First-degree rape and first-degree sexual assault

Maryland Court of Special Appeals Reports

STATE v. ADAMS, 617 (Md.App. 12-5-2006) STATE of Maryland
v. Raymond Leon ADAMS. No. 617, September Term, 2005.
Court of Special Appeals of Maryland. Filed: December 5,
2006.

DAVIS, KRAUSER, SHARER, JJ.

Opinion by DAVIS, J.

Appellee, Raymond Leon Adams, was charged with multiple
counts of first-degree rape and first-degree sexual
assault, kidnapping, theft, and robbery with a dangerous
and deadly weapon. Following a trial on December 3-7, 1979,
appellee was found guilty on all counts. On January 18,
1980 and February 4, 1980, appellee was sentenced to life
imprisonment for one count of first-degree rape and
twenty-one concurrent life sentences for the remaining rape
and sexual offenses, thirty consecutive years for
kidnapping and a twenty-year sentence for robbery, which
was to be served consecutively to all the other sentences.
This Court affirmed appellee’s convictions in an
unreported, per curiam opinion. See Adams v. State, No.
133, September Term, 1980 (filed October 16, 1980). The
Court of Appeals denied appellee’s pro se Petition for Writ
of Certiorari on December 2, 1980. Adams v. State, 289 Md.
733 (1980).

On April 1, 2004, appellee filed a Petition for Post
Conviction Relief in the Circuit Court for Prince George’s
County collaterally challenging his convictions under
numbers 20,221, 20,494, 20,546 and 20,723. Subsequent to a
hearing held on December 7, 2004 on appellee’s
post-conviction petition, the Petition for Relief pursuant
to the Post Conviction Procedure Act was granted on April
5, 2005, by the court (Platt, J.), which ordered that
Petitioner be awarded a new trial on all counts of the
indictments. On May 4, 2005, the State filed its
Application For Leave To Appeal and, on May 17, 2005, the
State filed a Motion for Leave to File a Supplemental
Application for Leave to Appeal.

This Court granted the State’s timely Application for Leave
to Appeal on October 18, 2005, presenting the following
questions for our review:

I. Did the post conviction court err in rejecting the
State’s claim that appellee was procedurally barred from
pursuing his substantive complaint as to the advisory
nature of the jury instructions and, if not barred, did
the trial court properly instruct the jury?

II. Did the post conviction court err in rejecting the
State’s claim that appellee was procedurally barred from
pursuing his substantive complaint as to the court’s
failure to give proper instruction regarding jurisdiction
and, if not barred, did the trial court properly instruct
the jury?

III. Did the post conviction court err in finding that
appellee’s trial counsel was ineffective?

For the reasons which follow, we affirm the judgment of the
circuit court.

FACTUAL BACKGROUND

We considered, in appellee’s direct appeal, whether the
evidence presented at trial was sufficient to permit the
trier of fact to determine that the events giving rise to
his conviction occurred in Maryland. The facts upon which
appellee’s conviction were based, as recited by this Court
in that appeal, are as follows:

On the evening of February 17, 1979, Kathy Phipps, along
with her older sister, Teresa Bowen, was on the parking
lot of the Prince George’s Motor Lodge at approximately
10:00 p.m. The two sisters were returning to their car
after having left a disco at Cuckoo’s Nest. A black van
approached and cornered the two of them against some
parked cars. Three males got out of the van and approached
the two women. [Appellee] was carrying a gun and ordered
both women into the van, threatening to shoot them if they
did not comply with his order. He grabbed Ms. Phipps. Ms.
Bowen backed away and began to scream. As she did so, she
saw [appellee] hit her sister over the head and then she
heard her sister scream. She observed three males push
Kathy into the van and drive off. It was undisputed that
the location of the Prince George’s Motor Lodge was in
Prince George’s County Maryland, and was located
approximately one and one-half miles from the District of
Columbia line.

Ms. Phipps testified that immediately after being forced
into the van, she was ordered at gunpoint to remove her
jewelry and did so. In leaving the Prince George’s Motor
Lodge, the van was heading along Branch Avenue in the
general direction of Washington D.C. Shortly after
removing her jewelry, Ms. Phipps was forced to remove her
clothes. [Appellee] was the driver of the van. The
passenger to the right front seat, on the direct order of
[appellee], moved into the back of the van and started to
pull Ms. Phipps clothes off when she was not moving fast
enough in disrobing herself. The other passenger in the
van then raped her.

[A] whole series of sexual attacks — rape, anal
intercourse and fellatio at the hands of [appellee]
himself; both passengers in the van and, later, a group of
several other males during a stop at a parking lot
— ensued. . . .

Immediately after Ms. Phipps’ gold necklace and watch had
been grabbed from her and various rings had been ripped
off her fingers, the sexual assault began. She described
all of this as taking “just a minute or so.”

[S]hortly after the first rape, at gunpoint, was over,
the van turned off of Branch Avenue, making a right-hand
turn and went up a hill. Going the wrong way up a one-way
street, it was involved in a minor accident. The whole
series of sexual attacks of every variety by a number of
parties followed. Ms. Phipps estimated that when the
second attack began, approximately ten to fifteen minutes
had already elapsed since the time of the initial
kidnapping. She asked her abductors if they were still in
Maryland, to which they replied affirmatively, but they
laughed in the process of making the affirmative reply,
leading her to doubt their truthfulness. At one point in
her ordeal her various abductors had put a coat over her
head so that she could not see anything. Ultimately she
was threatened with death and then pushed out of the van,
which resulted in her being in Prince George’s County,
Maryland. When she knocked on the door of an apartment
house for assistance, it was the Prince George’s County
Police who responded. This was approximately 12:15 a.m., a
little over two hours after she had been kidnapped.

Additionally, Teresa Brown identified William Raleigh
Knight and appellee as the passenger in the back of the van
and the driver of the van, respectively; she also
identified appellee as the gunman at a line-up after he had
been arrested. Kathy Phipps identified appellee’s photo in
an array shortly after the incident and also several days
later; she later identified the pair at trial. Appellee had
been seen by Officer Peter G. Serbinoff, a Washington D.C.
police officer, in a van with octagonal windows, a CB
antenna and wheels matching the description of the van that
had been used in the offenses at almost the same time the
description was relayed over his radio. Inside of the van,
the Washington D.C. Evidence Collection Unit found a white
scarf and comb identified by Phipps as hers and three used
prophylactics. At the conclusion of the evidence, it was
stipulated that the medical evidence would show that Phipps
had been vaginally and anally sexually assaulted.

Prior to closing argument by counsel, the trial judge gave
the following instructions to the jury:

All right, ladies and gentlemen of the jury, the
testimony in this case has been concluded, and prior to
your listening to [State’s Attorney] and [appellee’s
counsel] tell you what they think you ought to do in this
particular case, I am going to instruct you and discuss
with you the law about the case that we have just sat and
listened to for the past five days.

Those of you who have sat previously as jurors in a
criminal case know, and for those of you who have not sat
previously and who do not know, that in our State, unlike
[forty-eight] other states in our country, in a criminal
case you as the jury sit not only as what we call the
triers of fact, you also sit as what we call the judge of
the law. And what this means, in essence, is that the
facts in this case as you have sat and listened to for the
past five days will be as you find them to be, and the law
in this case will be as you find it to be. And because you
are both the judges of the fact and the judges of the law
anything that I may now tell you about either the facts
of the law is purely advisory. You may disregard anything
that I tell you, and you may pay absolutely no attention
to what I tell you concerning either the facts or the law,
with this one admonition concerning the law. You are not
to apply the law as you think it ought to be or what it
should be, but what it in fact is in this particular case.

And because you are the judges of the law [State’s
Attorney] and [appellee counsel] in their closing
arguments to you may tell you what they think the law is
in our State and how you should apply it in this
particular case.

I, therefore, instruct you in an advisory capacity that
in this case that you will sit on, that is of a criminal
nature, the law places the burden on the State of Maryland
to prove that the defendant, and in this case [appellee]
is guilty beyond what we call a reasonable doubt. No
defendant in any criminal case has to prove he is
innocent. Accordingly, you will assume that [appellee] is
innocent unless you are convinced from all the evidence in
this case that you have heard for the past five days that
he is guilty.

The trial court also instructed the jury:

I further instruct you in an advisory capacity that you
have sat and listened to testimony in this case concerning
identification of [appellee] by use of photographs and by
use of a lineup. And in this regard I instruct you that
the burden is also on the State of Maryland to prove to
your satisfaction not only beyond a reasonable doubt
that an offense was committed, but that [appellee] is the
person that committed it and has been properly identified.
An[d] whether or not he has been properly identified is,
a question solely for you to determine, and you must be
satisfied beyond a reasonable doubt as to the accuracy of
the identification of [appellee] before you may convict
him of any of these offenses.

And I, therefore, instruct you in an advisory capacity
that a person who aids or abets the principal offender may
be guilty of the principal offense, even though he or she
did not personally commit each of the acts constituting
the offense.

* * *

I further instruct you in an advisory capacity that
anything [State’s Attorney] or [appellee’s counsel] told
you when this case started, anything that either of them
are going to tell you after I conclude my instructions in
this case, is not evidence.

I further advise you in an advisory capacity that you
have the right to believe the testimony of any witness
that you choose to believe, you may disbelieve the
testimony of any witness that you choose to disbelieve. .
. .

In response to the court’s instructions, appellee’s counsel
said, “Note my exception to the Court not giving the
requested reasonable doubt instruction I submitted.” In
response to the court’s instruction that “this trial and
your function as jurors is a search for the truth,”
appellee’s counsel filed another exception, stating, “the
trial is a determination as to whether or not the State has
proven beyond a reasonable doubt that the defendant is
guilty.”

