Malvo v. State

Lee Boyd Malvo v. State of Maryland No. 29, September Term, 2021. Criminal Procedure – Constitutional Law – Sentencing of Juvenile Offender – Homicide. Recent Supreme Court decisions have held that the Eighth Amendment to the United States Constitution does not permit a sentence of life without parole for a juvenile offender convicted of homicide if the sentencing court determines that the offender’s crime was the result of transient immaturity, as opposed to permanent incorrigibility. That constitutional constraint applies retroactively.

However, a court that imposes a sentence in a discretionary sentencing regime need not make an explicit finding as to a juvenile offender’s incorrigibility. In a case where sentencing took place prior to the recent Supreme Court decisions and where the sentencing judge may have determined that the defendant was not permanently incorrigible, the defendant is entitled to be resentenced to ensure compliance with the Eighth Amendment. The terms of that sentence remain within the discretion of the sentencing court. Criminal Procedure – Sentencing of Juvenile Offender – Juvenile Restoration Act.

Under the Juvenile Restoration Act (“JUVRA”), a juvenile offender who was convicted as an adult and who is serving a sentence that was imposed before October 1, 2021 may file a motion for reduction of sentence after serving 20 years of the sentence. JUVRA likely provides the “meaningful opportunity for release” required for most such offenders under the Supreme Court’s recent decisions interpreting the Eighth Amendment. However, in the specific case of a juvenile offender serving multiple consecutive sentences of life without parole that were imposed prior to the Supreme Court decisions, and where the sentencing court could not have determined whether, under those decisions, the offender was one of the few offenders not entitled to a meaningful opportunity for release, JUVRA is not a substitute for resentencing. Circuit Court for Montgomery County Case No. 102675C Argued: February 8, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term, 2021 LEE BOYD MALVO v. STATE OF MARYLAND *Getty, C.J., *McDonald Watts Hotten Booth Biran Gould, JJ.

Opinion by McDonald, J. Watts, Hotten, and Gould, JJ., dissent. Filed: August 26, 2022 *Getty, C.J., and McDonald, J., now Senior Judges, participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Maryland Constitution, Article IV, §3A, they also participated in the Pursuant to the Maryland Uniform Electronic Legal Materials decision and the adoption of this opinion. Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-01-18 16:15-05:00 Gregory Hilton, Clerk To be legal, a sentence in a criminal case must be consistent both with the law governing the offense for which the defendant was convicted and with the Eighth Amendment’s proscription against “cruel and unusual” punishments.

During the past two decades, the United States Supreme Court has issued several decisions elaborating on the application of the Eighth Amendment to juvenile offenders sentenced as adults. This case concerns whether a juvenile offender who was sentenced prior to key decisions pertinent to his situation should be resentenced to ensure that his sentence complies with the Constitution and therefore is legal. Over the course of three weeks in October 2002, Petitioner Lee Boyd Malvo, then age 17, and John Allen Muhammad, then age 41, committed a series of murders in the greater Washington, D.C. area, primarily by shooting a high-powered rifle while concealed in the trunk of a modified automobile so as to terrorize the area of the country in which Mr. Muhammad’s ex-wife lived. These crimes received considerable national media attention and became known as the “DC sniper attacks.” Mr. Malvo and Mr. Muhammad were charged with multiple counts of murder and other crimes in Virginia and Maryland.

In Virginia, Mr. Malvo was convicted on four counts of first-degree murder. In Maryland, Mr. Malvo voluntarily testified against Mr. Muhammad and, in 2006, pled guilty to six counts of first-degree murder in the Circuit Court for Montgomery County. At his sentencing that year, the prosecutor stated that Mr. Malvo, once under the sway of an “evil man,” had changed and “grown tremendously” since his participation in the crimes. The sentencing court similarly acknowledged Mr. 2 Malvo’s cooperation with law enforcement, his remorse, and his transformation since he was arrested.

The court sentenced Mr. Malvo to the maximum sentence of six terms of life in prison without the possibility of parole, to run consecutively to each other and to the four sentences of life without parole that he was serving in Virginia. Mr. Malvo’s sentence was consistent with the pertinent State statute and with the advisory State sentencing guidelines at that time. Since then, however, the Supreme Court has held that the Eighth Amendment does not permit a sentence of life without parole for a juvenile homicide offender if a sentencing court determines that the offender’s crime was the result of transient immaturity, as opposed to permanent incorrigibility.1 The Supreme Court has further held that this constraint applies retroactively and, thus, it applies to Mr. Malvo’s case. In 2017, Mr. Malvo filed a motion to correct an illegal sentence, based in part on the ground that the sentencing court did not have the benefit of the subsequent, but retroactive, Supreme Court decisions at the time he was sentenced.

The Circuit Court for Montgomery County denied the motion. This case presents the question whether ambiguity in a sentencing court’s remarks about a juvenile offender’s post-offense conduct and character, when made before the Supreme Court issued the decisions that govern the sentencing of a juvenile offender to life without the possibility of parole, rendered such a sentence illegal under the Eighth 1 Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 577 U.S. 190 (2016) (holding that the incorrigibility standard is retroactive); Jones v. Mississippi, 141 S. Ct. 1307 (2021) (reaffirming Miller and Montgomery while holding that a sentencing court need not make a specific finding of incorrigibility). 2 Amendment. Based on the record of this case, opposing inferences can be drawn as to whether the sentencing judge determined that Mr. Malvo was not “the rare juvenile offender whose crime reflects irreparable corruption” for whom the Eighth Amendment allows a sentence of life without parole. If the sentencing judge reached that conclusion, the sentence failed to comport with the Constitution.

In light of this ambiguity, Mr. Malvo must be resentenced. As a practical matter, this may be an academic question in Mr. Malvo’s case, as he would first have to be granted parole in Virginia before his consecutive life sentences in Maryland even begin. Ultimately, it is not for this Court to decide the appropriate sentence for Mr. Malvo or whether he should ever be released from his Maryland sentences. We hold only that the Eighth Amendment requires that he receive a new sentencing hearing at which the sentencing court, now cognizant of the principles elucidated by the Supreme Court, is able to consider whether or not he is constitutionally eligible for life without parole under those decisions.

I Background A. Limits on the Punishment of Juvenile Offenders 1. Limits under the Eighth Amendment to the United States Constitution The Eighth Amendment to the United States Constitution forbids the imposition of “cruel and unusual” punishments. The Supreme Court has explained that giving effect to the provision’s guarantee requires “referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate 3 as to be cruel and unusual.” Roper v. Simmons, 543 U.S. 551, 561 (2005) (citation and internal quotation marks omitted). “This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” Graham v. Florida, 560 U.S. 48, 58 (2010) (citation and internal quotation marks omitted).

In recent years, the Supreme Court has issued a series of decisions applying this Eighth Amendment standard in the context of juvenile offenders sentenced to severe punishments in the criminal justice system. As recounted in Part I.B.4 of this opinion, Mr. Malvo’s sentencing occurred in late 2006 near the beginning of this series of decisions and preceded a number of decisions significant to the resolution of this case. Supreme Court Precedent as of 2006 In 2005, Roper was the first in the Supreme Court’s series of decisions concerning the application of the Eighth Amendment to the sentencing of juvenile offenders. There, the Court held that the Eighth Amendment forbids the execution of an offender who committed the crime when younger than 18 years old. 543 U.S. at 568 .

