Bryant v. State

HARRELL, Judge. Appellant, Cortney Bryant, was convicted by a jury in the Circuit Court for Baltimore County of first-degree premeditated murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon. He elected a court sentencing proceeding. Death was the sentence.

In so doing, the court found: (1) beyond a reasonable doubt that Bryant was a principal in the first degree to the murder; (2) beyond a reasonable doubt the aggravating circumstance that Bryant committed the murder while attempting to commit a robbery; and, (3) by a preponderance of the evidence the mitigating circumstances that (i) Bryant previously had not been found guilty of a crime of violence and (ii) that his actions were not the sole proximate cause of the victim’s death. The non-constitutional issues raised in this appeal regarding the establishment, consideration, and balancing of aggravating and mitigating factors at sentencing, and specifically the asserted, but rejected, mitigating factor of youthful age, are the ⁵⁹⁰ only issues we need address as their disposition renders it unnecessary for us to reach the remaining issues. We conclude that, although the trial judge properly recognized or rejected many of the offered mitigating factors, he erred by not finding by a preponderance of the evidence that youthful age was a mitigating circumstance and, consequently, his ultimate weighing of the aggravating versus the mitigating factors was inadequate. A new sentencing proceeding, therefore, is required.

I. A. THE CRIMES On the night of 23 December 2000, twenty-one year old James Stambaugh was working as night manager at the Burger King restaurant on York Road in Hunt Valley. Following standard procedures, the restaurant’s doors were locked at 10 p.m. and the night staff, Stambaugh, William Jones, and Denard Carver, began cleaning the restaurant. As he was performing his cleaning tasks, Carver received a telephone call from Bryant, a former employee of the restaurant who had been fired the previous month, asking to speak to Jones. Carver suspected what was to follow and promptly left the restaurant. 1 Shortly after Carver left, Bryant, Andre Lawson, and Breon English, 2 entered the restaurant through the door opened for them by Jones.

Bryant carried a blue duffle bag containing a roll of tape and other miscellany. ⁵⁹¹ Although the plan was to surprise Stambaugh, tape his hands and eyes, and put him in the back office while Bryant, Lawson, and English took the money, as the three crept around a counter inside the restaurant, one of them knocked over a broom, prematurely alerting Stambaugh to their presence. At trial, English testified that Bryant and Lawson then struggled with Stambaugh in the restaurant’s office. The fight continued outside the restaurant to an area near the trash dumpsters. Lawson and Bryant repeatedly struck Stambaugh with a heavy metal door stopper and an oil shuttle. 3 Bryant removed from Stambaugh’s pocket the keys to his car and began to walk away.

Lawson and English pointed out that Stambaugh was still moving. Bryant returned to Stambaugh and hit him on the head again, commenting that if Stambaugh was not killed he would be able to identify Bryant because Stambaugh knew him from his prior employment at the restaurant. Only when Stambaugh stopped moving did the three flee the scene in Stambaugh’s car. When the day manager arrived the next morning, he found that the alarm was not on and that there were signs of ransacking.

He called the police. The investigating police officer discovered Stambaugh’s body by the dumpsters where he had died from the blood loss resulting from injuries suffered during the beating inflicted by Lawson and Bryant. The day manager also found approximately $2800.00 missing from the restaurant. B. THE TRIAL Bryant’s trial commenced on 4 December 2001 before a jury in the Circuit Court for Baltimore County, the State having notified him previously that it would seek the death penalty.

On 11 December 2001, the jury convicted Bryant of first-degree premeditated murder, robbery with a deadly weapon, ⁵⁹² and conspiracy to commit robbery with a deadly weapon. Bryant elected a court sentencing proceeding which commenced on 31 January 2002. At sentencing, the defense called several witnesses. Dr. Randall Nero, the Associate Director of Behavioral Sciences at the Patuxent Institution, and Dr. Robert Johnson, an expert- in the field of social psychology of prison life and adjustment, testified as to the type of treatments available for young inmates in the Division of Correction and the way in which inmates with life sentences typically adjust to incarceration.

Dr. Johnson opined that, based on Bryant’s institutional adjustment to that point in time, Bryant was not likely to engage in criminal activities in jail nor was he likely to constitute a threat to prison society. The defense presented other witnesses who described Bryant’s childhood, an upbringing allegedly fraught with physical and sexual abuse. Dr. Janice Stevenson, a licensed psychologist, concluded after evaluating Bryant that he suffered from chronic and severe post traumatic stress disorder as a result of the traumatic events of his childhood. 4 Dena Leibowitz, an expert in substance abuse and addictions, concluded after evaluating Bryant that he met the criteria for alcohol dependence and cannabis and cocaine abuse. At the conclusion of the sentencing phase, the judge found that Bryant and Lawson were joint and concurrent principals in the first degree to murder and that the State had proven beyond a reasonable doubt a single statutory aggravating circumstance — that Bryant committed the murder while committing a robbery.

