Taylor v. State

Harrell, J. "Lucy, you got some 'splainin' to do." 1 Desi Arnaz (as Ricky Ricardo) to Lucille Ball, "I Love Lucy." (CBS, 1951-57) Appellant, Devon Taylor, condemns the Circuit Court for Wicomico County for abusing its discretion during his 4 December 2008 criminal trial. The principal vehicle of abuse was the giving preemptively and sua sponte by the trial judge of an "anti-CSI effect" 2 instruction to the jury, which had the now asserted effect of relieving the State of meeting its high burden of proof. As a result, he maintains that the instruction invaded the province of the jury and deprived him of a fair trial.

Moreover, the trial judge abused his discretion further by "coercing the jury to come to a verdict," and by relying impermissibly on certain considerations in sentencing Taylor. Appellee, the State of Maryland, responds that Taylor failed to preserve properly his challenge to the CSI effect jury instruction because his objection "failed to state distinctly the matter to which he objected and the grounds of the objection," as required by Md. Rule 4-325(e). Furthermore, the State maintains that the trial judge adhered to the language of the Maryland Pattern Jury Instructions (MPJI) when instructing the jury regarding the unanimity requirement, and sentenced properly Taylor. At the end of the day, although we shall hold that the trial judge abused his discretion in propounding to the jury the CSI effect instruction, the error was harmless, beyond a reasonable doubt, on this record.

Moreover, we hold that Taylor waived his challenge to the trial judge's continuing deliberation instruction to the jury. Finally, the trial court did not abuse its discretion in considering evidence of Taylor's adult and juvenile records during sentencing. Consequently, we affirm the judgment of the circuit court. The Facts The following evidence was adduced by the State at trial.

On the morning of 13 June 2008, the victim was alone in her apartment in Salisbury. At approximately 1:00 a.m., someone knocked on her front door. She opened the door "just a crack" and saw a nude man masturbating, while standing to the left on her patio and looking at, but not facing directly, her. As she was shutting the door, the man tried unsuccessfully to push his way in.

The victim locked the door and dialed 9-1-1. The man broke the lock on the door and entered the apartment. He wore only a t-shirt hanging around his neck, which he pulled over the lower part of his face upon entering the apartment. The shirt, according to the victim, fell to his neck and revealed his full face during the encounter.

The victim ran to her kitchen and retrieved a 12-inch knife. The man approached her and "grabbed or touched her arm" holding the knife. She was able to twist her arm free, which, in the process, caused the knife to make contact with the intruder, without inflicting apparent injury. 3 The victim was able to see clearly the man's face because her living room lights, and possibly her kitchen lights, were on during the encounter in the apartment. The man backed-off when the knife touched him.

Then, he noticed the victim's purse on the kitchen counter. He seized the purse, containing the victim's wallet, and fled the apartment. The victim testified that the incident lasted "three to four minutes." Officer Baker arrived at the scene at 1:03 a.m., shortly after the man fled. He observed "golf-ball sized holes or dents" in the victim's apartment door.

The victim told Officer Baker that the intruder was "medium skinned with no tattoos or scars, and that he had a grey t-shirt around his neck." 4 The officer did not seize the knife from the crime scene for forensic testing. Later, Detective Corporal Richard Kaiser became the lead investigator regarding the incident. During his review of the police case file compiled to that point, he noticed that the apartment door had not been processed for fingerprints or the holes/dents photographed. Detective Kaiser contacted the property manager for the apartment complex and learned that a maintenance person had replaced the victim's door, moving her former door to another apartment in the complex.

He went to the location of the "suspect" door and dusted its knob for prints. No usable fingerprints were recovered. Detective Kaiser noted also that the door had several large "golf ball size[d]" dents in it. He too did not seize the victim's kitchen knife 5 for forensic examination nor attempt to secure any fingerprints from inside the apartment.

