Jenkins v. Smith, Civ. B-93-3644.

• Citation: 38 F.Supp.2d 417
• Decision Date: 09 February 1999
• Docket Number: No. Civ. B-93-3644.,Civ. B-93-3644.
• Parties: Tyrone JENKINS v. William L. SMITH and The Attorney General of the State of Maryland.
• Court: U.S. District Court — District of Maryland

38 F.Supp.2d 417

Tyrone JENKINS v. William L. SMITH and The Attorney General of the State of Maryland.

No. Civ. B-93-3644.

United States District Court, D. Maryland.

February 9, 1999.

Tyrone Jenkins, pro se.

J. Joseph Curran, Jr., Attorney General of Maryland and Mary Ann Ince, Assistant Attorney General, Office of the Attorney General, of Baltimore, MD, for respondents.

OPINION

WALTER E. BLACK, Senior District Judge.

Presently pending before the Court is the Report and Recommendation of the United States Magistrate and Tyrone Jenkins' objections to the Report and Recommendation. Jenkins, acting pro se, filed a petition for writ of habeas corpus challenging the constitutionality of his state court convictions pursuant to 28 U.S.C. § 2254. On July 24, 1997, this Court issued a Memorandum Opinion and Order reserving consideration on one issue and affirming in all other respects the Report and Recommendation to deny Jenkins' petition on all grounds. Specifically, the Court reserved for further consideration Jenkins' claim that the trial judge denied him his constitutional rights by instructing the jury only in an advisory capacity. The Court ordered the petitioner and respondents to submit supplemental memoranda briefing this issue.

On August 14, 1975, Jenkins was convicted, after trial by jury, of robbery with a deadly weapon, assault with intent to murder, carrying a handgun, and using a handgun (collectively "the 1975 convictions" or "CT 15103"). On September 11, 1975, petitioner was sentenced to imprisonment for twenty years on the armed robbery conviction, fifteen years on the assault with intent to murder conviction, three years on the carrying a handgun conviction, and five years on the using a handgun conviction. The latter three sentences were to run concurrently with each other, and the resulting fifteen-year concurrent sentence was to run consecutively to the twenty-year sentence for armed robbery. Petitioner is currently incarcerated on the basis of these convictions.

At the time of sentencing, Jenkins was already serving two fifteen-year concurrent sentences, which had commenced on August 25, 1971, for previous convictions of armed robbery and assault with intent to murder ("the 1972 convictions" or "CT 11925"). The commitment record for the 1975 convictions notes that the sentences imposed for the 1975 convictions are to run consecutively to those imposed for the 1972 convictions.

The Court has determined that a hearing is not necessary and is prepared to rule based upon the record now before it. See Local Rule 105.6.

I.

In its Memorandum Opinion, the Court expressed concern about the constitutional validity of the trial court's jury instructions relating to (1) the burden of proof; (2) the presumption of innocence; (3) the defendant's right to remain silent; (4) the defendant's right to have his guilt or innocence determined separately as to each count; and (5) the defendant's right to have his guilt or innocence determined based solely on his own conduct. At the outset of the jury instructions on each of the aforementioned issues of law, the trial court expressly stated its instructions were "in an advisory capacity" and so reiterated as a preface to each instruction. CT 151093 Transcript at 282-88.

THE COURT: [I]t, accordingly, becomes the Court's function to give you certain advisory instructions with reference to this matter. You will note that I use the word "advisory" and I do so intentionally in that in this case, as is true in all criminal cases in Maryland, it is the function of the jury to be the sole judges of both the facts and the law. That is to say, it is up to you, the jury, solely, to determine what the factual situation was and then to apply to that factual situation what you find the law to be.

Accordingly, anything the Court says to you with reference both to the facts and the law is done so in an advisory capacity only....

Further, the Court says to you, in an advisory capacity, that the burden of proof, which rests on the State, as represented by the State's Attorney in this case, is that the Defendants must be found guilty at your hands only after you are satisfied beyond a reasonable doubt and to a moral certainty of the guilt of the Defendants, or either of them, or any or all of the charges brought against the Defendants....

In connection with the burden of proof in a criminal case, the Court also says to you, in an advisory capacity, that these Defendants are presumed to be innocent of the charge or charges against them and that they cannot be found guilty of the charge or charges until you, the jury, are satisfied beyond a reasonable doubt of their guilt....