See Maryland Code (1957, 1996 Repl.Vol.), ⁵⁹³ Article 27, § 413(d)(10). 5 The court then considered whether ⁵⁹⁵ there were any mitigating circumstances, in accordance with Art. 27, § 413(g). Based on the parties’ stipulation that Biyant had no prior conviction for a crime of violence, the court found by a preponderance of the evidence that statutory mitigating circumstance existed. The defense urged the court to find three other statutory mitigating circumstances: the youthful age of the defendant at the time of the crime, the act of the defendant was not the sole proximate cause of the victim’s death, and the unlikelihood that the defendant would engage in future criminal activity that would constitute a continuing threat to society. Art. 27, § 413(g)(5), (6), and (7).

The court found by a preponderance of the evidence that Biyant was not the sole proximate cause of Stambaugh’s death, but rejected youthful age and lack of future dangerousness. The sentencing judge’s explanation of his determinations as to the asserted mitigators was as follows: As the Court indicated in its prior ruling, the Court has found that the Defendant is a principal in the first degree .... Therefore, the Court then goes to the aggravating circumstances and the Court does find that it has been proved beyond a reasonable doubt, Aggravating Circumstance No. 10, the Defendant committed the murder while committing or attempting to commit armed carjacking, ... Then in Section Four, the mitigating circumstances, the Court does find that Defendant has not previously been found guilty of a crime of violence.

So, the Court finds, by a preponderance of the evidence, that the above circumstances exist. The next is No. 5, whether or not the Defendant was a youthful age at the time of the crime. Case law states that this is not a pure chronological age approach and that the Court must evaluate other factors in determining whether or not a defendant is of a youthful age. The Court has defined those factors as, which would include prior criminal ⁵⁹⁶ conduct — the Defendant’s home environment, his marital status, degree of maturity, alcohol and drug abuse, among other factors relative to the concept of youthful age.

On the evidence that the Defendant, in his home environment as of age 16, he dropped out of school, he came and went as he pleased. It appears, as to his marital status, he had a live-in girlfriend. There has been some testimony of his alcohol and drug abuse. However, it’s no testimony that his alcohol and drug abuse had an impact on what happened on the day of this particular crime.

His degree of maturity. In this particular case, the Court finds that he was the mastermind of this particular crime. He knew that he needed other cohorts, that he needed an inside man to open the door. He approached one young man and that man declined the invitation to be involved.

He then approached a second, who agreed. He also needed a lookout. So he had Breon English along for that. And he needed another strong-arm man, so he had Andre Lawson.

That showed to me his degree of maturity, not only this particular crime, but also in life, itself.... The Court finds, because of the factors outlined, that he is not of a youthful age. No. 6 that the Defendant was not the sole proximate cause of the victim’s death. The court finds, by preponderance of the evidence, that the above circumstance does exist, but' its existence has a de minimis impact on the Court’s decision.

And that is because although he was not the sole proximate cause of Mr. Stambaugh’s death, as the Court indicated, he was a joint and concurring cause and his hand, as well as Mr. Lawson’s hand, wielded the blows that killed Mr. Stambaugh. So that factor does exist. The next factor is No. 7, whether or not it was unlikely that Defendant would engage in further criminal activity that would constitute a continuing threat to society. Now, the testimony of Dr. Johnson tried to make society penal society.

But that’s not what the statute says. And the statute is written that persons that are charged under this particular statute are going to get either three penalties— ⁵⁹⁷ either life, life with the possibility of parole, life without the possibility of parole — or death. And if the statute meant that the Court was to look to penal society to make a determination as to whether or not he was going to be a threat to penal society only, then it would say so. But the question is whether or not, if, once he got out, he would be a threat then, as well as penal society.

And I don’t think that the defense in this case has met their production and therefore the Court does not find that circumstance exists. The Defense has asked this Court to find nonstatutory circumstances, whether or not he’s amenable to treatment, was amenable to rehabilitation, and they have alleged and testimony has been taken, that he is suffering from post-traumatic stress syndrome and that with treatment he could overcome that. But in this particular case it appears that the post-traumatic stress syndrome would have made him frightened, that he would be afraid, and that he was afraid of his codefendants in this case. But he was not afraid of his codefendants in this case, because he was the leader of the codefendants in this case.

And if anybody was afraid, it would have been Will and Breon. And, so, to establish that his amenability to treatment is contrary to the facts as I know in this case and I find in this case — so, I decline to find that as a factor. No prior criminal record. Well, I think the statute has laid out that the question is whether or not he has a prior conviction of a crime of violence.

And then many of those who are eighteen years of age would not have any prior criminal record. But he does have a juvenile record, even though it’s de minimis. So I don’t believe that as the statute is written, that no prior criminal record is something that is a mitigating circumstance in this particular case. Much of what the Defense is asking me to find in terms of nonstatutory circumstances are part of the statute that makes up our death penalty laws, and that includes the disparate prosecution of Defendant and codefendant.