On 12 July 2008, one month after the incident, Detective Scott Elliott requested the victim look at a photo array to see if she could identify anyone as the person who exposed himself to and robbed her. She identified Taylor after "4 seconds." The State charged Taylor in the circuit court with first, third, and fourth-degree burglary, attempted second-degree rape, robbery, second-degree assault, indecent exposure, malicious destruction of property, and theft less than $100. At the close of the evidence at his trial, during jury instructions, the following occurred: [The Court to the jury]: There is no legal requirement that the State offer scientific evidence as part of its case, such as DNA, fingerprinting, blood typing, fiber analysis, hair follicle analysis, or anything of that nature. 6 * * * [At the close of all instructions] [The Court to counsel]: Any additions or exceptions? [Taylor's Counsel]: We would except, [y]our Honor. [The Court]: Yes. * * * [Taylor's Counsel]: Your honor, I would just except to the Court's scientific evidence instruction. [The Court]: All right. The jury convicted Taylor of all charges, save attempted second-degree rape. 7 The trial court "sentenced [Taylor] to [seventeen] years for count one, first-degree burglary; ten years for count four, robbery; and three years for count seven, indecent exposure.

The sentences were to run consecutively, for a total of [thirty] years executed time. The remaining convictions merged." No appeal was filed timely. Appellant filed a pro se petition for post-conviction relief on 9 June 2016, alleging that his trial attorney's performance was ineffective and prejudiced Taylor's rights by failing to "file both a notice of appeal and an application for review of his sentence by a three-judge panel." On 1 December 2016, Taylor's recently-acquired post-conviction public defender (joined by the State and accepted by the circuit court) entered into "a consent order that [among other forms of relief] allowed [Taylor] to file a belated notice of appeal [from his 2008 conviction] and [an] application for review of his [2008] sentence in exchange for waiving his right to pursue any further post-conviction relief." Accordingly, Taylor filed, on 29 December 2016, a Notice of Appeal. This is the posture in which the matter reaches us.

In this appeal, Appellant frames the following questions: I. Did the trial court err when propounding to the jury an anti-CSI effect instruction; II. Did the trial court commit reversible error by coercing the jury to come to a verdict; and III. Did the trial court consider evidence impermissibly in sentencing Taylor to thirty years executed time where the sentencing guidelines called for 1-5 years? Analysis I. The CSI Effect Jury Instruction. a.

Appellant's Argument. Taylor maintains that the trial judge committed reversible error when, over Taylor's objection , he propounded preemptively and spontaneously a CSI effect instruction to the jury. Relying on Stabb v. State , 423 Md. 454 , 31 A.3d 922 (2011) and Atkins v. State , 421 Md. 434 , 26 A.3d 979 (2011), Taylor asserts that the trial judge's CSI effect jury instruction invaded the province of the jury, relieved the State of its burden of proof, and deprived Taylor of his right to a fair trial. Although Taylor's trial occurred in 2008 (before the Court of Appeals decided Stabb and Atkins ), the case is before us as a belated appeal from his convictions because of the consent order granting his post-conviction petition, which transmogrified the proceeding into a direct appeal from the final judgment entered by the circuit court in December 2008.

Stabb and Atkins , therefore, should compel us to hold that the instruction administered here was an abuse of the trial court's discretion, based either on a contemporary application to this appeal of the CSI effect cases decided after Taylor's 2008 trial or a retrospective application of that case law, as permitted by Allen v. State , 204 Md. App. 701 , 42 A.3d 708 (2012). In response to the State's non-preservation argument, Taylor protests that he preserved the CSI effect jury instruction issue by objecting timely to the court's scientific evidence instruction. Taylor urges, alternatively, that should we hold inadequate his objection as not in strict compliance with Md. Rule 4-325(e), we ought to hold his effort sufficient to have complied substantially with the rule. If all else fails, Taylor asserts that we should consider his contention under plain error review. b.

Appellee's Arguments. The State argues that Taylor failed to preserve his objection to the CSI effect jury instruction for appellate review. Under Md. Rule 4-325(e), Taylor was obliged to "state[ ] distinctly the matter to which the party objects and the grounds of the objection." Taylor fell short of that mark because he offered the trial court no explication of the grounds for his objection to the CSI effect jury instruction. Moreover, substantial compliance with Md. Rule 4-325(e) by making only a general objection cannot be adequate because, at the time of Taylor's trial, the trial judge did not have the benefit of the holdings and reasoning of Stabb and Atkins to appreciate that what he did may not have been appropriate on the trial record before him.

