State v. Adams

DAVIS, Judge. Appellee, Raymond Leon Adams, was charged with multiple counts of first-degree rape and first-degree sexual assault, kidnapping, theft, and robbery with a dangerous and deadly weapon. Following a trial on December 3-7, 1979, appellee was found guilty on all counts. On January 18, 1980 and February 4, 1980, appellee was sentenced to life imprisonment for one count of first-degree rape and twenty-one concurrent life sentences for the remaining rape and sexual offenses, thirty consecutive years for kidnapping and a twenty-year ⁶⁷³ sentence for robbery, which was to be served consecutively to all the other sentences.

This Court affirmed appellee’s convictions in an unreported, per curiam opinion. See Adams v. State, No. 133, September Term, 1980 (filed October 16, 1980). The Court of Appeals denied appellee’s pro se Petition for Writ of Certiorari on December 2, 1980. Adams v. State, 289 Md. 733 (1980).

On April 1, 2004, appellee filed a Petition for Post Conviction Relief in the Circuit Court for Prince George’s County collaterally challenging his convictions under numbers 20,221, 20,494, 20,546 and 20,723. Subsequent to a hearing held on December 7, 2004 on appellee’s post-conviction petition, the Petition for Relief pursuant to the Post Conviction Procedure Act was granted on April 5, 2005, by the court (Platt, J.), which ordered that Petitioner be awarded a new trial on all counts of the indictments. On May 4, 2005, the State filed its Application For Leave To Appeal and, on May 17, 2005, the State filed a Motion for Leave to File a Supplemental Application for Leave to Appeal. This Court granted the State’s timely Application for Leave to Appeal on October 18, 2005, presenting the following questions for our review: I. Did the post conviction court err in rejecting the State’s claim that appellee was procedurally barred from pursuing his substantive complaint as to the advisory nature of the jury instructions and, if not barred, did the trial court properly instruct the jury?

II

Did the post conviction court err in rejecting the State’s claim that appellee was procedurally barred from pursuing his substantive complaint as to the court’s failure to give proper instruction regarding jurisdiction and, if not barred, did the trial court properly instruct the jury?

III

Did the post conviction court err in finding that appellee’s trial counsel was ineffective? For the reasons which follow, we affirm the judgment of the circuit court. ⁶⁷⁴ FACTUAL BACKGROUND We considered, in appellee’s direct appeal, whether the evidence presented at trial was sufficient to permit the trier of fact to determine that the events giving rise to his conviction occurred in Maryland. The facts upon which appellee’s conviction were based, as recited by this Court in that appeal, are as follows: On the evening of February 17, 1979, Kathy Phipps, along with her older sister, Teresa Bowen, was on the parking lot of the Prince George’s Motor Lodge at approximately 10:00 p.m. The two sisters were returning to their car after having left a disco at Cuckoo’s Nest.

A black van approached and cornered the two of them against some parked cars. Three males got out of the van and approached the two women. [Appellee] was carrying a gun and ordered both women into the van, threatening to shoot them if they did not comply with his order. He grabbed Ms. Phipps. Ms. Bowen backed away and began to scream.

As she did so, she saw [appellee] hit her sister over the head and then she heard her sister scream. She observed three males push Kathy into the van and drive off. It was undisputed that the location of the Prince George’s Motor Lodge was in Prince George’s County Maryland, and was located approximately one and one-half miles from the District of Columbia line. Ms. Phipps testified that immediately after being forced into the van, she was ordered at gunpoint to remove her jewelry and did so.

In leaving the Prince George’s Motor Lodge, the van was heading along Branch Avenue in the general direction of Washington D.C. Shortly after removing her jewelry, Ms. Phipps was forced to remove her clothes. [Appellee] was the driver of the van. The passenger to the right front seat, on the direct order of [appellee], moved into the back of the van and started to pull Ms. Phipps clothes off when she was not moving fast enough in disrobing herself. The other passenger in the van then raped her. ⁶⁷⁵ [A] whole series of sexual attacks—rape, anal intercourse and fellatio at the hands of [appellee] himself; both passengers in the van and, later, a group of several other males during a stop at a parking lot—ensued.... Immediately after Ms. Phipps’ gold necklace and watch had been grabbed from her and various rings had been ripped off her fingers, the sexual assault began.

She described all of this as taking “just a minute or so.” [S]hortly after the first rape, at gunpoint, was over, the van turned off of Branch Avenue, making a right-hand turn and went up a hill. Going the wrong way up a one-way street, it was involved in a minor accident. The whole series of sexual attacks of every variety by a number of parties followed. Ms. Phipps estimated that when the second attack began, approximately ten to fifteen minutes had already elapsed since the time of the initial kidnapping.