Well, a statute says that if one is 18 years of age, then they fall under Article 27, Section 413. And if one is below that age, ⁵⁹⁸ then he does not or she does not. That’s the statutory construction to which I am bound. The same with the Sentencing Guidelines.

The Sentencing Guidelines don’t apply to Article 27, Section 413 — the proportionality of the sentence. It’s the same thing. Those who are under 18 can only be sentenced to a particular sentence. Those over 18 can be sentenced to more.

That’s what the General Assembly has decided is the law of this State, and to that I am bound. And so the only factor of significance — because, as the Court has indicated, that the factor of sole proximate cause is de minimis, and the Court has explained why it feels that way — that the only factor to be weighed is No. 1, and that is that you have not previously been found guilty of a crime of violence. And under the statute, if the State has proven by a preponderance of the evidence that the aggravating circumstances marked proven in Section Three outweigh the mitigating circumstances, then the sentence is death. And it’s a matter of 51 percent, and that is the only factor that the Court feels can be weighed in your favor and the Court does not feel that it reached that level.

The court returned a sentence of death as to first-degree premeditated murder, and imposed consecutive twenty-year sentences of imprisonment as to each of the other two convictions. The court stayed the death sentence pending appellate review. This case is before us pursuant to Art. 27, § 414 6 and ⁵⁹⁹ Maryland Rule 8-306(c)(1). 7 ⁶⁰⁰ II. A. THE ISSUES Appellant presents eight questions for our consideration; however, we find that one of the first three questions alone disposes of the appeal and therefore decline to address the remaining ones.

We address the following questions, although two we do so solely to aid the court and the parties at the new sentencing: I. Did the lower court properly weigh aggravating and mitigating circumstances?

II

Did the lower court apply the correct legal standard in assessing mitigating circumstances?

III

Did the lower court err in failing to find youthful age at the time of the crime as a mitigating circumstance? 8 ⁶⁰¹ B. THE ARGUMENTS Bryant argues initially that the circuit court committed three particular errors during the actual weighing process in which it engaged: first, the trial judge reversed the burden of proof; second, the court was inappropriately mechanistic in reaching its judgment; and finally, the court entirely failed to weigh one of the mitigating circumstances it found to exist. The court expressed its weighing of the aggravating circumstance against the mitigating circumstances as follows: And so the only factor of significance — because, as the Court has indicated, that the factor of sole proximate cause is de minimis, and the Court has explained why it feels that way — that the only factor to be weighed is No. 1, and that is that you have not previously been found guilty of a crime of violence. And under the statute, if the State has proven by a preponderance of the evidence that the aggravating circumstances marked proven in Section Three outweigh the mitigating circumstances, then the sentence is death. And it’s a matter of 51 percent, and that is the only factor that the Court feels that it reached that, that level.

Bryant alleges that by requiring the mitigating circumstances to rise to the level of 51% in order to outweigh the aggravating circumstance, the court effectively reallocated the burden of proof from the prosecution to the defense. Section 418(h) establishes that it is the State’s burden to prove that the aggravating circumstances outweigh the mitigating circumstances. See Scott v. State, 310 Md. 277 , 529 A.2d 340 (1987). Bryant contends that the trial judge’s statement, that Appellant had not satisfied the court that mitigating circumstances rose to the level of 51%, was a “gross distortion” of the statutory standard to his prejudice.

See Maziarz v. State, 302 Md. 1, 6 , 485 A.2d 245, 247 (1984) (finding that the standard applied by the trial court, that “death is said to be ‘mandated’ unless the mitigating circumstances are ‘overwhelming’ ... grossly distorts the statute to prejudice the accused”). ⁶⁰² Bryant further insists that the court’s use of the 51% figure in weighing the aggravating and mitigating factors represents a kind of mechanistic counting criticized by this Court in Jones v. State, 310 Md. 569, 600-01 , 530 A.2d 743, 758-59 (1987), vacated on other grounds, 486 U.S. 1050, 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988). The jury in that capital sentencing proceeding found two aggravating circumstances, but no mitigating circumstances. 310 Md. at 600, 530 A.2d at 758 . Pursuant to directions on the verdict sheet suggesting that it was not necessary to engage in the weighing process unless both aggravating circumstances and mitigating circumstances were found to exist, the jury in Jones imposed the death sentence. Id.

