Burch v. State

²⁸⁰ RAKER, Judge. Heath William Burch was sentenced to death by a jury for the murders of Robert Davis and Cleo Davis. This Court affirmed the verdict and one of the two death sentences. See Burch v. State, 346 Md. 253 , 696 A.2d 443 (1997).

Following the denial of his petition for certiorari in the United States Supreme Court, 522 U.S. 1001 , 118 S.Ct. 571 , 139 L.Ed.2d 410 (1997), and the denial of all his claims for post-conviction relief, he requested the trial judge to set a hearing on a Motion for Reconsideration of Sentence he filed in 1996. The issue we must decide in this case is whether the trial judge properly concluded that he had no authority under Maryland Rule 4-345(b) to modify a jury-determined sentence of death. We shall hold that when a judge imposes a sentence of death in accordance with a jury determination, Maryland Rule 4— 345(b) is inapplicable and the Circuit Court has no authority under that rule to modify the sentence. 1 On March 22, 1996, Appellant Heath William Burch was convicted by a jury in the Circuit Court for Prince George’s County of multiple offenses, including felony murder and premeditated murder of Robert and Cleo Davis in their home. After the sentencing hearing, the jury returned a verdict of death.

On April 10, 1996, the Hon. Steven I. Platt sentenced Burch to death for the murders of Robert and Cleo Davis. The facts and circumstances surrounding Appellant’s guilt and the aggravating circumstances justifying the sentence of death can be found in great detail in Burch v. State, 346 Md. 253 , 696 A.2d 443 (1997). On June 4, 1996, Burch filed a motion in the trial court for reconsideration of sentence pursuant to Maryland Rule 4-345(b), and at the same time, he requested that the trial court ²⁸¹ hold the motion sub curia until the parties requested a hearing.

The trial judge agreed. The case meanwhile proceeded on direct appeal to this Court. We affirmed the verdicts of guilt, and one of the death sentences; we vacated the second sentence of death. See Burch v. State, 346 Md. 253 , 696 A.2d 443 (1997).

The trial court denied Burch’s petition for post-conviction relief and this Court denied Burch’s subsequent application for leave to appeal. On January 28, 1999, pursuant to the parties’ request, the Circuit Court held a hearing on Burch’s 1996 motion for reconsideration of sentence. Judge Platt framed the issue clearly, as follows: Does a sentencing judge possess the authority pursuant to Rule 4-345 of the Maryland Rules to reconsider a sentence of death imposed by him on a defendant in accordance with Art. 27 § 413(k)(l), after a jury has determined that a sentence of death shall be imposed under the provisions of this section? Judge Platt ruled that he lacked authority to reconsider a death sentence imposed pursuant to a jury determination and held that a jury-determined sentence of death cannot be the proper subject of a Rule 4-345 motion.

The Circuit Court reasoned that a fair reading of the statute and the rule lead to one conclusion—that there is only one sentence available for a sentencing judge to impose when a jury determines a sentence of death. Thus, the Circuit Court does not have the authority to reconsider that sentence. Accordingly, he denied the motion. We agree with the trial judge.

Maryland Code (1957, 1996 RepLVol., 1999 Supp.) Article 27, §§ 413 and 414 2 set forth the sentencing scheme in Maryland for capital cases. Section 413(b) provides that a capital sentencing proceeding shall be conducted before a jury or before the court alone if the defendant waives a jury ²⁸² proceeding. The statute provides that “[i]f the jury determines that a sentence of death shall be imposed under the provisions of this section, then the court shall impose a sentence of death.” Art. 27, § 413(k)(l) (emphasis added). In Art. 27, § 414, the Legislature provided for review of death sentences.

The statute provides, in pertinent part, as follows: (a) Review by Court of Appeals required.—Whenever the death penalty is imposed, and the judgment becomes final, the Court of Appeals shall review the sentence on the record. (e) Considerations by Court of Appeals.—In addition to the consideration of any errors properly before the Court on appeal, the Court of Appeals shall consider the imposition of the death sentence. With regard to the sentence, the Court shall determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413(d); and (3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances outweigh the mitigating circumstances. In addition, § 413(0 provides that the Court of Appeals “may adopt rules of procedure to govern the conduct of a sentencing proceeding conducted pursuant to this section, including any forms to be used by the court or jury in making its written findings and determinations of sentence.” Maryland Rule 4-343 governs the procedures to be followed in a capital sentencing.

As to the review of sentence, the rule states that “[a]t the time of imposing sentence, the judge shall advise the defendant that the determination of guilt and the sentence will be reviewed automatically by the Court of Ap ²⁸³ peals, and that the sentence will be stayed pending that review.” Rule 4~343(i). Rule 4-345 addresses the power of a trial court to revise a sentence, providing, in pertinent part, as follows: (a) Illegal sentence. The court may correct an illegal sentence at any time. (b) Modification or reduction—Time for.

