State v. Calhoun

SMITH, Judge. James Arthur Calhoun was convicted by a Montgomery County jury of first degree, premeditated murder in the death of Philip Metz (principal in the first degree), murder in the first degree (felony murder) in the death of David Myers (principal in the second degree), attempted murder of Douglas Cummins, two violations of the handgun law, robbery with a deadly weapon, and storehouse breaking. A jury sentenced him to death for the murder of Metz. In Calhoun v. State, 297 Md. 563 , 468 A.2d 45 (1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984), we affirmed the convictions and the death sentence.

Pursuant to the provisions of Maryland Code (1957, 1982 Repl. Vol., 1985 Cum.Supp.) Art. 27, §§ 645A-J, the Uniform Post Conviction Procedure Act, Calhoun filed a petition for post-conviction relief in the Circuit Court for Montgomery County. The court affirmed Calhoun’s convictions but ordered a new sentencing proceeding based upon its finding of an erroneous allocation of the burden of proof in ⁶⁹⁸ the trial court’s instruction to the jury and the failure of the court to offer Calhoun an opportunity for allocution prior to the jury’s deliberating on the sentence. We granted leave to both the State and Calhoun to appeal.

On the State’s appeal we shall reverse. We shall affirm on Calhoun’s appeal. I THE STATE’S APPEAL (A) THE JURY INSTRUCTION The trial judge opened his instructions by telling the jury, “The death sentence may not be imposed unless you unanimously agree that the aggravating factors outweigh the mitigating factors.” At the conclusion of his instruction, he said in relevant part: “If you find by preponderance of the evidence that the mitigating factors—again, not numerically but—obviously I’m saying you could have all the aggravating factors and find that one mitigating factor could outweigh all of them. Or you could have one aggravating factor and numerous mitigating factors; but if you found that all of the mitigating factors together did not by a preponderance of the evidence outweigh the aggravating factor, then that would be your determination.

If you find that the mitigating factors outweigh the aggravating factors, then you go to the fourth section and enter life imprisonment. If you find that the mitigating factors do not by a preponderance of the evidence outweigh the aggravating factors, then you mark that accordingly and proceed to Section 4 and enter a sentence of death.” The post-conviction judge said that “the instruction by the trial judge to the jury pursuant to Art. 27, Sec. 413(h)(2) that ‘if it finds that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death’ improperly stated the burden of persuasion.” Code (1957, 1982 Repl. Vol.) Art. 27, § 413(h)(2) states relative to the sentencing authority, jury or court, “If it finds that the mitigating circumstances do not outweigh the ⁶⁹⁹ aggravating circumstances, the sentence shall be death.” Subsection (h)(3) states, “If it finds that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.” It will be noted that the instruction given is virtually in the words of the statute. In Foster v. State, 304 Md. 439, 479 , 499 A.2d 1236, 1257 (1985), cert. denied, — U.S. -, 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986), Judge Eldridge said for the Court, “[W]e adhere to our prior holdings that the burden of persuasion for purposes of § 413(h) is upon the prosecution.” In Evans v. State, 304 Md. 487 , 537 n. 18, 499 A.2d 1261 , 1287 n. 18 (1985), cert. denied, — U.S. —, 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986), we said, “[W]e held in Foster, 304 Md. at 479 , 499 A.2d at 1256-1257 , that the language of § 413(h) does not place any burden or risk upon the accused.” In Foster, Evans and Huffington v. State, 305 Md. 306, 318 , 503 A.2d 1326, 1332 (1986), we said, “[A]s indicated in the Evans opinion, id. at 537 n. 18, 499 A.2d 1261 , the instruction was not erroneous because the ‘language of § 413(h) does not place any burden or risk upon the accused.’ ” The instruction here was in the language of the statute.

Hence, there was no error on the part of the trial judge. (B) DENIAL OF THE RIGHT OF ALLOCUTION In his petition for post-conviction relief Calhoun alleged: “Petitioner was denied his right guaranteed under Art. 27 Section 413(c)(2), then Maryland Rule 772(a); the Maryland Declaration of Rights, and the Fifth, Eighth and Fourteenth Amendments, to allocute at his sentence. “Petitioner was never advised by counsel or the trial court of his unrestricted right to allocute before his sentencing jury. Such a right is fundamental to all criminal defendants, particularly those whose lives hang in the balance. Consequently, he was deprived of his ⁷⁰⁰ right to do so.

Moreover, the failure of the State to adhere to its own law and procedure denied petitioner his right to due process of law and a reliable sentencing procedure. “Furthermore, not only is allocution mandated by rule for all non-capital defendants but the practice in Maryland has been to allow allocution by other capital defendants sentenced pursuant to the same procedural rules and statutes as the petitioner. Such discrimination in the allowance of allocution denied the petitioner equal protection of the laws and results in the arbitrary application of the death penalty.” The post-conviction judge said: “The defendant had not testified during the first phase; nor did he testify in the second phase. As apparently his trial counsel viewed defendant’s right to speak only in the context of ‘testimony,’ defendant was not presented by counsel with a decision as to whether he would allocute. The trial judge did not ask defendant if he wished to allocute before the jury.