The Court noted that a majority of states had already banned the punishment and emphasized that “three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.” Id. at 569 . Specifically, those differences are (1) juveniles’ lack of maturity and an underdeveloped sense of responsibility resulting in “impetuous and ill-considered actions and decisions”; (2) juveniles’ greater vulnerability or susceptibility to negative influences and outside pressures; and (3) the more mutable nature of juveniles’ character and personality traits. 4 Id. at 569-70 . In light of these differences, the Court determined that the two distinct social purposes served by the death penalty – retribution and deterrence – apply to juveniles with lesser force than to adults. Id. at 570 .

In rejecting the argument that juveniles’ reduced culpability can be adequately considered on a case-by-case basis, the Court identified an “unacceptable likelihood … that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth … even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” Id. at 572-73 . Supreme Court Precedent after 2006 Roper dealt exclusively with the death penalty. Five years later, in 2010 – four years after Mr. Malvo’s sentencing – the Supreme Court first declared that the Eighth Amendment also imposes constraints on the imposition of a life without parole sentence on a juvenile offender. In Graham v. Florida, 560 U.S. 48, 59, 74 (2010), the Court held that the Constitution forbids sentencing a juvenile non-homicide offender to life without parole, announcing for the first time a categorical restriction under the Eighth Amendment on a punishment other than the death penalty.

The Court noted that “life without parole sentences share some characteristics with death sentences” in that they “alter[] the offender’s life by a forfeiture that is irrevocable.” Id. at 69 . Such sentences are particularly harsh when imposed on a juvenile offender, who will “on average serve more years and a greater percentage of his life in prison than an adult offender.” Id. at 70 . In addition to identifying a national and international consensus against sentencing juvenile non-homicide offenders to die in prison, the Graham Court returned to the 5 discussion of juvenile culpability that it began in Roper. 560 U.S. at 62, 80 . In a review of the four legitimate penological objectives – retribution, deterrence, incapacitation, and rehabilitation – the Court found that none justified a life without parole sentence for a juvenile not convicted of murder.

Id. at 71 . Such offenders must instead have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75 . Two years later, in the first of a trilogy of decisions that are particularly relevant to this case, the Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. 460, 479 (2012). The Court reiterated the three general differences between juveniles and adults first articulated in Roper – immaturity, susceptibility to negative influences, and mutability – and extended the reach of its reasoning in Graham: “[N]one of what [Graham] said about children – about their distinctive (and transitory) mental traits and environmental vulnerabilities – is crime specific. … So Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.

Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.” Id. at 473 . Thus, mandatory sentencing schemes that “remov[e] youth from the balance” contravene the “foundational principle” of Graham and Roper: “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Id. at 474 . 6 The Court went on to articulate some of the mitigating circumstances that mandatory sentences fail to account for: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him – and from which he cannot usually extricate himself – no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.

Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth – for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. 567 U.S. at 477-78 . In the Court’s view, occasions for sentencing juveniles to life without parole “will be uncommon” due to the difficulty inherent in distinguishing between juvenile offenders whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption. Id. at 478-80 . Before a sentencing court could make that judgment, the Court required that it “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480 .

In 2016, 10 years after Mr. Malvo’s sentencing, the Supreme Court clarified that Miller announced a substantive rule of constitutional law with retroactive effect. Montgomery v. Louisiana, 577 U.S. 190 (2016). In Montgomery, the Court rejected the argument that Miller merely announced a new rule of procedure that applied prospectively. Instead, it held that the procedural component of Miller – “a hearing where youth and its attendant characteristics are considered as sentencing factors” – is the means of 7 implementing its substantive guarantee – “that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Id. at 209-10 (internal quotation marks omitted).

The Court explained that even though “Miller did not impose a formal factfinding requirement,” it “does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” Id. at 211 . In 2021, after Mr. Malvo had filed a motion to correct an illegal sentence, the Supreme Court returned yet again to the topic of juvenile life-without-parole sentencing, this time to clarify the procedural component of Miller. In Jones v. Mississippi, 141 S. Ct. 1307, 1313 (2021), the Court held that “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” The petitioner in Jones had been given a mandatory life-without-parole sentence for a homicide he committed as a juvenile.

After Miller was decided, he received a new sentencing hearing, at which his counsel argued that he was not the rare, irreparably corrupt juvenile offender. The sentencing judge acknowledged the Supreme Court’s holding in Miller and his own sentencing discretion, but imposed the same life-without-parole sentence. Id. On appeal, Jones argued that a sentencing court must make either an explicit or implicit finding of permanent incorrigibility before it can constitutionally sentence a juvenile homicide offender to life without parole.

The Supreme Court disagreed, explaining that “if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel 8 advances an argument based on the defendant’s youth.” Id. at 1319 (emphasis in original). In the context of that case, the Court essentially concluded that the fact of the sentencing court’s authority to exercise discretion as to whether to make parole available when sentencing a juvenile to life imprisonment, paired with the imposition of a life-without- parole sentence, is itself an implicit finding of incorrigibility. The Court did not have occasion to address a situation in which a sentencing court finds that a crime was the result of the offender’s transient immaturity but nonetheless sentences the offender to life without parole. Although the Court’s opinion in Jones focused almost exclusively on Miller’s procedural component, it explicitly did “not disturb Montgomery’s holding that Miller applies retroactively on collateral review[,]” 141 S. Ct. at 1317 n.4, a holding that was based on the Montgomery Court’s conclusion that Miller announced a new substantive rule.

In a footnote, the Jones Court quoted Montgomery’s “key paragraph,” which included the passage indicating that a court is not “free to sentence a child whose crime reflects transient immaturity to life without parole.” Id. at 1315 n.2, quoting Montgomery, 577 U.S. at 211 . Because Miller’s substantive holding, as articulated in Montgomery, remains good law, it follows that an offender deemed corrigible cannot constitutionally be sentenced to life without the possibility of parole. 2. Maryland Juvenile Restoration Act The General Assembly enacted the Juvenile Restoration Act (“JUVRA”) in 2021. Chapter 61, Laws of Maryland 2021.

JUVRA made three significant changes to Maryland’s sentencing practices for juvenile offenders convicted as adults. Specifically, it gave sentencing courts discretion to impose sentences less than the minimum required 9 by law, prospectively banned sentences of life without the possibility of parole, and authorized offenders sentenced before October 1, 2021 who have spent more than 20 years in prison to file a motion to reduce their remaining sentence. Maryland Code, Criminal Procedure Article (“CP”), §§6-235, 8-110. Only the final provision is relevant here.

An eligible offender who files a motion to reduce the offender’s remaining sentence is entitled to a hearing at which the offender must be present, either in person or by video. CP §8-110(b). Notice of the hearing must be given to the victim or the victim’s representative. Id.

Both the offender and the State may introduce evidence in support of or in opposition to the motion. Id. Following the hearing, the court may reduce the duration of the offender’s sentence if it concludes that (1) the individual is not a danger to the public; and (2) the interests of justice will be better served by a reduced sentence. CP §8-110(c).

The statute outlines 10 factors – as well as “any other factor the court deems relevant” – that a court is to consider and address in a written decision, including: the individual’s age at the time of the offense; the nature of the offense and the history and characteristics of the individual; any statement offered by or on behalf of a victim of the offense; the extent of the individual’s role in the offense and whether and to what extent an adult was involved in the offense; the diminished culpability of a juvenile as compared to an adult; and whether the individual has demonstrated maturity, rehabilitation, and fitness to reenter society. CP §8-110(d). If the offender’s motion is denied or granted in part, the offender may file another motion after three years. A third and final motion can be filed after an additional three-year waiting period.