The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity, or as provided in section (d) of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding. Before this Court, Appellant argues that Rule 4—345(b) applies to capital cases and that he is entitled under the rule to request the trial judge who presided at a jury sentencing to modify the death sentence determined by the jury.

He reasons that Rule 4-345 contains no exception for the death penalty to the court’s revisory power over sentences, and that Art. 27, § 413 contains no limitation on the court’s revisory power over sentences. In Burch’s view, § 413(k) only requires the judge to impose a death sentence in accord with the jury verdict and is not a limitation on the judge’s power to modify sentences. In support of his argument, he notes that where the Legislature has intended to withdraw from those sentenced to death post-sentence rights enjoyed by other defendants, it has done so explicitly. See Art. 27 § 645JA (providing right to sentence review by a three-judge panel to defendants sentenced to more than two years imprisonment, but not to those sentenced to death).

Thus, he concludes that if the Legislature had intended to preclude reconsideration by ²⁸⁴ the trial judge in death penalty cases, it would have said so. Therefore, Rule 4—345(b) should apply to death sentences just as it applies to all other sentences. Finally, Appellant argues that to refuse to consider the merits of his motion to modify his sentence because of his status as one sentenced to death violates the Equal Protection and Due Process Clauses and Eighth Amendment to the United States Constitution, and the Maryland Declaration of Rights, because the refusal denies a death-sentenced defendant the ability to bring information previously unknown to the defendant to the attention of a court after sentencing, when non-capital defendants could present this information in a sentence modification hearing. Appellant asserts that the modification procedure under Rule 4-345(b) allows the trial court to consider matters that occur after sentencing, and that such matters cannot be raised in the course of the appellate and post-conviction proceedings provided by the death penalty statute and the post-conviction procedure statute.

The State argues that Art. 27, §§ 413 and 414, setting out the scheme by which a death sentence is imposed and reviewed, control the review to which a death penalty defendant is entitled, to the exclusion of the sentence modification procedure provided by Rule 4-345(b). Section 413(k), as noted above, provides that the trial judge shall impose the death penalty after a jury returns a death verdict, and § 414 provides for automatic and exclusive review of the sentence by this Court. We agree with the trial judge that Rule 4—345(b) has no applicability to a jury-determined death sentence, and thus a trial judge cannot reconsider or modify a death sentence imposed pursuant to a jury determination because to do so would be in conflict with the legislative scheme established for capital cases. “Shall” ordinarily indicates a mandatory intent, unless the context of the statute indicates otherwise. Hirsch v. Md. Dep’t of Nat’l Resources, 288 Md. 95, 116 , 416 A.2d 10, 21 (1980); Pope v. Secretary of Personnel, 46 Md.App. 716, 717 , 420 A.2d 1017, 1018 (1980).

When a jury returns a ²⁸⁵ verdict of death, the trial judge must impose one sentence— death. The clear, mandatory statutory language of Art. 27, § 413 leaves no discretion with the trial judge, who is bound by the jury’s decision, to modify the penalty of death, absent the existence of an illegal sentence. Pursuant to the statute, it is this Court, rather than the Circuit Court, that reviews the death sentence to determine whether the sentence may be legally imposed. The review of a death sentence by the Court of Appeals, and not the trial judge, is an integral part of the sentencing structure created by the Legislature, and to permit a trial judge to reduce a death sentence determined by the jury would be in conflict with the legislative mandate.

A similar view is expressed in 62 Md. Op. Att’y. Gen. 109 (1977). Discussing the Court of Appeals’ exclusive review of death sentences, the Attorney General wrote to Governor Marvin Mandel: Unless the defendant has waived a jury sentencing proceeding, the function of the trial court is to impose the sentence returned by the jury.

Whenever the death penalty is imposed, automatic, expedited, and exclusive jurisdiction to review the sentence (consolidated with any other assigned error) is conferred upon the Court of Appeals. Such review must include a report of the trial court containing the court’s recommendation as to whether or not imposition of the death penalty is justified in the case. Id. at 114. Rule 4-343 also supports the view that modification of a death sentence is not available under Rule 4-345(b).