She asked her abductors if they were still in Maryland, to which they replied affirmatively, but they laughed in the process of making the affirmative reply, leading her to doubt their truthfulness. At one point in her ordeal her various abductors had put a coat over her head so that she could not see anything. Ultimately she was threatened with death and then pushed out of the van, which resulted in her being in Prince George’s County, Maryland. When she knocked on the door of an apartment house for assistance, it was the Prince George’s County Police who responded.

This was approximately 12:15 a.m., a little over two hours after she had been kidnapped. Additionally, Teresa Brown identified William Raleigh Knight and appellee as the passenger in the back of the van and the driver of the van, respectively; she also identified appellee as the gunman at a line-up after he had been arrested. Kathy Phipps identified appellee’s photo in an array shortly after the incident and also several days later; she later identified the pair at trial. Appellee had been seen by Officer Peter G. Serbinoff, a Washington D.C. police officer, in a van with octagonal windows, a CB antenna and wheels matching the description of the van that had been used in the offenses ⁶⁷⁶ at almost the same time the description was relayed over his radio.

Inside of the van, the Washington D.C. Evidence Collection Unit found a white scarf and comb identified by Phipps as hers and three used prophylactics. At the conclusion of the evidence, it was stipulated that the medical evidence would show that Phipps had been vaginally and anally sexually assaulted. Prior to closing argument by counsel, the trial judge gave the following instructions to the jury: All right, ladies and gentlemen of the jury, the testimony in this case has been concluded, and prior to your listening to [State’s Attorney] and [appellee’s counsel] tell you what they think you ought to do in this particular case, I am going to instruct you and discuss with you the law about the case that we have just sat and listened to for the past five days. Those of you who have sat previously as jurors in a criminal case know, and for those of you who have not sat previously and who do not know, that in our State, unlike [forty-eight] other states in our country, in a criminal case you as the jury sit not only as what we call the triers of fact, you also sit as what we call the judge of the law.

And what this means, in essence, is that the facts in this case as you have sat and listened to for the past five days will be as you find them to be, and the law in this case will be as you find it to be. And because you are both the judges of the fact and the judges of the law anything that I may now tell you about either the facts or the law is purely advisory. You may disregard anything that I tell you, and you may pay absolutely no attention to what I tell you concerning either the facts or the law, with this one admonition concerning the law. You are not to apply the law as you think it ought to be or what it should be, but what it in fact is in this particular case.

And because you are the judges of the law [State’s Attorney] and [appellee counsel] in their closing arguments to you may tell you what they think the law is in our State and how you should apply it in this particular case. ⁶⁷⁷ I, therefore, instruct you in an advisory capacity that in this case that you will sit on, that is of a criminal nature, the law places the burden on the State of Maryland to prove that the defendant, and in this case [appellee] is guilty beyond what we call a reasonable doubt. No defendant in any criminal case has to prove he is innocent. Accordingly, you will assume that [appellee] is innocent unless you are convinced from all the evidence in this case that you have heard for the past five days that he is guilty. The trial court also instructed the jury: I further instruct you in an advisory capacity that you have sat and listened to testimony in this case concerning identification of [appellee] by use of photographs and by use of a lineup.

And in this regard I instruct you that the burden is also on the State of Maryland to prove to your satisfaction not only beyond a reasonable doubt that an offense was committed, but that [appellee] is the person that committed it and has been properly identified. An[d] whether or not he has been properly identified is, a question solely for you to determine, and you must be satisfied beyond a reasonable doubt as to the accuracy of the identification of [appellee] before you may convict him of any of these offenses. And I, therefore, instruct you in an advisory capacity that a person who aids or abets the principal offender may be guilty of the principal offense, even though he or she did not personally commit each of the acts constituting the offense. * * * I further instruct you in an advisory capacity that anything [State’s Attorney] or [appellee’s counsel] told you when this case started, anything that either of them are going to tell you after I conclude my instructions in this case, is not evidence. I further advise you in an advisory capacity that you have the right to believe the testimony of any witness that you choose to believe, you may disbelieve the testimony of any witness that you choose to disbelieve---- ⁶⁷⁸ In response to the court’s instructions, appellee’s counsel said, “Note my exception to the Court not giving the requested reasonable doubt instruction I submitted.” In response to the court’s instruction that “this trial and your function as jurors is a search for the truth,” appellee’s counsel filed another exception, stating, “the trial is a determination as to whether or not the State has proven beyond a reasonable doubt that the defendant is guilty.” Finally, the following colloquy transpired: [APPELLEE’S COUNSEL]: If the trial is a search for the truth— THE COURT: What is a trial? [APPELLEE’S COUNSEL]:—we would not be bound by any exclusionary rules.