CP §8-110(f). Relief sought under JUVRA is distinct from and 10 does not affect other terms of the sentence, such as the offender’s opportunity to seek parole. B. Facts and Proceedings 1. The Homicides Mr. Malvo was born in Kingston, Jamaica, in 1985.

In 2000, at the age of 15, he met Mr. Muhammad, a Gulf War veteran and United States citizen, in Antigua. At the time, Mr. Muhammad was engaged in a custody dispute concerning his own children. In May 2001, Mr. Muhammad brought Mr. Malvo to the United States. In February 2002, Mr. Muhammad and Mr. Malvo set out to find Mr. Muhammad’s children.

They also embarked on a series of shootings that would leave at least 12 people dead. They shot people at random, usually with a high-powered rifle while concealed in the trunk of Mr. Muhammad’s modified Chevy Caprice. Apparently, the purpose was to terrorize the area of the country in which Mr. Muhammad’s ex-wife lived.2 In July 2002, Mr. Muhammad learned that his children were living in Clinton, Maryland. On September 5, 2002, Mr. Malvo shot and robbed a man in Clinton.

Ten days later, Mr. Malvo shot another man in Clinton. Neither victim died.3 Mr. Malvo and Mr. Muhammad then traveled to Montgomery, Alabama, where, on September 21, 2002, Mr. 2 Muhammad v. Commonwealth, 619 S.E.2d 16, 37 (Va. 2005). Many of the facts concerning the offenses and prosecutions of Mr. Muhammad and Mr. Malvo are also described in Muhammad v. State, 177 Md. App. 188 (2007), cert. denied, 401 Md. 614 (2008); Muhammad v. Kelly, 575 F.3d 359 (4th Cir. 2009); and Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018). 3 Mathena, 893 F.3d at 267 . 11 Muhammad shot two women as they closed up a liquor store. One of the women died.

Police officers responding to the scene reportedly saw Mr. Malvo going through the victims’ purses and gave chase, but he was able to evade capture. However, he left behind evidence that would eventually tie him and Mr. Muhammad to the crimes, including the pistol used in the two Clinton shootings.4 On September 23, 2002, the manager of a beauty salon was shot and killed in a Baton Rouge parking lot. Police later determined that the fatal bullet was fired from the same Bushmaster rifle later found in Mr. Muhammad’s car when he and Mr. Malvo were ultimately apprehended in Maryland. Witnesses reportedly saw Mr. Malvo fleeing the scene.5 The pair then returned to the Washington, D.C. area, where they shot 13 people between October 2 and October 22, 2002.

Ten were killed. All were struck by a single bullet fired from a distance. On October 24, 2002, Mr. Muhammad and Mr. Malvo were apprehended while sleeping in their vehicle at a rest stop in Frederick County. 6 Initially, following his apprehension, Mr. Malvo referred to Mr. Muhammad as “his father” and told authorities that he had pulled the trigger in 10 of the shootings. In his testimony four years later at Mr. Muhammad’s trial in Maryland, he said that he had generally functioned as the “spotter” and that Mr. Muhammad was usually the shooter in the attacks.7 4 Kelly, 575 F.3d at 362. 5 Mathena, 893 F.3d at 267-68 . 6 Mathena, 893 F.3d at 268 . 7 Appendix A, pp. 10-11. 12 On October 25, 2002, a Statement of Charges was filed against Mr. Malvo in the District Court in Montgomery County.

It consisted of six charges of first-degree murder. That charging document was superseded on June 16, 2005, when he and Mr. Muhammad were indicted by a grand jury in the Circuit Court for Montgomery County on the same six counts. 2. Trial and Guilty Pleas Mr. Malvo and Mr. Muhammad had also been charged with homicide and related offenses in Virginia, and those charges were tried first. Trial on the Virginia charges against Mr. Malvo took place in November and December of 2003.

Mr. Malvo’s attorneys presented an insanity defense on the theory that he had been controlled by Mr. Muhammad.8 Calling more than 40 witnesses, defense counsel painted a portrait of Mr. Malvo’s upbringing and relationship with Mr. Muhammad. However, the jury rejected the insanity defense and Mr. Malvo was convicted of the two murder charges and a firearms charge. In the sentencing phase of the case before the jury in March 2004, the prosecution 8 Mr. Muhammad was tried separately in Virginia on essentially the same charges. He was convicted and sentenced to the death penalty.

The convictions and sentence were affirmed on appeal. Muhammad v. Commonwealth, supra. He was executed in November 2009. Ian Urbina, Sniper Who Killed 10 is Executed in Virginia, NEW YORK TIMES (Nov. 10, 2009), available at https://perma.cc/G86B-NRWX. 13 sought the death penalty,9 but the jury recommended, and the court imposed, two terms of life in prison without parole.10 In October 2004, Mr. Malvo entered an Alford plea,11 pursuant to a plea agreement, to additional murder and firearms counts in a different county in Virginia.

As part of the plea agreement, he was sentenced to two additional terms of life without parole plus eight years.12 Prior to the resolution of his own charges in Maryland, Mr. Malvo offered to testify against Mr. Muhammad at the latter’s trial in the Circuit Court for Montgomery County.13 At that trial, which took place in May 2006, Mr. Malvo testified voluntarily, without a plea deal, on behalf of the State. He testified for nearly two full days and gave a detailed account of his travels with Mr. Muhammad and their crime spree.14 In affirming Mr. Muhammad’s conviction, the Court of Special Appeals noted that much of what Mr. Malvo testified to 9 The sentencing preceded the 2005 Roper decision that held that the death penalty may not be constitutionally imposed on juvenile offenders. 10 Mathena, 893 F.3d at 268-69 . 11 An Alford plea is the “functional equivalent” of a guilty plea without an actual admission of guilt. Bishop v. State, 417 Md. 1, 20 (2010); see also North Carolina v. Alford, 400 U.S. 25 (1970). 12 Mathena, 893 F.3d at 269-70 . 13 Mr. Muhammad had been extradited to Maryland while awaiting execution in Virginia. At the trial in Maryland, Mr. Muhammad was convicted on all six counts and sentenced to life without parole on each of the six counts, to be served consecutively to each other and to the sentences imposed in Virginia.

Muhammad, 177 Md. App. at 199 . 14 Muhammad, 177 Md. App. at 217-22 . 14 was otherwise unknown to the police. Muhammad v. State, 177 Md. App. at 221 . It further noted that the only inconsistency in his testimony with prior statements to law enforcement was that he had previously claimed to be the triggerman in all of the shootings, in accordance with Mr. Muhammad’s direction that Mr. Malvo claim responsibility, while at trial he admitted to pulling the trigger in two of the shootings. Id. at 221-22 .

Several months later, on October 10, 2006, Mr. Malvo pled guilty to all six charges of first-degree murder pending against him in the Circuit Court for Montgomery County. The prosecutor informed the court that the guilty pleas were not induced by any concessions by the State – in other words, there was no plea deal. Mr. Malvo agreed with the State’s statement of facts concerning the six murders, as set forth in Appendix A to this opinion. Sentencing was scheduled for a month later. 3.