Thus, "it is unfair to hold the trial court to that standard, when under Evans v. State [, 174 Md. App. 549 , 922 A.2d 620 (2007) ], [ (the only reported appellate case on this area of law at the time of Taylor's trial) ] the instruction was proper." The State maintains that Taylor's case, as a belated appeal, is not a direct appeal. Thus, Allen v. State is inapplicable to our analysis of this proceeding. The State contends finally that, even if this Court were to find the CSI effect jury instruction challenge preserved, the error, if any, was harmless. The complained-about missing forensic evidence, i.e., Taylor's DNA or fingerprints linking him to the crime scene, was not essential to the State's case-in-chief meeting the standard of guilt proven beyond a reasonable doubt. c.

Preservation. Maryland Rule 4-325(e), governing objections to jury instructions, states: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

This rule "makes clear that an objection to a jury instruction is not preserved for review unless the aggrieved party makes a timely objection after the instruction is given and states the specific ground of objection thereto ." Gore v. State , 309 Md. 203 , 207, 522 A.2d 1338 , 1339 (1987) (emphasis added). While "general" objections may be sufficient to preserve appellate arguments in some contexts, i.e., the admissibility of evidence, see Md. Rule 4-323(a), 8 Md. Rule 4-325(e) requires a distinct and specific objection to a jury instruction to preserve the challenge for appeal. See Newcomb v. Owens , 54 Md. App. 597 , 603, 459 A.2d 1130 , 1134 (1983). The principal reason for this standard is to enable the trial court to correct any inadvertent error or omission in the oral charge, as well as to limit the review on appeal to those errors which are brought to the trial court's attention.' In this manner, the trial judge is afforded 'an opportunity to amend or supplement his charge if he deems an amendment necessary.' Succinctly put, then, the rule is designed to afford the trial judge and opposing counsel ample opportunity to be informed of the nature and grounds of the exception.

Sergeant Co. v. Pickett , 283 Md. 284 , 288, 388 A.2d 543 , 546 (1978). Although Taylor objected timely to the trial judge's CSI effect instruction by stating, "Your honor, I would just except to the Court's scientific evidence instruction," he failed to state any explicit grounds for his objection. Thus, we must hold that Taylor's objection failed to comply strictly with Md. Rule 4-325(e). Taylor's first fallback position is that we should find his challenge preserved nonetheless under the standard of substantial compliance with the rule.

To show substantial compliance with Md. Rule 4-325(e) : There must be an objection to the instruction; the objection must appear on the record; the objection must be accompanied by a definite statement of the ground for objection unless the ground for objection is apparent from the record[,] and the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless. Gore , 309 Md. at 209 , 522 A.2d at 1341 (emphasis added). No ground need be stated "where the record makes clear that all parties and the court understood the reason for the objection." Exxon Corp. v. Kelly , 281 Md. 689 , 694 n. 6, 381 A.2d 1146 , 1149 n. 6 (1978). In the limited and unique context of this case, we believe that the judge could infer reasonably the grounds for Taylor's objection, consistent with his appellate argument.

Taylor's trial took place on 4 December 2008. At the time, the only guidance (in a then uncluttered area of Maryland jurisprudence) regarding CSI effect jury instructions was Evans v. State. 9 We infer that the trial judge and trial counsel were aware of Evans . Evans and his co-defendant, Antwan Peaks, were convicted on heroin possession-related charges. Evans , 174 Md. App. at 552 , 922 A.2d at 622 .

Evans' and Peaks' convictions were grounded on the eyewitness testimony of a police officer who was conducting the relevant undercover narcotics purchase. Evans , 174 Md. App. at 555 , 922 A.2d at 624 . During Evans' trial, the judge instructed the jury: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific tests. You may consider these facts in deciding whether the State has met its burden of proof.

