document;
(2) Unger’s appellate counsel provided ineffective assistance by failing to raise on direct appeal an issue concerning the chain of custody;
(3) Unger’s trial counsel provided ineffective assistance by permitting witnesses to remain in the courtroom, thus rendering them unavailable to testify about the voluntariness of his confession;
(4) Unger’s trial counsel provided ineffective assistance by failing to request a reasonable doubt instruction following the conclusion of the evidence;
(5) the trial judge instructed improperly the jury that his instructions were "advisory only” and not binding on them; and,
(6) the cumulative effect of trial counsel’s errors prejudiced Unger's right to a fair trial.
. In response, Unger filed a motion to alter or amend the judgment, observing that the post-conviction court granted a new trial based solely on the advisory jury instructions issue, but failed to rule on the other contentions in his amended petition, in violation of State v. Borchardt, 396 Md. 586,
. In his conditional cross-application, as I read it, Unger contended that his trial counsel rendered ineffective assistance by failing to object to the trial court’s failure to instruct the jury again on reasonable doubt following the close of the evidence. Unger's amended petition and the post-conviction court’s ruling reflect, however, that Unger’s claim in this regard was premised upon trial counsel’s failure to request an explanation of the reasonable doubt standard after the close of the evidence. As such, I would consider Unger’s claim in this regard to be framed properly as a challenge to trial counsel’s failure to request that the trial court provide the jury with an explanation of the reasonable doubt standard.
. Section 7-106 of the Criminal Procedure Article, entitled “Allegation of error,’’ provides in pertinent part:
(b) Waiver of allegation of error.—
(1) (i) Except as provided in subparagraph (ii) of this paragraph, an 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 proceeding that the petitioner began.
(ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist.
2. The petitioner has the burden of proving that special circumstances exist.
(2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (l)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.
§ 7-106(b). Thus, § 7-106(b) establishes that, where a petitioner has the opportunity to raise a claim in his or her post-conviction petition, but fails to do so, the right to rely upon that issue in a subsequent appeal may be considered waived. See Brown v. Warden of Md. Penitentiary,
. To be sure, three members of the Majority here reiterate views consistent with their dissent in Adams. Nonetheless, I submit more is required, before deviating from stare decisis, than simply re-potting those dissenting views as a Majority opinion here.
. The select cases relied upon by the Majority opinion in support of its departure from stare decisis are puzzling. While Townsend v. Bethlehem-Fairfield Shipyard, Inc., is cited often for the proposition that “it is sometimes advisable to correct a decision or decisions wrongly made in the first instance,” the ultimate conclusion in that case was that it was “more important that the law should remain settled as it is than another interpretation possibly more logical should now, after all these years, be given to it.”
. A “structural error” has been described as one which "affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante,
. Unger seems to suggest in his brief that, because preliminary remarks are not “instructions,” the trial court, in essence, failed to give the jury a reasonable doubt instruction, which, I acknowledge, might rise to the magnitude of an error justifying the presumption of prejudice under Strickland. This is not, however, what happened at Unger’s trial. Rather, the trial court instructed the jury numerous times that, to convict Unger, it was required to find his guilt beyond a reasonable doubt, and provided in its initial remarks a thorough explanation of reasonable doubt. The only potential "error” that Unger reasonably may claim resulting from trial counsel’s failure to request an explanation of reasonable doubt at the conclusion of the evidence is that the jury did not have the concept of reasonable doubt re-explained to them prior to their deliberations. Such an "error” pales in comparison to the actual or constructive denial of counsel or an actual conflict of interest.
. I shall not hypothesize as to how counsel’s alleged "error” might have caused Unger's defense to suffer actual prejudice, particularly as Unger makes no such contention in his arguments before this Court. In any event, any such argument likely would be undermined (1) by the fact that the trial court provided the jury with an explanation of reasonable doubt prior to the evidentiary phase of trial and reminded the jury after the close of the evidence of their duty to find Unger’s guilt beyond a reasonable doubt, and (2) by the overwhelming evidence of Unger's guilt presented by the State. In no uncertain terms, it would seem to be nearly impossible to contend that, had Unger’s trial counsel requested that the trial court restate, after the close of the evidence, the definition of reasonable doubt previously provided to the jury, and the trial court repeated such instruction, there is any reasonable probability that the result would have been different. It is clear that the jury knew and understood the burden of proof borne by the State.