Investigation of Mr. Malvo’s Background In preparation for Mr. Malvo’s sentencing, his defense counsel sought to provide the court with information concerning Mr. Malvo’s background, his bond with Mr. Muhammad, his break with Mr. Muhammad, and the developments that led him to testify against Mr. Muhammad and to plead guilty to all charges in Maryland without a deal with the State. Counsel commissioned a detailed report from a licensed clinical social worker and submitted that report to the sentencing court, together with a report by a forensic 15 psychiatrist that had been completed three years earlier in connection with the Virginia case.15 Both are contained in Appendix B to this opinion. According to the report of the forensic psychiatrist, Mr. Malvo’s parents separated when he was five years old, after which he rarely saw his father. His mother was later diagnosed with bipolar disorder.

Beginning when he was nine years old, his mother left him in the care of others for extended periods of time while she pursued work elsewhere in the Caribbean. Mr. Malvo suffered physical and emotional abuse during this period and began displaying symptoms of clinical depression. In the fall of 2000, Mr. Malvo met Mr. Muhammad in Antigua. Mr. Muhammad had absconded to the island with his children in the midst of a custody dispute.

Mr. Malvo’s mother purchased fraudulent citizenship documents from Mr. Muhammad and moved to the United States in December 2000. Mr. Malvo then moved in with Mr. Muhammad, who quickly gained significant influence over Mr. Malvo. During this time, the 15-year-old Malvo adopted Mr. Muhammad’s religion and accent, began referring to himself as “John Lee Muhammad,” and underwent rigorous physical and ideological training by Mr. Muhammad. In May 2001, Mr. Muhammad took Mr. Malvo to Florida, where Mr. Malvo was reunited with his mother. 15 According to the report, the forensic psychiatrist personally interviewed Mr. Malvo on 20 occasions, conducted 11 phone interviews with key figures in Mr. Malvo’s life, reviewed tapes or transcripts of more than 50 additional interviews conducted by defense investigators and mitigation specialists, and reviewed other records and discovery relevant to the case. 16 Mr. Malvo believed that his best chance of becoming a United States citizen was to be adopted by Mr. Muhammad.

In October 2001, he left Florida to join Mr. Muhammad, who had since lost custody of his own children, in Washington State. There, his relationship with Mr. Muhammad deepened. In December 2001, Mr. Malvo and his mother – who had travelled to Washington State to attempt to pry her son away from Mr. Muhammad – were arrested and detained by the federal immigration authorities. After his release from confinement in January 2002, Mr. Malvo rejoined Mr. Muhammad, who dramatically escalated his isolation and indoctrination efforts, including combat training and constant exposure to anti-government thinking.

The forensic psychiatrist concluded that, as a result of Mr. Muhammad’s coercive persuasion, Mr. Malvo developed a dissociative disorder: “He was programmed by Muhammad to become adept at inducing trance-like states, lost his sense of identity and became totally dependent on and obedient to his all-knowing father.” The forensic psychiatrist concluded that, at the time he committed his crimes, Mr. Malvo was “severely impaired in his ability to distinguish right from wrong and was severely impaired in his ability to resist the impulse to commit the act.” According to the report, as Mr. Malvo awaited trial in Virginia, his defense counsel attempted to detach him from Mr. Muhammad, to whom he initially expressed complete devotion. They put Mr. Malvo in touch with his biological father for the first time in years, as well as an influential teacher and guardian from Mr. Malvo’s youth. According to the report, Mr. Malvo improved enough to cooperate with his defense team in his initial trial, but in 2004 he would sometimes revert back into his Muhammad identity. 17 By March 2006, Mr. Malvo decided that he should testify against Mr. Muhammad. Before he had discussed that decision with his defense counsel, he wrote to the prosecution, stating that “I need to do this for myself and for the victims.” As noted above, two months later, he voluntarily testified as a key witness at Mr. Muhammad’s trial and later pled guilty to all of the charges against him without a plea deal. 4.

Sentencing Mr. Malvo was sentenced in the Circuit Court on November 8, 2006. At the time of the sentencing, Maryland law required the sentencing court to impose a sentence of life imprisonment for each murder conviction. Maryland Code, Criminal Law Article (“CR”), §2-201(b) (2006).16 However, the judge had discretion to, among other things, suspend all or part of a sentence, allow or prohibit eligibility for parole, and make a sentence concurrent with or consecutive to other sentences. The presentence report that had been prepared by the Division of Parole and Probation stated that, under the Maryland sentencing guidelines, Mr. Malvo should receive six consecutive terms of life in prison without the possibility of parole, in light of the fact that his offenses resulted in the deaths of six persons.

Relatives of two of the murder victims spoke at the sentencing proceeding. One understandably asked the court to ensure that Mr. Malvo would never re-enter society. The second forgave him for killing her son, 16 At that time, the Maryland statute authorizing imposition of the death penalty for first-degree murder had set a minimum age of 18 for that punishment since 1987 – two decades before the Supreme Court’s Roper decision. See CR §2-202(b)(2)(i) (2006); Chapter 636, Laws of Maryland 1987.

The statutory provision authorizing the death penalty for adults has since been repealed as well. Chapter 156, Laws of Maryland 2013. 18 told Mr. Malvo it would have changed his life if he had known her son, and urged him to make amends with God. Both speakers expressed appreciation to the court system and others. The State acknowledged that Mr. Malvo “has changed,” and had expressed genuine remorse and “grown tremendously,” but it also recommended that he receive “the absolute maximum allowable under the law” – six consecutive sentences of life without parole.

Referring to Mr. Malvo’s testimony against Mr. Muhammad, the prosecutor said “[t]hese acts of contrition … advanced the healing process and the closure process for the victims’ families and the entire community….” In the prosecutor’s words, Mr. Malvo was a “tragic figure,” “under the sway of a truly evil man who infused a 17-year-old with the ideology of hate, an ideology, it appears that Mr. Malvo has now escaped from.” Mr. Malvo’s defense counsel requested that the Circuit Court impose life sentences concurrent to one another and concurrent to his existing life sentences in Virginia. His attorneys did not request parole-eligible sentences. After his counsel gave brief remarks, Mr. Malvo expressed his remorse. The Circuit Court first acknowledged Mr. Malvo’s cooperation with law enforcement in the case against Mr. Muhammad and said that Mr. Malvo “should be commended for [his] acceptance of guilt and voluntary assistance without any promise of leniency.” The court further stated: It appears you’ve changed since you were first taken into custody in 2002.

As a child, you had no one to establish values or foundations for you. After you met John Allen Muhammad and became influenced by him, your chances for a successful life became worse than they already were. 19 You could have been somebody different. You could have been better. What you are, however, is a convicted murderer.

You will think about that every day for the rest of your life. You knowingly, willingly, and voluntarily participated in the cowardly murders of innocent, defenseless human beings. You’ve shown remorse and you’ve asked for forgiveness. Forgiveness is between you and your God, and personally, between you and your victims, and the families of your victims.

This community, represented by its people and the laws, does not forgive you. You’ve been held accountable for the crimes you’ve committed here. You will receive the maximum sentence allowed by the law of this State. The Circuit Court then imposed six sentences of life without parole, consecutive to each other and to Mr. Malvo’s life sentences in Virginia. 5.

Motion to Correct an Illegal Sentence More than a decade later, in January 2017, Mr. Malvo filed a motion to correct an illegal sentence under Maryland Rule 4-345(a) in the Circuit Court. The motion was based on the intervening Supreme Court decisions in Miller and Montgomery. Mr. Malvo’s counsel asserted that, under those decisions, a juvenile homicide offender could be sentenced to life in prison without the possibility of parole only if the sentencing judge first determined that the offender was irredeemable. Because that determination had not been made at Mr. Malvo’s sentencing, he argued, a new sentencing hearing was required.

