Unger v. State, No. 111

CourtCourt of Special Appeals of Maryland
Writing for the CourtEldridge
Docket NumberNo. 111
Decision Date24 May 2012


No. 111


September Term, 2009
Filed: May 24, 2012

Bell, C. J.
* Murphy
Eldridge, John C. (Retired, Specially Assigned)


Opinion by Eldridge, J.
Harrell and Adkins, JJ., Concur and Dissent.

*Murphy, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision or adoption of this opinion.

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This is an action under the Maryland Uniform Postconviction Procedure Act, now codified as Maryland Code (2001, 2008 Repl. Vol.), § 7-101 et seq. of the Criminal Procedure Article. The action involves the Maryland constitutional provision, Article 23, paragraph one, of the Maryland Declaration of Rights, which provides in mandatory language as follows:

"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."1

Before turning to the facts of the present case, a brief review of a few cases since 1980, dealing with the above-quoted provision, would be helpful.

In Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), the majority opinion of this Court refused to interpret Article 23 in accordance with the plain meaning of its language.2 Instead, the Stevenson opinion construed Article 23 as limiting the jury's

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role of deciding the law to non-constitutional "disputes as to the substantive 'law of the crime,' as well as the 'legal effect of the evidence,'" Stevenson, 289 Md. at 180, 423 A.2d at 565. The Stevenson opinion stated "that all other legal issues are for the judge alone to decide." 289 Md. at 179, 423 A.2d at 565. Furthermore, the majority in Stevenson held that its construction of Article 23 was not a new interpretation of the provision and that "this Court has consistently interpreted this constitutional provision as restraining the jury's law deciding power to this limited . . . area." 289 Md. at 178, 423 A.2d at 564. Finally, the majority in Stevenson, 289 Md. at 181-188, 423 A.2d at 566-570, held that Article 23, as interpreted by the majority, did not on its face violate the Constitution of the United States.3

The Stevenson interpretation of Article 23 was reaffirmed in Montgomery v. State, 292 Md. 84, 89, 437 A.2d 654, 657 (1981), where the majority of the Court held that the jury's role as judge of the law

"is limited to those instances when the jury is the final arbiter of the law of the crime. Such instances arise when . . . [there is] a dispute as to the proper interpretation of the law of the crime for which there is a sound basis." (Emphasis in original).

In Montgomery, the trial judge had instructed the jury that "all" of his instructions

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were advisory. This included instructions on the burden of proof in criminal cases, the requirement that the State prove guilt beyond a reasonable doubt, and the presumption that the defendant is innocent. This Court held in Montgomery that such instructions did not concern the "law of the crime" and that, therefore, they were binding upon the jury. We ordered a reversal of Montgomery's conviction and directed a new trial.

Several years after the Stevenson and Montgomery decisions, the United States Court of Appeals for the Fourth Circuit in a habeas corpus case, Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir. 2000), held that the state trial judge at Jenkins's criminal trial, by telling the jury that all of the judge's instructions were advisory, and particularly the proof beyond a reasonable doubt instruction, violated the defendant's right to due process under the Fourteenth Amendment. The Fourth Circuit also held that, under the circumstances, Jenkins's failure at his criminal trial to object to the advisory nature of the jury instructions did not constitute a waiver of the due process issue.

More recently, the majority of this Court in State v. Adams, 406 Md. 240, 256, 958 A.2d 295, 305 (2008), cert. denied, 556 U.S. 1133, 129 S.Ct. 1624, 173 L.Ed.2d 1005 (2009), a postconviction action, reiterated that, under Article 23, the jury's role as judge of the law in a criminal case is confined "to the law of the crime" and that "all other legal issues are for the judge alone to decide." (Internal quotation marks omitted). The majority in Adams also stated that the Stevenson interpretation of Article 23 "did not announce new law." Ibid. In addition, the Adams majority held that defense counsel's failure to object to the advisory nature of the jury instructions at Adams's criminal trial amounted to a waiver precluding a Fourteenth Amendment

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challenge to the instructions in the postconviction case.

Article 23, of the Maryland Declaration of Rights, as well this Court's opinions in Stevenson, Montgomery, and Adams, furnish the background for the issues that have been raised at various stages in the present case. Moreover, some of the issues in this case implicate the holding in Stevenson, reaffirmed in Montgomery and Adams, that the Stevenson interpretation of Article 23 did not set forth a new constitutional standard.

The issue of whether the Stevenson and Montgomery interpretation of Article 23 delineated a new constitutional standard is important in, inter alia, a postconviction case where the criminal trial occurred prior to the Stevenson opinion, where the judge at that trial instructed the jury generally that the judge's instructions on the law were advisory and not binding, and where the defendant did not object to the advisory nature of the judge's instructions. The "failure to object to a jury instruction ordinarily constitutes a waiver of any later claim that the instruction was erroneous," Walker v. State, 343 Md. 629, 645, 684 A.2d 429, 436 (1996), and cases there cited. Nevertheless, in cases governed by the waiver provisions of the Postconviction Procedure Act, § 7-106(c)(2) of that Act provides as follows:

"(c) Effect of judicial decision that Constitution imposes new standard. - (1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived.
"(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:

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(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and
(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence."

In postconviction actions where the waiver provisions of the Postconviction Procedure Act are inapplicable, as well as in direct appeals from criminal convictions, our decisions have adopted and applied a principle similar to that embodied in § 7-106(c)(2). Numerous cases in this Court have held that the failure to raise an issue at trial was not a waiver of the issue when there was a relevant post-trial United States Supreme Court or Maryland Court of Appeals ruling changing the applicable legal standard. Many of these cases are collected and discussed in State v. Adams, supra, 406 Md. at 308-311, 958 A.2d at 336-338 (dissenting opinion). See also, e.g., Franklin v. State, 319 Md. 116, 122-123, 571 A.2d 1208, 1210-1211 (1990); State v. Colvin, 314 Md. 1, 25, 548 A.2d 506, 517-518 (1988); State v. Evans, 278 Md. 197, 211, 362 A.2d 629, 637 (1976).4

In the case at bar, in Part V of this opinion, we shall hold that the Stevenson and Montgomery opinions substantially changed the state constitutional standard embodied in Article 23. Accordingly, failure to object to advisory only jury instructions in

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criminal trials prior to Stevenson will not constitute a waiver.


In July 1976, the petitioner Merle Unger was indicted in the Circuit Court for Washington County on one count of felony murder, one count of armed robbery, and two counts of using a handgun in the commission of a felony. The charges were based upon the armed robbery of a store in Hagerstown, Maryland. During the robber's escape, he was pursued by an officer of the Hagerstown Police Force. While pursuing the robber, the officer was shot and later died in a hospital. The case was removed to the Circuit Court for Talbot County, and was tried before a jury from November 22, 1976, through November 24, 1976.

After the jury was selected at Unger's trial, the trial judge began to give the jury instructions, stating (emphasis added):

"Now, Mr. Foreman, and Ladies and Gentlemen of the Jury, it is now the duty of the Court to instruct you on the law applicable generally to criminal cases. Under the Constitution of Maryland, the jury in a criminal case is the Judge of the Law as well as the facts. Therefore, anything which I may say about the law, including any instructions which I may give you, is merely advisory and you are not in any way bound by it. You may feel free to reject my advice on the law and to arrive at your own independent conclusions."

After the above-quoted instruction, the courtroom clerk realized that the jury had not been sworn, so the trial judge...

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