State v. Waine

• Citation: 444 Md. 692,122 A.3d 294
• Decision Date: 28 August 2015
• Docket Number: No. 90, Sept. Term, 2014.,90, Sept. Term, 2014.
• Parties: STATE of Maryland v. Peter Sutro WAINE.
• Court: Court of Special Appeals of Maryland

444 Md. 692

122 A.3d 294

STATE of Maryland

v.Peter Sutro WAINE.

No. 90, Sept. Term, 2014.

Court of Appeals of Maryland.

Aug. 28, 2015.

Reconsideration Denied Oct. 15, 2015.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Andrew D. Levy (Brown, Goldstein & Levy, LLP, Baltimore, MD; Howard L. Cardin, Cardin & Gitomer, P.A., of Baltimore, MD), on brief, for Respondent.

Russell P. Butler, Esquire, Victor D. Stone, Esquire, Maryland Crime Victims' Resource Center, Inc., Upper Marlboro, MD, for amicus curiae brief of Maryland Crime Victims' Resource Center, Inc., et al.

Ann N. Bosse, Esquire, Assistant State's Attorney for Montgomery County, Office of the State's Attorney for Montgomery County, Rockville, MD, for amicus curiae brief of Maryland State's Attorneys' Association in support of Petitioner.

Glen K. Allen, Esquire, Michael N. Bakhama, Esquire, DLA Piper LLP (US), Baltimore, MD, for amicus curiae brief of University of Maryland Carey School of Law Clinical Law Program and Law and Social Work Services Program and Maryland Restorative Justice Initiative, Inc. in support of Appellee.

Clifford M. Sloan, Esquire, Donald P. Salzman, Esquire, Breanna L. Peterson, Esquire, Paul M. McLaughlin, Esquire, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, DC, for amicus curiae brief of former State and Federal prosecutors, former State Attorneys General, former Senior Justice Department Officials, and a former Judge in support of Appellee Peter Waine.

Brian M. Saccenti, Esquire, Assistant Public Defender, Office of the Public Defender, Appellate Division, Baltimore, MD, for amicus curiae brief of Maryland Office of the Public Defender in support of Respondent.

Argued before: BARBERA, C.J.,^* HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.

Opinion

BARBERA, C.J.

In May 2012, we decided Unger v. State, 427 Md. 383, 48 A.3d 242 (2012), and denied a motion to reconsider our decision in August of the same year. We granted certiorari to consider the State's request that we overrule what we decided in Unger little more than three years ago. We decline to overrule Unger and return to what once was the law. To hold otherwise would depart from the principles of stare decisis, generate uncertainty, and, ultimately, undermine trust and confidence in the rule of law.

I.

In order to appreciate the legal issues and arguments of the parties, it is useful at the outset to understand what this Court held in Unger. Unger followed a series of cases, Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), and State v. Adams, 406 Md. 240, 958 A.2d 295 (2008), all of which involved the “advisory only” jury instruction prompted by Article 23 of the Maryland Declaration of Rights. Article 23 reads: “In 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.” This Court promulgated Maryland Rule 756b to implement Article 23.¹ The Rule required judges, “in every case in which instructions are given to the jury, [to] instruct the jury that they are the judges of the law and that the court's instructions are advisory only.”

In 1980, this Court considered whether Article 23, as interpreted by prior decisions, ran afoul of the guarantees afforded State criminal defendants by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court in Stevenson construed Article 23 to mean that only those instructions concerning “disputes as to the substantive ‘law of the crime’ ” are advisory; all other instructions to the jury are binding. 289 Md. at 180, 423 A.2d 558. The next year, in Montgomery, the Court reinforced its Stevenson interpretation of Article 23, emphasizing that advisory only instructions are “limited to those instances when the jury is the final arbiter of the law of the crime.” 292 Md. at 89, 437 A.2d 654.

Almost 28 years later, we decided Adams, a postconviction case. We concluded in Adams, essentially consistent with Stevenson and Montgomery, that, under Article 23, the jury's role as judge of the law in a criminal case is limited to disputes relating to the substantive law of the crime and “all other legal issues are for the judge alone to decide.” 406 Md. at 256–59, 958 A.2d 295. Notable for present purposes, we held in Adams that the Stevenson interpretation of Article 23, as reinforced by Montgomery, “did not announce new law.” Id. at 256, 958 A.2d 295. We further held in Adams that trial counsel's failure to object to the advisory only instruction constituted a waiver of Adams's right to challenge the instruction in the subsequent postconviction action. Id. at 266, 958 A.2d 295.