Finally, the following colloquy transpired:

[APPELLEE’S COUNSEL]: If the trial is a search for the

truth-

THE COURT: What is a trial?

[APPELLEE’S COUNSEL]: — we would not be bound by
any exclusionary rules. The trial is a determination in a
given set of rules as to whether or not in a criminal case
the prosecution has proven beyond a reasonable doubt that
the defendant committed the crime alleged.

POST CONVICTION PROCEEDING

At the conclusion of the hearing on appellee’s Petition for
Post Conviction Relief, the circuit court issued the
following opinion, in pertinent part:[fn1]

A. “Advisory Only” Jury Instructions

The petitioner argues that the trial court’s directive to
the jury that its instructions were only advisory violated
his right to due process. Specifically, the Petitioner
provides that the trial court not only gave a blanket
statement that the instructions were advisory but also
repeatedly reminded the jury that the court’s instructions
were merely advisory. Thus, allowing the jury to disregard
fundamental principles such as the State’s burden to prove
its case beyond a reasonable doubt, rendering the
instructions constitutional.

Since Petitioner’s trial in 1979, there have been several
state and federal decisions rendered regarding advisory
jury instructions, which the Petitioner submits as
authority to support his position. In Stevenson v. State,
289 Md. 167, 171, 423 A.2d 558, 560 (1980), the trial
court instructed the jury that “anything which I may say
about the law, including any instructions which I may give
you, [are] merely advisory and you are not in any way
bound by it.” However, the trial “judge did not again
mention that his statements concerning the law were for
its guidance and not binding; rather he couched all of
his remarks in mandatory language.” Stevenson, 289 Md. at
171, 423 A.2d at 561. It is in this case that the Court of
Appeals took the opportunity to explore the
constitutionality of Article 23 of the Maryland
Declaration of Rights.

The Court found that Article 23 did not violate the Due
Process Clause of the Fourteenth Amendment because it only
granted the jury the authority to decide “‘the law of the
crime,’ Stevenson, 289 Md. at 178, 423 A.2d at 564
(citing Wheeler v. State, 42 Md. 563, 570 (1875), or `the
definition of the crime,'” as well as “the legal effect of
the evidence.” Stevenson, 289 Md. at 178, 423 A.2d at 564
(citing Beard v. State, 71 Md. 275, 280, 17 A. 10[44],
1045 (1889). Thus, the Court of Appeals concluded, “it is
not within the province of the jury to decide whether a
statute has been repealed, whether it has operative effect
or if it is unconstitutional.” Stevenson, 289 Md. at
178, 423 A.2d at 564.

In Montgomery v. State, 292 Md. 84, [89-90], 437 A.2d
654, 657 (1981), the Court of Appeals found that “[i]t was
error for the trial judge to tell the jury they could pay
no attention to instructions on the law which did not
pertain to the elements of the crime but which were
standard instructions invoked to preserve the integrity
of the judicial system and to assure the defendant a
fair and impartial trial.” The Court remanded the case for
a new trial because there was no dispute as to the law of
the crime and it was error to instruct the jury that
instructions were non-binding.

As explained in Guardino v. State, 50 Md. App. 695, 702,
440 A.2d 1101, 1105 (1982), the teachings of Stevenson and
Montgomery “are an affirmation of prior decisions, in
accord with established law consistently followed by the
Court of Appeals, even though not recognized in practice
by many of the trial courts.” Thus, neither case
explicated a new rule but merely reaffirmed what has been
consistently the law of the State of Maryland.

The law in Maryland is that the trial judge is charged
with the duty to “delineate for the jury the following
dichotomy: (i) that the jury, under Article 23, is the
final arbiter of disputes as to the substantive `law of
the crime,’ as well as the `legal effects of the
evidence,’ and that any comments by the judge concerning
these matters are advisory only; and (ii) that, by virtue
of this same constitutional provision, all other aspects
of the law are beyond the jury’s pale, and that judge’s
comments on these matters are binding upon that body.”
Stevenson v. State, 289 Md. at 180, 423 A.2d at 565.

In the present case, the transcript is replete with
instances of advisory instructions, which should have been
binding on the jury and counsel. For example, the trial
judge gave the following instruction:

(1) And because you are both the judges of the fact and
the judges of the law anything that I may now tell you
about either the facts or the law is purely advisory. You
may disregard anything that I tell you, and you may pay
absolutely no attention to what I tell you concerning
either the facts or the law. . . .

(2) I, therefore, instruct you in an advisory capacity
that in this case that you will sit on, that is of a
criminal nature, the law placed the burden on the State of
Maryland to prove that the defendant, and in this case
[appellant], is guilty beyond what we call a reasonable
doubt. . . .

(3) I further instruct you in an advisory capacity that
anything [appellee’s counsel] or [State’s Attorney] told
you when this case started, anything that either of them
is going to tell you after I conclude my instruction in
this case, is not evidence.

The Court of Appeals has identified “certain bedrock
characteristics . . . which are indispensable to the
integrity of every criminal trial, to wit:

(1) The accused is presumed innocent until proven guilty
by the State by evidence beyond a reasonable doubt.

(2) The state has the burden to produce evidence of each
element of the crime establishing the defendant’s guilt.

(3) The defendant does not have to testify and the jury
may infer no guilt because of his silence.

(4) The evidence to impeach the defendant bears only on
his credibility and may not be used to prove the substance
of the offense.

(5) The evidence is limited to the testimony (and
reasonable inferences therefrom) and the exhibits into
evidence.

(6) Evidence does not include the remarks of the trial
judge nor the arguments of counsel.

Montgomery v. State, 292 Md. at 91, 437 A.2d at 658.

“[T]he jury should not be informed that all of the
court’s instructions are merely advisory; rather only that
portion of the charge addressed to the former areas of law
[of the crime] may be regarded as non-binding.”
Stevenson, 289 Md. at 180, 423 A.2d at 565.

Finally, the Petitioner seeks reliance on Jenkins v.
Hutchinson, 221 F.3d 679 (4th Cir. 2000) as additional
support for its position. In Jenkins, the Fourth Circuit
held an advisory reasonable doubt instruction given
pursuant to Maryland law violated the defendant’s federal
right to due process. In Jenkins, as in this case, the
Petitioner argues, the trial court reminded the jury
throughout the charge that the instructions were merely
advisory. The Jenkins Court further applied its decision
retroactively and overturned the conviction even though
state law permitted the unconstitutional charge at the
time of the trial. The Petitioner seeks to apply Jenkins
to the instant case retroactively.

At the time of the Petitioner’s trial in 1979, the law in
Maryland was settled that the jury was the judge of the
law as well as the facts. See Giles v. State, 229 Md. 370,
383, 183 A.2d 359, 365 (1962). However, because Article 24
of the Maryland Declaration of Rights provides the same
protections as the Due Process Clause of the federal
constitution, see Bureau of Mines v. George’s Creek, 272
Md. 143, 156, 321 A.2d 748, 755 (1974) (“decisions of the
Supreme Court on the Fourteenth Amendment are practically
direct authorities” regarding Article 24), it is now
clear for the first time after Jenkins, that Article 23 of
the Maryland Declaration of Rights, requiring advisory
only jury instructions, is inconsistent with Article 24 of
the Maryland Declaration of Rights, assuring the Due
Process of Law.

As the cases decided after Petitioner’s trial
demonstrate, the advisory jury instructions given in this
case violated the Petitioner’s right to due process. On
direct appeal, the Petitioner could not have raised this
claim because state law barred a challenge to the advisory
only jury charge. Criminal Procedure Article Â§
7-106(b)(1)(i), provides that an allegation of error is
waived when a petitioner could have made but intelligently
and knowingly failed to make the allegation before trial,
on direct appeal,” or in another applicable proceeding.
Furthermore, a claim that otherwise may have been waived
may be heard when there is a subsequent change in the
law. Criminal Procedure Â§ 7-106(c)(2). It is clear
that in the present case that all the cases decided
leading up to Jenkins materially changed the law governing
the constitutionality of the advisory jury instruction,
thus excusing any waiver.

This Court finds that the trial judge failed to delineate
the dichotomy espoused in Stevenson because it instructed
the jury that the instructions given were advisory and
instructed the jury, through a blanket statement, that
they could pay absolutely no attention to what the
court’s instructions were as to facts or law. Furthermore,
this Court finds that in light of Jenkins the Petitioner’s
post conviction relief for a new trial must be granted.

* * *

Ineffective Assistance of Counsel

It is well settled that in determining whether counsel’s
assistance to a defendant in a criminal case was
ineffective, this court must examine whether counsel’s
conduct so undermined the proper function of the
adversarial process that the trial cannot be relied on as
having produced a just result. Strickland v. Washington,
466 U.S. 668, 686 (19[84]). Under Stickland, a petitioner
must show that trial counsel’s performance was deficient;
and the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 686. It is not enough for the
petitioner to show that the errors alleged had some
conceivable effect on the outcome. Harris v. State, 303
Md. 685, 700 (1985). The petitioner must show that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result would have been
different. Strickland, 466 U.S. at 694.

In Williams v. State, 326 Md. 367, 375, 605 A.2d 103, 107
(1992), the court indicated “the prejudicial effect of
counsel’s deficient performance need not meet a
preponderance of the evidence standard.” Therefore, a
defendant need only show that, based on counsel’s errors,
there is a “substantial or significant possibility that
the verdict of the trier of fact would have been
affected.” Williams, 326 Md. at 375, 605 A.2d at 107. In
effect, even a single serious error by counsel can provide
a basis for a finding of ineffective assistance of
counsel. In re Parris W., 363 Md. 717, 726, 770 A.2d 202,
207 (2001). The Petitioner alleges several errors by
counsel that render his assistance ineffective.