Although Jones argued that, based on the statutory sentencing scheme and the court’s instructions, the death sentence imposed on him was unconstitutionally made mandatory, we observed that the trial judge’s instructions to the jury admonished them against “mechanically tabulating the aggravating versus the mitigating factors; any confusion that may possibly have arisen was thereby cured.” Jones, 310 Md. at 600-01 , 530 A.2d at 758-59 . Bryant argues here that he was entitled to a reflective and thoughtful balancing of aggravating and mitigating circumstances, rather than a mechanical tabulation. Bryant also faults the trial judge for failing to give any weight to the mitigating factor that he was not the sole proximate cause of Stambaugh’s death and therefore argues that he is entitled, on that' basis alone, to a new sentencing hearing. The State retorts that Bryant bases his contentions on a misreading of the sentencing court’s statements, pertinently noting our description of the balancing process in Foster v. State, 304 Md. 439, 477-78 , 499 A.2d 1236, 1255 (1985), cert denied, 464 U.S. 1073 , 104 S.Ct. 985 , 79 L.Ed.2d 221 (1984): “[t]he ‘preponderance of the evidence’ test is normal when a court is weighing one set of circumstances against another.

Ordinarily in such a balancing process, a court simply determines which side outweighs the other, without being concerned with how much or how clearly one side may outweigh ⁶⁰³ the other.” The State claims that the sentencing judge considered the aggravating circumstance and the proven mitigating factors and properly engaged in a weighing process to reach his conclusion. The State notes that the court clearly articulated that the State had the burden of proof in the weighing process. The court’s remark regarding the statutory mitigating factors, in the State’s view, referred to the defense’s burden of establishing mitigating factors, and did not assume that the defense had any burden in the weighing process. Likewise, the State contends that the 51% reference did not signal that the judge engaged in a mere mathematical or mechanical weighing process, but rather was nothing more than a nod in the direction of the slight tilt necessary to establish a factor by a preponderance of the evidence.

See Baker v. State, 367 Md. 648, 693 , 790 A.2d 629, 656 (2002) (stating that “ ‘[.ojutweighing’ begins when a balance is ‘tipped,’ however slightly”), cert denied, 535 U.S. 1050 , 122 S.Ct. 1814 , 152 L.Ed.2d 817 (2002). The State suggests that the sentencing judge’s comments more accurately should be interpreted to mean that the one mitigator that was significant, that Bryant had not previously been convicted of a crime of violence, was not enough to tip the scales even slightly in his favor. A full reading of the court’s explanation of its findings on the verdict sheet, the State contends, demonstrates a reflective and thoughtful balancing of mitigating and aggravating factors. The State additionally faults Bryant’s reliance on Maziarz and Jones.

C. Bryant’s second claim is that the lower court did not apply the correct legal standard in its analysis of the asserted statutory mitigating circumstance of the likelihood that the defendant will engage in further criminal activity that would constitute a continuing threat to society 9 and the asserted ⁶⁰⁴ non-statutory mitigating circumstances of: (1) the disproportionate sentences of appellant and his codefendant Lawson; (2) Bryant’s lack of a prior criminal record; and (3) Bryant’s drug abuse and post-traumatic stress disorder. Bryant asserts generally that the Supreme Court has held that the Eighth Amendment requires consideration of all statutory and non-statutory mitigating factors when considering a sentence of death. See Hitchcock v. Dugger, 481 U.S. 393, 394 , 107 S.Ct. 1821, 1822 , 95 L.Ed.2d 347, 350 (1987) (finding that the sentencing court’s failure to consider non-statutory mitigating circumstances required reversal of the death sentence and remand for new sentencing proceedings); Skipper v. South Carolina, 476 U.S. 1, 4 , 106 S.Ct. 1669, 1671 , 90 L.Ed.2d 1, 6-7 (1986) (remanding for new sentencing where the sentencing judge refused to consider good behavior in jail as relevant evidence mitigating punishment); Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869, 874 , 71 L.Ed.2d 1, 8 (1982) (holding that the sentencing judge’s refusal to consider appellant’s abusive childhood was error requiring remand for a new sentencing hearing). To support establishment of the statutory mitigator that it is unlikely Bryant will engage in further criminal activity constituting a threat to society, Bryant offered testimony at sentencing by Dr. Nero about the Patuxent Institution’s Youth Program which helps participants “adjust more effectively to the stresses of incarceration.” 10 Dr. Johnson, an expert in penology and the social psychology of prison life and adjustment, testified that inmates serving life or life without parole sentences are less of a danger to others in the prison community than inmates serving shorter terms.

Dr. Johnson concluded that Bryant so far had adjusted to prison life well, was ⁶⁰⁵ amenable to rehabilitation due to his youth, and would not likely constitute a threat within prison society based on reasons personal to Bryant and on the general peaceableness of inmates serving life sentences. The sentencing court concluded that the defense had not met its burden of production and therefore the mitigating circumstance that it is unlikely that Bryant would engage in further criminal activity that would constitute a continuing threat to society did not exist on this record. The judge reasoned that the plain language of the statute requires evaluation of the potential threat a defendant would pose to society as a whole. The testimony Bryant offered addressed only whether he would be a threat to prison society.

