Oken v. State, No. 117

• Court: Court of Appeals of Maryland
• Writing for the Court: HARRELL.
• Citation: 378 Md. 179,835 A.2d 1105
• Parties: Steven Howard OKEN v. STATE of Maryland.
• Docket Number: No. 117
• Decision Date: 17 November 2003

835 A.2d 1105
378 Md. 179

Steven Howard OKEN
v.
STATE of Maryland

No. 117, Sept. Term, 2002.

Court of Appeals of Maryland.

November 17, 2003.

835 A.2d 1106

Fred Warren Bennett (Michael E. Lawlor, Bennett & Nathans, LLP, on brief), Greenbelt, for appellant

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

Kent S. Scheidegger, Kymberlee C. Stapleton, Criminal Justice Legal Foundation, Sacramento, CA, brief of Amici Curiae of the Criminal Justice Legal Foundation, Frederick Joseph Romano and Frederick Anthony Romano, Supporting Affirmance.

Argued Before BELL, C.J., and ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

HARRELL, Judge.

It is Maryland's turn to consider the effect, if any, of the U.S. Supreme Court's holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), upon its capital punishment statutory scheme. At least eleven state supreme courts have preceded us in pondering the same question as regards their respective statutes.² Of those states, four, Arizona,

835 A.2d 1107

Colorado, Missouri, and Nevada, concluded that Ring compelled invalidation of some part of their statutes as written. The remaining six states, Alabama, California, Delaware, Florida, Illinois, and Oklahoma, concluded that Ring had no ill effect on their statutory schemes. For reasons to be explained infra, we determine that Ring does not affect adversely the Maryland statute

I.

The present case is Mr. Oken's fourth in this Court, see Oken v. State, 367 Md. 191, 786 A.2d 691 (2001), cert. denied, 535 U.S. 1074, 122 S.Ct. 1953, 152 L.Ed.2d 855 (2002) (Oken III) (application for leave to appeal denials of motion to re-open post-conviction case and motion to correct illegal sentence, both based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997) (Oken II) (post-conviction case); Oken v. State, 327 Md. 628, 612 A.2d 258 (1992), cert. denied, 507 U.S. 931, 113 S.Ct. 1312, 122 L.Ed.2d 700 (1993) (Oken I) (direct appeal).³ Oken III was the result of Oken filing three pleadings in the Circuit Court for Baltimore County, all addressing the applicability of Apprendi to the Maryland death penalty statute: (1) a Motion to Correct Illegal Sentence and/or Motion for New Sentencing Based on Mistake or Irregularity; (2) a Motion for New Trial (filed by Mr. Oken, pro se); and (3) a Motion to Reopen Post-Conviction Proceeding. All were denied. This Court granted Oken's Application for Leave to Appeal and, on 14 December 2001, denied relief on the Apprendi claim.⁴ A petition for Writ of Certiorari was denied by the U.S. Supreme Court on 13 May 2002. Oken v. Maryland, 535 U.S. 1074, 122 S.Ct. 1953, 152 L.Ed.2d 855 (2002).

On 27 January 2003, a Warrant of Execution issued from the Circuit Court for Baltimore County commanding that Oken be executed at some time during a five day period commencing 17 March 2003. Also on 17 March, Oken filed in the Circuit Court for Baltimore County a Motion to Correct Illegal Sentence and/or Motion for New Sentencing Based Upon Mistake or

835 A.2d 1108

Irregularity. The motion argued that the U.S. Supreme Court's decision in Ring overruled, sub silentio, this Court's decisions in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), cert denied 535 U.S. 1104, 122 S.Ct. 2309, 152 L.Ed.2d 1064 (2002) and Oken III. On 29 January 2003, the Circuit Court denied the Motion to Correct Illegal/Irregular Sentence.⁵ Oken thereafter filed a Notice of Appeal. On 10 February 2003, Oken filed in this Court a Motion for Stay of Execution. On 11 February 2003, we issued an Order granting the request for a stay of execution, pending resolution of the present case