The defendant did not allocute. As a consequence, the jury faced with a life versus death decision retired to consider the defendant’s fate having before it the commission of savage crimes (savagery is found here in the execution style premeditated killing of a uniformed police officer by a masked thief fully armed) a prior criminal record of violence, certain evidence questionably admitted tending to show defendant’s violent propensities as a prisoner in custody, a minimal amount of evidence in mitigation and without ever hearing the defendant speak. After looking for days upon a black man of large stature and build who according to his counsel (as well as to the observation of this court) appears outwardly ‘scary,’ ‘menacing,’ ‘cold,’ and with ‘a lack of emotion’, the all-white jury retired having little more before it on the other side of a difficult equation it was asked to balance beyond the spectre presented by the ⁷⁰¹ defendant’s appearance.” (Reference to transcript omitted. Emphasis in original.) The post-conviction judge concluded: “The Maryland Rules presently in effect which require that defendants in sentencings hearings in both capital and non-capital cases be asked on the record by the trial court whether the right of allocution is desired seem to treat the right of allocution as fundamental.

More importantly, the facts in this case and the significance of the right of allocution to the defendant here suggest strongly the only possible answer that can be given. This court holds that the history of the right of allocution and its significance to a defendant—never more important than it is today under the procedure in capital sentencing cases— results in this right being fundamental—so fundamental that only the defendant—not his counsel—can waive the right. It follows that this defendant who was never advised of his right to allocution can not have waived such right. “The sentencing procedure utilized here in that it denied the defendant his fundamental right to allocute before the sentencing jury was defective. The sentencing portion of the defendant’s trial can not stand.” Code (1957, 1982 Repl.

Vol.) Art. 27, § 413(c)(2) provides, “The State and the defendant or his counsel may present argument for or against the sentence of death.” In Harris v. State, 306 Md. 344, 349 , 509 A.2d 120, 122 (1986) Chief Judge Murphy said for the Court, “[Ajllocution is neither synonymous with nor encompassed by the term ‘argument’ ----” In Harris the Court said: “By chapter 3 of the Acts of 1978, effective July 1, 1978, the General Assembly enacted § 413, the present capital sentencing statute. In response to this enactment, the Court adopted Md. Rule 772A, which substantially tracked the language of § 413 and applied only to capital sentencing proceedings. The rule did not contain any provision as to allocution. The Court also amended Md. Rule 772 to apply only to noncapital cases. 5 ⁷⁰² “Between January 1, 1979, and July 1, 1984, the Maryland Rules did not afford defendants in capital cases a right of allocution.

It was during this period that Harris was sentenced to death. The right of allocution in capital cases was not again addressed in the Maryland Rules until the adoption of current Rule 4-343 as part of the comprehensive revision of the rules in 1984.5 6 Rule 4-343, which superceded Md. Rule 772A, provides in subsection (d), entitled ‘Allocution,’ that in capital cases, ‘[b]efore sentence is determined, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement.’ Calhoun was sentenced during this hiatus in the rules. However, in Harris the Court said: “[W]hen Md. Rule 772 was amended to apply only in noncapital cases, thereby removing capital cases from the purview of its allocution provision, the right of allocution in capital cases reverted to the common law of Maryland.” 306 Md. at 353 , 509 A.2d at 124 . The Court concluded in Harris : “We conclude that, under the common law applicable to capital sentencing proceedings at the time Harris was sentenced, a defendant who timely asserts his right to allocute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right.

If the right so asserted is denied by the court, as here, the sentence must be vacated and a new sentencing proceeding conducted.” 306 Md. at 359 , 509 A.2d at 127 . It is conceded that Calhoun made no request for allocution in the trial court. The post-conviction statute (Code 1957, 1982 Repl. Vol.) Art. 27, § 645A(c) provides: “(c) When allegation of error deemed to have been waived.—For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner ⁷⁰³ could have made, but intelligently and knowingly failed to make, such allegation before trial, at trial, on direct appeal (whether or not said petitioner actually took such an appeal), in any habeas corpus or coram nobis proceeding actually instituted by said petitioner, in a prior petition under this subtitle, or in any other proceeding actually instituted by said petitioner, unless the failure to make such allegation shall be excused because of special circumstances.

The burden of proving the existence of such special circumstances shall be upon the petitioner.” In Curtis v. State, 284 Md. 132 , 395 A.2d 464 (1978), Judge Eldridge discussed this statute for the Court. The Court concluded: “[W]e believe that the Legislature, when it spoke of ‘waiver’ in subsection (c) of Art. 27, § 645A, was using the term in a narrow sense. It intended that subsection (c), with its ‘intelligent and knowing’ standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst [, 304 U.S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 1461 (1938),] and Fay v. Noia [, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963),] was applicable. Other situations are beyond the scope of subsection (c), to be governed by case law or any pertinent statutes or rules.

Tactical decisions, when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant.” 284 Md. at 149-50 , 395 A.2d at 474 . In Harris Chief Judge Murphy said for the Court: “[B]ecause the right of allocution is not a fundamental right secured by either the federal or state constitution, it is waived if not asserted by the defendant before sentencing. See Logan v. State, 289 Md. 460, 487 , 425 A.2d 632 (1981); Robinson v. Warden, 242 Md. 171, 172-73 , 218 A.2d 217 (1966); see also Hill v. United States, 368 U.S. 424, 428 , 82 S. Ct. 468 [471], 7 L.Ed.2d 417 (1962). This principle of waiver is equally applicable to the common law right of allocution, and supercedes the ‘actual or ⁷⁰⁴ potential injury’ standard of Dutton [v. State, 123 Md. 373 , 91 A. 417 (1914) ].” 306 Md. at 357 , 509 A.2d at 126 . 1 We deem the point waived.