A. Failure to Object to the Trial Court’s Instruction
Based on a Venue Statute

As discussed previously, the trial court improperly
instructed the jury that it could find that Maryland had
territorial jurisdiction based on an inapplicable venue
statute. The Petitioner argues that trial counsel was
ineffective for failing to object to the erroneous
instruction.

The facts are undisputed that the victim was abducted one
and one-half miles from the District of Columbia.
According to testimony during trial, the victim was put in
a van and driven around for well over two hours. There is
further evidence that the assailant believed that at some
point during this two-hour period she was in the
District of Columbia.

Based upon this, the Petitioner contends that there was a
substantial probability or possibility that, had counsel
objected to the erroneous venue instruction and requested
a proper jurisdiction instruction, the jury would not
have unanimously found, beyond a reasonable doubt, that
the key elements of the offenses occurred in Maryland.
This Court agrees. Thus, the Petitioner is entitled to
post-conviction relief as to Counts III, IV, V, VI, VII,
VIII, IX, X, XI, XII and XIII.

B. Failure to Object to Erroneous Reasonable Doubt
Instruction

As discussed herein, the trial court must provide an
example or explanation of reasonable doubt upon the
request of the accused. Lansdowne v. State, 287 Md. 232,
412 A.2d 88 (1980). The Petitioner argues that had
counsel made a timely objection, the trial court would
have been required to give an adequate explanation of
reasonable doubt. However, Lansdowne only provides that a
reasonable doubt instruction is inadequate when the
defendant requests an explanation and the court does not
provide one. While prudence may suggest that an
explanation always be provided, Lansdowne does not make it
mandatory. As this Court earlier concluded, it appears
that the reasonable doubt instruction is adequate. The
failure of the defense attorney to request an explanation
of reasonable doubt does not by its very nature make the
instruction inadequate. In State v. Hunter, the Court of
Appeals recognized that the “Sixth Amendment does not
require the best possible defense or that every attorney
render a perfect defense. In order to be deficient,
counsel’s acts or omissions must be `outside the wide
range of professionally competent assistance.'” 103 Md.
App. 620, 623, 654 A.2d 886, 887 (1995) (citing
Strickland, 466 U.S. at 690).

In the instant case, this Court finds that the trial
counsel’s performance was not deficient as to this issue
and it is further held that Petitioner has failed to show
that he was prejudiced by his trial counsel’s failure to
object to the court’s Reasonable Doubt Instruction. Thus,
Petitioner has failed to satisfy the two-prong test of
Strickland and is therefore not entitled to Post
Conviction Relief on this ground.

C. Failure to File a Motion for Modification of Sentence

Following the imposition of sentence in this case,
Petitioner had the right to file, within ninety days (90)
after sentencing, a Motion for Modification of Sentence.
Md. Rule 4-345(b). Trial counsel did not do so. This
failure, the Petitioner contends, amounts to ineffective
assistance of counsel. As a result the Petitioner should
be entitled to file a belated motion for modification of
sentence. This Court agrees.

In State v. Flansburg, 345 Md. 694, 694 A.2d 462 (1997),
the Court of Appeals held that the respondent was entitled
to the effective assistance of counsel in filing a Motion
for Modification of Sentence. The Court held that
because respondent had a statutory right to counsel, he
had the right to the effective assistance of counsel.
Flansburg, 345 Md. at 703, 694 A.2d at 467. In addition,
Md. Rule 4-214(b) provides:

When counsel is appointed by the Public Defender or by
the court, representation extends to all stages in the
proceedings, including but not limited to custody,
interrogations, preliminary hearing, pretrial motions and
hearings, trial, motions for modification or review of
sentence or new trial, and appeal. The Public Defender
may relieve appointed counsel and substitute new counsel
for the defendant without order of court by giving notice
of the substitution to the clerk of the court.
Representation by the Public Defender’s office may not be
withdrawn until the appearance of that office has been
stricken pursuant to section (c) of this Rule. The
representation of appointed counsel does not extend to the
filing of subsequent discretionary proceedings including
petition for writ of certiorari, petition to expunge
records, and petition for post conviction relief.

As indicated by the Court of Appeals, the “phrase in Rule
4-214(b) motions for modification . . . of sentence; seems
to require representation by the Public Defender with
regard to any and all timely motions for modification of
sentence regardless of when they occur.” Flansburg, 345
Md. at 701-02, 694 A.2d at 466.

Hence, pursuant to Flansburg, Petitioner was denied the
effective assistance of counsel based upon trial counsel’s
failure to file a Motion for Modification of Sentence
within ninety (90) days after sentencing. There was no
risk that a greater sentence would be imposed. Therefore,
the Petitioner’s Post Conviction Relief is granted and
Petitioner is entitled to a belated Motion for
Modification of Sentence.

Accordingly, for the reasons stated above, it is this 5th
day of April, 2005, by the Circuit Court for Prince
George’s County, Maryland,

ORDERED, that the Defendant’s Petition for Post
Conviction Relief is hereby GRANTED; and it is further

ORDERED that the Defendant is hereby GRANTED a New Trial
on all Counts.

LEGAL ANALYSIS

The State, on this appeal, assigns error to the grant of a
new trial by the post conviction court upon consideration
of appellee’s Post Conviction Petition filed pursuant to
the Postconviction Procedure Act, Md. Code, Criminal
Procedure Article, Â§ 7-102, et. seq.[fn2]

On appellate review of a decision by a post-conviction
court, we will not disturb the court’s first-level factual
findings unless they are clearly erroneous. Evans v. State,
supra, 151 Md. App. 365, 374 (2003); State v. Jones, 138
Md. App. 178, 209 (2001), aff’d, 379 Md. 704 (2004). Post
conviction claims are resolved by consideration of the
record at the original trial and the record of the post
conviction proceeding.

THE PARTIES’ CONTENTIONS

The State contends first that, “because [appellee] failed
to challenge the trial court’s instructions on [his direct]
appeal and because 7-106(c)(2) [fn3] is inapplicable, there
is a rebuttable presumption that appellee waived his
current challenge and the post conviction court erred in
finding non-waiver and, subsequently, granting him
relief.”[fn4]

In support of its assertion that the court’s ruling of
non-waiver was error, the State argues that Jenkins did not
issue new law. Rather, the decision, says the State, was
not changed by the Fourth Circuit nor did Maryland law bar
challenges to advisory jury instructions. Appellee could
have, as did the appellant, in Stevenson v. State, 289 Md.
167 (1980), challenge the trial court’s failure to give a
requested instruction that it was the juror’s duty to
“follow the law as stated in the instructions of the
court.” Concluding that “Stevenson was not then barred from
raising the very same challenge to the court’s instructions
that Adams now makes twenty-five years later,” the State
urges that appellant could have likewise raised the issue
and failure to do so constitutes waiver.

Alternatively, the State argues that the jury instructions
given at appellee’s trial, “while at times couched in
advisory terms, were sufficient, when read in their
totality, to inform a jury that its function as judges of
the law was limited.” The instructions must not be taken
out of context to determine adequacy, but determined by
viewing the instructions as a whole.

Appellee countered, in the post conviction hearing and on
this appeal, that the trial court instructions were
improper because they were advisory in nature and that he
did not waive his right to challenge the advisory nature of
the jury instructions on appeal because State law barred
any challenge to advisory only charges. Appellee further
responds that, in Jenkins, the Fourth Circuit ruled that
[appellee’s] due process rights were violated and should be
applied retrospectively.

Maryland Declaration of Rights, Article 23, captioned,
“Jury judges of law . . .,” provides:

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.

WAIVER: CONSTITUTIONALITY OF ARTICLE 23

As noted, referring to the assertion in appellee’s petition
that “state law barred a challenge to the advisory only
jury charge,” and hence appellee could not have previously
raised the claim, the State retorts that, pending in the
Court of Appeals at the time of appellee’s trial was the
case of Dorothy Stevenson, who, like appellee, was tried by
a jury which had been instructed that it was the judge of
the law as well as the facts. Stevenson, supra, 289 Md.
167. The Court of Appeals had

granted certiorari in this criminal cause “limited solely
to the question whether the trial court denied (the
accused) the right to due process guaranteed by the XIV
Amendment (to the United States Constitution) when it gave
advisory rather than binding (jury) instructions.” In
other words, our review here is confined to whether
Article 23 of the Declaration of Rights to the Maryland
Constitution, which provides that the jury in a criminal
case “shall be the Judges of Law, as well as of fact,” is
unconstitutional because the provision, as construed by
this Court, facially deprives a defendant of the
federally secured right to due process of law.

Id. at 169.

The Court issued its decision in Stevenson on December 17,
1980, fifteen days after the Court of Appeals denied
appellee’s pro se petition for certiorari. Moreover, as
appellee points out, the Court of Appeals did not pass
judgment on the instructions actually given, but merely
held that there was no bar to her pursuing as an issue on
appeal, her claim that the advisory nature of the
instructions rendered them unconstitutional under the Due
Process Clause of the Fourteenth Amendment.

Although agreeing with Stevenson that the Supreme Court, in
Sparf v. United States, 156 U.S. 51 (1895), limited the
role of juries in federal criminal trials to questions of
fact, the Court of Appeals concluded that it did not
believe that Sparf did so because it was a constitutionally
required aspect of the jury trial right. Stevenson, 289 Md.
at 184. The Stevenson Court therefore concluded, “While
this court recognizes that the Supreme Court has yet to
decide whether the remaining element of trial by jury
identified in Sparf juries as triers of fact only and not
judges of law is still a necessary component of the sixth
amendment (if it ever was), it seems to us quite unlikely,
in light of the standard adopted in Williams and Apodoca,
i.e., is the feature essential to the function and purpose
of a jury, that the court would still continue its fact-law
distinction.” Id. at 187.