You should consider all of the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven, based on the evidence, the defendants' guilt beyond a reasonable doubt. Evans , 174 Md. App. at 570 -71 , 922 A.2d at 632-33 (emphasis added).

Peaks objected to the instruction, noting that " '[he had] not previously seen this instruction given in the Circuit Court for Baltimore City....' The objection, duly noted by the court, was overruled." Evans , 174 Md. App. at 564 , 922 A.2d at 629 . Evans failed, however, to object to the CSI effect jury instruction on his own behalf or join Peaks' objection. We held "[Evans'] failure to raise such issue in the trial court precludes us from such consideration on appeal." Evans , 174 Md. App. at 566 , 922 A.2d at 630 . In what amounted to considered dicta, however, we proceeded to analyze the appropriateness of the CSI effect jury instruction.

Id. In considering the propriety of the instruction, we explained that the absence of forensic evidence, i.e., photographic or video evidence of the actual heroin sale transaction, was not material in assessing whether the State fulfilled its burden of proof. Evans , 174 Md. App. at 570 -71 , 922 A.2d at 633 . Although the admission of such evidence would have "made the discharge of the jury's duty easier," the evidence the State did adduce was sufficient.

Id. Moreover, we commented that the instruction was "a correct statement of the law, was applicable to the facts in the case and was not fairly covered by other instructions given[,]" and the "robust and vehement closing arguments of counsel ... warranted [further] giving the instruction." Evans , 174 Md. App. at 570 , 922 A.2d at 632 . Although Evans spoke approvingly of the CSI effect instruction given there, the court ruminated that such an instruction might be problematic if it operated "ultimately, to relieve the State of its burden of persuasion in a criminal case." State v. Evans , 278 Md. 197 , 207, 362 A.2d 629 , 635 (1976)." Thus, our second inference is that the circuit court and defense counsel here understood the foregoing to be the ground for Taylor's objection, consistent with his later appellate assertions. There is a strong presumption that trial judges know the law. 10 See State v. Chaney , 375 Md. 168 , 181, 825 A.2d 452 , 459 (2003).

Evans , coupled with the particular circumstances of this direct appeal (on which we shall amplify later), enable us to infer that the trial judge appreciated the grounds for Taylor's objection. Thus, Taylor's objection preserved adequately for appellate review the question of the claimed error of the giving of the CSI effect instruction, satisfying the underlying purpose of Md. Rule 4-325(e). See Pickett , 283 Md. at 289 , 388 A.2d at 546 . Case law considering the preservation of a question for appeal is vast.

The majority of the cases deal primarily with wholly un-objected-to-instructions 11 or a trial irregularity that was objected to at one point, but which went un-noticed when the same or similar irregularly repeated itself later in the trial. 12 We find the following cases, however, persuasive in our consideration of the sufficiency of Taylor's objection. In Moats v. Ashburn , involving a predecessor to Md. Rule 4-325(e), 13 "the trial judge issued instructions to the jury, which prompted an objection from [Moats]." 60 Md. App. 487 , 492, 483 A.2d 791 , 794 (1984). Moats' objection was: "Just for the record your Honor, I make an objection to the instruction on the unavoidable accident." Id. Ashburn asserted that "this exception to the instruction was insufficient because [Moats] failed to specify to the trial court the portion of the instruction to which they objected and the basis or ground upon which the objection was made." Id.

We disagreed, finding that there was substantial compliance with the predecessor to Md. Rule 4-325(e) because "[Moats] specifically objected to the portion of the trial court's instructions dealing with the unavoidable accident." Id. The record made clear that the parties and court understood the reason for the objection: "that the facts of the case did not fit the instruction." Ashburn , 60 Md. App. at 492 -93 , 483 A.2d at 794 . In Kissinger v. State , 117 Md. App. 372 , 374, 700 A.2d 795 , 796 (1997), we found Kissinger's objection preserved for appeal, 14 which stated: Your honor, I want to make an exception to one of your instructions that wasn't requested and you gave and I am not going to argue it, but I am going to make my exception. You instructed the Jury about inferences with respect to someone testifying.