Hence, Calhoun is not entitled to post-conviction relief on this issue. II CALHOUN’S APPEAL (A) NEELEY’S GRAND JURY TESTIMONY This case was tried before our decision in Jones v. State, 297 Md. 7 , 464 A.2d 977 (1983), where we held that “after a State’s witness has testified on direct examination, a defendant is entitled to inspect the grand jury testimony for cross-examination purposes without any requirement that he show any other need.” On the motion for reconsideration we said: “Because this case does not involve any change in the Maryland law, a defendant’s failure to demand an available grand jury transcript, and to preserve an objection to the trial court’s failure to require its production, clearly implicates the waiver provisions of Curtis v. State, 284 Md. 132, 145-150 , 395 A.2d 464 (1978).” 297. Md. at 25, n. 1, 464 A.2d at 985, n. 1 . On this issue the post-conviction judge said: “During a hearing on October 5, 1981, on pre-trial motions, the trial court declined to require the state to disclose the identity of one grand jury witness whose testimony was likely to be offered at trial.

During the argument and colloquy, defendant’s counsel fully protected the record at that point by requesting the name and the grand jury testimony of that witness. The court’s rulings are embodied in the following two separate excerpts from pp. 22 and 23 of the transcript: ‘THE COURT: I will order the name be divulged to the Court and, which I will not look at until it becomes at issue in the trial, and by at issue I don’t mean it’s ⁷⁰⁵ necessary for counsel to put it in issue by requesting it for impeachment.’ ‘THE COURT: I’ll reserve ruling on the motion to produce at this time. I will, however, order that that transcript be prepared of the testimony—do you want the testimony of Miss Lawson also?’ “The name of the witness was Audrey Neeley and she did in fact testify at trial. She was a young lady nineteen years of age who had kept frequent company with petitioner on the days prior to as well as after the date on which the crimes charged here were committed.

Her testimony related, among other matters, to the petitioner having constantly carried a pistol prior to the date of the crimes but not afterwards, to petitioner’s sudden acquisition of a large sum of money and the shopping excursion that then ensued, and to petitioner’s concern that the police were after him to the extent that he left his apartment and took up residence with the witness at her apartment for several days. The trial transcript fails to dislose Audrey Neeley was ever identified to petitioner’s counsel as the ‘mystery’ grand jury witness. Indeed it is conceded by the state that she was never so identified. No transcript of this witness’ grand jury testimony was furnished to petitioner’s counsel.

No reference was made by the state or by the court to her grand jury testimony. In the light of what had transpired at the pre-trial hearing, this failure to call attention at trial to Audrey Neeley as the heretofore unnamed person who had testified before the grand jury was error. However, error though it was, it was not reversible error. “The first difficulty was that of the trial court in making a temporizing ruling which not only was not self executing but which to the contrary invited the very slippage through the cracks which so obviously occurred here. The second problem was caused by the state.

It had an affirmative responsibility to call the attention of ⁷⁰⁶ the court and defense counsel to Audrey Neeley in the context of her role as a grand jury witness prior to the time she testified at trial. The third mistake was made by petitioner’s trial counsel in failing to raise the issue during the trial. It may be that the court’s words during the pre-trial hearing were sufficient to lull petitioner’s counsel into a sense of security (although this is quite debatable), but when the state rested and no ‘mystery’ witness had been identified and no grand jury transcript had been forthcoming, there was no longer any basis for security; and at least by then, if not sooner, alarms should have gone off and petitioner’s counsel should have been on their feet raising the matter for the court’s attention. At that point, the witness could have been identified, her grand jury testimony made available to petitioner’s counsel and the witness could have been recalled by the state or by the court to be made available for additional cross-examination, if desired.

While a close call, this court here holds that the failure of petitioner’s trial counsel to so call the matter to the court’s attention resulted in a waiver of this claim.” (Emphasis in original. One transcript reference deleted.) We think the trial judge was correct here in finding waiver. Moreover, counsel was not obliged to anticipate our decision in Jones . (B) FAILURE TO EXCUSE CALHOUN FROM THE COURTROOM Calhoun argues that the trial court denied him due process when it refused to allow him to excuse himself from the courtroom during the testimony of Douglas Cummins, the only eyewitness to the crime, because it resulted in his view in an unreliable and suggestive courtroom identification.

The facts reveal that no line-up was ever held. However, on April 6 Cummins was shown a group of seven photographs. We said in Calhoun : ⁷⁰⁷ “At first he said he could not identify anyone. Later he touched the photograph of Calhoun and said that the shape of the head was very similar to that of the taller of his assailants but that he would be better able to tell if he had a full view of the person.

Subsequently, he tapped Calhoun’s photograph and said that of the seven, ‘that’s who I’d put my money on.’ ” 297 Md. at 575, 468 A.2d at 50 . A hypnotic interview of Cummins was conducted by the police on April 13. We pointed out in Calhoun , where there was an attack upon Cummins’ testimony on the basis of hypnosis, that “[h]is posthypnotic testimony at the hearing on the motion to suppress was consistent with the interviews.” 297 Md. at 575, 468 A.2d at 50 . We said: “It was clearly demonstrated that the Cummins and Adcock testimony did not depend upon hypnosis.

Cummins identified Calhoun’s photograph prior to hypnosis. Even if he had made no courtroom identification of Calhoun his extra-judicial identification would have been admissible in evidence. Bedford v. State, 293 Md. 172, 177 , 443 A.2d 78 (1982); Johnson v. State, 237 Md. 283, 291 , 206 A.2d 138 (1965).” 297 Md. at 578, 468 A.2d at 51 . At trial the judge overruled Calhoun’s request to absent himself from the courtroom during Cummins’ testimony.