The Circuit Court heard argument on the issue and, in August 2017, issued a memorandum opinion denying the request for a new sentencing hearing.17 The Circuit 17 The judge who had presided at Mr. Malvo’s guilty plea and sentencing retired in 2006 shortly after sentencing Mr. Malvo. A different judge conducted the motion hearing and issued the memorandum opinion in 2017. 20 Court stated that the substantive rule on sentencing made retroactive by Montgomery applied only to mandatory life-without-parole sentences and, given that the sentencing judge in Mr. Malvo’s case had discretion under Maryland law to sentence him to life with the possibility of parole, Mr. Malvo’s sentence was not illegal within the meaning of Maryland Rule 4-345(a). Noting that the ruling was likely to be appealed, the court went on to consider whether Mr. Malvo’s sentencing complied with the requirements of Miller. The court stated that the sentencing judge was presumed to be aware of the Supreme Court decision in Roper – the first of the Supreme Court’s decisions distinguishing the juvenile and adult sentencing for purposes of the Eighth Amendment and the only one that preceded Mr. Malvo’s sentencing.

The court also noted that the sentencing judge was presented with mitigating evidence related to Mr. Malvo’s youth at the time of sentencing, acknowledged some of it, and presumably took it into account in imposing the sentence. The court concluded that the sentence did not violate the principle set forth in Miller. Mr. Malvo appealed the Circuit Court’s ruling. The Court of Special Appeals stayed the appeal pending this Court’s decision of several cases that later resulted in the decision in Carter v. State, 461 Md. 295 (2018).

While that stay was still in effect, Mr. Malvo filed a pre-judgment petition for a writ of certiorari in this Court in January 2018. We held that petition pending the Supreme Court’s decision in Jones. Following the Supreme Court’s decision in that case and supplemental filings related to Mr. Malvo’s petition, we granted a writ of certiorari in August 2021. 21 II Discussion A. Standard of Review Under Maryland Rule 4-345(a), a court may correct an illegal sentence at any time. The legality of a sentence is a question of law that an appellate court reviews de novo.

Bailey v. State, 464 Md. 685, 696 (2019). A sentence that constitutes cruel and unusual punishment under the Eighth Amendment or the Maryland Declaration of Rights is an illegal sentence for purposes of Maryland Rule 4-345(a). Harris v. State, 479 Md. 84, 113 (2022); see also Randall Book Corp. v. State, 316 Md. 315, 322 (1989). B. Whether the Sentencing Complied with the Eighth Amendment As outlined above, Miller and Montgomery established that the Eighth Amendment requires a hearing where “youth and its attendant characteristics” are considered as sentencing factors so that life without parole is not imposed in cases where a juvenile offender’s crime resulted from transient immaturity.

In Jones, where the sentencing occurred after Miller and Montgomery, the Court clarified that a discretionary sentencing system is “both constitutionally necessary and constitutionally sufficient” to satisfy the procedural component established by Miller and Montgomery. No explicit finding of the offender’s incorrigibility is a prerequisite to a sentence of life without parole; instead, a defense presentation of argument about the offender’s youth and the exercise of the court’s discretion to impose a no-parole sentence can serve as an implicit finding of incorrigibility. While sentencing Mr. Malvo against a constitutional background that lacked all of Graham, Miller, Montgomery, and Jones, the judge appeared to recognize that his crimes 22 – heinous as they were – were committed by a vulnerable and impressionable youth deeply under the sway of an adult he viewed as a father figure. Also, the judge stated that Mr. Malvo had changed in the four years since he had committed those crimes.

At the same time, the judge told Mr. Malvo that “[w]hat you are, however, is a convicted murderer.” These statements lead to two equally reasonable, though conflicting, inferences as to the sentencing judge’s view on whether Mr. Malvo was “the rare juvenile offender whose crime reflects irreparable corruption” and who thus was constitutionally eligible under the subsequent Supreme Court cases for a sentence of life without parole. Miller, 567 U.S. at 479-80 . A third, and perhaps more likely, inference is that the sentencing judge, who in 2006 had no reason to predict the Supreme Court’s development of that standard, did not consider it. The State argues that resentencing of Mr. Malvo is foreclosed by the Supreme Court’s most recent decision in Jones and the fact that Maryland has a discretionary sentencing system.

Mr. Malvo’s sentencing is distinct from that in Jones. It is certainly true that Maryland had a discretionary sentencing regime when Mr. Malvo was sentenced in 2006 and, as usual, we presume that a sentencing judge knows the applicable law – that is, the range of the judge’s discretion under the extant law. However, the sentencing in Jones took place after Miller had been issued and was in fact a resentencing following a remand from an appellate court as a result of Miller. The sentencing court in Jones acknowledged that it had discretion to impose a different sentence in light of Miller and explicitly exercised its discretion not to do so.

See Jones, 141 S. Ct. at 1311, 1313 . 23 In contrast, Mr. Malvo was sentenced before the decisions in Miller and Montgomery were issued and the sentencing court was therefore unaware of the Eighth Amendment constraints that those decisions would announce. We presume that a sentencing judge knows and applies the law, but we do not presume that a sentencing judge is clairvoyant.18 Indeed, in Jones, the Supreme Court acknowledged that most offenders 18 The dissenting opinion of Judge Watts equates Mr. Malvo’s sentencing proceeding to that in Harris v. State, 479 Md. 84 (2022). As Judge Watts acknowledges, in that case, a juvenile offender was sentenced to life with parole and, accordingly, the substantive requirement of Miller did not apply. However, the Court in Harris noted in dicta that the sentencing proceeding complied with Miller’s procedural requirement, as construed in Jones. 479 Md. at 118-20 .

Like the resentencing at issue in Jones, the sentencing in Harris occurred after the Supreme Court had announced the substantive incorrigibility standard in Miller and Montgomery. We can presume, as we usually do, that the sentencing court applied that existing law. As explained in the text, that is not this case, where the sentencing occurred before those decisions. The dissenting opinion of Judge Hotten likewise merges the procedural and substantive elements of Miller and therefore does not recognize that Jones “[did] not disturb” the substantive requirement of Miller that, as recognized in Montgomery, made it retroactive to cases such as this one.

Jones, 141 S. Ct. at 1317 n.4. Contrary to the suggestion in Judge Hotten’s dissent, there is no dispute that Jones held that a “separate factual finding” is not required to satisfy the procedural component of Miller. Dissent of Judge Hotten at 7-8 n.2. But that does not mean that a sentencing that is completely ignorant of the substantive standard set by Miller – i.e., one that preceded its announcement – necessarily complies with the Eighth Amendment.

Indeed, if the mere existence of a discretionary sentencing regime that could take a defendant’s youth into account alone is sufficient to satisfy Miller, there would have been no reason for the Supreme Court to vacate life-without-parole sentences imposed prior to Miller and Montgomery under discretionary sentencing regimes and remand those cases for resentencing in light of those cases. But that is what the Court did. See, e.g., Tatum v. Arizona, 137 S. Ct. 11 (2016); Purcell v. Arizona, 137 S. Ct. 369 (2016); Najar v. Arizona, 137 S. Ct. 369 (2016); Arias v. Arizona, 137 S. Ct. 370 (2016); DeShaw v. Arizona, 137 S. Ct. 370 (mem.) (2016); Blackwell v. California, 568 U.S. 1081 (2013); Mauricio v. California, 568 U.S. 975 (2012); Guillen v. California, 567 U.S. 950 (2012). As noted in the text, in referring to juvenile offenders like Mr. Malvo, for whom Miller and Montgomery applied retroactively, 24 to whom Miller and Montgomery applied retroactively had already been resentenced.