The trial is a determination in a given set of rules as to whether or not in a criminal case the prosecution has proven beyond a reasonable doubt that the defendant committed the crime alleged. POST CONVICTION PROCEEDING At the conclusion of the hearing on appellee’s Petition for Post Conviction Relief, the circuit court issued the following opinion, in pertinent part: 1 A. “Advisory Only” Jury Instructions The petitioner argues that the trial court’s directive to the jury that its instructions were only advisory violated his right to due process. Specifically, the Petitioner provides that the trial court not only gave a blanket statement that the instructions were advisory but also repeatedly reminded the jury that the court’s instructions were merely advisory. Thus, allowing the jury to disregard fundamental principles such as the State’s burden to prove its case beyond a reasonable doubt, rendering the instructions constitutional. ⁶⁷⁹ Since Petitioner’s trial in 1979, there have been several state and federal decisions rendered regarding advisory jury instructions, which the Petitioner submits as authority to support his position.

In Stevenson v. State, 289 Md. 167, 171 , 423 A.2d 558, 560 (1980), the trial court instructed the jury that “anything which I may say about the law, including any instructions which I may give you, [are] merely advisory and you are not in any way bound by it.” However, the trial “judge did not again mention that his statements concerning the law were for its guidance and not binding; rather he couched all of his remarks in mandatory language.” Stevenson, 289 Md. at 171 , 423 A.2d at 561 . It is in this case that the Court of Appeals took the opportunity to explore the constitutionality of Article 23 of the Maryland Declaration of Rights. The Court found that Article 23 did not violate the Due Process Clause of the Fourteenth Amendment because it only granted the jury the authority to decide “ ‘the law of the crime,’ Stevenson, 289 Md. at 178 , 423 A.2d at 564 (citing Wheeler v. State, 42 Md. 563, 570 (1875)), or ‘the definition of the crime,’ ” as well as “the legal effect of the evidence.” Stevenson, 289 Md. at 178 , 423 A.2d at 564 (citing Beard v. State, 71 Md. 275, 280 , 17 A. 10 [44], 1045 (1889)). Thus, the Court of Appeals concluded, “it is not within the province of the jury to decide whether a statute has been repealed, whether it has operative effect or if it is unconstitutional.” Stevenson, 289 Md. at 178 , 423 A.2d at 564 .

In Montgomery v. State, 292 Md. 84 , [89-90], 437 A.2d 654, 657 (1981), the Court of Appeals found that “[i]t was error for the trial judge to tell the jury they could pay no attention to instructions on the law which did not pertain to the elements of the crime but which were standard instructions invoked to preserve the integrity of the judicial system and to assure the defendant a fair and impartial trial.” The Court remanded the case for a new trial because there was no dispute as to the law of the crime and it was error to instruct the jury that instructions were non-binding. ⁶⁸⁰ As explained in Guardino v. State, 50 Md.App. 695, 702 , 440 A.2d 1101, 1105 (1982), the teachings of Stevenson and Montgomery “are an affirmation of prior decisions, in accord with established law consistently followed by the Court of Appeals, even though not recognized in practice by many of the trial courts.” Thus, neither case explicated a new rule but merely reaffirmed what has been consistently the law of the State of Maryland. The law in Maryland is that the trial judge is charged with the duty to “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 effects 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 the law are beyond the jury’s pale, and that judge’s comments on these matters are binding upon that body.” Stevenson v. State, 289 Md. at 180 , 423 A.2d at 565 . In the present case, the transcript is replete with instances of advisory instructions, which should have been binding on the jury and counsel. For example, the trial judge gave the following instruction: (1) And because you are both the judges of the fact and the judges of the law anything that I may now tell you about either the facts or the law is purely advisory.

You may disregard anything that I tell you, and you may pay absolutely no attention to what I tell you concerning either the facts or the law____ (2) I, therefore, instruct you in an advisory capacity that in this case that you will sit on, that is of a criminal nature, the law placed the burden on the State of Maryland to prove that the defendant, and in this case [appellant], is guilty beyond what we call a reasonable doubt.... (3) I further instruct you in an advisory capacity that anything [appellee’s counsel] or [State’s Attorney] told you when this case started, anything that either of ⁶⁸¹ them is going to tell you after I conclude my instruction in this case, is not evidence. The Court of Appeals has identified “certain bedrock characteristics ... which are indispensable to the integrity of every criminal trial, to wit:” (1) The accused is presumed innocent until proven guilty by the State by evidence beyond a reasonable doubt. (2) The state has the burden to produce evidence of each element of the crime establishing the defendant’s guilt.