The prosecution initially said there would be no in-court identification. However, Cummins identified Calhoun at the express request of the court at trial. The post-conviction judge said: “It is the petitioner’s contention that the trial court erred in denying his ‘right’ to remove himself from the courtroom to avoid an in-court identification. The short answer to this contention is that the petitioner had no such ‘right.’ While other procedures short of petitioner leaving the courtroom were available to avoid or reduce the suggestive nature of an in-court identification, the petitioner made no such requests.

In McKnight vs. State, 33 Md. App. 280, 286-287 [ 364 A.2d 116 ] (1976) ⁷⁰⁸ reversed on other grounds, 280 Md. 604 [ 375 A.2d 551 ] (1977) the Court of Special Appeals stated: ‘Appellant next urges that the trial court abused its discretion in denying his request to be seated in the audience for the in-eourt identification. He contends that in order to insure due process, it is incumbent on the state to produce evidence of a reliable and untainted identification prior to trial or that the court where no such evidence is forthcoming insure the defendant a fair and impartial in-court identification free from the suggestive effect of the defendant’s being seated at the trial table next to defense counsel. We know of no such duty on the part of either the state or the court, and appellant cites no authority to support his position. ‘This court has held that an accused has no constitutional right to be placed in a lineup. Bowen v. State, 5 Md.App. 713, 149 [249] A.2d 499 (1969).

It has also been held that the conduct and direction of a trial is always within the sound discretion of the presiding judge. Cummings v. State, 7 Md. App. 687 , 256 A.2d 894 (1969). In Alston v. State, 11 Md. App. 624, 629 , 276 A.2d 225, 228 (1971), this court considered a similar request. The court at 629-630 [ 276 A.2d 225 ] said: “Although such practices as seating an accused in the audience at his trial for purposes of identification are widely used and approved, the propriety, however, of various in-court identification techniques are still tied to the rule that the overall conduct of a trial is subject to the sound discretion of the trial judge.

Moreover this court will not interfere with that discretion unless the trial judge clearly abuses it and, as a result the accused is prejudiced. Turner v. State, 7 Md. App. 74 [ 253 A.2d 777 ].” ‘In denying appellant’s motion, the trial court called attention to the fact that there were only two or three other individuals in the courtroom at the time of trial and that they were individuals closely resembling the defendant and were apparently brought there for the ⁷⁰⁹ purpose of misleading the jury. Under questioning, defense counsel admitted having requested their presence, “to see if the complaining witness could identify the defendant if he was not seated at the counsel’s table.” ‘We hold that the trial court did not abuse its discretion and acted fully within its judicial prerogative in not permitting the in-court identification to become a game of judicial Russian roulette. See White v. State, 23 Md. App. 151, 158, 216 [326] A.2d 219 (1974).’ “The matter of in-court identification and the procedure therein utilized was within the sound discretion of the trial court.

The record here fails to reveal an abuse of discretion. “Petitioner’s request to absent himself from the trial was made by counsel on the record. It was available for review by appellate counsel who read the entire record. The failure to raise the claim on appeal results in this claim being waived.” The post-conviction judge did not err in finding waiver and no abuse of discretion. (C) UNDERREPRESENTATION OF BLACKS IN JURY POOLS In the post-conviction court Calhoun asserted that blacks were underrepresented in jury pools in Montgomery County.

In addressing the merits, the post-conviction judge said: “Petitioner alleges that he has established a baseline or prima facie case that blacks were underrepresented in the jury pool. He points to the testimony of a statistical expert, Professor Richard Seltzer of Howard University, as establishing to a reasonable degree of statistical certainty that the relative or comparative disparity of blacks in the general population as compared to those in the jury pool was 41.6%. He claims he has established a systematic underrepresentation of blacks that results in a denial of equal protection of the law as well as a violation of the ⁷¹⁰ Sixth Amendment to the Federal Constitution. He stresses the Sixth Amendment right because he maintains that lack of an intent to achieve underrepresentation is totally irrelevant to the inquiry.

He suggests that the matter is one purely of statistical inquiry devoid of any considerations of constitutional balance or of consequences (either the statisticians are satisfied or they are not). While the petitioner cites many authorities, none go so far as to support petitioner’s contentions based upon the facts in evidence here. “The only suggestion made by petitioner for changing the present system of calling jurors using the voter rolls was to supplement the voter rolls with motor vehicle registration lists. Yet, there was no definitive showing as to how utilization of the motor vehicle registration lists would impact upon representation in the jury base. “Of far greater importance, though, is the reasoning engaged in by Professor Seltzer in reaching his expressed opinion. The processing of jury questionnaires by the office of the Jury Commissioner for Montgomery County from 1979 through October 1983 disclosed that of 53,429 persons summonsed for jury service, 41,850 were white; 2,083 were ‘Negroid’; 615 were Oriental; 101 were Spanish American; 73 were American Indian; and 9,707 were ‘other’ or did not reply to the race question.

Solely by arbitrarily assuming that the 9,707 in the ‘other’ category would divide numerically by percentage in a given way the jury response by blacks was determined to be 4.66%. Thus, it was concluded that 4.66% of the persons in the jury pool were black. Census data showed that of the 424,742 persons in Montgomery County over 18 years of age, 33,896 or 7.98% were black. No effort was made to determine how many of the 33,896 blacks living in Montgomery County, a bedroom community for the nation's capital, were foreign affiliated non-citizens and thus not eligible for jury service.

