Calhoun-El v. State

Graeff, J. James A. Calhoun-El, appellant, appeals from the December 3, 2012, Order of the Circuit Court for Montgomery County, denying his Motion to Reopen Post-Conviction Relief. Appellant filed an Application for Leave to Appeal, which this Court granted on December 10, 2015. Pursuant to this Court’s Order directing the parties to brief three issues, appellant presents the following three questions: 1. In light of Unger v. State, 427 Md. 383 , 48 A.3d 242 (2012), did the trial court at appellant’s 1981 trial commit reversible error by instructing the jury that (1) as to the offenses with which Calhoun-El was charged, the jury ²⁸⁷ was “the sole judges of the law and facts,” (2) the court’s instructions as to the offenses were “advisory,” and (3) the jury was “not bound to follow” the instructions? 2.

If the trial court committed reversible error, then in light of Unger, did defense counsel’s failure to object to the instructions constitute a waiver? 3. If defense counsel’s failure to object to the instructions did not constitute a waiver, then in light of State v. Waine, 444 Md. 692 , 122 A.3d 294 (2015), did the circuit court abuse its discretion in denying Calhoun-El’s motion to reopen his post-conviction proceeding and err in failing to vacate his convictions and award him a new trial? For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On November 3, 1981, a jury in the Circuit Court for Montgomery County convicted appellant of first degree murder of a police officer, first degree murder of a civilian, and several related offenses.

It subsequently sentenced appellant to death for the murder of the police officer, and the circuit court sentenced appellant to life for the murder of the civilian, and an additional eighty years, consecutive, for the remaining convictions. Appellant’s convictions were affirmed on appeal by the Court of Appeals. 1 Calhoun v. State, 297 Md. 563 , 468 A.2d 45 (1983), cert. denied sub nom. Tichnell v. Maryland, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984). For the purposes of this appeal, we adopt the “agreed statement of facts” set forth by the Court of Appeals in its opinion affirming appellant’s convictions: The W. Bell store is located at 1130 New Hampshire Avenue in White Oak, Montgomery County.

Banging noises ²⁸⁸ coming from the area of the Bell store were heard by a neighbor across the street at approximately 11:00 p.m. on March 26, 1981. She saw shadows in the area of the roof at the back of the store. The neighbor notified her father, who went outside their home with a flashlight to investigate. He saw people leaving.

She saw a car, which looked like a hatchback, parked across the street. An employee of Electro Protective Corporation testified that at 6:16 a.m. on March 27,1981, both the safe alarm and the perimeter alarm at the Bell store were activated. He notified the police; Douglas T. Cummins, Jr., Bell’s assistant manager; and David W. Myers, an employee of Electro. Officer Philip Carl Metz, the police officer covering that beat on that particular day, was dispatched to the Bell store.

Cummins testified that at approximately 6:20 or 6:25 a.m. on March 27 he received a telephone call from Electro. He arrived at the store at about 7:00 a.m. at which time he saw a white station wagon with Electro’s name on the door in front of the store. He observed a late model two-door black Cadillac on the other side of the parking lot. A black male in the front seat was the sole occupant.

The technician in the Electro vehicle identified himself to Cummins. Cummins drove around the store and noticed that the outside of the building appeared to be secure. Officer Metz arrived on the scene at about 7:15 a.m. Cummins unlocked Bell’s door with a set of master keys.

He, Officer Metz, and Myers entered the building. They first checked the merchandise area. Then they proceeded to the cash-room. It had two doors, both of which supposedly could be opened only from the inside.

Cummins put a key into the door. Upon his opening the door Officer Metz stepped in front of him to enter. At that moment Cummins noticed “a shoulder and about half of a back of an individual standing to the right of the doorway.” Metz was pulled into the doorway as another, shorter individual armed with a pistol jumped into the hallway area. Cummins did not see the place from which the shorter man came.

Myers drew his gun and stumbled back into a hallway door when he was ²⁸⁹ shot. Cummins said he realized he had been shot in the upper shoulder area of his chest. After thirty to forty-five seconds the taller man opened the door and dragged Cum-mins into the office. Cummins at that point observed Metz lying on the floor and bleeding from the head.

Cummins said that although he saw or heard no evidence of a third person he had no idea whether there might have been other individuals there who had left through another door by the time he was dragged into the room. He asserted that the shorter man shot him and he could only assume that it was the taller person who shot Metz. Cummins complied with the taller man’s order to open a combination safe. He was then asked by that same person to open a second safe.

He was hit on the left side of his head with a pistol when he reached for his wallet which contained the combination to the second safe. Cummins said that after he failed twice in his efforts to open the second safe this taller person cocked a pistol, put it to the side of Cummins’ head and informed him that if he did not open the safe that time he was a dead man. He succeeded in opening the safe. He was then told to sit on the floor.