As he did in Oken III, Oken claims that his death sentence for the murder of Dawn Garvin in November of 1987 is illegal and irregular, as those terms are used in Maryland Rule 4-345,⁶ because Maryland's death penalty statute unconstitutionally provides for the imposition of the death sentence if the sentencing authority determines, by a preponderance of the evidence, that aggravating circumstances outweigh any mitigating circumstances. Throughout the years since Maryland's last major overhaul of its capital punishment statute in obedience to the holdings of the U.S. Supreme Court, and most recently in Borchardt and Oken III (adopting Borchardt as dispositive), this Court has concluded otherwise.⁷ In the present case, Oken argues that Borchardt has been overruled by Ring and, therefore, the Circuit Court judge erred when he declined to invalidate Oken's sentence of death.

II.

Petitioner presents the following questions for our consideration:

I. Whether, in light of Ring v. Arizona, this Court should overrule Borchardt v. State and hold that the Maryland death penalty statute is unconstitutional on its face because it provides that a sentence of death may be imposed if the State proves only that the aggravating factors outweigh any mitigating factors by a preponderance of the evidence.

II. Whether, on collateral review, this Court can reach the merits of Mr. Oken's Apprendi/Ring arguments as the application of the Supreme Court's decisions in Apprendi and Ring to the Maryland death penalty scheme represent a new rule of constitutional law that fundamentally alters the standard of proof

835 A.2d 1109

and the manner in which capital sentencing hearings are to be conducted in this State.

III. Do special circumstances exist which excuse Mr. Oken's failure to raise the standard of proof issue on direct appeal or in his first previous post-conviction proceeding?

IV. Whether a capital sentencing proceeding that employs an unconstitutionally low standard of proof results in the imposition of an illegal or irregular sentence.

Because, as to Petitioner's first issue, we find that Ring bears no adverse implications for the Maryland death penalty statute, we do not reach petitioner's other issues.⁸ We shall affirm the judgment of the Circuit Court.

III.

The U.S. Supreme Court has been diligent in developing death penalty jurisprudence in the twenty-plus years since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), with the result that this department of the law is now a labyrinth. In order to navigate this cat's cradle, as well as to understand the underpinnings of our decision in the case sub judice in light of the Supreme Court's jurisprudence in this arena, it is necessary to review its development since Furman. Fortunately, much of that history is found in a single place, the concurring opinion of Justice Scalia in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), a case of some import to the matter before us. Although extensive block quotations are the bane of readers of, and commentators upon, appellate opinions, we are moved at the beginning to quote in detail from Justice Scalia's concurrence because it traces up to that point the lineage of two lines of the Supreme Court's relevant jurisprudence regarding death penalty statutes, which lines culminate in Ring. As Justice Scalia explains:

Over the course of the past 15 years, this Court has assumed the role of rulemaking body for the States' administration of capital sentencing—effectively requiring capital sentencing proceedings separate from the adjudication of guilt, see, e.g., Woodson v. North Carolina, 428 U.S. 280, 301-305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion announcing judgment), dictating the type and extent of discretion the sentencer must and must not have, see, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Godfrey v. Georgia, 446 U.S.

835 A.2d 1110

420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), requiring that certain categories of evidence must and must not be admitted, see, e.g., Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), undertaking minute inquiries into the wording of jury instructions to ensure that jurors understand their duties under our labyrinthine code of rules, see, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and prescribing the procedural forms that sentencing decisions must follow, see, e.g., McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). The case that began the development of this Eighth Amendment jurisprudence was Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam), which has come to stand for the principle that a sentencer's discretion to return a death sentence must be constrained by specific standards, so that the death penalty is not inflicted in a random and capricious fashion.

In Furman, we overturned the sentences of two men convicted and sentenced to death in state courts for murder and one man so convicted and sentenced for rape, under statutes that gave the jury complete discretion to impose death for those crimes, with no standards as to the factors it should deem relevant. The brief per curiam gave no reasons for the Court's decision, other than to say that "the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id., at 239-240[, 92 S.Ct. 2726]. To uncover the reasons underlying the decision in Furman, one must turn to the opinions of the five Justices forming the majority, each of whom wrote separately and none of whom joined any other's opinion. Of these opinions, two rested on the broadest possible ground—that the death penalty was cruel and unusual

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