The comparison of 4.66% to 7.98% was used to reach the conclusion of underrepresentation, the disparity being stated to be 41.6%. Because the 9,707 persons (18.17%) who either gave no response or ⁷¹¹ who responded ‘other’ is such a large and hence statistically significant number when compared with the other numbers used any substantial variation from the unsupported assumption relating to the racial breakdown of the 9,707 persons collapses the conclusion reached of underrepresentation as with a house of cards. Indeed, any substantial increase in the number of blacks in such group can achieve either full proportional representation or even overrepresentation statistically. The data fails to support the opinion given, and on the merits petitioner has failed to make out a prima facie case of underrepresentation.” Claims of underrepresentation of distinctive groups in the jury selection process have been presented on equal protection grounds (14th Amendment), as in Alexander v. Louisiana, 405 U.S. 625 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972), and under the right to a fair cross-section of the community (guaranteed by the 6th Amendment) as in Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975).

In Duren v. Missouri, 439 U.S. 357 , 99 S.Ct. 664 , 58 L.Ed.2d 579 (1979), Justice White said for the Court: “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” 439 U.S. at 364 , 99 S. Ct. at 668 , 58 L. Ed. 2d at 586-87 . In Colvin v. State, 299 Md. 88, 103-07 , 472 A.2d 953, 960-62 , cert denied, — U.S. —, 105 S.Ct. 226 , 83 L. Ed.2d 155 (1984), we examined Code (1973, 1980 Repl. Vol., 1983 Cum. Supp.), §§ 8-201 to -208, Courts and Judicial Proceedings Article and its provision for random selection of jurors from voter registration lists in connection with an allegation that there was discrimination in the selection of ⁷¹² Anne Arundel County juries.

There was a contention there that the trial judge committed error by relying on our ruling in Wilkins v. State, 270 Md. 62 , 310 A.2d 39 (1973), cert. denied, 415 U.S. 992 , 94 S.Ct. 1592 , 39 L.Ed.2d 889 (1974), that the selection of jurors from voter registration lists was constitutional. Judge Couch said for the Court: “The use of voter registration lists is designed to produce an array which is a representative cross-section of the community. This official means of selecting prospective jurors is not unconstitutional even when it may have some racially disproportionate impact. See Castaneda v. Partida, [ 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977)], and Swain v. Alabama, [ 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965)].

In order to establish a prima facie case of discrimination the party asserting such must show that the use of those lists resulted in purposeful discrimination.” 299 Md. at 106 , 472 A.2d at 962 . (Footnote omitted.) We concluded: “Appellant has neither established an abuse in implementation of the selection system nor systematic exclusion. Without more it cannot be said that Negroes have been excluded from the venire to such a degree to establish a prima facie case of racial discrimination.” 299 Md. at 107 , 472 A.2d at 962 . We reiterated our holding in Colvin and refused again to reexamine the holding in Wilkins in Lodowski v. State, 302 Md. 691, 700-02 , 490 A.2d 1228, 1232-33 (1985), vacated and remanded on other grounds, — U.S. —, 106 S.Ct. 1452 , 89 L.Ed.2d 711 (1986).

We conclude that the post-conviction judge did not err when he concluded that Calhoun “ha[d] failed to make out a prima facie case of underrepresentation.” (D) DEATH QUALIFIED JURY Calhoun contends that death qualification during voir dire resulted in an unconstitutionally prosecution-prone jury. ⁷¹³ In Foster, 304 Md. at 453 , 499 A.2d at 1243 , we rejected on the merits Foster’s argument “that, in a capital murder prosecution, the exclusion of prospective jurors so opposed to capital punishment that their impartiality would be affected, deprives a defendant of his or her constitutional right to an impartial jury at the guilt or innocence phase of the trial.” See also Booth v. State, 306 Md. 172, 192 , 507 A.2d 1098, 1108 (1986), and Grandison v. State, 305 Md. 685, 727 , 506 A.2d 580, 601 (1986). The issue has just been addressed by the Supreme Court in Lockhart v. McCree, 476 U.S. —, 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986). The Court opened the opinion by saying it addressed the question left open by its decision nearly eighteen years ago in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968): “Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial?” 476 U.S. at-, 106 S.Ct. at 1760, 90 L.Ed.2d at 142 . The Court referred to “the six studies introduced by McCree that at least purported to deal with the central issue in this case, namely, the potential effects on the determination of guilt or innocence of excluding ‘Wither- spoon—excludables’ from the jury____” 476 U.S. at —, 106 S.Ct. at 1763, 90 L.Ed.2d at 146 .

Justice Rehnquist said for the Court: “Having identified some of the more serious problems with McCree’s studies, however, we will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that ‘death qualification’ in fact produces juries somewhat more ‘convictionprone’ than ‘non-death-qualified’ juries. We hold, nonetheless, that the Constitution does not prohibit the ⁷¹⁴ States from ‘death qualifying’ juries in capital cases.” 476 U.S. at—, 106 S.Ct. at 1764, 90 L.Ed.2d at 147 . The Court further stated: “We remain convinced that an extension of the fair cross-section requirement to petit juries would be unworkable and unsound, and we decline McCree’s invitation to adopt such an extension. “But even if we were willing to extend the fair cross-section requirement to petit juries, we would still reject the Eighth Circuit’s conclusion that ‘death qualification’ violates that requirement. The essence of a ‘fair cross-section’ claim is the systematic exclusion of ‘a “distinctive” group in the community.’ Duren [v. Missouri, 439 U.S. 357 ,], 364 [, 99 S.Ct. 664 , 58 L.Ed.2d 579 (1979)].

