Scott v. State

• Decision Date: 01 September 1985
• Docket Number: No. 105,105
• Citation: 310 Md. 277,529 A.2d 340
• Parties: Martin Francis SCOTT v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 277

310 Md. 277

529 A.2d 340

Martin Francis SCOTT v. STATE of Maryland.

No. 105, Sept. Term, 1985.

Court of Appeals of Maryland.

Aug. 5, 1987.

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, on the brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH ^*, ELDRIDGE, COLE, RODOWSKY, COUCH ^* and McAULIFFE, JJ.

ELDRIDGE, Judge.

In October 1981, a jury convicted Martin Francis Scott of premeditated murder and determined that his sentence should be death. On appeal, this Court held that, at the sentencing hearing, the trial court erroneously admitted evidence tending to show that Scott had committed two unrelated murders for which there had been no convictions. We vacated the death sentence and remanded for a new sentencing hearing. Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983).

At the second sentencing proceeding, a new jury again decided to impose the death penalty. On this appeal from that sentence, Scott contends that the trial court committed numerous errors during the sentencing hearing. Scott's first argument is that the trial court erred by refusing to instruct the jury, as requested, that the State has the burden of establishing that aggravating circumstances outweigh mitigating circumstances. We shall hold that the trial court did err by refusing to give this instruction to the jury; therefore we shall vacate the death sentence and remand the case for another sentencing proceeding. Under these circumstances, we need not address any of the twelve other issues raised by Scott. But, for the guidance of the trial court, we shall address several of these issues which are likely to recur in the new sentencing proceeding.

I.

As indicated above, Scott contends that the trial court erroneously refused defense attorney's request for the court to instruct the jury that the State has the burden of persuading the jury that aggravating circumstances outweigh mitigating circumstances under the Maryland death penalty statute, Code (1957, 1982 Repl. Vol.), Art. 27, § 413(h). The State defends the trial judge's action on the ground that the proposed burden of proof instruction was included with other language which was inappropriate, and that, therefore, the trial judge was justified in rejecting the entire proposed instruction.

The facts underlying this issue are as follows. Both the defense and the prosecution submitted proposed jury instructions to the trial judge. Scott submitted "Proposed Instruction No. 9" which requested the trial judge to instruct the jury that the state bears the burden of establishing that the aggravating circumstances outweigh the mitigating circumstances. In its entirety, Proposed Instruction No. 9 was as follows:

"DEFENDANT'S PROPOSED INSTRUCTION NO. 9

"Your next duty will be to weigh any mitigating circumstances which exist against any aggravating circumstances which exist.

"Because the State is attempting to establish that death is the appropriate punishment, the State bears the burden of establishing that the aggravating circumstances which you find outweigh the mitigating circumstances. Unless you find, after considering the totality of the aggravating and mitigating circumstances, that the aggravating factors, discounted by whatever mitigating circumstances exist, are sufficiently serious to require the sentence of death, you must impose life imprisonment. If a comparison of the totality of the aggravating factors with a totality of the mitigating factors leaves you in doubt as to the proper penalty, you must impose life imprisonment."

Using some proposed instructions submitted by both sides, the trial judge prepared a tentative draft of jury instructions. The trial judge incorporated into his draft the entire second paragraph of Scott's Proposed Instruction No. 9. Counsel on both sides were given a copy of the trial judge's draft, with directions to study it and inform the court as to any disagreement.

At a subsequent conference, the trial judge discussed with both parties the draft jury instructions. The judge indicated that he wanted to know "precisely" what each side objected to and that he would tailor the instructions "to accommodate, if it is possible." The prosecuting attorney cited the inclusion of the second paragraph of Scott's Proposed Instruction No. 9 as the State's "most significant objection." Focusing on the first sentence of the second paragraph, the prosecuting attorney argued that the proposed instruction was contrary to the law:

PROSECUTING ATTORNEY: "Paragraph 2 where it begins because the State is attempting to establish that death is the appropriate punishment, the State bears the burden of establishing that the aggravating circumstances which remain outweigh the mitigating circumstances.