That was not an instruction that anybody requested and it's an instruction that I never requested. (Emphasis added). This objection was not "distinct" as required under Md. Rule 4-325(e). Kissinger , 117 Md. App. at 375 , 700 A.2d at 796 .

It was clear, however, that Kissinger was referring "to that [instruction] which informed the jury not to draw any inferences from the defendant's failure to testify." Id. We noted that it appeared evident to the trial judge what Kissinger was objecting to because the trial judge acknowledged by stating " 'Okay. You have your exception.' " Id. We explained that counsel told the court that he had not requested the instruction, which is the only reason he could give to the court for his objection.

The instruction was not erroneous and, consequently, there was nothing that the court could do at that point to overcome appellant's objection. Further elaboration and objection would have been futile and useless. Id. In Sergeant Co. v. Pickett , Pickett noted several exceptions to the court's failure to include certain requested instructions. 283 Md. at 286 , 388 A.2d at 545 .

Pickett asserted, "I would take exception to [the] failure of the Court to instruct the jury on plaintiff's requested instruction one ... two ... three ... four ... six ... and ten, unavoidable consequences." Id. The judge denied Pickett's exceptions as to all save number six, noting "All right. I will give six ... I don't think [ten] is applicable to this one.

I will give six." Pickett , 283 Md. at 286 -87 , 388 A.2d at 545 (1978). The appellate court found the objections preserved because they satisfied the purpose of the precursor rule to Md. Rule 4-325(e), 15 i.e., to allow the trial judge "an opportunity to amend or supplement his charge if he deems an amendment necessary." Pickett , 283 Md. at 288 , 388 A.2d at 546 (quoting State v. Wooleyhan Transport Co ., 192 Md. 686 , 689-90, 65 A.2d 321 , 322 (1949) ). We held that appellants did not confine their objection to a simple reference to the prayer by number .... Counsel mentioned 'unavoidable (sic) consequences,' which, when coupled with a mere cursory reading of the proffered instruction, was sufficient to identify for the trial judge the nature and ground of the objection.

That the court fully comprehended the legal contention being offered by appellants and also regarded further argument unnecessary is manifest from its measured response: 'I don't think it is applicable to this one.' ... Here, further exposition by appellants' counsel of the 'ground' for the principle of law reflected by the instruction would have been both fruitless and unnecessary insofar as the rule was concerned. Once the trial court had signified that it comprehended the precise point being asserted ... the requirements of the rule had been met. At a minimum, this certainly represented substantial compliance with Rule 554 d and e, and, we hold, was therefore sufficient to preserve the issue for appellate review.

Pickett , 283 Md. at 289 -90 , 388 A.2d at 546-47 (emphasis added). In a more recent and relevant analysis of the sufficiency of an objection in Samba v. State , the trial judge, at the State's request, charged the jury with a CSI effect instruction. 16 206 Md. App. 508 , 513, 49 A.3d 841 , 844 (2012). Samba objected "because [he thought] that the general instructions on reasonable doubt, amount of proof, number of witnesses, and the like cover that." Brief for Appellee at 4, Samba , 206 Md. App. 508 , 49 A.3d 841 , 2011 WL 5566181 at ⁵. The State challenged, on appeal, Samba's objection asserting that it failed to comply with Md. Rule 4-325(e), thus rendering his appellate question unpreserved.

Samba , 206 Md. App. at 529 , 49 A.3d at 853 (2012). We disagreed because "appellant's objection was similar to the defense objection in Atkins that the pattern instruction on reasonable doubt 'sufficiently covered' the objectives of the "anti-CSI effect" instruction, which the Court of Appeals treated as having preserved that jury instruction challenge for appellate review." Samba , 206 Md. App. at 530 , 49 A.3d at 854 (citing Atkins , 421 Md. at 441 n. 5, 26 A.3d 979 ). The judge in the present case administered, sua sponte , the CSI effect jury instruction and then asked counsel whether there were "any additions or exceptions," prompting Taylor's timely objection. Taylor iterated "Your honor, I would just except to the Court's scientific evidence instruction," to which the trial judge stated "all right." The purpose of Md. Rule 4-325(e) is "to afford the trial judge and opposing counsel ample opportunity to be informed of the nature and grounds of the exception" such to allow the court an opportunity to address the deficiency.