In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the ‘Mi&erspoow-excludables’ at issue here, are not ‘distinctive groups’ for fair cross-section purposes. “We have never attempted to precisely define the term ‘distinctive group,’ and we do not undertake to do so today. But we think it obvious that the concept of ‘distinctiveness’ must be linked to the purposes of the fair cross-section requirement. In Taylor [v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975)], we identified those purposes as (1) ‘guardpng] against the exercise of arbitrary power’ and ensuring that the ‘commonsense judgment of the community’ will act as ‘a hedge against the overzealous or mistaken prosecutor,’ (2) preserving ‘public confidence in the fairness of the criminal justice system,’ and (3) implementing our belief that ‘sharing in the administration of justice is a phase of civic responsibility.’ Id,., at 530-531 [ 95 S.Ct. at 698 ].” 476 U.S. at—, 106 S.Ct. at 1765, 90 L.Ed.2d at 148-49 . The Court further observed: ⁷¹⁵ “The group of ‘Mi&ers^oow-excludables’ involved in the case at bar differs significantly from the groups we have previously recognized as ‘distinctive.’ ‘Death qualification,’ unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State’s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial.

There is very little danger, therefore, and McCree does not even argue, that ‘death qualification’ was instituted as a means for the State to arbitrarily skew the composition of capital-case juries. “Furthermore, unlike blacks, women, and Mexican-Americans, ‘MíAerspoow-excludables’ are singled out for exclusion in capital cases on the basis of an attribute that is within the individual’s control. It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. Because the group of ‘ Mi/zerspocm-excludables’ includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case, ‘death qualification’ hardly can be said to create an ‘appearance of unfairness.’ ” 476 U.S. at-, 106 S.Ct. at 1766, 90 L.Ed.2d at 149-50 . (Footnotes omitted.) The Court concluded: “[T]he Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.

We hold that McCree’s jury satisfied both aspects of this eonstitu ⁷¹⁶ tional standard.” 476 U.S. at-, 106 S.Ct. at 1770, 90 L.Ed.2d at 154-55 . Accordingly, we reject this argument. (E) ALLEGED INADEQUATE VOIR DIRE, FAILURE TO SEQUESTER THE JURY DURING VOIR DIRE, AND FAILURE TO SEQUESTER THE JURY The brief of Calhoun asserts that prior to questioning his attorneys had requested individually sequestered voir dire and that later at trial counsel requested that the jury be sequestered. On these issues the post-conviction judge said: “The individual voir dire of each juror conducted away from the presence of the balance of the array is a permitted but not required procedure.

Although such a request was made by defense counsel, the matter remained one within the sound discretion of the trial court. Likewise, the determination not to sequester the jury during trial proceedings was a decision made by the trial court in exercising its discretion. No circumstances were offered in evidence to show that the trial court erred in so exercising its discretion. No circumstances were offered to show on what occasions and in what matter the petitioner sustained prejudice as a result of the rulings of the trial court.

Petitioner’s claim is rejected on its merits. There was no abuse of discretion. “Appellate counsel read the entire trial transcript. The requests made by defense counsel and the actions taken by the trial court were not the subjects of appeal. As such they were waived.

This court holds that the doctrine of waiver is clearly applicable to these two different but related claims.” Calhoun points to no questions he desired on voir dire that were not asked. We agree that the issues were waived. Moreover, the examination on voir dire was in accordance with Rule 752 (now Rule 4-312) applicable to this proceeding and our interpretation of it in Colvin, 299 ⁷¹⁷ Md. at 101-03, 472 A.2d at 959-60 . The issue of whether to sequester the jury was left by then Rule 543 a 8 (now Rule 2-511) to the discretion of the trial court.

We find no error. (F) PROSECUTOR’S CLOSING ARGUMENT AT THE GUILT/INNOCENCE PHASE OF THE TRIAL Calhoun refers to certain portions of the closing argument and asserts, “A criminal defendant is entitled to relief when it is demonstrated that a prosecutor’s argument was so egregious as to render the trial fundamentally unfair.” He takes issue with five specific portions of the argument which we shall discuss seriatim. The post-conviction judge said: “Taken individually and as a whole, the prosecutor’s statements were fair and accurate comment. “The failure to object at trial results in waiver. “The failure to raise the issue on appeal results in waiver.” As to closing argument Judge O’Donnell said for the Court in Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974): “As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way.

Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the ⁷¹⁸ accused’s action and conduct if the evidence supports his comments, as is accused’s counsel to comment on the nature of the evidence and the character of witnesses which the [prosecution] produces. See 23A C.J.S. Criminal Law § 1093 (1961). See also Cicero v. State, 200 Md. 614 , 92 A.2d 567 (1952); Meyerson v. State, 181 Md. 105 , 28 A.2d 833 (1942); 6 J. Wigmore, Evidence § 1806 (3d ed. 1940).” 272 Md. at 412-13 , 326 A.2d at 714.

We have carefully examined each of the allegations of error and fully agree with the post-conviction judge that the argument did not exceed proper bounds. Moreover, as the post-conviction judge noted, there is waiver because of the failure to object at trial and the failure to raise the issue on appeal. 1 Calhoun alleged in his petition for post-conviction relief: “The prosecutor played to and attempted to influence the passions of the jury by asking them to render a guilty verdict because of the heinous nature of the crime. The prosecutor implored the jury: One final concept that I think is very important and should be mentioned before I get into the actual facts is that in a courtroom, lawyers tend to speak in abstract legal concepts. Witnesses tend to speak, especially expert witnesses, in clinical terms.