The court found this to be limited inappropriately because the other potential sentences Bryant could receive, in lieu of the death sentence, were life with the possibility of parole or life without the possibility of parole. Only one of the alternatives would require Bryant actually to spend the rest of his life as an inmate. Bryant alleges that, when deciding between death and life without parole, the relevant society to consider for the purposes of this particular mitigator is the inmate society. He contends that any threat of future dangerousness is greatly decreased if the court considered the sentence of life without parole and the failure to consider this option was erroneous.

He supports this argument with two Supreme Court cases, Kelly v. South Carolina, 534 U.S. 246 , 122 S.Ct. 726 , 151 L.Ed.2d 670 . 534 U.S. 246 , 122 S.Ct. 726 , 151 L.Ed.2d 670 (2002), and Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994); and two Maryland cases, Bruce v. State, 318 Md. 706 , 569 A.2d 1254 (1990), cert denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993), and Doering v. State, 313 Md. 384 , 545 A.2d 1281 (1988). He argues that these cases collectively stand for the proposition that, when the court has the option to sentence a defendant to life without the possibility of parole, a fair evaluation of the defendant’s future dangerousness requires the court to consid ⁶⁰⁶ er the defendant’s risk to the prison population, not his risk to society at large. The State replies that Bryant misread the record in concluding that the court inappropriately refused to consider this proffered mitigating circumstance. The State, peering at the sentencing judge’s remarks through a different facet of the linguistic prism, offers an alternative interpretation — that the court found that Bryant, by addressing strictly the potential of his future dangerousriess to the prison society, said nothing about any other segment of society and therefore did not establish that he would not constitute a continuing threat to society as a whole.

The State further argues that Bryant incorrectly limited his assessment of the relevant society to be that within prison walls. There were three options available to the court during sentencing, including life without parole, and therefore the court had to consider whether there was any evidence that Bryant would be a threat to society either in or outside of the penal system. By stressing the low risk of future dangerousness to the prison community, Bryant’s arguments only addressed one of the three sentencing options, that of life without parole. 11 The State concludes that the sentencing court did not hold that parole eligibility was not a proper consideration in assessing whether Bryant posed a threat to society, but rather found that what the defense presented did not fully address the future dangerousness issue to the extent that the court must recognize it as a proven statutory mitigator. In any event, it was within the court’s discretion, says the State, to give as little or as much weight as it deemed appropriate to the evidence presented relative to Bryant not being a threat in a prison, whether viewed as a statutory or non-statutory mitigator.

Bryant next contends that the trial court improperly established limitations on the non-statutory mitigating circum ⁶⁰⁷ stances that may be considered, pursuant to Art. 27, § 413(g)(8) which provided that the court “shall consider” whether there are “(a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.” Any non-statutory mitigating factors tendered by a defendant, therefore, should be weighed against the aggravating factor(s). Bryant alleges that the sentencing court erred by not considering as a mitigating circumstance that Andre Lawson was not exposed to the sentence of death to which Bryant was vulnerable, although they were found to be joint principals in the first degree. Even though Art. 27, § 412(g) provided for different treatment of offenders under eighteen years of age, 12 Bryant contends that the judge was incorrect to conclude that the law precluded him from considering the disproportionate sentences that may result when a sixteen year old and an eighteen year old commit a crime together and are equally culpable. The sentencing judge also found that Bryant’s lack of a prior criminal record was not a mitigating circumstance pursuant to Art. 27, § 413(g)(1).

Bryant contends that it was prejudicial error for the court not to consider his lack of a prior criminal record and de minimis juvenile record as non-statutory mitigating circumstances because, although § 413(g)(1) applies specifically to a prior conviction for a crime of violence, Bryant also argued lack of a prior criminal record which is not covered by that provision of the statute. According to Bryant, the sentencing court also erred in failing to find his substance abuse and post-traumatic stress disorder to be mitigating circumstances. The court based its refusal to consider these two factors on the reasoning that there was no evidence that either of them affected Bryant at ⁶⁰⁸ the time he committed the crime. This is an erroneous standard to apply, Bryant argues, because the sentencing body is instructed to consider any fact relating to the offender which makes the death sentence less appropriate.

There is no requirement, Bryant asserts, that mitigating circumstances have a direct causal or temporal relation to the crime. In sum, Bryant urges us to find that the lower court erroneously construed the enumerated statutory mitigating circumstances as limiting or constraining the catchall non-statutory circumstances provided for -by § 413(g)(8). The court’s construction was incorrect as a matter of statutory interpretation and because it violated the Eighth Amendment. Regarding the disproportionate “cap” on sentencing options as between Bryant and Lawson, the State contends that the sentencing judge properly recognized that the disparity was a result of the fact that Lawson was under the age of eighteen at the time the crime was committed and the maximum sentence for him by statute was life without parole.