"In fact, Your Honor, Article 27, Section 413 specifically says that unless the mitigating circumstances outweigh the aggravating circumstances, the sentence of death shall be imposed. As such, it [the proposed jury instruction] obviously shifts the burden considerably back to the State when the statute shifts the burden from the State to the defense."

In response to this argument, defense counsel maintained that the first sentence of the second paragraph of the proposed instruction accurately stated the law. He stated:

DEFENSE COUNSEL: "Our response is that that is the law that we believe should be. We have consistently raised in every case that the burden ought not to be on the defendant. It should be on the State. We are pursuing that in the Supreme Court. We are going to pursue it in future proceedings, and we are going to preserve the issue."

Later at the conference on the trial judge's tentative draft instructions, the discussion turned to the trial judge's draft summary, which was as follows:

"Under Art. 27, § 413, and Maryland Rule 772A, a sentencing proceeding before a jury can result in a death sentence in either of two ways:

(1) the jury unanimously finds one or more aggravating factors and no mitigating factors; or

(2) the jury unanimously finds both aggravating and mitigating factors and unanimously agrees that by a preponderance of the evidence the latter do not outweigh the former.

"A sentence of life imprisonment obtains in any of three situations:

(1) the jury unanimously finds no aggravating factors; or

(2) the jury unanimously finds both aggravating and mitigating factors and unanimously agrees that by a preponderance of the evidence the latter outweigh the former; or

(3) the jury, within a reasonable time, is unable to agree to a sentence." ¹

Scott objected to this summary on the ground that it failed to specify that the burden of proof concerning the weighing of aggravating and mitigating circumstances was upon the State.

At the end of the conference, defense counsel expressed the desire that proposed instruction No. 9 not be refused on the grounds urged by the State, saying that the language concerning the burden of proof "is our attempt to rectify the constitutional problems with the statute."

The instructions given to the jury did not contain any of Scott's Proposed Instruction No. 9, nor did they contain any instruction regarding the State's burden of establishing that aggravating circumstances outweigh mitigating circumstances. Immediately after the instructions were given Scott again made his objections. He specifically objected to the failure to instruct the jury that the State bore the burden of proof with respect to the weighing of aggravating and mitigating circumstances. Later, defense counsel reiterated that Scott does "take exception to the failure of the Court to instruct the jury on the burden being placed on the State."

Contrary to the argument made by the State to the trial judge, this Court has consistently held that the State bears the burden of persuasion under § 413(h). In Tichnell v. State, 287 Md. 695, 730, 415 A.2d 830 (1980), we pointed out that § 413(h) "does not explicitly specify which party has the burden of producing evidence and the burden of persuasion." Nevertheless, we held that the State bears the burden of persuasion under § 413(h), saying (287 Md. at 730, 415 A.2d 830):

"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."

We have recently reiterated that the State bears the risk of nonpersuasion with regard to the weighing of aggravating and mitigating circumstances. See Foster, Evans and Huffington v. State, 305 Md. 306, 503 A.2d 1326, cert denied, --- U.S. ----, 106 S.Ct. 3310, 3315, 92 L.Ed.2d 722, 723, 745 (1986); Foster v. State, 304 Md. 439, 476-480, 499 A.2d 1236 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986).

This Court has also held that when a defendant requests a jury instruction containing a correct statement of the burden of persuasion under § 413(h), a trial judge should give such instruction or its equivalent. Foster, Evans and Huffington v. State, supra, 305 Md. at 317 n. 5, 503 A.2d 1326; Evans v. State, 304 Md. 487, 537 n. 18, 499 A.2d 1261 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986). In this case, the first sentence of the second paragraph of Scott's Proposed Instruction No. 9 was taken directly from the language of the Tichnell case quoted above. It was identical to language which, in Foster, Evans and Huffington v. State, supra, 305 Md. at 317, 503 A.2d 1326, we held should be given if requested.

Nevertheless, the State seeks to sustain the ruling of the court below on the ground that the second sentence of the second paragraph of Scott's Proposed Instruction No. 9 was incorrect and warranted the...