Over a course of time a trial takes on a very antiseptic appearance; we tend to push out the gravity of the crime because we don’t want to face it. But I think we all should recall what we’re dealing with here and what we’re dealing with is that on March 27, 1981, the lives of two men, two young men, were snuffed out. David Meyers and Phillip Metz, one of them 30, one of them 33. It was snuffed out in a horrible crime, one that should affect the conscience of every decent human being.” ⁷¹⁹ We do not believe this to have exceeded the bounds of fair comment. 2 Calhoun further alleged in his petition for post-conviction relief: “Prosecutor improperly argued that the fact that the State’s primary witness, Herbert Smallwood, who testified in accordance with an extremely advantageous plea agreement, did not have a prior criminal conviction for a violent crime using a weapon, was probative of the State’s contention that Smallwood did not participate in the shooting.

The prosecutor stated: You heard the impeachment of Mr. Smallwood, heard about prior burglaries, but I ask you did you hear about one prior violent crime using a weapon? Did you hear of any violent crime, any armed robberies, any murders? And is there a shred of evidence in this case that Mr. Smallwood had a gun or in fact is it the opposite? Did Smallwood tell you that he was offered a gun by Calhoun and he refused it?

And did Small-wood further tell you he was to be one of the men inside in the beginning, but he backed out, he didn’t want any part of going in that store? He admitted after the initial attempt to burglarize Bell, and he did say that they were going for a burglary the first time, not a robbery, and you can infer that from the evidence because certainly they wouldn’t be breaking into the Bell to wait six hours for the manager to appear.” We believe this, too, to have been within the realm of fair comment. Calhoun further alleges: “Prosecutor improperly testified to his intention of future prosecution of the State’s witness Smallwood. The prosecutor told the jury that under no circumstances would it try Smallwood for murder, although the defense ⁷²⁰ contended that Smallwood participated in the murder.

The prosecutor stated: It is the State’s opinion, and of course that doesn’t matter, because it is your opinion that matters, but it is the State’s opinion that what Herbie Smallwood told you on the stand is the truth. And the State has absolutely no intention, regardless of what you do with this defendant, of charging Smallwood with murder and trying him. Does that make any sense at all after the witnesses we have paraded in before you, after the long, arduous testimony we have had you sit through, to just have done it on some kind of a lark, some kind of a whim? Sure, we will present evidence and if it turns out you don’t believe us, then we will turn it around the next time.” (Emphasis Calhoun’s.) Calhoun neglected to refer to the paragraph preceding that which he quoted: “This defense counsel feels free to comment about what the State is going to do with Herbie Smallwood, and I feel free to comment back to you about what the State intends to do with Herbie Smallwood.” This statement of the State was in obvious reply to defense counsel who had said: “Now, you remember the plea bargain has some unusual parts to it.

And I don’t mean the plea bargain as it affects the witness Smallwood. He has not yet been sentenced on the Montgomery County case. “Inference might be drawn from that they are waiting to see whether he is cooperative and to some extent that would have an impact on his testimony, maybe he would be able to use that in mitigating his sentence. I suggest to you that’s not it. Because you will also know from the plea bargain that was read to you that there is still pending against him, Smallwood, there are the same charges pending against the defendant in this case.

And that Smallwood can be prosecuted if it develops that Smallwood was found to be the one inside the W. Bell. ⁷²¹ “I suggest to you, ladies and gentlemen of the jury, that the State may well be awaiting the outcome of this case; that when you return a verdict of not guilty as to the defendant, you have not set free the killer of Officer Metz. Herbie Smallwood can still be brought to justice and the killer of Officer Metz will not go free.” This was within the realm of fair comment. Calhoun also claimed in his post-conviction petition: “The prosecutor improperly invaded the court’s province of instructing the jury as to fundamental principles of law governing the trial and improperly stated to the jury what the ‘law’ was as to a definition of proof beyond a reasonable doubt. The prosecutor stated: I would like to read to you what the highest court of our State says about reasonable doubt, and to suggest to you that what Mr. Cromwell says it is is not quite what our highest court says it is.

It is a very brief quote, and it is from Barry v. The State, Maryland, Page 62, the Maryland Court of Appeals. ‘The trier of fact in a criminal case is enjoined by law to give due force to the perception of innocence and then to proceed cautiously in weighing the evidence. But he’s not commanded to be naive and to believe without scrutiny every grim suggestion or far-fetched fairy tale whether emanating from the State or the defense. An indispensable ingredient in judgments in court as well as out of it is common sense. To prove guilt beyond a reasonable doubt it is not necessary that every conceivable miraculous coincidence consistent with innocence could be negative [sic].

They could not possibly meet their burden.’ That is what they are saying reasonable doubt is; that we have to prove every possible coincidence consistent with innocence, we do not. That is not our burden.” ⁷²² This comment was made in response to the argument of defense counsel: “Now, let me comment once more about reasonable doubt. “Reasonable doubt often raises in one or two ways as a practical matter: either through the absence of proof, the absence of evidence that you can rely upon as one method or another method is that the proof is susceptible of two different interpretations, one consistent with guilt, one inconsistent with guilt. If you have that kind of proof, one consistent with guilt, one inconsistent with guilt, then you cannot return a verdict of guilty because the proof must exclude any reasonable possibility of criminal agency. “If the proof is susceptible with two interpretations, one consistent with guilt and one inconsistent with guilt, then it doesn’t meet the burden of proof. We believe the evidence in this case is of either of those two; it is not there or susceptible to two interpretations.” Prior to this statement by defense counsel, the State had only mentioned reasonable doubt in explaining the burden of proof as follows: “The reason for that is that the State at all times in a criminal case, in every criminal case, bears the burden of proving the defendant guilty to each and every element beyond a reasonable doubt.