The Court posited that the further reason “to question
whether the Sparf requirement will be imposed on state
criminal proceedings as a matter of due process” is the
fact that Supreme Court decisions have suggested that
states be permitted to experiment with the actual operation
of juries “so long as the fundamental purpose of the right
safeguarding the accused against official oppression remains
intact.” Id. (citations ommitted) (emphasis added). The
Court of Appeals concluded, “Consequently, since Maryland’s
constitutional provision, making juries judges of the law,
enhances the purpose of trial by jury interposing a neutral
interpreter of the law between the accused and the accusing
government, . . . we hold that this provision of our
organic law does not violate the Sixth Amendment right to
trial by jury as it applies to criminal trials in this
state under the Due Process Clause of the Fourteenth
Amendment.” Id. at 188 (emphasis added) (internal citations
omitted).

The Stevenson Court ultimately concluded:

Implicit in the decisions of this Court limiting the
jury’s judicial role to the “law of the crime” is a
recognition that all other legal issues are for the judge
alone to decide. Because of this division of the
law-judging function between judge and jury, it is
incumbent upon a trial judge to carefully delineate for
the jury the following dichotomy: (i) that the jury,
under Article 23, is the final arbiter of disputes as to
the substantive “law of the crime,” as well as the “legal
effect of the evidence,” and that any comments by the
judge concerning these matters are advisory only; and (ii)
that, by virtue of this same constitutional provision, all
other aspects of law (e.g., the burden of proof, the
requirement of unanimity, the validity of a statute) are
beyond the jury’s pale, and that the judge’s comments on
these matters are binding upon that body. In other words,
the jury should not be informed that all of the court’s
instructions are merely advisory; rather only that portion
of the charge addressed to the former areas of “law” may
be regarded as non-binding by it, and it is only these
aspects of the “law” which counsel may dispute in their
respective arguments to the jury. On the other hand, the
jury should be informed that the judge’s charge with
regard to any other legal matter is binding and may not be
disregarded by it. An explicit example of this may be seen
from an examination of this Court’s recent opinion in
Lewis v. State, supra, where we held that, although both a
judge and the jury may be called upon to determine the
voluntariness of a confession, instructions to the jury
with respect to the type of consideration to be given by
that body to such a confession are binding on it since
admissibility of evidence is not “law” which the jury may
decide. (Emphasis added).

On December 4, 1981, almost one year to the day after the
Court of Appeals issued its decision in Stevenson, the
Court penned Montgomery, 292 Md. at 91. There, the Court
reaffirmed certain “bedrock” principles embodying due
process requirements which were held to be binding upon the
jury: that a defendant is presumed innocent until proved
guilty by the State by evidence beyond a reasonable doubt;
that the State has the burden to produce evidence of each
element of the crime establishing the defendant’s guilt;
that the defendant does not have to testify and the jury
may infer no guilt because of his silence; that evidence to
impeach the defendant bears only on his credibility and may
not be used to prove the substance of the offense; that
evidence is limited to the testimony (and reasonable
inferences therefrom) and the exhibits admitted into
evidence; that evidence does not include the remarks of the
trial judge nor the arguments of counsel; and that evidence
does not include the remarks of the trial judge nor the
arguments of counsel. Id. at 88-89.

Concluding that “the trial judge muddled the judge/jury
dichotomy and erred in instructing the jury as to its role
as trier of the law and the facts,” the Montgomery Court
declared that “instructions on these `bedrock’ principles
are not `the law of the crime;’ they are not advisory; and
they cannot be the subject of debate by counsel before the
jury. They are binding. They are the guidelines of due
process to which every jury is required to adhere.” Id. at
91. It was error, therefore, for the trial judge to tell
the jury that it could pay no attention to instructions on
the law which did not pertain to the elements of the crime
but which were standard instructions invoked to preserve
the integrity of the judicial system and to assure the
defendant a fair and impartial trial.

Reasserting its holding in Stevenson, the Court in
Montgomery reasoned:

As we see it, then, an instruction on the law of the
crime must contain a definition or explanation of the
offense charged in language setting forth the essential
elements thereof, along with such additional explanation
of the law pertaining to the criminal agency of the
accused as may be necessary. Furthermore, we wish to make
clear that, under Article 23 of the Md. Declaration of
Rights, the application of Md. Rule 757b, which provides,
in part, that

(i)n every case in which instructions are given to the
jury the court shall instruct the jury that they are the
judges of the law and that the court’s instructions are
advisory only

is limited to those instances when the jury is the final
arbiter of the law of the crime. Such instances arise when
an instruction culminates in a dispute as to the proper
interpretation of the law of the crime for which there is
a sound basis. Under such circumstances, counsel are
granted leave to argue contrary to the court’s instruction
on the law of the crime and this is the occasion when
Article 23 and Rule 757 b require the court’s instruction
to be advisory. Even here, counsel may not in their
arguments attempt to persuade the jury to enact new law
or repeal or ignore existing law. However, in those
circumstances where there is no dispute nor a sound basis
for a dispute as to the law of the crime, the court’s
instructions are binding on the jury and counsel as well.

Id. at 88-89 (emphasis added).

Notably, foreshadowing later developments in the law, Judge
Eldridge, in a concurring opinion joined by Judge Davidson,
opined:

However, with respect to Part I of the Court’s opinion, I
continue to adhere to the views expressed in my dissenting
opinion in Stevenson v. State, 289 Md. 167, 189-204, 423
A.2d 558, 570-577 (1980).

Specifically, I believe that Article 23 of the Maryland
Declaration of Rights, and those portions of Maryland Rule
757 b and g implementing Article 23, violate the
Fourteenth and Sixth Amendments to the United States
Constitution. See 289 Md. at 191-194, 423 A.2d 558.
Article 23, by authorizing a criminal jury in certain
limited circumstances to disregard legally correct
instructions, and find the law to be otherwise than it is,
abridges a defendant’s right to be tried in accordance
with the law of the jurisdiction and thus violates the
Due Process Clause of the Fourteenth Amendment.
Moreover, Article 23 is inconsistent with the proper role
of a criminal jury under the jury trial clause of the
Sixth Amendment, applicable to state proceedings by virtue
of the Fourteenth Amendment. See Duncan v. Louisiana, 391
U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), and
Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L.
Ed. 343 (1895). Consequently, in my opinion, under no
circumstances should a jury in a criminal case be told
that it is the judge of the law.

Id. at 96 (emphasis added).

Recapitulating the role of the jury as judge of the law as
articulated by Stevenson and Montgomery, the Court, in
Guardino, 50 Md. App. at 699-703, summed up the then state
of the law:

The same day the jury in the case before us was charged,
the Court of Appeals decided Stevenson v. State, 289 Md.
167, 423 A.2d 558 (1980). Stevenson declared that

“the jury was not granted, by Article 23, the power to
decide all matters that may be correctly included under
the generic label-‘law.’ Rather, its authority is limited
to deciding `the law of the crime,’ . . . or `the
definition of the crime,’ as well as `the legal effect of
the evidence before (the jury).’ . . . And this Court has
consistently interpreted this constitutional provision as
restraining the jury’s law deciding power to this
limited, albeit important, area.” Id. at 178, 423 A.2d at
564 (citations omitted).

From the preceding discussion, at the time that the Court
of Appeals denied appellee’s petition for certiorari, no
Maryland appellate decisions, nor any other binding
authority, had either found the provisions of Article 23 of
the Maryland Declaration of Rights, conferring upon juries
in criminal trials the authority to be the judge of the law
as well as well as the facts, a violation of the Due
Process Clause of the Fourteenth Amendment. Neither
Stevenson, Montgomery nor Guardino recognized that Article
23 was unconstitutional, in violation of the due process
clause of the federal constitution. And, of particular
note, is how definitive had been the body of Maryland case
law upon which these decisions had been grounded.

In Giles v. State, 229 Md. 370 (1962), the Maryland Court
of Appeals considered and upheld the constitutionality of
section 5, on due process and equal protection grounds;
subsequently, the Supreme Court dismissed Giles’ challenge
to section 5 “for want of a substantial federal question.”
Giles v. Maryland, 372 U.S. 767, 83 S. Ct. 1102, 10 L. Ed.
2d 137 (1963). Without questioning the constitutionality of
section 5, the Supreme Court in Brady, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d (1963), commented that “in making
juries in criminal cases `the Judges of Law,’ the provision
`does not mean precisely what it seems to say,'” 373 U.S.
at 89, 83 S. Ct. at 1198.

In 1967, in Wyley v. Warden, Md. Penitentiary, 372 F.2d
742, 744 (1967), the United States Court of Appeals for the
Fourth Circuit held that informing the jury that the
reasonable doubt instruction was “advisory” did not violate
due process. Citing Slansky v. State, 192 Md. 94 (1949),
the Court observed, “[e]very time the issue (whether the
“advisory only” instruction violated due process) has been
raised, the Court of Appeals of Maryland has affirmed the
constitutionality of section 5 without qualification.”
Wyley observed that, after a comprehensive and thorough
analysis, tracing the historical development of the rule,
“the [Slansky] court concluded that, although section 5 was
anachronistic, it was not unconstitutional.” Wyley, 372 F.2d
at 744. The Wyley decision concluded, “Not only has the
validity of Article XV, section 5 been repeatedly upheld by
the state court, but the Supreme Court of the United States
has had occasion to consider it, and failed to intimate any
doubt of its constitutionality. In Giles v. Maryland, 372
U.S. 767, 83 S. Ct. 1102, 10 L. Ed. 2d 137 (1963), the
Court dismissed an appeal, which raised this issue along
with others, “for want of a substantial federal question.”
Wyley, 372 F.2d at 745.

