Foster v. State

• Decision Date: 03 February 1986
• Citation: 503 A.2d 1326,305 Md. 306
• Parties: Doris Ann FOSTER a/k/a Nuketa Leah Ansara v. STATE of Maryland. Vernon Lee EVANS, Jr. v. STATE of Maryland. John Norman HUFFINGTON v. STATE of Maryland. 43 SEPT. TERM 1984 91 SEPT. TERM 1984 66 SEPT. TERM 1984 98 SEPT. TERM 1984 64 SEPT. TERM 1984 133 SEPT. TERM 1984 (On Motions for Reconsideration) Court of Appeals of Maryland
• Court: Maryland Court of Appeals

Page 306

305 Md. 306

503 A.2d 1326

Doris Ann FOSTER a/k/a Nuketa Leah Ansara v. STATE of Maryland.

Vernon Lee EVANS, Jr. v. STATE of Maryland.

John Norman HUFFINGTON v. STATE of Maryland.

43 SEPT. TERM 1984

91 SEPT. TERM 1984

66 SEPT. TERM 1984

98 SEPT. TERM 1984

64 SEPT. TERM 1984

133 SEPT. TERM 1984

(On Motions for Reconsideration) Court of Appeals of Maryland.

Feb. 3, 1986.

Submitted to MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (Retired), specially assigned.

EVANS v. STATE

Submitted to MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (Retired), specially assigned.

HUFFINGTON v. STATE

Submitted to MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

ELDRIDGE, Judge.

In Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985), Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), and Huffington v. State, 304 Md. 559, 500 A.2d 272 (1985), this Court affirmed the judgments in these three capital cases, thereby upholding the imposition of death sentences upon the three defendants. The defendants Foster, Evans and Huffington, all represented by the Office of Public Defender, have now filed motions for reconsideration. The chief argument in each motion is identical, and it relates to the contention that had been made and rejected in all three cases that the Maryland capital punishment statute, in § 413(h) of Art. 27, unconstitutionally places the burden of persuasion on the defendant with regard to the weighing of aggravating and mitigating circumstances. In addition, related arguments concerning the trial courts' jury instructions are made in each motion. Finally, the defendant Evans makes an unrelated contention. Because the principal thrust of each motion is the same, we have chosen to rule upon the three motions in a single opinion.

I.

As indicated above, in these three cases the defendants had argued that Art. 27, § 413(h), violates due process principles because it "places the burden on the capital defendant 'to convince [the sentencer] that mitigating circumstances outweigh ... the aggravating circumstances' " and thus "places the ultimate burden of ... persuasion on the capital defendant...." (Foster's brief, pp. 40, 44; Evans's brief, pp. 82, 87; Huffington's brief, pp. 48, 52). Part IV C of the opinion in Foster, 304 Md. at 476-480, 499 A.2d 1236, flatly rejected this contention, stating that "we need not decide whether a statute imposing such a 'burden' on a capital defendant would be constitutional, for the Maryland statute, as interpreted in Tichnell I [Tichnell v. State, 287 Md. 695, 730, 415 A.2d 830 (1980) ] and later cases, places no such burden on the defendant." We went on to point out in Foster that subsection (h) of § 413, while employing the "preponderance of the evidence" test, "does not specify which side has the burden of proof or of persuasion." ¹ 304 Md. at 477, 499 A.2d 1236. We further took the position that just because the Legislature in § 413(h) referred in paragraph (2) to whether "mitigating circumstances do not outweigh the aggravating circumstances" and in paragraph (3) to whether "mitigating circumstances outweigh the aggravating circumstances," instead of using the reverse order or some other language, did not show a legislative intent to place any burden or risk upon the defendant. Id. at 477-478, 499 A.2d 1236. The Court in Foster then quoted from Tichnell I where we unequivocally held that, because it is the prosecution which is attempting to establish that the death penalty is appropriate, " 'the statute places the risk of nonpersuasion on the prosecution with respect to whether the aggravating factors outweigh the mitigating factors.' " Id. at 479, 499 A.2d 1236, quoting 287 Md. at 730, 415 A.2d 830. The Court in Foster also quoted Trimble v. State, 300 Md. 387, 415 n. 16, 478 A.2d 1143 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 1231, 84 L.Ed.2d 368 (1985), which again specifically stated that we have construed § 413(h) "to place the burden of persuasion on the prosecution" with regard to the weighing of mitigating and aggravating circumstances. Finally, we made it clear in Foster that we were adhering "to our prior holdings that the burden of persuasion for purposes of § 413(h) is upon the prosecution." 304 Md. at 479, 499 A.2d 1236. The Evans and Huffington opinions, in rejecting the identical argument by the defendants, simply referred to the Foster opinion. See 304 Md. at 536, 499 A.2d 1261; 304 Md. at 587, 500 A.2d 272.