Jones, 141 S. Ct. at 1317 n.4. (“By now, most offenders who could seek collateral review as a result of Montgomery have done so and, if eligible, have received new discretionary sentences under Miller.”). The State argues that the sentencing judge in Mr. Malvo’s case would be presumed to be aware of the Roper decision – the first of the series of Supreme Court decisions on Eighth Amendment constraints on the sentencing of juvenile offenders, which prohibited imposition of the death penalty. No doubt the sentencing court was well aware that the death penalty was off the table in Mr. Malvo’s case under the relevant Maryland statute, as it had been for almost two decades.19 And the court may well have been familiar with the Roper decision’s interpretation of the Eighth Amendment.

But it would be quite another thing for a sentencing court to extrapolate from that case, forecast the future holdings of Miller and Montgomery, and then silently apply that foresight in a sentencing proceeding.20 In our view, the legality of a sentence under the Eighth Amendment is not a topic for this Court’s speculation. Here, it is unclear at best whether Mr. Malvo’s sentencing proceeding complied with the Eighth Amendment constraint announced in Miller, made the Supreme Court observed in Jones that “[b]y now, most offenders … have received new discretionary sentences under Miller.” 141 S. Ct. at 1317 n.4. 19 See footnote 16 above. 20 Notably, the trial and appellate courts in Arkansas, Alabama, and Louisiana, which issued the decisions reversed in Miller and Montgomery, also had the benefit of the Roper decision at the time they issued the decisions that were later overturned by the Supreme Court. 25 retroactive in Montgomery, and affirmed in Jones. Accordingly, we shall remand to the Circuit Court for resentencing.21 21 Mr. Malvo’s flagship argument is based on the Eighth Amendment and the recent Supreme Court decisions construing it. Alternatively, he argues that his sentence was illegal under Article 25 of the Maryland Declaration of Rights, which prohibits the imposition of “cruel or unusual punishment.” (emphasis added).

This Court has generally construed the language of Article 25, which pre-dates the Eighth Amendment, consistently with the Supreme Court’s construction of the Eighth Amendment, although the Court has noted that the textual difference in the two provisions may in some circumstances support a broader interpretation of Article 25. Thomas v. State, 333 Md. 84 , 103 n.5 (1993). State supreme courts that have construed similarly-worded state constitutional provisions to provide additional protections have noted a grammatical basis for doing so. See, e.g., People v. Bullock, 485 N.W.2d 866 , 872 n.11 (Mich. 1992) (observing that “it seems self-evident that any adjectival phrase in the form ‘A or B’ necessarily encompasses a broader sweep than a phrase in the form ‘A and B.’ The set of punishments which are either ‘cruel’ or ‘unusual’ would seem necessarily broader than the set of punishments which are both ‘cruel’ and ‘unusual.’”); see also Dan Friedman, Tracing the Lineage: Textual and Conceptual Similarities in the Revolutionary-Era State Declarations of Rights of Virginia, Maryland, and Delaware, 33 Rutgers L.J. 929 , 967 (2002) (articulating similar reasoning with respect to Article 25); cf. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018) at pp. 92-96 (describing early decision striking down forced sterilization sentence under “cruel or unusual” provision of a state constitution).

Some state supreme courts have held that such language bars the imposition of a sentence of life without the possibility of parole for a juvenile offender. See, e.g., Bullock, supra; Diatchenko v. District Attorney for Suffolk District, 1 N.E.3d 270 (Mass. 2013); see also State v. Kelliher, 873 S.E.2d 366 , 382-387 (N.C. 2022) (holding that the ban on “cruel or unusual” punishments in the North Carolina constitution prohibits the imposition of a juvenile life-without-parole sentence “unless the trial court expressly finds that a juvenile homicide offender is one of those ‘exceedingly rare’ juveniles who cannot be rehabilitated”); State v. Bassett, 428 P.3d 343, 349-350 (Wash. 2018) (holding that a Washington constitutional provision prohibiting “cruel” punishment categorically bars life-without-parole sentences for juvenile offenders). 26 C. Whether JUVRA Renders a Resentencing Unnecessary The State argues that, regardless of whether Mr. Malvo’s life-without-parole sentences violate the Eighth Amendment, the possibility of a sentence reduction under JUVRA cures any constitutional deficiency. Thus, in the State’s view, Mr. Malvo’s sentences are each effectively life with the possibility of parole – at least as far as the Eighth Amendment is concerned. In many instances in which a juvenile offender is serving a lengthy sentence, the State’s argument is likely to be correct.

As this Court has noted, “[t]here is no constitutional requirement that a state have a parole system per se, so long as the state provides a meaningful opportunity for release based on demonstrated maturity and rehabilitation.” Carter, 461 Md. at 318 .22 Both JUVRA and the parole regulations require that a court and the Parole Commission, respectively, consider the individual’s youth at the time of the offense(s) and assess the offender’s subsequent maturity and rehabilitation. Compare CP §8-110 (JUVRA review criteria) with COMAR 12.08.01.18 (considerations for parole). As noted above, JUVRA provides that a court may reduce the duration of a juvenile offender’s sentence if the court finds that (1) the individual is not a danger to the public; As we are holding that the Eighth Amendment requires that Mr. Malvo be resentenced, we need not decide whether Article 25 would require that relief even if the Eighth Amendment did not. 22 In Carter, the Court concluded that the Maryland parole system provided the requisite opportunity for release for Eighth Amendment purposes. 461 Md. at 365 . Carter pre-dated the passage of JUVRA. 27 and (2) the interests of justice will be better served by a reduced sentence.

CP §8-110(c). Of the 10 statutory factors that a reviewing court must consider, most direct the court to consider the offender’s youth at the time of the offense and the offender’s subsequent progress while incarcerated. These include “whether the individual has substantially complied with the rules of the institution,” “whether the individual had completed an educational, vocational, or other program,” “whether the individual has demonstrated maturity, rehabilitation, and fitness to reenter society sufficient to justify a sentence reduction,” and “the diminished culpability of a juvenile as compared to an adult….” CP §8-110(d). The court must issue a written decision that addresses these factors.

CP §8- 110(e). If anything, review of a sentence under JUVRA may provide a better opportunity than the parole process for many offenders to secure release or a sentence reduction. Unlike parole hearings, which are described by the regulations as “interview[s]” where “formal presentations by attorneys, relatives, and others interested are not permitted,” COMAR 12.08.01.18C,23 a juvenile offender who files a motion under JUVRA is entitled to a court hearing at which the offender may introduce evidence in support of the motion. CP §8- 110(b).