His wrist was handcuffed to a file cabinet drawer. He heard his assailants scramble up through the ceiling of the office “and then back down on the other side.” He pulled himself onto a chair, pulled the file drawer from the cabinet, carried the drawer by its handle to a telephone in the loading dock area, and called the police. After failing to detect a pulse from Myers’ neck, he went to the door and waited for help. Cummins testified that both of the men that he saw were wearing stocking masks which covered their entire heads.

Both men wore gloves on their hands. Cummins observed gaps between the sleeve cuffs and the top of the gloves of these persons from which he determined they were black. James Adcock testified that while working as a plumber on the fourth floor of a building next door to the Bell store, at approximately 7:00 a.m. on March 27, 1981, he looked out the window and saw two black males running across the parking lot. He said they “skipped” over a fence, jumped ²⁹⁰ over a wall and went into a parked “brown or maroon-looking car” that then drove away.

Evidence to connect Calhoun with the crime included that of an accomplice who testified pursuant to a plea agreement. His testimony included a description of an attempt by him and another to break into the Bell store through the roof shortly after midnight on the morning of this incident. They were frightened away when they noticed someone watching them with a flashlight from across the parking lot. He related how later, in the early hours of that morning, he and his associates encountered Calhoun, discussed the hole they had put in the Bell roof, and worked out a plan for entering the store.

They then waited for the manager to arrive so that the robbery could be effected. He described the operation in detail including mention of weapons, a description of the stocking masks used and their source, and testimony as to the amount of money taken and its division. There was substantial other evidence adduced in addition to that of the accomplice including testimony concerning casts made of footprints found in the area. Two of these casts matched one of the shoes of the accomplice.

Id. at 572-74, 468 A.2d 45 . In 1985, after his convictions were upheld on direct appeal, appellant filed a motion for post-conviction relief, arguing, inter alia, that the trial court’s “advisory” jury instructions during the guilt/innocence phase of the trial were improper. The postconviction court rejected this claim, finding that the contention was waived because defense counsel failed to raise the issue at trial and on appeal. 2 In 1989, appellant filed a “supplemental” petition for post-conviction relief, and the State conceded that appellant was entitled to a new sentencing proceeding. In 1990, after a multi-day sentencing proceeding, the jury determined that appellant should be sentenced to life, not death, for the murder of the ²⁹¹ police officer, with this sentence to be served consecutively to appellant’s other sentences.

Appellant subsequently filed multiple motions for collateral review. All of those motions were denied without a hearing. The motion at issue here is the Motion to Reopen appellant’s post-conviction case, which was filed on July 5, 2012. After the circuit court denied appellant’s motion without a hearing, appellant filed an application for leave to appeal, which this Court granted.

DISCUSSION The issues in this ease are all based on appellant’s contention that the “trial court committed reversible error when it told the jury that its instructions on reasonable doubt, the burden of proof, and the substantive definitions of the offenses were advisory and could be disregarded.” He contends that the law is clear that “jurors must be told that instructions regarding constitutional requirements and the undisputed law of the crimes alleged ‘are binding on the jury and counsel as well.’ ” Before addressing the parties’ contentions, we first will address the rather tortured path of the law in Maryland regarding “advisory” jury instructions. rH History of Advisory Instructions Article 23 of the Declaration of Rights provides that the jury in a criminal case “shall be the Judges of the Law, as well as of fact.” In 1980, the Court of Appeals addressed the propriety of “advisory rather than binding (jury) instructions” and whether such an instruction “facially deprives a defendant of the federally secured right to due process of law” under the 14th Amendment to the U.S. Constitution. Stevenson v. State, 289 Md. 167, 169 , 172 n.2, 423 A.2d 558 (1980), overruled by Unger, 427 Md. 383 , 48 A.3d 242 (2012). In addressing this issue, the Court stated that it first would determine what “law” the jury is entitled to “judge” under Article 23. Id. at ²⁹² 176, 423 A.2d 558 .

The Court stated that previous decisions made clear that the right of juries to decide the law was not “all-inclusive,” but rather, it was much more limited in scope. Id. at 177 , 423 A.2d 558 . Indeed, past decisions “make it quite evident” that the jury’s role in judging the law was “confined ‘to resolv(ing) conflicting interpretations of the law (of the crime) and to deciding) whether th(at) law should be applied in dubious factual situations,’ and nothing more.” Id. at 199 , 423 A.2d 558 (quoting Dillon v. State, 277 Md. 571, 581 , 357 A.2d 360 (1976)). The Court ultimately held, as follows: Because of this division of the law-judging function between judge and jury, it is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive “law of the crime,” as well as the “legal effect of the evidence,” and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and that the judge’s comments on these matters are binding upon that body.

In other words, the jury should not be informed that all of the court’s instructions are merely advisory; rather only that portion of the charge addressed to the former areas of “law” may be regarded as non-binding by it, and it is only these aspects of “law” which counsel may dispute in their respective arguments to the jury. On the other hand, the jury should be informed that the judge’s charge with regard to any other legal matter is binding and may not be disregarded by it. Id. at 179-80 (footnote omitted). The dissenting opinion characterized this holding as limiting the jury’s ability to disregard the law to “conflicting interpretations of the law of the crime.” Id. at 190, 423 A.2d 558 (Eldridge, J., dissenting).