The disparity therefore was not relevant in determining the appropriate sentence for Bryant. The court, the State continues, did not preclude the lack of a prior criminal record from consideration as a mitigating factor. The court considered the absence of an adult record, and noted the existence of a relatively minor juvenile record, but concluded that the lack of an adult criminal record. did not amount to a mitigating factor under the particular facts of this case. Bryant had turned eighteen only a few months before committing the crimes which are the subject of this case and it was therefore not of particular significance that he otherwise did not have an adult record at that point.

The State also argues that the sentencing court did consider the. evidence offered to demonstrate Bryant’s drug use and alleged post-traumatic stress disorder. After such consideration, however, the court found that drug use would not be recognized as a mitigating factor because there was no evidence of drug use at the time of the crime. The court was also within its discretion, according to the State, to discount ⁶⁰⁹ the opinion evidence that Bryant suffered from post-traumatic stress disorder. D. Bryant volleys that the lower court erred in failing to find youthful age at the time of the crime to be a mitigating circumstance.

The death penalty may not be imposed on a person under eighteen years of age at the time he or she commits the crime. § 412(g). Bryant postulates that the eighteen years of age limit establishes a “floor” below which the death penalty cannot be imposed. Given that he was only eighteen years and five months old at the time of the crime, Biyant maintains that he is entitled to a finding that youthful age was a mitigating circumstance as a matter of law. Relying on Johnson v. State, 348 Md. 337 , 703 A.2d 1267 (1998), which explained that factors other than chronological age may be considered by the sentencing body when making a youthful age determination, Bryant argues that his chronological age, along with other factors, required the sentencing court to consider the youthful age mitigating circumstance when considering the death sentence in this case.

He also argues that because the Legislature used the word “age” in the statute it clearly intended that a defendant who is young in chronological years be given the benefit of the mitigating circumstance. He claims that the use of the word “age” indicates that chronological age should be the most significant factor in the youthful age analysis. Although claiming that he should receive the benefit of our reasoning in Johnson , Bryant alternatively asserts that the Legislature did not intend for the other considerations to negate chronological age as the dominant influence in the analysis. Bryant faults the sentencing court for failing to accord his age any weight in mitigation by simply finding that he was not of “youthful age.” His chronological age and troubled home life ought to have been given great weight.

The physical abuse he suffered as a child, lack of a father figure, sexual abuse by his caretakers, and failure to complete ⁶¹⁰ high school were all factors that should be taken into consideration in mitigating the punishment. Furthermore, Bryant asserts that his immaturity was demonstrated by the fact that he refused to attend high school regularly, was cast out of his mother’s home for failure to observe her rules, he had no financial assets, and he was fired from Burger Kang for repeatedly failing to show up for work or explain his absences. He claims that this evidence demonstrated that he lacked the “experience, perspective and judgment” expected of adults. Eddings, 455 U.S. at 116 , 102 S.Ct. at 877 , 71 L.Ed.2d at 12 .

Instead, the court concluded, based on the circumstances of the crime, that Bryant, as the mastermind of the crime, was sufficiently mature so that youthful age was not a mitigating circumstance in his case. Bryant postulates that even with application of the proper standard of review, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational sentencing authority could have concluded that the accused failed to prove the claimed mitigating circumstance by a preponderance of the evidence,” Johnson, 348 Md. at 354 , 703 A.2d at 1276 , this Court should conclude that the sentencing court erred by refusing to weigh this evidence against the aggravating circumstance. Bryant concludes that, under the Maryland statute and the Eighth Amendment, the court erred by failing to weigh in mitigation the undisputed fact that Bryant was barely eighteen years old at the time of the crime and in ignoring probative evidence relating to his home life and level of maturity. The State ripostes that the sentencing court properly considered the youthful age evidence to conclude that it should not be a -mitigating circumstance in this case.

The State observes that there is nothing in the statute or its history to indicate that the Legislature ever considered circumstances where the youthful age mitigator would apply to an eighteen year old as a matter of law. Additionally, the State points out that this Court has held that “youthful age” means more than chronological age. Ware v. State, 360 Md. 650, 694 , 759 A.2d 764, 787 (2000) (stating that “[i]t is well settled in Maryland that youthful age as used in this statute includes consider ⁶¹¹ ations other than mere chronological age”), cert denied, 531 U.S. 1115 , 121 S.Ct. 864 , 148 L.Ed.2d 776 (2001).

III

OUR ANALYSIS A. Article 27, § 414(e)(8) requires us to determine, when reviewing the imposition of a death sentence, “[w]hether the evidence supports ... the finding that the aggravating circumstances outweigh the mitigating circumstances.” When reviewing the trial judge’s evaluation of mitigating circumstances, the appropriate standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational sentencing authority could have concluded that the accused failed to prove the claimed mitigating circumstance by a preponderance of the evidence.” Stebbing v. State, 299 Md. 331, 362 , 473 A.2d 903, 918 (1984), cert denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984). The preponderance of the evidence test simply requires the trier of fact to “determine[ ] which side outweighs the other, without being concerned with how much or how clearly one side may outweigh the other.” Foster, 304 Md. at 477 , 499 A.2d at 1255-56 . The appropriateness of a death sentence may not be considered by the sentencing authority unless the State has established the existence of one or more statutory aggravating factors beyond a reasonable doubt. Baker, 367 Md. at 677 , 790 A.2d at 646 .