Commenting on Giles and Brady, the Fourth Circuit Court of
Appeals observed that “the action in [those decisions]
would not preclude the Court on more thorough consideration
in a direct attack from reaching the opposite conclusion,
but we cannot disregard the strong implications flowing
from the fact that in its past decisions the Supreme Court
perceived no invasion of a defendant’s rights by the
procedure established in section 5.” Id. (emphasis added).

In 1976, the United States District Court for the District
of Maryland held that the “advisory only” instruction did
not violate the Due Process Clause and that decision was
affirmed by the Fourth Circuit Court of Appeals. Wilkins v.
State, 402 F. Supp. 76, 82 (D.C. Md. 1975). Reasserting the
Wylie decision, the Court in Wilkins concluded:

Petitioner’s fourth argument is that the standard
Maryland instruction that the jury is the judge of both
the facts and the law is unconstitutional. See Maryland
Constitution, Art. XV, Sec. 5. Precisely this argument was
raised in Giles v. Maryland, 372 U.S. 767, 83 S. Ct.
1102, 10 L. Ed. 2d 137 (1963), and the Supreme Court, by
per curiam opinion, granted a motion to dismiss the appeal
`for want of a substantial federal question.’ Moreover,
this argument was carefully considered and rejected by the
Fourth Circuit in Wyley v. Warden, Maryland
Penitentiary, 372 F.2d 742 (4th Cir. 1967), cert. denied,
389 U.S. 863, 88 S. Ct. 121, 19 L. Ed. 2d 131 (1967),
aff’g 254 F.Supp. 727 (D. Md. 1966). Had the prosecution
argued unconstitutional legal propositions to the jury,
in order to subvert the valid instruction of the trial
judge, this court might take a different view of this
petition, but as no such improper arguments were made, the
petitioner’s argument is without merit.

The foregoing discussion controverts the State’s assertion
that appellee’s failure to challenge the court’s
instructions on appeal created a rebuttable presumption
that he has waived his current challenge. In the case at
hand, appellee’s convictions became final on December 2,
1980, when his petition for a writ of certiorari to the
Maryland Court of Appeals was denied. As noted, the opinion
in Stevenson, issued on December 17, 1980 followed by
Montgomery on December 4, 1981 and Guardino on February 5,
1982. In an attempt to bolster the majority opinion against
the robust arguments in the dissenting opinion, the
Stevenson decision specifically noted that there had been
no claim that the instructions in Stevenson were
prejudicial; rather, the appeal sought to challenge the
constitutionality of Article 23 itself.

In light of the holdings in Stevenson, Montgomery and
Guardino, it is beyond cavil that state law barred
appellee’s claim that the trial court’s “advisory only”
instruction violated his right to due process under the
Fourteenth Amendment to the United States Constitution.

NEW RULE

On July 31, 2000, the United States Court of Appeals for
the Fourth Circuit issued its opinion in Jenkins, supra.
Jenkins had been convicted by a jury in the Circuit Court
for Prince George’s County of robbery with a deadly weapon
and related offenses and had received a sentence of
thirty-five years. After his convictions were affirmed by
this Court and his petition for a writ of certiorari denied
by the Court of Appeals on July 25, 1976, he filed numerous
petitions in state court seeking habeas corpus and post
conviction relief, all of which were denied. In its denial
of Jenkins’ fifth habeas corpus petition, the circuit
court, citing Schanker v. State, 208 Md. 15 (1955) and
Dillon v. State, 277 Md. 571 (1976), issued an order, the
full text of which read: “Under the almost unique, Maryland
Constitutional provision, Article 23 of the Declaration of
Rights, any instructions in criminal cases on the law,
which the court may give are purely advisory and the court
may so inform the jury. Therefore, this contention is
without merit.”

Jenkins then filed a habeas corpus action in federal court
in which he argued, inter alia, that the advisory nature of
the reasonable doubt instruction relieved the State of its
burden to prove every element of the charged offenses
beyond a reasonable doubt, thereby violating his right to
due process. The federal district court denied relief as to
all claims except the advisory jury instruction issue. The
State appealed, arguing that Jenkins’ claim is procedurally
defaulted and that, if not defaulted, the claim is subject
to the “new rule” doctrine of Teague v. Lane, 489 U.S. 288
(1989).

The Fourth Circuit explained that it rendered its decision
based on the then existing law in reaching its conclusion
that Article 23 did not violate the Fourth Amendment:

First, Wyley was decided before Winship. Thus, when we
decided Wyley, we did not yet have the benefit of the
Supreme Court’s holding that a jury must find the
defendant guilty beyond a reasonable doubt in order to
comply with the federal Constitution. Cf. Etheridge v.
Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993)
(stating that “[a] decision of a panel of this court
becomes the law of the circuit and is binding on other
panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision
of the Supreme Court” (emphasis added) (internal
quotation marks omitted)).

Second, in Wyley we primarily addressed the issue of
whether the provision of the Maryland Constitution was
constitutional on its face. Only at the end of our Wyley
opinion did we state: “Moreover, our reluctance to
intervene on the present record is heightened by the
absence of any suggestion that this particular defendant
was prejudiced by the court’s advising the jury of its
right to determine the law for itself.” Wyley, 372 F.2d at
747. However, the Supreme Court has subsequently held that
an error in an instruction that relieves the State of its
burden of proof beyond a reasonable doubt can never be
harmless.

Jenkins, 221 F.3d at 685 (citations omitted).

The Court in Jenkins discussed the importance of the
Supreme Court’s decision in Cage v. Louisiana, 498 U.S. 39
(1994).

At issue in Cage was the substance of a reasonable doubt
instruction: The defendant argued that the definition of
“reasonable doubt” given by the trial court was incorrect
and consequently had the effect of reducing the State’s
burden of proof. The Court agreed, holding that the state
trial court had incorrectly “equated a reasonable doubt
with a `grave uncertainty’ and an `actual substantial
doubt.'” Cage, 498 U.S. at 41, 111 S. Ct. 328. Before
Cage, the Court had never held that a definition of
“reasonable doubt” violated due process, and we therefore
concluded that “[w]hether a trial court’s
unconstitutional misdescription of the burden of proof in
a criminal case violates the Due Process Clause was
certainly an open question.” Adams v. Aiken, 41 F.3d 175,
178 (4th Cir. 1994).

* * *

The issue here, in contrast, is whether the jury was
effectively given any reasonable doubt instruction at all;
for if the jury understood the advisory nature of the
instructions as permitting it to ignore the reasonable
doubt instruction, then the jury could fashion any
standard of proof that it liked. That the jury must be
instructed that the Government is required to prove the
defendant’s guilt “beyond a reasonable doubt” was not an
open question after Winship.

Jenkins, 221 F.3d at 684 (emphasis added).

The seminal case, referred to in the above excerpt from
Jenkins, establishing that any provision of law which
relieves the prosecution of its burden of proof of every
element of a crime beyond a reasonable doubt implicates the
due process clause of the Fourth Amendment, In re Winship,
397 U.S. 358, 90 S. Ct. 1068 (1970),[fn5] had been decided
six years before Wilkins. There the Court announced what
would become an indefatigable pillar in the annals of
constitutional law:

Due process commands that no man shall lose his liberty
unless the Government has borne the burden of . . .
convincing the fact finder of his guilt.

* * *

Lest there remain any doubt about the constitutional
stature of the reasonable-doubt standard, we explicitly
hold that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime
with which he is charged.

Id. at 364; 90 S. Ct. at 1072-73 (emphasis added).

The Fourth Circuit Court of Appeals, after summarily
disposing of the State’s argument that Jenkins had
defaulted his claim by failing to object, reasoned that the
court had not ruled that the claim was waived. The Fourth
Circuit held that the lower court had reached the merits,
then considered the State’s argument, based on Teague. That
argument was that a holding that a reasonable doubt
instruction violated the Due Process Clause constituted a
“new rule” that cannot be applied retroactively to cases
pending on collateral review. The Court then delineated the
application of the Teague threshold inquiry:

First, we must determine the date on which Jenkins’
convictions became final. Second, we must determine
whether “a state court considering [Jenkins’] claim at the
time his conviction[s] became final would have felt
compelled by existing precedent” to conclude that the
Constitution mandates a holding in his favor; if not, then
the rule he seeks is a new one. Id. at 156, 117 S. Ct.
1969 (internal quotation marks omitted); see Gilmore v.
Taylor, 508 U.S. 333, 340, 113 S. Ct. 2112, 124 L. Ed. 2d
306 (1993) (stating that “put meaningfully for the
majority of cases, a decision announces a new rule if the
result was not dictated by precedent existing at the time
the defendant’s conviction became final” (internal
quotation marks omitted)); Butler v. McKellar, 494 U.S.
407, 415, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990)
(characterizing a new rule as one that is “susceptible to
debate among reasonable minds”). If we determine that the
rule is new, the final step is to determine if the rule
“falls within one of the two narrow exceptions to the
Teague doctrine.” O’Dell, 521 U.S. at 156-57, 117 S. Ct.
1969.

Jenkins, 221 F.3d at 683.