Therefore, we have the opportunity for rebuttal, since we carry that burden. That burden of proof, beyond a reasonable doubt, is one that we gladly accept in this case; because we believe that we have demonstrated through our evidence overwhelmingly, not simply beyond a reasonable doubt, that this defendant is guilty of murder.” The court’s instruction to the jury on reasonable doubt had been: “In defining what is a reasonable doubt, it sometimes or often times becomes difficult of precise description because it is something that occurs or doesn’t occur in the ⁷²³ minds of each juror, all of you collectively. It does not require that the defendant be found guilty or that you be convinced of his guilt beyond all doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence. “A reasonable doubt is a doubt founded upon reason.

It’s not a fanciful doubt nor a whimsical, nor a capricious doubt. It is such a doubt as would cause a reasonable person to hesitate to act in the grave or important consequences of your own everyday life. Thus, if the evidence is of such a character as to persuade you of the truth of the charges against the defendant with the same force that would be sufficient to persuade you to act upon the abiding conviction of truth in a grave or more important transaction of your own life, you may conclude that the State has met its burden of proof beyond a reasonable doubt to a moral certainty, and it is your duty then to convict. “If, however, you do not have such a conviction as to the defendant’s guilt, then reasonable doubt exists and your duty would be to acquit or vote for not guilty.” The prosecutor’s comments on rebuttal did not invade the province of the court in instructing the jury. He merely replied to a point raised by the defendant. 5 The final allegation by Calhoun on this issue was: “The prosecutor also urged improperly [to] the jury a different definition of premeditation: Now, let’s go to that point, premeditated murder.

And I think the best way I can deal with it is to illustrate, to read from law. I know it puts everybody to sleep, but it is short, and I think really cogent to this point. This is a case called Robinson v. State, and it is from our Court of Special Appeals. They say, ‘If the killing stems from a choice made as the result of thought, however short the struggle between the intention and ⁷²⁴ the act, it is sufficient to characterize the crime as a deliberate and premeditated murder.’ It goes on to say that in this case, ‘The Jury could have found intent to kill from the firing of two shots separate by an interval of time.’ And they said that has been held to be sufficient evidence of deliberation and premeditation.

That’s exactly what we had here, two shots separated by an interval of time.” Defense counsel had discussed at length the concept of premeditation and deliberation. The preamble to that with which Calhoun takes issue is the preceding paragraph where the State said: “And Mr. Townsend went to great lengths to make sure that you were at least confused about what constituted premeditated murder and why the similar way of dealing with the murder of Officer Metz was simply to call it a second degree murder if it was anything. What possible importance could that have for dealing with a man who was nowhere near the place.” The trial court had instructed the jury: “The word premeditation as an element of first degree murder means planned, contrived, a scheme planned ahead of time before the commission of the fatal act. It means the entertainment in the mind of a fully formed purpose to kill with design to kill must have preceded the killing by a sufficient length of time, even though short, to show that the design to kill was deliberate, opportunity for reflection. “It is not necessary that the premeditation or deliberation take any particular or appreciable length of time to be formed.

In order to sustain a conviction of first degree murder as distinguished from first degree murder because of a felony murder, you must find beyond a reasonable doubt that it was an actual malicious intent, a fully performed purpose to kill with enough time for deliberation and premeditation to convince you that this purpose was not the immediate offspring of rashness or ⁷²⁵ impetuous temper, but that the mind had become fully conscious of its own design. Although design must precede the killing by some length of time, that time may not be long. The killing be not the instant effect of impulse, if there is hesitation or doubt to overcome, a choice made as a result of thought, however short, the struggle between the intention and the act, is sufficient to characterize the crime as murder in the first degree.” We do not find that what the State said contradicted that said by the court. 6 In sum, we agree with the State and the post-conviction judge that the issues are waived and that even if they were not waived there was no improper comment. (G) THE FECAL MATTER Calhoun opens his brief on this issue by stating: “During the sentencing phase of the trial the State introduced evidence regarding an allegation that Mr. Calhoun had sprayed contents of a bottle, apparently containing a mixture of human waste, on a correctional officer.

Mr. Calhoun was never tried and convicted of any criminal offense arising from the alleged incident and it was stipulated below that any charges which could have been brought are now barred by the statute of limitations.” (Reference to record extract omitted.) 2 This incident and the record pertaining to it is discussed in Calhoun, 297 Md. at 596-601 , 468 A.2d at 60-63 . The objection made was, “It’s no relationship to any of the specifications of aggravating circumstances under the circumstances.” We pointed out that this was not a general ⁷²⁶ objection and hence under von Lusch v. State, 279 Md. 255, 264 , 368 A.2d 468, 473 (1977), the right to challenge the evidence on other grounds was waived. We pointed out that this was not an objection on the grounds subsequently held in Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983), to exclude evidence. We said: “In the absence of an objection focusing on the point before the Court in Scott , the evidence here was admissible under Art. 27, § 413(c)(l)(v), which permits introduction of, ‘Any other evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity