State v. Calhoun, 104

• Citation: 511 A.2d 461,306 Md. 692
• Decision Date: 01 September 1985
• Docket Number: No. 104,104
• Parties: STATE of Maryland v. James Arthur CALHOUN. ,
• Court: Maryland Court of Appeals

Page 692

306 Md. 692

511 A.2d 461

STATE of Maryland v. James Arthur CALHOUN.

No. 104, Sept. Term, 1985.

Court of Appeals of Maryland.

July 15, 1986.

Motion for Reconsideration Denied Aug. 21, 1986.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellant.

Robert E. Morin (Joseph P. Suntum, Office of the Public Defender, on brief), Rockville, for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

SMITH, Judge.

James Arthur Calhoun was convicted by a Montgomery County jury of first degree, premeditated murder in the death of Philip Metz (principal in the first degree), murder in the first degree (felony murder) in the death of David Myers (principal in the second degree), attempted murder of Douglas Cummins, two violations of the handgun law, robbery with a deadly weapon, and storehouse breaking. A jury sentenced him to death for the murder of Metz. In Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984), we affirmed the convictions and the death sentence.

Pursuant to the provisions of Maryland Code (1957, 1982 Repl. Vol., 1985 Cum.Supp.) Art. 27, §§ 645A-J, the Uniform Post Conviction Procedure Act, Calhoun filed a petition for post-conviction relief in the Circuit Court for Montgomery County. The court affirmed Calhoun's convictions but ordered a new sentencing proceeding based upon its finding of an erroneous allocation of the burden of proof in the trial court's instruction to the jury and the failure of the court to offer Calhoun an opportunity for allocution prior to the jury's deliberating on the sentence. We granted leave to both the State and Calhoun to appeal. On the State's appeal we shall reverse. We shall affirm on Calhoun's appeal.

I THE STATE'S APPEAL

(A) THE JURY INSTRUCTION

The trial judge opened his instructions by telling the jury, "The death sentence may not be imposed unless you unanimously agree that the aggravating factors outweigh the mitigating factors." At the conclusion of his instruction, he said in relevant part:

"If you find by preponderance of the evidence that the mitigating factors--again, not numerically but--obviously I'm saying you could have all the aggravating factors and find that one mitigating factor could outweigh all of them. Or you could have one aggravating factor and numerous mitigating factors; but if you found that all of the mitigating factors together did not by a preponderance of the evidence outweigh the aggravating factor, then that would be your determination. If you find that the mitigating factors outweigh the aggravating factors, then you go to the fourth section and enter life imprisonment. If you find that the mitigating factors do not by a preponderance of the evidence outweigh the aggravating factors, then you mark that accordingly and proceed to Section 4 and enter a sentence of death."

The post-conviction judge said that "the instruction by the trial judge to the jury pursuant to Art. 27, Sec. 413(h)(2) that 'if it finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death' improperly stated the burden of persuasion."

Code (1957, 1982 Repl. Vol.) Art. 27, § 413(h)(2) states relative to the sentencing authority, jury or court, "If it finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death." Subsection (h)(3) states, "If it finds that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life." It will be noted that the instruction given is virtually in the words of the statute.

In Foster v. State, 304 Md. 439, 479, 499 A.2d 1236, 1257 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986), Judge Eldridge said for the Court, "[W]e adhere to our prior holdings that the burden of persuasion for purposes of § 413(h) is upon the prosecution." In Evans v. State, 304 Md. 487, 537 n. 18, 499 A.2d 1261, 1287 n. 18 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986), we said, "[W]e held in Foster, 304 Md. at 479, 499 A.2d at 1256-1257, that the language of § 413(h) does not place any burden or risk upon the accused." In Foster, Evans and Huffington v. State, 305 Md. 306, 318, 503 A.2d 1326, 1332 (1986), we said, "[A]s indicated in the Evans opinion, id. at 537 n. 18, 499 A.2d 1261, the instruction was not erroneous because the 'language of § 413(h) does not place any burden or risk upon the accused.' "

The instruction here was in the language of the statute. Hence, there was no error on the part of the trial judge.