(3) The defendant does not have to testify and the jury may infer no guilt because of his silence. (4) The evidence to impeach the defendant bears only on his credibility and may not be used to prove the substance of the offense. (5) The evidence is limited to the testimony (and reasonable inferences therefrom) and the exhibits into evidence. (6) Evidence does not include the remarks of the trial judge nor the arguments of counsel.

Montgomery v. State, 292 Md. at 91 , 437 A.2d at 658 . “[T]he 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 [of the crime] may be regarded as non-binding.” Stevenson, 289 Md. at 180 , 423 A.2d at 565 . Finally, the Petitioner seeks reliance on Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir.2000) as additional support for its position. In Jenkins , the Fourth Circuit held an advisory reasonable doubt instruction given pursuant to Maryland law violated the defendant’s federal right to due process. In Jenkins , as in this case, the Petitioner argues, the trial court reminded the jury throughout the charge that the instructions were merely advisory.

The Jenkins Court further applied its decision retroactively and overturned the conviction even though state law permitted the unconstitutional charge at the time of the trial. The Petitioner seeks to apply Jenkins to the instant case retroactively. ⁶⁸² At the time of the Petitioner’s trial in 1979, the law in Maryland was settled that the jury was the judge of the law as well as the facts. See Giles v. State, 229 Md. 370, 383 , 183 A.2d 359, 365 (1962). However, because Article 24 of the Maryland Declaration of Rights provides the same protections as the Due Process Clause of the federal constitution, see Bureau of Mines v. George’s Creek, 272 Md. 143, 156 , 321 A.2d 748, 755 (1974) (“decisions of the Supreme Court on the Fourteenth Amendment are practically direct authorities” regarding Article 24), it is now clear for the first time after Jenkins , that Article 23 of the Maryland Declaration of Rights, requiring advisory only jury instructions, is inconsistent with Article 24 of the Maryland Declaration of Rights, assuring the Due Process of Law.

As the cases decided after Petitioner’s trial demonstrate, the advisory jury instructions given in this case violated the Petitioner’s right to due process. On direct appeal, the Petitioner could not have raised this claim because state law barred a challenge to the advisory only jury charge. Criminal Procedure Article § 7-106(b)(l)(i), provides that “an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation before trial, on direct appeal,” or in another applicable proceeding. Furthermore, a claim that otherwise may have been waived may be heard when there is a subsequent change in the law.

Criminal Procedure § 7-106(c)(2). It is clear that in the present case that all the cases decided leading up to Jenkins materially changed the law governing the constitutionality of the advisory jury instruction, thus excusing any waiver. This Court finds that the trial judge failed to delineate the dichotomy espoused in Stevenson because it instructed the jury that the instructions given were advisory and instructed the jury, through a blanket statement, that they could pay absolutely no attention to what the court’s instructions were as to facts or law. Furthermore, this Court finds that in light of Jenkins the Petitioner’s post conviction relief for a new trial must be granted. ⁶⁸³ Ineffective Assistance of Counsel It is well settled that in determining whether counsel’s assistance to a defendant in a criminal case was ineffective, this court must examine whether counsel’s conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result.

Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (19[84]). Under Strickland , a petitioner must show that trial counsel’s performance was deficient; and the deficient performance prejudiced the defense. Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 . It is not enough for the petitioner to show that the errors alleged had some conceivable effect on the outcome.

Harris v. State, 303 Md. 685, 700 , 496 A.2d 1074 (1985). The petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . In Williams v. State, 326 Md. 367, 375 , 605 A.2d 103, 107 (1992), the court indicated “the prejudicial effect of counsel’s deficient performance need not meet a preponderance of the evidence standard.” Therefore, a defendant need only show that, based on counsel’s errors, there is a “substantial or significant possibility that the verdict of the trier of fact would have been affected.” Williams, 326 Md. at 375 , 605 A.2d at 107 . In effect, even a single serious error by counsel can provide a basis for a finding of ineffective assistance of counsel.

In re Parris W., 363 Md. 717, 726 , 770 A.2d 202, 207 (2001). The Petitioner alleges several errors by counsel that render his assistance ineffective. A. Failure to Object to the Trial Court’s Instruction Based on a Venue Statute As discussed previously, the trial court improperly instructed the jury that it could find that Maryland had territorial jurisdiction based on an inapplicable venue statute. The Petitioner argues that trial counsel was ineffective for failing to object to the erroneous instruction. ⁶⁸⁴ The facts are undisputed that the victim was abducted one and one-half miles from the District of Columbia.