We re-examined our holdings in Adams three and a half years later in Unger. It was clear to the Court that “Stevenson and Adams were wrongly decided.” Unger, 427 Md. at 417, 48 A.3d 242. The Court in Unger overruled “[t]hose portions of the Court's Stevenson, Montgomery, and Adams opinions, holding that the interpretation of Article 23 in Stevenson and Montgomery was not a new State constitutional standard.” Id. We also overruled the waiver holdings in those cases, id., determining that the “failure to object to advisory only jury instructions in criminal trials prior to Stevenson will not constitute a waiver,” id. at 391, 48 A.3d 242. We made those holdings fully retroactive. Id. at 416, 48 A.3d 242. The Unger decision effectively opened the door to postconviction relief for persons tried during the era of the advisory only jury instruction—an opportunity that had been foreclosed by Stevenson, Montgomery, and Adams.

Against this backdrop, we turn to the case before us.

II.

This case arises from the 1976 trial of Respondent, Peter Sutro Waine. Waine was tried before a jury in the Circuit Court for Harford County on two charges of first degree murder and a related larceny. At the close of all the evidence, pursuant to Rule 756b, the judge began his instructions to the jury with the following reference to Article 23 :

Under the Constitution and laws of the State, the jury in a criminal case is the judge of both the law and the facts and anything that I say to you about the law is advisory only. It is intended to help you, but you are at liberty to reject the Court's advice on the law and to arrive at your own independent conclusion on it, if you desire to do so.

The judge concluded his instructions with a reiteration of his opening instruction: “You are not partisans. You are judges, judges of the facts and the law. Your sole interest is to ascertain the truth from the evidence in the case.” Waine's counsel did not object to those instructions. After deliberating for less than three hours, the jury returned guilty verdicts on all counts. The judge imposed consecutive life sentences on the two murder convictions and an additional 14 years, consecutive to the second life sentence, on the larceny conviction.

Waine noted an appeal to the Court of Special Appeals, which, in 1977, affirmed the judgment. Waine v. State, 37 Md.App. 222, 247, 377 A.2d 509 (1977). Waine, representing himself, made initial efforts to seek certiorari review and postconviction relief but, in the end, did not file the petitions.

In 1997, Waine, assisted by counsel, sought postconviction relief for the first time. Waine claimed ineffective assistance of counsel at both the trial and appellate levels, and asserted, among 19 other claims, that the trial judge erred when he gave the advisory only jury instructions. The postconviction court, in denying relief, rejected Waine's claim that the erroneous jury instructions contravened fundamental constitutional rights and ruled that this claim was waived by trial counsel's failure to object to the jury instructions during trial. The Court of Special Appeals denied Waine's application for leave to appeal the denial of postconviction relief.

In September 2007, counsel for Waine filed a motion to reopen the petition for postconviction relief, relying in part on Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir.2000). Jenkins had sought federal habeas corpus relief from his 1975 Maryland conviction. Id. at 681. He argued that the advisory only jury instruction given at trial violated his right to due process by allowing the jury to disregard the State's burden to prove his guilt beyond reasonable doubt. The United States Court of Appeals for the Fourth Circuit agreed with Jenkins.² The Jenkins court recognized the legal question as “whether the jury was effectively given any reasonable doubt instruction at all; for if the jury understood the advisory nature of the instructions as permitting it to ignore the reasonable doubt instruction, then the jury could fashion any standard of proof that it liked.” Id. The court noted that, after In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it was no longer an “open question” that “the jury must be instructed that the Government is required to prove the defendant's guilt ‘beyond a reasonable doubt [.]’ ” Jenkins, 221 F.3d at 684. The Jenkins court held, by application of Winship, that Maryland's advisory only jury instruction violates due process.

Waine's motion to reopen his postconviction proceeding lay dormant until 2012, when the circuit court, citing our recently filed opinion in Unger, granted the motion. The court found, based on Unger, that “it would be in the interest of justice to allow a reopening of the Petitioner's postconviction application in this court ... on only one issue—the alleged erroneous jury instruction advising the jury that they were the judges of the law and the facts.”

Following a hearing, the postconviction court issued a memorandum opinion granting Waine postconviction relief. The court rejected the State's claim of waiver as having been “foreclosed by Unger. ” The court also rejected the State's...