State v. Rose

• Decision Date: 01 September 1995
• Docket Number: No. 80,80
• Citation: 691 A.2d 1314,345 Md. 238
• Parties: STATE of Maryland v. David Edward ROSE. ,
• Court: Maryland Court of Appeals

Page 238

345 Md. 238

691 A.2d 1314

STATE of Maryland v. David Edward ROSE.

No. 80, Sept.Term, 1995.

Court of Appeals of Maryland.

April 8, 1997.

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

Daniel H. Ginsburg (Mary Ann Berlin, on brief), Baltimore, for Respondent.

Argued before MURPHY, ^* C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

ELDRIDGE, Judge.

This case requires us once again to consider the waiver provision of the Maryland Post Conviction Procedure Act, Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 645A(c). The issue is whether an argument concerning the validity of a reasonable doubt jury instruction, when the instruction was not objected to and the argument was not made at a prior opportunity, has been waived.

I.

In April 1982, following a jury trial in the Circuit Court for Anne Arundel County, the defendant-respondent, David Edward Rose, was convicted of the first degree murder of Virginia Pollard and sentenced to life imprisonment. At Rose's trial, the court gave the following jury instruction concerning the "reasonable doubt" standard (emphasis added):

"You may hear the phrase 'beyond a reasonable doubt.' I may use it. Counsel may use it. But you have to understand what we mean by 'beyond a reasonable doubt.' 'Beyond' generally means more than or further than.

"You use the phrase 'the ship is beyond the horizon.' You mean that it is further than the horizon. Or if I try to put a gallon of water in this cup, it's beyond the capacity of the cup, meaning that it is more than the capacity of the cup.

"That's the dictionary definition of the preposition 'beyond.' Now when we say that the State has to prove something beyond a reasonable doubt, it doesn't mean that the State has to prove it more than a reasonable doubt or further than a reasonable doubt.

"That's an improper interpretation [of the] phrase. The State has to prove it to the exclusion of a reasonable doubt. And they have to do this with each and every element of the offense for which the defendant is charged so that you're convinced that the defendant is guilty of the offense to the exclusion of a reasonable doubt and to a moral certainty."

Rose's attorney made no objection to this instruction.

Thereafter, Rose timely appealed to the Court of Special Appeals, which affirmed his conviction and sentence in an unreported opinion. Although he made several allegations of error, Rose did not challenge the accuracy of the reasonable doubt instruction given at his trial. ¹ A petition for a writ of certiorari filed by Rose in this Court was denied. As in his direct appeal to the intermediate appellate court, Rose failed to raise any issue concerning the reasonable doubt instruction.

In October 1985, Rose filed his first petition for post conviction review in accordance with the provisions of the Maryland Post Conviction Procedure Act, alleging as his sole ground for relief that he was denied the effective assistance of counsel at his trial. The petition was denied by the Circuit Court for Anne Arundel County, and the Court of Special Appeals denied Rose's application for leave to appeal that decision.

The instant post conviction petition, and Rose's second, was filed in January 1994 in the Circuit Court for Anne Arundel County. In it, Rose alleged for the first time that the reasonable doubt instruction given at his trial was constitutionally deficient, depriving him of his constitutional right not to be convicted by less than proof "beyond a reasonable doubt." In addition, he argued that a valid waiver of his complaint concerning the reasonable doubt instruction required his "intelligent and knowing" relinquishment of the right, and could not be based on his or his attorney's silence or failure to raise the issue previously.

The State, on the other hand, contended that the right to an accurate reasonable doubt jury instruction does not require an "intelligent and knowing" waiver by the defendant personally. The State argued that the requirements for waiver of a reasonable doubt jury instruction are the same as those for waiver of any other jury instruction in a criminal case, and that Rose's failure to object to the instruction at trial, or raise the issue on direct appeal, or raise it in his first post conviction petition, constituted a waiver of the issue.

Following a hearing, the circuit court issued an opinion and an order denying post conviction relief. The court found that "the issue raised in this petition [was] not raised at the trial, on appeal, at the prior post conviction hearing or any prior proceeding." Therefore, the court concluded that Rose's allegation had been waived.

Rose then filed an application for leave to appeal the circuit court's decision. The Court of Special Appeals, in an unreported opinion, granted the application and reversed the judgment of the circuit court. The intermediate appellate court held that the reasonable doubt instruction given at Rose's trial was constitutionally deficient, and that, "[b]y instructing the jury that the term 'beyond' had no meaning, the trial judge placed a lesser burden of proof upon the State than the law requires."

The Court of Special Appeals then addressed the State's argument that Rose had waived his complaint concerning the instruction's constitutionality by failing to object to the instruction at trial or raise the issue at an earlier opportunity. The court recognized that different standards for waiver exist in the post conviction context, namely the classic Johnson v. Zerbst ² standard of an "intelligent and knowing" waiver and the standard of waiver by inaction, tactical decision or procedural default. The Court of Special Appeals framed the issue as "[w]hether the right to ... a correct reasonable doubt instruction ... involves a fundamental ... or a non-fundamental right," noting that this Court has held that the right to a correct reasonable doubt instruction "is constitutionally mandated by the due process clause of the Fourteenth Amendment ... and is an indispensable component of every criminal proceeding." Wills v. State, 329 Md. 370, 375, 620 A.2d 295, 297 (1993), quoting In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1071-1073, 25 L.Ed.2d 368 (1970). The appellate court reasoned that, because this important right was derived from the Constitution, it was a "fundamental" right and that "intelligent and knowing" action by the defendant was required for a waiver to occur. Because the circuit court had applied the standard of waiver by inaction, rather than the "intelligent and knowing" standard, the intermediate appellate court vacated the judgment and remanded the case for reconsideration by the circuit court under the intelligent and knowing standard for waiver.

The State then filed in this Court a petition for a writ of certiorari which we granted. In the petition, the State asserted that the Court of Special Appeals had applied an erroneous standard for waiver in holding that Rose had not waived his complaint concerning the reasonable doubt jury instruction. The State, however, did not challenge the intermediate appellate court's determination that the instruction violated constitutional requirements. Therefore, that issue is not before us. See Maryland Rule 8-131(b)(1).

II.

The principal subsection of the Maryland Post Conviction Procedure Act relating to waiver, Art. 27, § 645A(c), states as follows:

"(c) When allegation of error deemed to have been waived.--(1) For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not the petitioner actually took such an appeal), in an application for leave to appeal a con viction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances. The burden of proving the existence of such special circumstances shall be upon the petitioner.

"(2) When an allegation of error could have been made by a petitioner before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in an application for leave to appeal a conviction based on a guilty plea, in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, but was not in fact so made, there shall be a rebuttable presumption that said petitioner intelligently and knowingly failed to make such allegation."

This Court reviewed § 645A, and particularly subsection (c), in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). In Curtis, after examining the language, history and purpose of § 645A, and several prior cases in this Court interpreting the statute, we held as follows (284 Md. at 149-150, 395 A.2d at 474):

"[T]he Legislature, when it spoke of 'waiver' in subsection (c) of Art. 27, § 645A, was using the term in a narrow sense. It intended that subsection (c), with its 'intelligent and knowing' standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst and Fay v. Noia [372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ] was applicable. Other situations are beyond the scope of subsection (c), to be governed by case law or any pertinent statutes or rules. Tactical decisions, when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant."

This interpretation of Art. 27, § 645(c), has been reaffirmed on numerous occasions. See, e.g., Hunt v. State, 345 Md. 122, ...