You are advised, in an advisory capacity, that all Defendants have a constitutional right to testify if they want to, they had a right to refuse to testify if they don't want to, and if they choose to exercise their constitutional right to remain silent, you, the jury, may not draw any inferences of guilt therefrom....

The Court further says to you, in an advisory capacity, that the Defendants in this case have been charged with more than one count. You are to consider each count separately and weigh the evidence relevant to each count as if it were the only count with which the Defendant or Defendants are charged. Each Defendant is entitled to have his guilt or innocence determined as to each count from the evidence which applies to that count....

Further, the Court says to you, in an advisory capacity, that where there is more than one Defendant being tried, you should consider each Defendant separately and weigh the evidence against each as if he were the only Defendant. Each Defendant is entitled to have his guilt or innocence determined from his own conduct and from the evidence which applies to him alone. You are instructed to give fair and impartial consideration to each Defendant....

Id. (emphasis added).

Petitioner contends that such advisory instructions on the law violate his rights to due process and a fair and impartial trial.

At the time of petitioner's conviction on August 14, 1975, Article XV, section 5 of the Maryland Constitution provided that "[i]n 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." Md.Code Ann., Const., Art. XV, § 5 (1958, 1972 Repl.Vol.). The text of Article XV is presently stated in Article 23 of the Maryland Declaration of Rights. Petitioner argues that Article 23 is unconstitutional on its face, or in the alternative, that the jury instructions as given by the trial court "in the interest of substantial justice ... or by manifest necessity" require the granting of a new trial. Petitioner requests a new trial with binding jury instructions as to the law.

II.

Article 23 has been interpreted to require Maryland courts to announce to the jury that the court's instructions on the law and the facts were advisory as a way to "curb the power of the judiciary". Stevenson v. State, 289 Md. 167, 175, 423 A.2d 558 (1980). As far back as the late 1800's, the Maryland courts have endorsed the practice of advisory instructions. See, e.g., Wheeler v. State, 42 Md. 563, 570 (1875) ("[A]ny instruction given by the court, as to the law of the crime, is but advisory, and in no manner binding upon the jury, except in regard to questions as to what shall be considered as evidence.") (emphasis in original); Beard v. State, 71 Md. 275, 279-80, 17 A. 1044 (1889) ("Whenever, however, the Judge has thought it proper to instruct, it has always been deemed necessary that he should be careful to put the instruction in an advisory form ...."); Schanker v. State, 208 Md. 15, 21, 116 A.2d 363 (1955) ("The right of the trial court to give advisory instructions in criminal cases was recognized long before the adoption of the present Criminal Rules of Practice and Procedure.").

Over time, however, a more explicit limiting trend occurred with respect to the scope of Article 23's declaration that "the Jury shall be the Judges of the Law" as interpreted by the Maryland courts. In 1980, the Maryland Court of Appeals in Stevenson finally set forth a detailed history of the scope of Article 23. Stevenson, 289 Md. at 173-81, 423 A.2d 558. The Stevenson court was careful to explain that despite the facially broad language, Article 23 does not give juries unlimited authority to judge all aspects of the law. Id. at 176-7, 423 A.2d 558. Rather, the court stated that "the past decisions of this Court make it quite evident that the jury's role in judging the law under Article 23 is confined `to resolv[ing] conflicting interpretations of the law [of the crime] and to decid[ing] whether th[at] law should be applied in dubious factual situations,' and nothing more." Id. at 179, 423 A.2d 558 (emphasis in original) (alterations in original) (quoting Dillon v. State, 277 Md. 571, 581, 357 A.2d 360 (1976)).

The following year, the Maryland Court of Appeals again had the opportunity to further expound upon Article 23 in Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981). Montgomery reiterated the explanations in Stevenson and further clarified the issue, stating: "There are certain bedrock characteristics which distinguish our system from most others throughout the world and which are indispensable to the integrity of every criminal trial ..." including, inter alia, the presumption of innocence, the burden of proof, and the right to remain silent. Id. at 91, 437 A.2d 654. "Instructions on these matters 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." Id. As recently as 1988, the Court of Appeals rendered Article 23 practically superfluous. See In re Petition for Writ of Prohibition, 312 Md. 280, 318, 539 A.2d 664 (1988) ("What it all boils down to now is that the jury's right to...