If the State meets its burden of production and “the court or jury finds, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall then consider whether, based upon a preponderance of the evidence, any of the following mitigating circumstances exist.” Art. 27, § 413(g). The defense bears the burden of establishing the existence of mitigating circumstances by a preponderance of the evidence. Stebbing, 299 Md. at 361 , 473 A.2d at 918 . Mitigating factors pursuant to § 413(g)(8) are found ⁶¹² when “the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that death may not be appropriate.” Harris v. State, 312 Md. 225, 252 , 539 A.2d 637, 650 (1988).

If mitigating circumstances are established, then the court or jury “shall determine whether, by a preponderance of the evidence, the aggravating circumstances outweigh the mitigating circumstances.” The Supreme Court has cautioned the sentencing body that once mitigating circumstances are established, it “may determine the weight to be given relevant mitigating evidence,” but “may not give it no weight by excluding it from [its] consideration.” Eddings, 455 U.S. at 115 , 102 S.Ct. at 876-77 , 71 L.Ed.2d at 11 . The weighing process is to take into account the gravity of the aggravating and mitigating circumstances and is not to be a mere numerical tally of whether there are more aggravating factors than mitigating factors. Miles v. State, 365 Md. 488, 561 , 781 A.2d 787, 829 (2001), cert denied, 534 U.S. 1163 , 122 S.Ct. 1175 , 152 L.Ed.2d 118 (2002). See, e.g., Thanos v. State, 330 Md. 77, 83 , 622 A.2d 727, 729-30 (1993) (affirming the imposition of a death sentence where the trial court found the existence of a single statutory aggravating factor outweighed six mitigating circumstances).

The State shoulders the burden of showing that the aggravating circumstances outweigh the mitigating factors. White v. State, 322 Md. 738, 746 , 589 A.2d 969, 973 (1991). The weighing process does not require that the mitigating circumstances outweigh the aggravating factors in order to avoid the death sentence; however, if mitigating circumstances exist, the statute contemplates imposition of the sentence of death only when the aggravating circumstances outweigh the mitigating circumstances. § 413(h)(2) and (3). Miles, 365 Md. at 549 , 781 A.2d at 822-23 .

See Maziarz, 302 Md. at 5-6 , 485 A.2d at 247 (holding that the trial court’s instruction to the jury, that death is mandated unless the mitigating circumstances are overwhelming, was a gross distortion of the statute mandating that the death sentence be vacated and remanded for new sentencing proceedings); White, 322 Md. at 747 , 589 A.2d at 973 (following Maziarz by ⁶¹³ holding that the trial judge, by stating “the question then becomes one of whether the mitigating circumstances and factors outweigh the aggravating circumstances,” engaged in an improper weighing process and therefore the death sentence had to be reversed and remanded for new sentencing proceedings). If the competing factors are in equipóse, then the death sentence also may not be imposed. See § 413(h)(3) (“[i]f it finds that the aggravating circumstances do not outweigh the mitigating circumstances, a sentence of death may not be imposed”) (emphasis added); Woodson v. State, 325 Md. 251, 268 , 600 A.2d 420, 428 (1992) (reiterating that the penalty can not be death if the weight of the aggravating circumstances is equal to the weight of the mitigating circumstances). See also Foster, 304 Md. at 478-79 , 499 A.2d at 1256 (finding that because the State has the burden of persuasion, the death sentence may not be imposed when aggravating and mitigating factors are balanced evenly).

There is no indication in the record of the sentencing proceeding in the present case that supports Bryant’s complaint that the judge improperly reversed the burden of proof. The only burden assigned the defense was that of establishing the existence of mitigating circumstances by a preponderance of the evidence. The record clearly indicates that the State fully bore the burden of establishing the aggravating circumstance beyond a reasonable doubt and retained the burden of convincing the sentencing body that the aggravating circumstance outweighed the mitigating circumstances by a preponderance of the evidence. Bryant’s objection to the manner in which the sentencing judge expressed his weighing of the aggravating and mitigating circumstances is unavailing.