In the motions for reconsideration, the defendants assert that the above-described holding in the Foster opinion effected a change in this Court's interpretation of § 413(h), and that several earlier opinions of this Court had held that the burden is on the defendant regarding the weighing of mitigating and aggravating circumstances. The three defendants argue that this "Court's reconstruction of the plain language and decisional history of § 413(h), depriving [each] Appellant of her [or his] constitutional challenge to the statute while denying her [or him] the benefit of the reconstruction, violates the due process clause of the fourteenth amendment." (Foster's motion for reconsideration, p. 5). The defendants go on to argue that the statute "was rendered unconstitutionally vague by the Court's unprecedented reconstruction." (Id. at p. 6). Next, Foster, Evans and Huffington contend that the Court's "belated reconstruction of § 413(h)," when "coupled with the Court's refusal to allow [the defendants] to realize the benefit of the clarification," violated the Ex Post Facto Clause of the United States Constitution, Art. 1, § 9. (Id. at p. 8). Finally the defendants assert that "[s]witching the burden of proof as to aggravating and mitigating circumstances ... creates the possibility that identically situated persons will be treated differently in violation of the eighth and fourteenth amendments." (Id. at p. 10).

It is unnecessary to explore in detail or treat separately these constitutional arguments, for they all rest upon the same faulty premise. They are all based upon the defendants' assertions that this Court's opinions prior to Foster had construed § 413(h) to place the burden of persuasion on the accused with regard to weighing aggravating and mitigating circumstances and that the opinions in the instant cases changed such construction of the statute. These assertions are flatly erroneous.

The opinions (and specific pages therein) relied on by the defendants for their contention that this Court had previously construed § 413(h) to place the burden of persuasion on the accused, are Maziarz v. State, 302 Md. 1, 6, 485 A.2d 245 (1984); Thomas v. State, 301 Md. 294, 334, 483 A.2d 6 (1984), cert. denied, 466 U.S. 993, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); Stebbing v. State, 299 Md. 331, 374, 473 A.2d 903, cert. denied, --- U.S. ----, 105 S.Ct. 276, 83 L.Ed.2d 212 (1984); Colvin v. State, 299 Md. 88, 122, 472 A.2d 953,cert. denied, --- U.S. ----, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984); Tichnell v. State (Tichnell III), 297 Md. 432, 449, 468 A.2d 1 (1983), cert. denied, --- U.S. ----, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984); and Johnson v. State, 292 Md. 405, 438, 439 A.2d 542 (1982). Not a single one of these opinions dealt with which side had the burden of proof, or burden of persuasion, or risk of nonpersuasion, as to the weighing of mitigating and aggravating factors under the provisions of § 413(h). In fact, none of these opinions even used the words "burden," "risk," "proof," "persuasion" or "nonpersuasion" in connection with subsection (h) of § 413. The issue of which side had the burden of persuasion or the risk of nonpersuasion under § 413(h) was simply not ruled upon or even mentioned in the opinions relied on by the defendants. ²

The opinions cited in the motions for reconsideration in support of the assertion that this Court had previously construed § 413(h) to place the burden of persuasion on the accused, do either quote or repeat some or all of the statutory language in § 413(h), and it is this language upon which the defendants specifically rely. For example, the Maziarz opinion, 302 Md. at 6, 485 A.2d 245, quoted § 413(h)(3) and then repeated that the "statute requires that a sentence of life imprisonment be imposed if, by a preponderance of the evidence, the sentencing authority finds that the mitigating circumstances outweigh the aggravating circumstances." Similar language, quoting or repeating § 413(h)(2) or 413(h)(3), is found in the other cited opinions, and such language is referred to in the motions for reconsideration. Nevertheless, in Tichnell I, the first case under Maryland's present death penalty statute, the Court repeated the same language as that now relied on by the defendants and immediately thereafter held that the prosecution bore the risk of nonpersuasion under § 413(h). Chief Judge Murphy there stated for the Court (287 Md. at 730, 415 A.2d 830):

"Finally, if the sentencing authority finds, by a preponderance of the evidence, that the mitigating circumstances do not outweigh the aggravating circumstances, the death penalty must be imposed. § 413(h)(2). Because the State is attempting to establish that the imposition of the death penalty is an appropriate sentence, the statute places the risk of nonpersuasion on the prosecution with respect to whether the aggravating factors outweigh the mitigating factors."

And in the Foster opinion, 304 Md. at 477-478, 499 A.2d 1236, we discussed this point in detail, holding that

"merely because the General Assembly in § 413(h) referred in paragraph (2) to whether 'mitigating circumstances do not outweigh the aggravating circumstances' and in paragraph (3) to whether 'mitigating circumstances outweigh the aggravating circumstances,' instead of using the...