In Stevenson, the majority of the Court made clear that the issue raised on appeal did not include the propriety of the ²⁹³ instructions given in that case, but rather, whether Article 23 violated the Constitution. Id. at 171-72, 423 A.2d 558 . In light of the Court’s interpretation of the jury’s limited ability to be “judges of the law,” the Court held that Article 23 was not unconstitutional, and it affirmed Stevenson’s convictions. Id. at 189 , 423 A.2d 558 . 3 Subsequently, in Montgomery v. State, 292 Md. 84, 86-87 , 437 A.2d 654 (1981), overruled by Unger v. State, 427 Md. at 417 , the Court of Appeals addressed a challenge to instructions telling the jury that “anything that I ... tell you about the law will be .,. advisory” and the jury could pay “absolutely no attention” to the instructions on the law.

In finding the instructions erroneous, the Court cited its earlier decision in Stevenson. Id. at 86-87, 437 A.2d 654 . Noting that the trial court had advised that all of its instructions were advisory, including instructions on the State’s burden to prove guilt beyond a reasonable doubt, the defendant’s presumption of innocence, and the right not to testify, the Court stated that such instructions “are not ‘the law of the crime;’ they are not advisory; and they cannot be the subject of debate by counsel before the jury. They are binding.” Id. at 91 , 437 A.2d 654 .

The Court of Appeals in subsequent cases repeatedly has indicated that Montgomery merely applied the law set forth in Stevenson. It has characterized Montgomery as “reaffirming]” “[t]he Stevenson interpretation of Article 23,” Unger v. State, 427 Md. 383, 388 , 48 A.3d 242 (2012), “reinforcing]” Stevenson’s interpretation of Article 23, State v. Waine, 444 Md. 692, 696 , 122 A.3d 294 (2015), and “merely serving] as an example and application of Stevenson,” State v. Adams, 406 Md. 240, 258-59 , 958 A.2d 295 (2008), overruled on other grounds by Unger, 427 Md. 383 , 48 A.3d 242 . In Adams, 406 Md. at 256-60 , 958 A.2d 295 , the Court of Appeals stated that Stevenson’s holding that it did not make ²⁹⁴ new law was not wrongfully decided, and therefore, it would not be disturbed under principles of stare decisis. The Court held, therefore, that Adams’ claim regarding erroneous advisory jury instructions given at his 1979 trial was waived because he did not challenge these instructions at trial.

In Unger, 427 Md. at 417 , 48 A.3d 242 , the Court of Appeals reversed course, holding that portions of the Adams decision, i.e., the holding that the Court’s interpretation of Article 23 in Stevenson and Montgomery was not a new State constitutional standard, were “wrongly decided” and overruled. The Court held that the “Stevenson and Montgomery opinions set forth a new interpretation of Article 23 and established a new state constitutional standard.” Id. at 411, 48 A.3d 242 . The Court’s decision in that regard was significant to the issue whether Unger had waived his right to raise the issue of improper jury instructions in post-conviction proceedings. Noting that the failure to raise an issue at trial did not constitute a waiver of the issue if the Court of Appeals’ ruling changed the applicable legal standard, the Court held that “failure to object to advisory only jury instructions in criminal trials prior to Stevenson will not constitute a waiver.” Id. at 390-91, 48 A.3d 242 .

Accordingly, it held that Unger’s failure to object to the advisory nature of the jury instructions at trial did not constitute a waiver of the right to challenge the instructions in Unger’s subsequent post-conviction action. Id. at 411 , 48 A.3d 242 . In State v. Waine, 444 Md. 692 , 122 A.3d 294 (2015), the Court of Appeals again revisited the issue. In Waine’s trial in 1976, the court instructed the jury as follows: 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 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. Id. at 697 , 122 A.3d 294 . The court concluded its instructions with a reiteration of its opening instruction: “You are not ²⁹⁵ 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.” Id. Petitioner’s counsel did not object. Id. The Court of Appeals declined the State’s request to overrule Unger, and it upheld the post-conviction court’s ruling granting post-conviction relief.

Id. at 703, 122 A.3d 294 . It rejected the State’s argument that “advisory only instructions be considered on a case by case basis to determine whether there is a ‘reasonable likelihood’ that the jurors understood the court’s Article 23 instruction as allowing them to convict a defendant on less than proof beyond a reasonable doubt.” Id. The Court explained its reasoning, as follows: The State’s reliance on the ‘reasonable likelihood’ test is misplaced, as this was the test adopted by the Supreme Court for review of jury instructions that are ambiguous. [[Image here]] Ambiguity is not the issue in Article 23 advisory only jury instructions; rather, such instructions are clear, but erroneous, as they give the jury permission to disregard any or all of the court’s instructions,