According to testimony during trial, the victim was put in a van and driven around for well over two hours. There is further evidence that the assailant believed that at some point during this two-hour period she was in the District of Columbia. Based upon this, the Petitioner contends that there was a substantial probability or possibility that, had counsel objected to the erroneous venue instruction and requested a proper jurisdiction instruction, the jury would not have unanimously found, beyond a reasonable doubt, that the key elements of the offenses occurred in Maryland. This Court agrees. .

Thus, the Petitioner is entitled to post-conviction relief as to Counts III, IV, V, VI, VII, VIII, IX, X, XI, XII and XIII. B. Failure to Object to Erroneous Reasonable Doubt Instruction As discussed herein, the trial court must provide an example or explanation of reasonable doubt upon the request of the accused. Lansdowne v. State, 287 Md. 232 , 412 A.2d 88 (1980). The Petitioner argues that had counsel made a timely objection, the trial court would have been required to give an adequate explanation of reasonable doubt.

However, Lansdowne only provides that a reasonable doubt instruction is inadequate when the defendant requests an explanation and the court does not provide one. While prudence may suggest that an explanation always be provided, Lansdowne does not make it mandatory. As this Court earlier concluded, it appears that the reasonable doubt instruction is adequate. The failure of the defense attorney to request an explanation of reasonable doubt does not by its very nature make the instruction inadequate.

In State v. Hunter, the Court of Appeals recognized that the “Sixth Amendment does not require the best possible defense or that every attorney render a perfect defense. In order to be deficient, counsel’s acts or omissions must be ‘outside the wide range of professionally competent assis ⁶⁸⁵ tanca’ ” 103 Md.App. 620, 623 , 654 A.2d 886, 887 (1995) (citing Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 ). In the instant case, this Court finds that the trial counsel’s performance was not deficient as to this issue and it is further held that Petitioner has failed to show that he was prejudiced by his trial counsel’s failure to object to the court’s Reasonable Doubt Instruction. Thus, Petitioner has failed to satisfy the two-prong test of Strickland and is therefore not entitled to Post Conviction Relief on this ground.

C. Failure to File a Motion for Modification of Sentence Following the imposition of sentence in this case, Petitioner had the right to file, within ninety days (90) after sentencing, a Motion for Modification of Sentence. Md. Rule 4-345(b). Trial counsel did not do so. This failure, the Petitioner contends, amounts to ineffective assistance of counsel.

As a result the Petitioner should be entitled to file a belated motion for modification of sentence. This Court agrees. In State v. Flansburg, 345 Md. 694 , 694 A.2d 462 (1997), the Court of Appeals held that the respondent was entitled to the effective assistance of counsel in filing a Motion for Modification of Sentence. The Court held that because respondent had a statutory right to counsel, he had the right to the effective assistance of counsel.

Flansburg, 345 Md. at 703 , 694 A.2d at 467 . In addition, Md. Rule 4-214(b) provides: When counsel is appointed by the Public Defender or by the court, representation extends to all stages in the proceedings, including but not limited to custody, interrogations, preliminary hearing, pretrial motions and hearings, trial, motions for modification or review of sentence or new trial, and appeal. The Public Defender may relieve appointed counsel and substitute new counsel for the defendant without order of court by giving notice of the substitution to the clerk of the court. Representation by the Public Defender’s office may not be withdrawn until the appearance of that office has been stricken ⁶⁸⁶ pursuant to section (c) of this Rule.

The representation of appointed counsel does not extend to the filing of subsequent discretionary proceedings including petition for writ of certiorari, petition to expunge records, and petition for post conviction relief. As indicated by the Court of Appeals, the “phrase in Rule 4-214(b) motions for modification ... of sentence; seems to require representation by the Public Defender with regard to any and all timely motions for modification of sentence regardless of when they occur.” Flansburg, 345 Md. at 701-02 , 694 A.2d at 466 . Hence, pursuant to Flansburg , Petitioner was denied the effective assistance of counsel based upon trial counsel’s failure to file a Motion for Modification of Sentence within ninety (90) days after sentencing. There was no risk that a greater sentence would be imposed.

Therefore, the Petitioner’s Post Conviction Relief is granted and Petitioner is entitled to a belated Motion for Modification of Sentence. Accordingly, for the reasons stated above, it is this 5th day of April, 2005, by the Circuit Court for Prince George’s County, Maryland, ORDERED, that the Defendant’s Petition for Post Conviction Relief is hereby GRANTED; and it is further ORDERED that the Defendant is hereby GRANTED a New Trial on all Counts. LEGAL ANALYSIS The State, on this appeal, assigns error to the grant of a new trial by the post conviction court upon consideration of appellee’s Post Conviction Petition filed pursuant to the Post-conviction Procedure Act, Md.Code, Criminal Procedure Article, § 7-102, et, seq. 2 ⁶⁸⁷ On appellate review of a decision by a post-conviction court, we will not disturb the court’s first-level factual findings unless they are clearly erroneous. Evans v. State, supra, 151 Md.App. 365, 374 , 827 A.2d 157 (2003); State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407 (2001), aff'd, 379 Md. 704 , 843 A.2d 778 (2004).