Thus, as a general rule, JUVRA is likely to provide the “meaningful opportunity for release” contemplated by the Supreme Court. But it is not clear that JUVRA alone would cure an illegal sentence and provide a meaningful opportunity for release equivalent to parole for a defendant serving multiple 23 See Farmer v. State, 481 Md. 203, 210-14 (2022), op. at 2-8, for a more detailed description of the parole standards and process. 28 consecutive life-without-parole sentences. Assuming that the individual’s sentences are illegal for failure to comply with Miller and the defendant is entitled to be resentenced, JUVRA might not be an adequate substitute for the imposition of legal sentences. There are many variables at play: whether on resentencing, the sentencing court, newly mindful of the Eighth Amendment constraints, determines that the defendant is incorrigible; if not, how the defendant is resentenced (whether the sentences are appropriately consecutive or concurrent and how they are aggregated24); and how JUVRA is construed to apply to them.25 In Mr. Malvo’s case, this may be an entirely academic question.

His Maryland life- without-parole sentences run consecutively to each other and to the Virginia sentences that he is currently serving.26 The first step – a sentencing compliant with the Eighth Amendment – has not yet happened. At this time, we cannot say that JUVRA alone renders his sentence compliant with the Eighth Amendment as construed in Miller. 24 That determination can also affect a defendant’s timeline for parole eligibility. 25 As noted in Farmer, 481 Md. at 230-31 , op. at 26, there are several open questions concerning the application of JUVRA. The answers to those questions may determine the extent to which the statute functions as a meaningful opportunity for release equivalent to parole for a juvenile offender serving multiple consecutive life-without-parole sentences. 26 Under a law enacted in 2020, all juvenile offenders in Virginia are now eligible for parole after serving 20 years. Va.

Code §53.1-165.1(E). Of course, that law does not mean that Mr. Malvo will be paroled in Virginia when he becomes eligible – or ever. 29 III Conclusion To comply with the standard that the Supreme Court has set for sentencing a juvenile offender to life without parole, the Circuit Court must resentence Mr. Malvo. We express no opinion on what sentence the Circuit Court should impose.27 As in any criminal case, the sentencing court has broad discretion and there will be no question in this instance that the sentencing court is aware of the relevant Eighth Amendment constraints. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

COSTS TO BE SPLIT EVENLY BETWEEN PETITIONER AND MONTGOMERY COUNTY. 27 Judge Hotten’s dissent concludes that the offenses committed by Mr. Malvo were not the product of transient immaturity and that the six consecutive life-without-parole sentences are “just, fair, and compliant with the Eighth Amendment.” Although the Supreme Court standard still permits a sentencing court to sentence a juvenile homicide offender to life without parole, she asserts that the General Assembly’s policy choice in the prospective provision of JUVRA will eliminate that option on remand. Dissent of Judge Hotten at 22 n.8. That may well be true, but as horrible as we may find these crimes, it is not our role to advocate for any particular sentence or to make the decision for the sentencing court. Rather, it is to ensure that sentences are imposed in compliance with the Eighth Amendment as interpreted by the Supreme Court. 30 Appendix A At Mr. Malvo’s guilty plea proceeding on October 10, 2006, in the Circuit Court for Montgomery County, the Assistant State’s Attorney prosecuting the case gave the following statement of facts as the basis for the charges to which Mr. Malvo was pleading guilty.

Mr. Malvo indicated that he agreed with the statement to the extent it covered the incidents in Maryland to which he was pleading guilty. His attorney indicated that he would not admit guilt to offenses in other jurisdictions pending a global disposition of other charges. Had the case gone to trial, the evidence would have shown that these six murders occurred on three separate days in October of 2002. These victims were James Martin who was killed on October 2nd, James Buchanan who was killed on October 3rd, Premkumar Walekar also killed on October 3rd, Maria Sarah Ramos killed on October 3rd, Lori Ann Lewis-Rivera killed on October 3rd and finally Conrad Johnson who was murdered on October 22nd.

These six murders were part of a larger robbery, extortion and killing spree that spanned from September the 5th of 2002 to October the 24th of 2002 in which six other victims were murdered and six more victims suffered gunshot wounds as a result of the defendant's actions. These other shootings occurred elsewhere in Maryland, Virginia, Washington, D.C., Alabama and Louisiana. The evidence would have shown that on October the 2nd, 2002 at approximately 6:02 p.m. in the parking lot of a Shoppers Food Warehouse located on Randolph Road, Wheaton, Montgomery County, Maryland, James Martin was walking toward the store when he was shot once in the back with a bullet fired from a distance. Mr. Martin said help me and fell to the ground almost immediately dead.

There were no eyewitnesses and no meaningful ballistics evidence recovered. 1 However the autopsy revealed that the entry wound to Mr. Martin’s back was very small, the exit wound to his chest was very large and there were massive internal injuries, all of which are characteristic of and consistent with a small caliber bullet fired from a high-velocity rifle. The following day, the first of four murders that would occur within about two hours of each other took place; the first of four murders took place at 7:41 a.m. at the Fitzgerald Auto Mall in Rockville, Montgomery County, Maryland. The victim, James Sonny Buchanan was mowing the lawn on the outer perimeter of the property when he was shot once in the back with a bullet fired from a distance. Mr. Buchanan, clutching his chest, ran on to the parking lot of the dealership, collapsed and later died.

Once again there were no eyewitnesses and no meaningful ballistics evidence. As with Mr. Martin, however, the autopsy revealed that the entry wound to Mr. Buchanan's back was very small, the exit wound to his chest was very large, there were massive internal injuries and the bullet had fragmented into many small pieces, the so-called snowstorm effect, all of which are characteristic of and consistent with a small caliber bullet fired from a high-velocity rifle. Thirty minutes later at approximately 8:12 a.m. Premkumar Walekar was fueling his taxi cab at the Mobile Gas Station on Connecticut Avenue in Silver Spring, Montgomery County, Maryland when he was shot once with a bullet that was fired from a distance.

Mr. Walekar staggered to a nearby car asking for assistance; however, he died within minutes. The autopsy revealed that the bullet had entered under his left arm. It also showed a small entrance wound, massive internal injuries and the snowstorm effect characteristic of and consistent with a small caliber 2 bullet fired from a high-velocity rifle. Ballistics tests later established that the bullet fragments recovered from Mr. Walekar’s body had been fired from the .223 caliber Bushmaster rifle that was found in the car with the defendant and his co-defendant when they were arrested 21 days later in Frederick, Maryland.

At approximately 8:37 a.m. again on October 3rd, 2002, Maria Sarah Ramos was sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center in Silver Spring, Montgomery County, Maryland. She was shot once in the head with a bullet that was fired from a distance and she died instantly. The autopsy revealed that the bullet had entered the front of her head and exited the back. The entrance wound was small, the exit wound was large and the internal injuries massive characteristic of once again and consistent with a small-caliber bullet fired from a high-velocity rifle.

Ballistics tests later established that the bullet fragments recovered from Ms. Ramos’ body and a copper bullet jacket recovered from inside the restaurant had been fired from the .223 caliber Bushmaster rifle found in the car with Mr. Malvo and his co-defendant when they were arrested. Again on October the 3rd at approximately 9:58 a.m. Lori Ann Lewis- Rivera was vacuuming her minivan at the Shell Station at the corner of Connecticut Avenue and Knowles Avenue in Kensington, Montgomery County, Maryland when she was shot once in the back with a bullet that was fired from a distance. The entrance wound was very small, there was no exit wound, the internal injuries were massive and the bullet once again had fragmented with a snowstorm effect characteristic of and consistent with a small caliber bullet fired from a high-velocity rifle. 3 Ballistics tests later established that the bullet fragments recovered from Ms. Lewis-Rivera's body had been fired from the .223 caliber Bushmaster rifle that was found in the car with the defendant and his co- defendant when they were arrested.