Rule 4-343(i) provides that at the time of imposing a sentence of death, the judge shall advise the defendant that the determination of guilt and the sentence will be reviewed automatically by the Court of Appeals, and that the sentence will be stayed pending that review. At the time of imposing a sentence of life imprisonment, by contrast, ²⁸⁶ the court shall cause the defendant to be advised in accordance with Rule 4-342(h). Rule 4-342(h) provides that [a]t the time of imposing sentence, the court shall cause the defendant to be advised of any right of appeal, any right of review of the sentence under the Review of Criminal Sentences Act, any right to move for modification or reduction of sentence, and the time allowed for exercise of these rights. Thus a defendant sentenced to life imprisonment must be advised of the right to request modification of sentence by the trial judge, but a defendant sentenced to death must be advised only of review by this Court.

This contrast indicates that defendants have a right to request modification of sentence under Rule 4-345(b) only if they have not been sentenced to death. Appellant cites no authority for his due process or equal protection arguments. While a non-capital defendant is entitled, upon timely request, to a reconsideration of sentence pursuant to Rule 345(b), the capital defendant is entitled to numerous other safeguards. Appellant has not been denied due process or equal protection.

See Hopkinson v. Shillinger, 645 F.Supp. 374, 408-09 (D.Wyo.1986), aff'd in part and remanded in part on other grounds, 866 F.2d 1185 (10th Cir.1989), aff'd en banc, 888 F.2d 1286 (10th Cir.1989); cf. State v. Cheadle, 102 N.M. 743 , 700 P.2d 646 (1985). The legislative history of the present Maryland death penalty statute supports our conclusion that a trial judge does not have the authority to modify a jury-determined sentence of death. The present death penalty statute, 1978 Maryland Laws ch. 3, at 6 (codified as amended at Art. 27, §§ 412-414, 645JA, and at Maryland Code (1973, 1998 Repl.Vol., 1999 Supp.) § 12-307 of the Courts and Judicial Proceedings Article), was the product of the General Assembly’s effort to conform Maryland’s death penalty law to the constitutional guidelines laid down by the United States Supreme Court in landmark decisions in 1972 and 1976. In Furman v. Georgia, ²⁸⁷ 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the Court for the first time reversed death sentences on the ground that they constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

There was no majority rationale; the Court divided five to four and produced nine separate opinions. Only Justices Brennan and Marshall believed the death penalty was unconstitutional under all circumstances. See id. at 286 , 92 S.Ct. 2726 (Brennan, J., concurring); id. at 358 , 92 S.Ct. 2726 (Marshall, J., concurring). The least common denominator among the opinions supporting the judgment was that the death penalty was unconstitutional if imposed under a statute giving the sentencing authority unguided discretion arbitrarily to impose or refrain from imposing a sentence of death.

See id. at 255-57 , 92 S.Ct. 2726 (Douglas, J., concurring); id. at 274-76 , 92 S.Ct. 2726 (Brennan, J., concurring); id. at 309-10 , 92 S.Ct. 2726 (Stewart, J., concurring); id. at 313-14 , 92 S.Ct. 2726 (White, J., concurring); id. at 364-66 , 92 S.Ct. 2726 (Marshall, J., concurring). It was in the wake of Furman that this Court invalidated Maryland’s former discretionary death penalty statute, see Bartholomey v. State, 267 Md. 175, 181-84 , 297 A.2d 696, 699-701 (1972), and that the General Assembly removed the discretion from the sentencing process, establishing a mandatory death penalty regime, see 1975 Maryland Laws ch. 253, at 1251-52 (codified at Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 413). Resolving the obscurity of Furman , the Supreme Court considered the constitutional status of the death penalty in five cases decided July 2, 1976. See Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976); Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).

In Roberts and Wood-son the Court struck down mandatory death penalty statutes similar to the 1975 Maryland statute. See Roberts, 428 U.S. at 331-36 , 96 S.Ct. 3001 ; Woodson, 428 U.S. at 292-99 , 96 S.Ct. ²⁸⁸ 2978. In Jurek, Proffitt, and Gregg , the Court upheld statutes on the ground that the statutes gave the sentencing authority some discretion, but guided and limited the use of that discretion sufficiently to minimize the danger of arbitrary and capricious imposition of the death penalty. See Jurek, 428 U.S. at 276 , 96 S.Ct. 2950 ; Proffitt, 428 U.S. at 259-60 , 96 S.Ct. 2960 ; Gregg, 428 U.S. at 206-07 , 96 S.Ct. 2909 .

When this Court followed Roberts and Woodson by invalidating Maryland’s 1975 mandatory death penalty scheme, see Blackwell v. State, 278 Md. 466, 471-73 , 365 A.2d 545, 548-49 (1976), the General Assembly again embraced the task of crafting a constitutional death penalty system. Jurek, Proffitt and Gregg provided three “approved” models—the statutes of Texas, Florida and Georgia. The most important differences among the three models concern the different ways in which they guide the sentencing authority’s discretion and