Post conviction claims are resolved by consideration of the record at the original trial and the record of the post conviction proceeding. THE PARTIES’ CONTENTIONS The State contends first that, “because [appellee] failed to challenge the trial court’s instructions on [his direct] appeal and because 7-106(c)(2) 3 is inapplicable, there is a rebuttable ⁶⁸⁸ presumption that appellee waived his current challenge and the post conviction court erred in finding non-waiver and, subsequently, granting him relief.” 4 ⁶⁸⁹ In support of its assertion that the court’s ruling of non-waiver was error, the State argues that Jenkins did not issue new law. Rather, the decision, says the State, was not changed by the Fourth Circuit nor did Maryland law bar challenges to advisory jury instructions. Appellee could have, as did the appellant, in Stevenson v. State, 289 Md. 167 , 423 A.2d 558 (1980), challenge the trial court’s failure to give a requested instruction that it was the juror’s duty to “follow the law as stated in the instructions of the court.” Concluding that “Stevenson was not then barred from raising the very same challenge to the court’s instructions that Adams now makes twenty-five years later,” the State urges that appellant could have likewise raised the issue and failure to do so constitutes waiver.

Alternatively, the State argues that the jury instructions given at appellee’s trial, “while at times couched in advisory terms, were sufficient, when read in their totality, to inform a jury that its function as judges of the law was limited.” The instructions must not be taken out of context to determine adequacy, but determined by viewing the instructions as a whole. Appellee countered, in the post conviction hearing and on this appeal, that the trial court instructions were improper because they were advisory in nature and that he did not waive his right to challenge the advisory nature of the jury instructions on appeal because State law barred any challenge to advisory only charges. Appellee further responds that, in Jenkins , the Fourth Circuit ruled that [appellee’s] due process rights were violated and should be applied retrospectively. I Maryland Declaration of Rights, Article 23, captioned, “Jury judges of law ...,” provides: In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. ⁶⁹⁰ A. WAIVER: CONSTITUTIONALITY OF ARTICLE 23 As noted, referring to the assertion in appellee’s petition that “state law barred a challenge to the advisory only jury charge,” and hence appellee could not have previously raised the claim, the State retorts that, pending in the Court of Appeals at the time of appellee’s trial was the case of Dorothy Stevenson, who, like appellee, was tried by a jury which had been instructed that it was the judge of the law as well as the facts.

Stevenson, supra, 289 Md. 167 , 423 A.2d 558 . The Court of Appeals had granted certiorari in this criminal cause “limited solely to the question whether the trial court denied (the accused) the right to due process guaranteed by the XIV Amendment (to the United States Constitution) when it gave advisory rather than binding (jury) instructions.” In other words, our review here is confined to whether Article 23 of the Declaration of Rights to the Maryland Constitution, which provides that the jury in a criminal case “shall be the Judges of Law, as well as of fact,” is unconstitutional because the provision, as construed by this Court, facially deprives a defendant of the federally secured right to due process of law. Id. at 169 , 423 A.2d 558 . The Court issued its decision in Stevenson on December 17, 1980, fifteen days after the Court of Appeals denied appellee’s pro se petition for certiorari.

Moreover, as appellee points out, the Court of Appeals did not pass judgment on the instructions actually given, but merely held that there was no bar to her pursuing as an issue on appeal, her claim that the advisory nature of the instructions rendered them unconstitutional under the Due Process Clause of the Fourteenth Amendment. Although agreeing with Stevenson that the Supreme Court, in Sparf v. United States, 156 U.S. 51 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895), limited the role of juries in federal criminal trials to questions of fact, the Court of Appeals concluded that it did ⁶⁹¹ not believe that Sparf did so because it was a constitutionally required aspect of the jury trial right. Stevenson, 289 Md. at 184 , 423 A.2d 558 . The Stevenson Court therefore concluded, “While this court recognizes that the Supreme Court has yet to decide whether the remaining element of trial by jury identified in Sparf juries as triers of fact only and not judges of law is still a necessary component of the sixth amendment (if it ever was), it seems to us quite unlikely, in light of the standard adopted in Williams and Apodaca [v. Oregon, 406 U.S. 404 , 92 S.Ct. 1628 , 32 L.Ed.2d 184 (1972)1 i.e., is the feature essential to the function and purpose of a jury, that the court would still continue its fact-law distinction.” Id. at 187, 423 A.2d 558 .

The Court posited that the further reason “to question whether the Sparf requirement will be imposed on state criminal proceedings as a matter of due process” is the fact that Supreme Court decisions have suggested that states be permitted to experiment with the actual operation of juries “so long as the fundamental purpose of the right safeguarding the accused against official oppression remains intact.” Id. (citations omitted)(emphasis added). The Court of Appeals concluded, “Consequently, since Maryland’s constitutional provision, making juries judges of the law, enhances the purpose of trial by jury interposing a neutral interpreter of the law between the accused and the accusing government, ... we hold that this provision of our organic law does not violate the Sixth Amendment right to trial by jury as it applies to criminal trials in this state under the Due Process Clause of the Fourteenth Amendment.” Id. at 188, 423 A.2d 558 (emphasis added)(internal citations omitted). The Stevenson Court ultimately concluded: Implicit in the decisions of this Court limiting the jury’s judicial role to the “law of the crime” is a recognition that all other legal issues are for the judge alone to decide.

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 ⁶⁹² 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 the “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. An explicit example of this may be seen from an examination of this Court’s recent opinion in Lewis v. State, supra[, 285 Md. 705 , 404 A.2d 1073 ], where we held that, although both a judge and the jury may be called upon to determine the voluntariness of a confession, instructions to the jury with respect to the type of consideration to be given by that body to such a confession are binding on it since admissibility of evidence is not “law” which the jury may decide.

(Emphasis added). On December 4, 1981, almost one year to the day after the Court of Appeals issued its decision in Stevenson , the Court penned Montgomery, 292 Md. at 91 , 437 A.2d 654 . There, the Court reaffirmed certain “bedrock” principles embodying due process requirements which were held to be binding upon the jury: that a defendant is presumed innocent until proved guilty by the State by evidence beyond a reasonable doubt; that the State has the burden to produce evidence of each element of the crime establishing the defendant’s guilt; that the defendant does not have to testify and the jury may infer no guilt because of his silence; that evidence to impeach the defendant bears only on his credibility and may not be used to prove the substance of the offense; that evidence is limited to ⁶⁹³ the testimony (and reasonable inferences therefrom) and the exhibits admitted into evidence; that evidence does not include the remarks of the trial judge nor the arguments of counsel; and that evidence does not include the remarks of the trial judge nor the arguments of counsel. Id. at 88-89 , 437 A.2d 654 .

Concluding that “the trial judge muddled the judge/jury dichotomy and erred in instructing the jury as to its role as trier of the law and the facts,” the Montgomery Court declared that “instructions on these ‘bedrock’ principles 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. They are the guidelines of due process to which every jury is required to adhere.” Id. at 91 , 437 A.2d 654 . It was error, therefore, for the trial judge to tell the jury that it could pay no attention to instructions on the law which did not pertain to the elements of the crime but which were standard instructions invoked to preserve the integrity of the judicial system and to assure the defendant a fair and impartial trial.

Reasserting its holding in Stevenson , the Court in Montgomery reasoned: As we see it, then, an instruction on the law of the crime must contain a definition or explanation of the offense charged in language setting forth the essential elements thereof, along with such additional explanation of the law pertaining to the criminal agency of the accused as may be necessary. Furthermore, we wish to make clear that, under Article 23 of the Md. Declaration of Rights, the application of Md. Rule 757b, which provides, in part, that (i)n every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only is limited to those instances when the jury is the final arbiter of the law of the crime. Such instances arise when an instruction culminates in a dispute as to the proper interpretation of the law of the crime for which there is a ⁶⁹⁴ sound basis. Under such circumstances, counsel are granted leave to argue contrary to the court’s instruction on the law of the crime and this is the occasion when Article 23 and Rule 757 b require the court’s instruction to be advisory.

Even here, counsel may not in their arguments attempt to persuade the jury to enact new law or repeal or ignore existing law. However, in those circumstances where there is no dispute nor a sound basis for a dispute as to the law of the crime, the court’s instructions are binding on the jury and counsel as well. Id. at 88-89 , 437 A.2d 654 (emphasis added). Notably, foreshadowing later developments in the law, Judge Eldridge, in a concurring opinion joined by Judge Davidson, opined: However, with respect to Part I of the Court’s opinion, I continue to adhere to the views expressed in my dissenting opinion in Stevenson v. State, 289 Md. 167, 189-204 , 423 A.2d 558, 570-577 (1980).