Thereafter between October the 3rd, 2002 and October the 19th, 2002, four additional victims were murdered and three others seriously wounded in shootings that occurred in the District of Columbia, Virginia and elsewhere in Maryland and I'll outline those shootings in a moment. The final murder and the sixth that occurred in Montgomery County took place on October the 22nd, 2002 at about 6:00 a.m. While onboard his Ride On bus in the area of Grand Pre Road in Silver Spring, Montgomery County, Maryland, the driver, Conrad Johnson was shot once in the upper abdomen with a bullet that was fired from a distance. Mr. Johnson was taken by helicopter to the hospital where he later died during surgery.

The autopsy revealed that the entrance wound was very small, there was no exit wound, the internal injuries were massive and the bullet had fragmented with a snowstorm effect characteristic of and consistent with a small-caliber bullet fired from a high-velocity rifle. And once again ballistics tests later established that the bullet fragments recovered from his body had been fired from the .223 Bushmaster that was recovered in the defendant's possession at the time of his arrest. In a patch of woods near the scene of Mr. Johnson’s murder, investigators found tacked to a tree a clear plastic Ziploc bag that contained a note. Fifty feet beyond the location of the note, investigators located a black duffle bag, a left-handed glove and a second Ziploc bag.

The note which exhibited 13 small adhesive stars believed to represent the 13 victims stated in part “for you Mr. Police, call me God, do not release to the press. You did 4 not respond to the message, you departed from what we told you to say and you departed from the time. Your incompetence has cost you another life. You have until 9:00 a.m. to deliver the money and 8:00 a.m. deliver this response.

We've caught the sniper like a duck in a noose knot to let us know you have your demands.” Thereafter in the early morning hours of October the 24th, 2002 at a rest area in Frederick, Maryland, Mr. Malvo and John Allen Muhammad were arrested while sleeping in a blue 1990 Chevrolet Caprice owned by Mr. Muhammad. Inside the car, investigators recovered numerous evidentiary items including a loaded .223 caliber Bushmaster rifle that yielded Mr. Malvo’s DNA and fingerprint, a black duffle bag containing an ammo magazine that yielded Mr. Malvo’s DNA and a rifle sight with Muhammad’s DNA, a global positioning system receiver, earplugs, maps and Ziploc plastic page, a pair of walkie-talkies, a digital voice recorder with Mr. Malvo and Mr. Muhammad’s voices recorded, receipts from Save-A-Lot and Piggly Wiggly stores located in Baton Rouge, Louisiana, and a plastic bag from the Big Lots store, a slip of paper containing the Sniper taskforce hotline telephone number and a Sony laptop computer loaded with the software program Microsoft Streets and Trips 2002. In this program were many maps of the Washington, D.C., area including one marked with several skull and crossbones icons at locations where various shootings had occurred including the shootings of Mr. Martin and Mr. Buchanan. Additionally, the computer’s hard drive included a Microsoft Word file that contained excerpts of an extortion demand.

Finally, investigators discovered that the trunk of the Caprice had been fashioned into a sniper's nest. The rear seat was hinged to provide easy access to the trunk, 5 the inside of the trunk was spray-painted blue to blend in with the color of the exterior and a hole had been cut into the trunk frame just above the license plate, a hole large enough to accommodate the muzzle of a rifle. In perpetrating the six charged murders, Mr. Malvo and his co- defendant were attempting to extort $10 million from the government. This extortion campaign was preceded by a series of murder/robberies through which the defendants generated the means and tools with which to carry out this campaign.

The first of these occurred on September the 5th, 2002 in Clinton, Maryland, where Paul LaRuffa was shot and robbed outside of Margellina's Restaurant which he owned. Mr. LaRuffa was shot five times with a .22 caliber revolver. His Sony laptop and a briefcase containing bank deposit bags and $3,500 in cash were stolen. The Sony laptop is the one that was found in the Chevy Caprice with the defendant at the time of his arrest.

Additionally, about six weeks after the robbery, the briefcase and empty bank deposit bags were found along with some clothing about a mile from the LaRuffa shooting and this clothing yielded Mr. Malvo's DNA. Ten days later on September the 15th, 2002, also in Clinton, Maryland, Muhammad Rashid was shot while closing the Three Roads Liquor Store. He was shot at close range with a .22 caliber revolver by a young man he later identified as Mr. Malvo. Additionally, evidence of two high-velocity rifle shots was recovered from inside the store.

On September the 1st , 2002, Claudine Parker and Kellie Adams were shot immediately after closing the Zelda Road ABC Liquor Store in Montgomery, Alabama. Mrs. Parker died from a single gunshot wound that entered her back. Ms. Adams was shot through her neck but survived. Both bullets came from a high-velocity rifle.

Simultaneous with the shootings, a young man later identified as Mr. Malvo ran up to the victims and began to 6 go through their purses. Mr. Malvo was pursued from the scene by a police officer and another bystander. During the chase, he dropped a gun catalog and a .22 caliber revolver. The catalog yielded Mr. Malvo's fingerprints.

Ballistics tests later confirmed that the revolver that he dropped was the same gun used earlier to shoot Mr. LaRuffa and Mr. Rashid in the shootings that I just described. In addition ballistics tests later established that both women, Ms. Parker and Ms. Adams had been shot with the .223 caliber Bushmaster rifle recovered from the car at the time of the defendant's arrest. Finally, two days later on September the 23rd, 2002 in Baton Rouge, Louisiana, Hong Em Ballenger was murdered outside of a Beauty Depot store. She was shot once in the neck with a bullet fired from a high-velocity rifle.

Bullet fragments recovered from her body were later established to have been fired from the Bushmaster rifle recovered with the defendant at the time of his arrest. Additionally two eyewitnesses saw Mr. Malvo flee the scene with Ms. Ballenger’s purse and one of them saw him get into the Chevy Caprice. Now, as previously mentioned, Mr. Malvo and Mr. Muhammad began their extortion scheme with the murders of Mr. Martin, Mr. Buchanan, Ms. Ramos and Ms. Lewis-Rivera on October the 2nd and 3rd in Montgomery County. At approximately 9:15 p.m. later that day on October the 3rd, 2002, Pascal Charlot was shot once in the upper chest as he crossed Georgia Avenue Northwest in Washington, D.C. The bullet was fired from a distance from a high-velocity rifle.

Bullet fragments recovered from his body were found to have been fired from the .223 caliber Bushmaster rifle. In addition eyewitnesses placed the Caprice at the scene of the shooting. 7 The next day, October the 4th, 2002, outside of Michael’s craft store in Fredericksburg, Virginia, Caroline Seawell was wounded by a single shot from a high-velocity rifle. An eyewitness saw the Caprice in the parking lot at the time of the shooting. Once again ballistics tests established that Ms. Seawell had been shot with a bullet fired from the .223 Bushmaster rifle.

Three days later on October the 7th, 2002, outside of Benjamin Tasker Middle School in Bowie, Maryland, l3-year-old Iran Brown was shot once in the chest from a distance with a high-velocity rifle. An eyewitness saw the Caprice in the neighborhood in the night before the shooting. In the woods next to the school investigators found a ballpoint pen barrel, a shell casing and a Tarot, the death card with handwriting on it. The shell casing and bullet fragments recovered from Iran Brown’s body were matched to the .223 caliber