The crux of his argument is that by using the words “51 percent” to describe the weighing process the sentencing judge was weighing the circumstances in a rigid and mechanistic way that conflicted with our assessments of how the weighing process ought to be conducted. As we have stated already, the preponderance of the evidence test, as imposed by the Legislature, requires that ⁶¹⁴ one side of the scale outweigh the other “without being concerned with how much or how clearly one side may outweigh the other.” Foster, 304 Md. at 477 , 499 A.2d at 1255-56 . The 51% reference, in our view, does not indicate a mere numerical tally of mitigating and aggravating factors to determine which was greater in number. In fact, a determination of death driven by simple mathematics would not be possible in this case as the court only found one aggravating circumstance (that Bryant committed the murder while attempting to commit armed carjacking) versus two mitigating circumstances (that Bryant previously has not been found guilty of a crime of violence and that he was not the sole proximate cause of the victim’s death).

Rather, we view the use of “51 percent” by the sentencing judge as merely illustrative of the slight tilt to one side of the scale that is required to find that that side outweighs the other in a preponderance of the evidence analysis. The sentencing judge did not err in this regard. Bryant asserts that the sentencing judge was required to weigh all proffered mitigating circumstances, statutory and non-statutory, in order to comply with the Eight Amendment to the U.S. Constitution. His reliance on Eddings and the other cited Supreme Court cases, however, is misplaced.

The Eddings Court required that, in capital cases, the sentencer not be precluded from considering any aspect of a defendant’s character or record and any circumstances of the offense proffered as a basis for a sentence less than death. 455 U.S. at 110 , 102 S.Ct. at 874 , 71 L.Ed.2d at 8 . The Supreme Court noted in Payne v. Tennessee, however, that the States retain their traditional discretion in determining “substantive factors relevant to the penalty determination.” 501 U.S. 808, 824 , 111 S.Ct. 2597, 2608 , 115 L.Ed.2d 720, 734-35 (1991). We stated in Johnson that the rule established in Eddings “was not a talisman for the automatic admission of evidence when proffered by a defendant.” Johnson v. State, 303 Md. at 519, 527, 495 A.2d 1, 21 (1985), cert denied 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986). We have reiterated recently our belief that the preponderance of the evidence ⁶¹⁵ test required by § 413(g) for determining the existence of mitigating circumstances complies with the Eighth and Fourteenth Amendments to the U.S. Constitution.

Miles, 365 Md. at 557-58 , 781 A.2d at 827 (2001); Collins v. State, 318 Md. 269, 296 , 568 A.2d 1, 14 , cert denied 497 U.S. 1032 , 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990). See Gilliam v. State, 320 Md. 637, 672-73 , 579 A.2d 744, 761 (1990) (upholding the sentencing judge’s determination that no mitigating circumstances existed although the defense proffered certain statutory and non-statutory mitigating circumstances). Because the preponderance of the evidence test in this regard passes constitutional muster, Bryant’s arguments in this regard are unavailing. Bryant’s arguments also fail with respect to the statutory mitigating factor of future dangerousness and the non-statutory factors of his alleged drug-use and post-traumatic stress disorder, lack of an adult criminal record, and the disproportionality of the maximum sentences to which he and Lawson were exposed.

Mitigating factors include either those considerations enumerated by statute, § 413(g), or “anything relating to the defendant or the crime which causes [the sentencing body] to believe that death may not be appropriate.” § 413(g)(8). The sentencing court refused to consider the asserted mitigator of disproportionate sentences because the statutory scheme clearly established which defendants, tried as adults, are death-eligible. The statute provided that the maximum penalty available for persons under the age of eighteen at the time the crime was committed is life without parole. Lawson was therefore not death-eligible for his participation in the crime, but Bryant was.

This Court held in Johnson, 303 Md. at 519 , 495 A.2d at 17 , that the sentencing authority has broad discretion to consider the disproportionate sentence of a co-defendant as a mitigator under § 413(g)(8), but there is no legislative requirement it do so. In Johnson, we found it not to be a mitigating circumstance when Johnson’s co-defendant, Mayers, was sentenced to life imprisonment for his role in torturing and murdering the victim, but Johnson was given the death penalty for his participation. Id. In that case there was no statutory basis for the differential ⁶¹⁶ sentencing treatment between the co-defendants.

The fact that Lawson was not death-eligible and Bryant was death-eligible is not a factor bearing on the crime or on the defendants in such a way as to compel capping Bryant’s potential sentencing exposure. The decision of the sentencing court not to recognize the disparate result as a mitigator was therefore within the proper exercise of its discretion. As to Bryant’s lack of a prior adult criminal record, the court indicated in its ruling that the defense presented evidence establishing the existence of the statutory mitigating circumstance contained in § 413(g)(1)(i), “the defendant has not previously been found guilty of a crime of violence.” Bryant contends, however, that he was not trying merely to establish the statutory mitigator, but also was establishing a non-statutory mitigator. The record indicates that, although the court found the defense’s evidence appropriate to support the existence of the § 413(g)(1)(f) factor, the court also.observed that “many of those who are eighteen years of age would not have any prior criminal record.” This indicates that the judge considered the proffered mitigator as both a statutory and non-statutory circumstance and accepted it as to the former, but rejected it as to the latter.

The court found it to be irrelevant