In applying the Teague formula to the Jenkins case, the
Court concluded:

Jenkins’ convictions became final in October 1976. Thus,
the relevant inquiry for Teague purposes is whether a
holding in favor of Jenkins was dictated by precedent
existing in October 1976. Jenkins would have us hold that
by informing the jury that its reasonable doubt
instruction was advisory, the trial court effectively
relieved the State of its burden to prove all of the
elements of the charged offenses beyond a reasonable
doubt. Accordingly, the question for purposes of the
Teague analysis is whether such a holding was dictated by
existing precedent in October 1976. We conclude that it
was.

* * *

Six years before Jenkins’ convictions became final, the
Supreme Court announced in In re Winship, 397 U.S. 358, 90
S. Ct. 1068, 25 L. Ed. 2d 368 (1970), that due process
requires that the government prove each element of a crime
beyond a reasonable doubt. See Winship, 397 U.S. at 364,
90 S. Ct. 1068 (“Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard,
we explicitly hold that the Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute
the crime with which he is charged.”); see also Cool v.
United States, 409 U.S. 100, 103-04, 93 S. Ct. 354, 34 L.
Ed. 2d 335 (1972) (per curiam) (holding that an
instruction which “allow[ed] the jury to convict despite
its failure to find guilt beyond a reasonable doubt”
mandates reversal of the conviction). In light of this
precedent, we conclude that the rule Jenkins seeks is not
a new one. Accordingly, the rule of Teague v. Lane does
not bar our consideration of the merits of Jenkins’ claim.

Id. at 685 (emphasis added) (footnote omitted).

With the Teague analysis in mind, we must determine whether
a holding in favor of appellee was dictated by existing
precedent when his convictions became final. In the case at
hand, appellee’s convictions became final on December 2,
1980, when his petition for a writ of certiorari to the
Maryland Court of Appeals was denied. As noted, the
decisions in Stevenson and Montgomery issued on December 17,
1980 and December 4, 1981, respectively, were handed down
after December 2, 1980. Significantly, in an attempt to
bolster the majority opinion against the robust dissent,
the Stevenson decision specifically noted that there had
been no claim that the instructions in that case were
prejudicial; rather, the appeal sought to challenge the
constitutionality of Article 23 itself.

Like the instructions in the case at hand, the Court in
Jenkins, 221 F.3d at 685, observed:

Here, the trial court clearly explained at the beginning
of its charge to the jury that the jury was the sole judge
of the law and that the instructions given by the court
were advisory only. With each individual instruction, the
court reminded the jury of the advisory nature of the
instructions. We conclude that there is a reasonable
likelihood that the jury interpreted these instructions as
allowing it to ignore the “advice” of the court that the
jury should find proof beyond a reasonable doubt.
Accordingly, we conclude that the advisory instructions
violated Jenkins’ right to due process.

We hold that the decision that Article 23 of the Maryland
Declaration of Rights violated the Due Process Clause of
the Fourteenth Amendment of the United States Constitution
was dictated by existing precedent on December 2, 1980.
Instructing the jury that the law as presented to it is
binding is essential to the guarantee that no criminal
conviction be obtained other than by the rule of law. We
are guided by and base our holding on the reasoning in
Jenkins. Independent of Jenkins, however, the reach of the
Due Process Clause announced in In re Winship, ineluctably
constrains us to conclude that the declaration of the
unconstitutionality of Article 23 occurred when the Supreme
Court rendered that landmark decision.

SUFFICIENCY OF INSTRUCTIONS

The State’s argument that the jury instructions, “while at
times couched in advisory terms, were sufficient, when read
in their totality, to inform a jury that its function as
judges of the law was limited,” need not detain us long.
Indeed, viewing the instructions, in context, as a whole,
as the State urges us, the most cursory review compels the
conclusion that virtually the entirety of the instructions
were couched in terms that they were “advisory.” The
phrase, “I instruct you in an advisory capacity . . .”
preceded instructions regarding the State’s burden to prove
appellee guilty beyond a reasonable doubt, appellee’s
presumption of innocence, the law of the degrees of
participation, the fact that arguments of counsel are not
evidence and that credibility of witnesses is relegated
exclusively to the jury. In referring to the closing
arguments of counsel, the court instructed the jury, “And
because you are the judges of the law . . . [counsel] may
tell you what they think the law is in our State and how
you should apply it in this particular case.”

Prior to administering the specific jury instructions, the
court gave a preliminary charge, wherein it said, “In our
State, unlike 48 other states in our country, in a criminal
case you as the jury sit not only as what we call the
triers of fact, you also sit as what we call the judge of
the law.” Continuing, the court said of the facts in the
case “. . . will be as you find them to be, and the law in
this case will be as you find it to be. And because you are
both the judges of the fact and the judges of the law
anything that I may now tell you about either the facts of
the law is purely advisory.”

Most telling, with the one proviso that “You are not to
apply the law as you think it ought to be or what it should
be, but what it in fact is in this particular case,” the
jury was told, “You may disregard anything that I tell you,
and you may pay absolutely no attention to what I tell you
concerning either the facts or the law. (Emphasis added). It
is difficult to conceive of how the trial judge could have
more emphatically impressed upon the jury its expansive
role in judging virtually every aspect of the law involved.
Thus, the State’s claim that the court’s instructions, when
read in their totality, were sufficient to inform a jury
that its function as judges of the law was limited,” is
without merit.

The State contends next, in its brief, that the post
conviction court, citing Lane v. State, 348 Md. 272 (1997)
and “having relied on the nature of appellee’s complaint as
one of jurisdiction, erroneously found that [appellee] had
not waived his ability to pursue this allegation of error
under section 7-106 of the post conviction statute.” In
reaching this conclusion, the State avers, “the court
completely ignored the fact that [appellee] had raised the
jurisdictional issue in his direct appeal to this Court.”
The court, it concludes, “failed to take notice of the
trial court’s instructions to the jury on this issue.”

ISSUE FULLY AND FINALLY LITIGATED

Appellee argued at the post conviction hearing and here, on
appeal, that the trial court’s instruction on jurisdiction
improperly permitted the jury to find jurisdiction for the
rape and sex offense charges based on a venue statute. The
State argues that this Court upheld the jury’s finding of
jurisdiction in his direct appeal and that the issue has,
therefore, “been fully and finally litigated and resolved
against [appellee] at least as to these proceedings.” Once
an appellate court rules on a request presented on appeal,
litigants and lower courts become bound by the ruling,
which is considered to be the law the case. Nnoli v. Nnoli,
101 Md. App. 243, 263 (1999).

On appeal, appellee responds, in his brief, to the State’s
contention that the issue has been fully and finally
litigated:

The State argues, in this appeal, that it does not matter
if the trial court gave an erroneous instruction confusing
“venue” with “jurisdiction,” because [appellee] appealed
the sufficiency of the evidence and raised the
jurisdictional issue on appeal.

However, it was for the jury, upon proper instructions,
to determine whether or not, the offenses occurred in
Maryland or the District of Columbia. The instruction made
it appear to the jury that, wherever the offenses
occurred, the accused was guilty, under Maryland Law. The
trial court sent to the jury a verdict sheet allowing
the jury to find guilt, either because the crimes occurred
in Maryland, or because Art. 27, Â§ 465 applies to
crimes committed in the District of Columbia. . . . To
tell the jury that the State must prove, beyond a
reasonable doubt, that the crimes occurred in Maryland,
but that it really does not matter where they happened, as
long as the abduction began in Maryland, is to seriously
erode two of the “bedrock characteristics” which are
“indispensable to the integrity of every criminal trial,”
that is, the burden of proof and the standard of proof.

Preliminary to addressing this issue, the court ruled,
“Since, this is a matter of jurisdiction, this claim is not
barred and is properly raised.” The post conviction court
thereafter found that there was no dispute that the initial
kidnapping occurred in the State of Maryland. The jury
instruction challenged by appellee regarding jurisdiction is
as follows:

We have sat here for the past five days and listened to
an incident that started out in our county, and it is
alleged by the State of Maryland that all of the incidents
in this case either occurred in the State of Maryland or
the State of Maryland has jurisdiction to hear this
matter by virtue of a statute, which I will tell you about
later, that our Legislature has enacted. . . . If you find
that the defendant is guilty, you will also make a finding
that the offense either occurred in Maryland or that
jurisdiction was obtained in this case under Article 27,
465, of our Annotated Code, which I will tell you about
later.

* * *

Now, when you make that determination or if you make a
determination as to first degree rape you will also make a
determination as to where this rape occurred, and you will
see there is a place for you to check either that the rape
occurred in our State or that jurisdiction wa[s] obtained
under Article 27, Section 465 of our Annotated Code. And
our Legislature enacted a statute that says in regards to
sexual offenses if a person is transported by any means
with the intent to violate this subheading, meaning sexual
offenses and the intent is followed by actual violation
of this subheading, the defendant may be tried in the
appropriate court within whose jurisdiction the county
lies where the transportation was offered, solicited,
begun, continued or ended.

If you find that the application of this statute is how
this particular sex offense occurred you will check that,
if you are not convinced beyond a reasonable doubt that
the offense occurred in our state.

In ruling on appellee’s claim that the trial court
erroneously told the jury that it really does not matter
where the offenses occurred, as long as the abduction began
in Maryland, the post conviction court opined:

The court was referring to a statute regarding venue
between different counties within Maryland. The statute
does not confer on Maryland courts jurisdiction over
sexual offenses occurring outside of the State. Whereas
“jurisdiction is the power to hear and determine a case;
venue signifies the place of trial.” State v. Jones, 51
Md. App. 321, 324, 443 A.2d 967, 970 (1982).

In Jones, the Court of Appeals discussing the same
statute, concluded that Article 27, section 465, applies
only to venue between counties within Maryland, and that
“Section 465 does not apply to a defendant who has
transported his victim across state lines.” Jones, 51
Md. App. at 324, 443 A.2d at 970.

The Court’s instruction was, therefore, improper in the
present case. The instruction allowed the jury to find
jurisdiction if it concluded that the defendant merely
transported the victim only with the intent to commit a
violation of the statute. This is clearly not the law in
Maryland. In West v. State, 369 Md. 150, 797 A.2d 1278
(2002), the defendant kidnapped the victim in Maryland and
drove to D.C., where the sexual assaults occurred. The
Court noted that an offense may be prosecuted only where
the “essential” or “key” or “vital” or the “gravamen” of
the offense takes place.

The instruction misstated the law as to territorial
jurisdiction. “[W]hen the `evidence raises a genuine
dispute’ over Maryland’s territorial jurisdiction,
`territorial jurisdiction becomes an issue the State must
prove,’ and it must provide it `beyond a reasonable
doubt.'” West, 369 Md. at 158, 797 A.2d at 1282 (citing
State v. Butler, 353 Md. 67, 79, 81, 721 A.2d 657, 663,
664 (1999). This unquestionably is a determination that is
to be made by the jury and only the jury. “[W]hen
evidence exists that the crime may have been committed
outside Maryland’s territorial jurisdiction and a
defendant disputes the territorial jurisdiction of the
Maryland courts to try him or her, the issue of where the
crime was committed is fact-dependent and thus for the
trier of fact.” State v. Butler, 353 Md. 67, 79, 724 A.2d
657, 663 (1999). Because the question of territorial
jurisdiction was not properly submitted to the jury, the
Petitioner’s request for post-conviction relief must be
granted on this ground as to Counts III, IV, V, VI, VII,
VIII, IX, X, XI, XII, and XIII. We explicated the
distinction between jurisdiction and venue

in Lett v. State, 51 Md. App. 668, 675-76 (1982):

In an effort to bring some clarity to the
“jurisdiction-venue” confusion the Court of Appeals in the
case of McBurney v. State, 280 Md. 21, 31, 371 A.2d 129,
135 (1977), has had this to say:

There are two facets to the jurisdiction of a
court-jurisdiction over the subject matter and venue. With
respect to the subject matter, within its county, a
circuit court of this State has full common law
jurisdiction in all criminal cases committed in Maryland
except where limited by law. Maryland Code (1974) Courts
and Judicial Proceedings Article Â§ 1-501. Venue,
however, is the place of trial, or where a criminal trial
may properly occur.

A perusal of these distinctions makes it clear that the
appellant was directing his complaint against that of
venue as distinguished from subject matter jurisdiction.
As Judge Moore said for this Court in State v. Jones, 51
Md. App. 321, 325, 443 A.2d 967, 971 (1982), “Section 465
has no extra-territorial effect-it is simply a venue
statute,. . . .”

We said, in our unreported, per curiam opinion filed on
October 16, 1980, in appellee’s direct appeal, “The
appellant’s most serious contention is that the Maryland
court that tried him lacked jurisdiction over the subject
matter, because of failure of the State to show clearly
that the crimes occurred within the State of Maryland rather
than in the adjoining District of Columbia.” After
recounting the testimony regarding the locations of the
sordid events, we concluded, “From the fact that she was
picked up in Maryland initially, the fact of the place of
the kidnapping was a solid mile and one half in Maryland,
and the fact that she was ultimately dropped off in
Maryland, a jury would be permitted to infer reasonably,
certainly in the absence of affirmative evidence to the
contrary, that the crimes in question occurred in Maryland.
Indeed the evidence as to the situs of these vicious crimes
points far more strongly toward Maryland than it does toward
the District of Columbia and a holding that, if in doubt,
neither jurisdiction could proceed against the criminal
would be a absurdity.”

What was decided in appellee’s direct appeal was not
whether the jury was provided with an instruction based on
an inapplicable statute, thereby allowing it to determine
that there was subject matter jurisdiction, even if it
discounted all of the testimony establishing that the
crimes occurred in Maryland. Rather, our opinion decided
that there was sufficient evidence, if credited, to
establish that the crimes occurred within the State. Thus,
our per curiam opinion did not decide this issue and did
not, therefore, become the law of the case. Whether
reversible error was committed as a result of the
instruction on jurisdiction was not fully and finally
litigated in appellee’s direct appeal.

We cannot say that the post conviction court’s conclusion
that there was a substantial probability or possibility
that the jury would not have unanimously found, beyond a
reasonable doubt, that the essential elements of the
offenses occurred in Maryland, had not the erroneous venue
instruction been given to the jury. The issue before us is
not, as the State asserts, whether the question of
jurisdiction has been finally litigated, but rather,
whether the fact-finding process was undermined by failing
to provide the jury with the proper legal standard.

WAIVER: JURY INSTRUCTION REGARDING JURISDICTION

The State further argues, in its brief, that “when the
waiver analysis is limited to a complaint regarding the
failure to give a proper instruction, it is readily
apparent that appellee, having failed to raise this issue
at trial or on direct appeal, is precluded from raising it
now.” Moreover, the State argues that “even if not waived or
decided on appeal, appellee is not entitled to relief on
this issue as the jury had been properly instructed on the
necessity to find, beyond a reasonable doubt, that the acts
charged occurred in Maryland.”

Maryland Ann. Code Art. 27 Â§ 465, captioned
“Jurisdiction where victim transported provided”:

If a person is transported by any means, with the intent
to violate this subheading, and the intent is followed by
actual violation of this subheading, the defendant may be
tried in the appropriate court within whose jurisdiction
the county lies, where the transportation was offered,
solicited, begun, continued or ended. (Emphasis added).

The McBurney decision, proclaiming that Â§ 465 of
Article 27 had no extra-territorial effect, was handed down
more than two years before appellee’s trial. The statute,
unquestionably, was erroneously considered by the jury in
determining whether the evidence was sufficient to
establish jurisdiction. The post conviction court properly
concluded that consideration of the improper instruction
relieved the jury of the obligation to find beyond a
reasonable doubt that the offenses occurred in Maryland
rather than Washington D.C.

PROPRIETY OF INSTRUCTIONS AS TO JURISDICTION

The post conviction court, referring to Article 27,
Â§ 465, stated that it applied to venue between
different counties within Maryland, but did not confer on
Maryland courts jurisdiction over sexual offenses occurring
outside of the State. As noted, observing that,
“Jurisdiction is the power to hear and determine a case
[whereas] venue signifies the place of trial,” the post
conviction court ruled that “the instruction allowed the
jury to find jurisdiction if it concluded that the
defendant merely transported the victim only with the
intent to commit a violation of the statute.”

The State assails the court’s ruling, stating, “Here,
unlike West, the jury was instructed that it must find all
of the elements of the crimes charged occurred in Maryland
before finding jurisdiction in Maryland.” In West, the
State says, the error was that the jury was instructed that
jurisdiction could be established upon a finding that any
one of several essential elements of rape and sexual
assault occurred in Maryland. The State misconstrues the
post conviction court’s reliance on West. The instruction,
according to the court, allowed the jury to find
jurisdiction if it concluded that the defendant merely
transported the victim only with the intent to commit a
violation of the statute. The post conviction court
juxtaposed commission of the sexual offense in the
jurisdiction versus harboring the intent in that location
as opposed to proof that less than all of the elements of
the sexual offense coalesced in the same location. The
court correctly determined that, as a result of the
instruction’s incorporation of Â§ 465, the jury was
allowed to return guilty verdicts on offenses that incurred
in the District of Columbia.

III

INEFFECTIVE ASSISTANCE OF COUNSEL

The State, in contending that counsel was not ineffective,
posits, “[In] order to establish ineffective assistance of
counsel, it is necessary to prove both that counsel’s
representation fell below an objective standard of
reasonableness and that there is a reasonable possibility
that but for counsel’s errors, the result of the
proceedings would have been different.” The State argues
that the post conviction court, in relying upon a
misrepresentation of Flansburg v. State, 103 Md. App. 394
(1995), affirmed, 345 Md. 694 (1997), erroneously concluded
that appellee’s trial counsel was ineffective simply because
no Motion for Modification of Sentence had been filed. In
so doing, urges the State, the court never engaged in the
required analysis for determining whether appellee’s
counsel was ineffective.

Appellee countered, in the hearing on the petition for post
conviction relief, that trial counsel was ineffective for
three reasons: the failure to object to the trial court’s
instruction that allowed the jury to find Maryland
jurisdiction based on a venue statute, the failure to
object and request an adequate definition of reasonable
doubt and the failure to file a motion for modification of
sentence.

In order to constitute ineffective assistance of counsel,
rendering a defendant’s conviction or sentence invalid, he
must show that:

(1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.

Strickland, supra, 466 U.S. 668 (1984); see also Gross v.
State, 371 Md. 334, 348-50 (2002). In order to be
deficient, counsel’s acts or omissions must be “outside the
wide range of professional competent assistance.”
Strickland, 466 U.S. at 690. The burden is upon the
defendant to prove both ineffective performance and
prejudice. Oken v. State, 343 Md. 256, 284 (1996).

FAILURE TO OBJECT TO INSTRUCTION TO JURISDICTION AND
VENUE

Recounting its determination that the trial court
improperly instructed the jury that it could find that
Maryland had territorial jurisdiction based on an
inapplicable venue statute, the post conviction court
concluded that trial counsel was ineffective for failing to
object to the erroneous instruction. It noted that the
undisputed evidence was that the victim was put in a van
and driven around for well over two hours and that the
complainant believed that at some point during this
two-hour period, she was in the District of Columbia. The
post conviction court agreed with appellee’s contention
that there was a substantial probability or possibility
that, had counsel objected to the erroneous venue
instruction and requested a proper jurisdiction instruction
and had that instruction been granted, the jury would not
have unanimously found, beyond a reasonable doubt, that the
key elements of the offenses occurred in Maryland.