Specifically, I believe that Article 23 of the Maryland Declaration of Rights, and those portions of Maryland Rule 757 b and g implementing Article 23, violate the Fourteenth and Sixth Amendments to the United States Constitution. See 289 Md. at 191-194 , 423 A.2d 558 . Article 23, by authorizing a criminal jury in certain limited circumstances to disregard legally correct instructions, and find the law to be otherwise than it is, abridges a defendant’s right to be tried in accordance with the law of the jurisdiction and thus violates the Due Process Clause of the Fourteenth Amendment. Moreover, Article 23 is inconsistent with the proper role of a criminal jury under the jury trial clause of the Sixth Amendment, applicable to state proceedings by virtue of the Fourteenth Amendment.

See Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968), and Sparf v. United, States, 156 U.S. 51 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895). Consequently, in my opinion, under no circum ⁶⁹⁵ stances should a jury in a criminal case be told that it is the judge of the law. Id. at 96 , 437 A.2d 654 (emphasis added). Recapitulating the role of the jury as judge of the law as articulated by Stevenson and Montgomery , the Court, in Guardino, 50 Md.App. at 699-703 , 440 A.2d 1101 , summed up the then state of the law: The same day the jury in the case before us was charged, the Court of Appeals decided Stevenson v. State, 289 Md. 167 , 423 A.2d 558 (1980).

Stevenson declared that “the jury was not granted, by Article 23, the power to decide all matters that may be correctly included under the generic label-‘law.’ Rather, its authority is limited to deciding ‘the law of the crime,’ ... or ‘the definition of the crime,’ as well as ‘the legal effect of the evidence before (the jury).’ ... And this Court has consistently interpreted this constitutional provision as restraining the jury’s law deciding power to this limited, albeit important, area.” Id. at 178 , 423 A.2d at 564 (citations omitted). From the preceding discussion, at the time that the Court of Appeals denied appellee’s petition for certiorari, no Maryland appellate decisions, nor any other binding authority, had either found the provisions of Article 23 of the Maryland Declaration of Rights, conferring upon juries in criminal trials the authority to be the judge of the law as well as well as the facts, a violation of the Due Process Clause of the Fourteenth Amendment. Neither Stevenson, Montgomery nor Guardino recognized that Article 23 was unconstitutional, in violation of the due process clause of the federal constitution.

And, of particular note, is how definitive had been the body of Maryland case law upon which these decisions had been grounded. In Giles v. State, 229 Md. 370 , 183 A.2d 359 (1962), the Maryland Court of Appeals considered and upheld the constitutionality of section 5, on due process and equal protection grounds; subsequently, the Supreme Court dismissed Giles’ challenge to section 5 “for want of a substantial federal question.” Giles v. Maryland, 372 U.S. 767 , 83 S.Ct. 1102 , 10 ⁶⁹⁶ L.Ed.2d 137 (1963). Without questioning the constitutionality of section 5, the Supreme Court in Brady, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), commented that “in making juries in criminal cases ‘the Judges of Law,’ the provision ‘does not mean precisely what it seems to say,’ ” 373 U.S. at 89 , 83 S.Ct. at 1198. In 1967, in Wyley v. Warden, Md. Penitentiary, 372 F.2d 742, 744 (1967), the United States Court of Appeals for the Fourth Circuit held that informing the jury that the reasonable doubt instruction was “advisory” did not violate due process.

Citing Slansky v. State, 192 Md. 94 , 63 A.2d 599 (1949), the Court observed, “[e]very time the issue (whether the “advisory only” instruction violated due process) has been raised, the Court of Appeals of Maryland has affirmed the constitutionality of section 5 without qualification.” Wyley observed that, after a comprehensive and thorough analysis, tracing the historical development of the rule, “the [Slansky] court concluded that, although section 5 was anachronistic, it was not unconstitutional.” Wyley, 372 F.2d at 744 . The Wyley decision concluded, “Not only has the validity of Article XV, section 5 been repeatedly upheld by the state court, but the Supreme Court of the United States has had occasion to consider it, and failed to intimate any doubt of its constitutionality. In Giles v. Maryland, 372 U.S. 767 , 83 S.Ct. 1102 , 10 L.Ed.2d 137 (1963), the Court dismissed an appeal, which raised this issue along with others, “for want of a substantial federal question.” Wyley, 372 F.2d at 745 . Commenting on Giles and Brady , the Fourth Circuit Court of Appeals observed that “the action in [those decisions] would not preclude the Court on more thorough consideration in a direct attack from reaching the opposite conclusion, but we cannot disregard the strong implications flowing from, the fact that in its past decisions the Supreme Court perceived no invasion of a defendant’s rights by the procedure established in section 5.” Id.

(emphasis added). In