(B) DENIAL OF THE RIGHT OF ALLOCUTION

In his petition for post-conviction relief Calhoun alleged:

"Petitioner was denied his right guaranteed under Art. 27 Section 413(c)(2), then Maryland Rule 772(a); the Maryland Declaration of Rights, and the Fifth, Eighth and Fourteenth Amendments, to allocute at his sentence.

"Petitioner was never advised by counsel or the trial court of his unrestricted right to allocute before his sentencing jury. Such a right is fundamental to all criminal defendants, particularly those whose lives hang in the balance. Consequently, he was deprived of his right to do so. Moreover, the failure of the State to adhere to its own law and procedure denied petitioner his right to due process of law and a reliable sentencing procedure.

"Furthermore, not only is allocution mandated by rule for all non-capital defendants but the practice in Maryland has been to allow allocution by other capital defendants sentenced pursuant to the same procedural rules and statutes as the petitioner. Such discrimination in the allowance of allocution denied the petitioner equal protection of the laws and results in the arbitrary application of the death penalty."

The post-conviction judge said:

"The defendant had not testified during the first phase; nor did he testify in the second phase. As apparently his trial counsel viewed defendant's right to speak only in the context of 'testimony,' defendant was not presented by counsel with a decision as to whether he would allocute. The trial judge did not ask defendant if he wished to allocute before the jury. The defendant did not allocute. As a consequence, the jury faced with a life versus death decision retired to consider the defendant's fate having before it the commission of savage crimes (savagery is found here in the execution style premeditated killing of a uniformed police officer by a masked thief fully armed) a prior criminal record of violence, certain evidence questionably admitted tending to show defendant's violent propensities as a prisoner in custody, a minimal amount of evidence in mitigation and without ever hearing the defendant speak. After looking for days upon a black man of large stature and build who according to his counsel (as well as to the observation of this court) appears outwardly 'scary,' 'menacing,' 'cold,' and with 'a lack of emotion', the all-white jury retired having little more before it on the other side of a difficult equation it was asked to balance beyond the spectre presented by the defendant's appearance." (Reference to transcript omitted. Emphasis in original.)

The post-conviction judge concluded:

"The Maryland Rules presently in effect which require that defendants in sentencings hearings in both capital and non-capital cases be asked on the record by the trial court whether the right of allocution is desired seem to treat the right of allocution as fundamental. More importantly, the facts in this case and the significance of the right of allocution to the defendant here suggest strongly the only possible answer that can be given. This court holds that the history of the right of allocution and its significance to a defendant--never more important than it is today under the procedure in capital sentencing cases--results in this right being fundamental--so fundamental that only the defendant--not his counsel--can waive the right. It follows that this defendant who was never advised of his right to allocution can not have waived such right.

"The sentencing procedure utilized here in that it denied the defendant his fundamental right to allocute before the sentencing jury was defective. The sentencing portion of the defendant's trial can not stand."

Code (1957, 1982 Repl. Vol.) Art. 27, § 413(c)(2) provides, "The State and the defendant or his counsel may present argument for or against the sentence of death." In Harris v. State, 306 Md. 344, 349, 509 A.2d 120, 122 (1986) Chief Judge Murphy said for the Court, "[A]llocution is neither synonymous with nor encompassed by the term 'argument' ...." In Harris the Court said:

"By chapter 3 of the Acts of 1978, effective July 1, 1978, the General Assembly enacted § 413, the present capital sentencing statute. In response to this enactment, the Court adopted Md. Rule 772A, which substantially tracked the language of § 413 and applied only to capital sentencing proceedings. The rule did not contain any provision as to allocution. The Court also amended Md. Rule 772 to apply only to noncapital cases. ⁵

"Between January 1, 1979, and July 1, 1984, the Maryland Rules did not afford defendants in capital cases a right of allocution. It was during this period that Harris was sentenced to death. The right of allocution in capital cases was not again addressed in the Maryland Rules until the adoption of current Rule 4-343 as part of the comprehensive revision of the rules in 1984. ⁶ Rule 4-343, which superceded Md. Rule 772A, provides in subsection (d), entitled 'Allocution,' that in capital cases, '[b]efore sentence is determined, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement.'

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