The distinction between jurisdiction and venue as we
noted, supra, is that with respect to the subject matter,
within its county, a circuit court of this State has full
common law jurisdiction in all criminal cases committed in
Maryland except where limited by law whereas venue is the
place of trial or where a criminal trial may properly
occur.

Despite the fact that counsel for appellee argued the
sufficiency of the evidence to establish jurisdiction,
counsel failed to object to the venue statute instruction.
It is undisputed that the complainant believed that, at
some point during her two-hour captivity, the van in which
the assault took place traveled through the District of
Columbia. The members of the jury were told to check the
block on the verdict sheet to indicate that they were
satisfied beyond a reasonable doubt that the offenses
occurred in Maryland. The prosecutor, in closing, argued:
“To find, however, that the defendant is guilty under this
special statute you need not be convinced beyond a
reasonable doubt of anything in terms of where the actual
act occurred. You need only find there was a transportation
in this county at some point with the intent to rape.”
(Emphasis added).

Because the McBurney decision, proclaiming that Â§
465 of Article 27 had no extra-territorial effect, was
handed down more than two years before appellee’s trial, to
be within the wide range of professional competent
assistance, Strickland, 466 U.S. at 690, appellee’s trial
counsel was required to have objected to its inclusion in
any jury instructions. There can be little doubt that the
result might well have been different had appellee’s trial
counsel objected to and been granted a proper instruction
on jurisdiction devoid of the provisions of Art. 27,
Â§ 465.

RIGHT TO FILE BELATED MOTION FOR MODIFICATION OF SENTENCE

The State, in contending that the post conviction court
erred in finding that appellee is entitled to file a
belated motion for modification of sentence, posits,
“Finally, relying upon a misrepresentation of Flansburg v.
State, 103 Md. App. 394, affirmed, 345 Md. 694 (1997),” the
court erroneously concluded that appellee’s trial counsel
was ineffective because no Motion for Modification of
Sentence had been filed. In so doing, the court never
engaged in the required analysis for determining whether
appellee’s counsel was ineffective.

The post conviction court’s “misrepresentation of
Flansburg,” as posited by the State, is that, in that
decision, the issue was the proper forum to address claims
of ineffective assistance of counsel arising out of issues
regarding counsel’s performance after sentencing. By
contrast, insists the State, the court focused on the
entitlement to representation upon the filing of the motion
and the proper forum when applying for a modification of
sentence, rather than whether the failure itself by
appellee’s counsel, to file a motion for modification of
sentence, “fell below an objective standard of
reasonableness” and “there [was] a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland,
466 U.S. at 694.

The State correctly represents that the post conviction
court elaborated on the stages in the proceedings in which
a defendant, pursuant to Md. Rule 4-214, would be entitled
to representation, which of course means effective
representation. Having established, in citing Flansburg,
that a defendant is entitled to representation “with regard
to any and all timely motions for modification of sentence
regardless of when they occur,” the post conviction court’s
sole statement regarding counsel’s performance was, “There
was no risk that a greater sentence would be imposed.”
Notwithstanding that the court failed to engage in an
in-depth analysis regarding counsel’s performance, we
believe that this terse statement effectively addresses
both prongs of the Strickland test.

An objective standard of reasonableness required that
counsel file a motion for modification of sentence within
ninety days after sentencing. Implicit in the court’s
statement that, had the motion been filed, appellee would
have been subjected to no greater risk was the conclusion
that the failure to file a motion could not be viewed as a
trial tactic. Unlike a substandard performance during the
trial on the merits, there was no downside to ensuring
appellee an opportunity to receive a reduced sentence.
Simply put, other than an express directive from appellee
not to file a motion for modification, there was no
conceivable reason why, in the course of representing
appellee, that a motion would not have been filed. The
basis of the court’s finding of ineffective assistance of
counsel was transparent, without extensive analysis. The
court independently assesses the reasonableness of conduct
and prejudice. Oken, supra. Absent a clearly erroneous
finding, this Court will not disturb a lower court’s
findings. Oken, 343 Md. at 299; see Strickland 466 U.S. at
698. Contrary to the State’s assertion, the court’s failure
to make a more explicit factual finding as to why counsel
did not file a motion for modification of sentence was not
clearly erroneous.

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY
AFFIRMED.

COSTS TO BE PAID BY PRINCE GEORGE’S COUNTY.

[fn1] Critical issue specific findings of fact and
conclusions of law have been reproduced in the legal
analysis, infra, where considered most effective. Section
B, “Reasonable Doubt Instruction,” contains a ruling
adverse to appellee and forms no part of the issues on
appeal and has therefore been deleted.

[fn2]The Uniform Postconviction Procedure Act, Â§
7-102, affords relief in the following circumstances:

(a) In general. — Subject to subsection (b) of
this section, Â§Â§ 7-103 and 7-104 of this
subtitle and Subtitle 2 of this title, a convicted person
may begin a proceeding under this title in the circuit
court for the county in which the conviction took place at
any time if the person claims that:

(1) the sentence or judgment was imposed in violation of
the Constitution of the United States or the Constitution
or laws of the State;

(2) the court lacked jurisdiction to impose the sentence;

(3) the sentence exceeds the maximum allowed by law; or

(4) the sentence is otherwise subject to collateral
attack on a ground of alleged error that would otherwise
be available under a writ of habeas corpus, writ of coram
nobis, or other common law or statutory remedy.

(b) A person may begin a proceeding under this title if:

(1) the person seeks to set aside or correct the judgment
or sentence; and

(2) the alleged error has not been previously and finally
litigated or waived in the proceeding resulting in the
conviction or in any other proceeding that the person has
taken to secure relief from the person’s conviction.

[fn3] The full text of Md. Code, Criminal Procedure Article,
Â§ 7-106, captioned Allegation of error, provides:

(a) For the purposes of this title, an allegation of
error is finally litigated when:

(1) an appellate court of the State decides on the merits
of the allegation:

(i) on direct appeal; or

(ii) on any consideration of an application for leave to
appeal filed under Â§ 7-109 of this subtitle; or

(2) a court of original jurisdiction, after a full and
fair hearing, decides on the merits of the allegation in a
petition for a writ of habeas corpus or a writ of error
coram nobis, unless the decision on the merits of the
petition is clearly erroneous.

(b)(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 other 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 (1)(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.

(c)(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.

(2001 Repl. Vol., 2006 Supp.)

[fn4] More specifically, the State summarizes its first
assignment of error in its brief:

In granting [appellee’s] relief on this issue, however,
the post conviction court: 1) rejected the State’s
assertion that [appellee] had waived any ability to
challenge this instruction in post conviction and
erroneously concluded, without citation or authority,
that: “On direct appeal, the petitioner could not have
raised this claim because state law barred a challenge to
the advisory only jury charge”; 2) improperly applied
Jenkins v. Hutchinson, 221 F. 3rd 679 (Fourth Cir. C. A.,
2000) and 3) erroneously concluded that the court’s
instructions were “replete with instances of advisory
instructions.”

[fn5] In 1975, the Supreme Court, in Mullaney v. Wilbur, 421
U.S. 684 (1975), based on In re Winship, eschewed the
common law practice of placing the burden of proving heat
of passion on sudden provocation on the defendant, holding,
“. . . the Due Process Clause requires the prosecution to
prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly
presented in a homicide case.” 421 U.S. at 704, 95 S. Ct.
at 1892. The Mullaney decision resulted in a spate of
appeals in Maryland, which had recognized the presumption
of malice in homicide cases once the prosecutor proved the
accused committed the homicide, thereby shifting the burden
to prove justification, excuse or alleviation to the
defendant. See Evans v. State, 304 Md. 487, 550-51 (1985)
(McAuliffe, J., dissenting) (reasoning that “the basic
principles of [due process as explicated in In re Winship,
Mullaney and Patterson v. New York, 432 U.S. 197, 97 S. Ct.
2319, 53 L. Ed. 2d 281 (1977) requires that the burden of
persuasion on this ultimate issue must be upon the State,
and the jury must be persuaded beyond a reasonable doubt
that the aggravating circumstances outweigh the mitigating
circumstances before the penalty of death can be imposed”)
Accord e.g. Miller v. State, 380 Md. 1, 59 (2004). Thus,
the ripple effect of the In re Winship pronouncement was
tumultuous in the prosecution of homicide cases and the
attendant appeals in 1975, beginning most notably with our
decisions in Evans v. State, 28 Md. App. 640, 658, n. 4
(1975); Shuck v. State, 29 Md. App. 33, 40-45 (1975), cert.
denied, 278 Md. 735 (1976); Wentworth v. State, 29 Md. App.
110, 120-121 (1975), cert. denied, 278 Md. 735 (1976); and
Law v. State, 29 Md. App. 457, 463-465 (1975), cert.
denied, 278 Md. 726 (1976). Patently, that due process was
violated in any case in which the prosecution was relieved
of its burden of persuasion under In re Winship in these
Maryland decisions based on Mullaney is beyond cavil.

First-degree rape and first-degree sexual assault

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First-degree rape and first-degree sexual assault

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Categories

Recent Posts

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What is a mortgage?

Should I use a broker to buy a home?

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Get In Touch

(Europe and Asia) 27 Voie de Moens,1218 Geneva, Switzerland

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1 (866) 503-1227

1 (866) 503-1227

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(Europe and Asia)
27 Voie de Moens,
1218 Geneva, Switzerland