Pickett , 283 Md. at 288 , 388 A.2d at 546 . The trial court, like the judge in Pickett , appeared to comprehend the thrust of Taylor's exception within the context of Evans . Notably, this was also not the first occasion for this judge to give such an instruction. Moreover, the judge did not request a further explanation from Taylor as to his grounds.

We noted in Kissinger that counsel's general objection was adequate to preserve the appellate issue raised because the trial judge acknowledged Kissinger's objection. Kissinger , 117 Md. App. at 374 , 700 A.2d at 796 . Counsel's explanation in Kissinger (that the instruction was not requested by any party) was the only reason he could give the court for his objection. Id.

The instruction in Kissinger was not erroneous, a misstatement of law, or overtly prejudicial. Analogously, the trial judge here acknowledged affirmatively Taylor's objection and, by not asking for further explanation, acknowledged implicitly also that he was aware that Taylor was objecting to the appropriateness of the CSI effect instruction. Taylor's general objection was specific to the court's sua sponte CSI effect instruction. The judge, after acknowledging that he had given this instruction in earlier cases, stated that he believed it was warranted here because it "has been generated by the evidence, and perhaps will be argued by [Taylor] concerning scientific evidence.

Or lack thereof." (emphasis added). Taylor's objection put the trial judge on notice of his dissatisfaction with the instruction. It does not strain credulity to imagine, from his conduct of the defense, that Taylor's counsel wanted to impress on the jury that the State had not met its burden of proof because it lacked forensic evidence; however, the judge's instruction minimized that argument and could be interpreted as implying that such a void was of no legal consequence. As noted previously, the trial judge and the parties here had only Evans and the judge's prior practice of giving this same or similar instruction to guide them.

Although Stabb and Atkins took a different view than Evans regarding CSI effect messages and Atkins distinguished Evans , Evans was "it" at the time of Taylor's 2008 trial. 17 Consequently, we conclude that Taylor's objection at trial complied substantially with Md. Rule 4-325(e). See Watts v. State , 457 Md. 419 , 179 A.3d 929 , 2018 WL 947746 (2018). Therefore, we shall view the trial judge's giving of the jury instruction under an abuse of discretion standard. Stabb , 423 Md. 454 , 465, 31 A.3d 922 , 928 (2011).

The abuse of discretion standard explains that: a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. King v. State , 407 Md. 682 , 697, 967 A.2d 790 , 799 (2009). The Sixth Amendment 18 and Article 21 of the Maryland Declaration of Rights 19 grant to criminal defendants not only the right to effective assistance of counsel, but also "the right to a fair trial, which includes a requirement that trial judges refrain from making statements that may influence improperly the jury." Stabb , 423 Md. at 463 , 31 A.3d at 927 .

Moreover, "Article 23 of the Maryland Declaration of Rights provides [also], in relevant part, that the Jury shall be the Judges of the Law, as well as of fact ...," which limits trial judges from giving jury instructions that comment on evidence properly before the jury. Stabb , 423 Md. at 463 -64 , 31 A.3d at 927 (citing Gore , 309 Md. at 210 , 522 A.2d at 1341 ). Thus, "a defendant has the right to be tried by a fair and impartial jury," Md. Dec. of Rts. Art. 21, and the " 'jury is the exclusive judge of the fact[s].' " Atkins , 421 Md. at 443 , 26 A.3d at 983 (quoting Gore , 309 Md. at 210 , 522 A.2d at 1341 (citing Md. Dec. of Rts.

Art. 23) ). In that process, trial judges occupy an authoritative position, such that they: should be exceedingly careful in any remarks made by [them] during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury .... Gore , 309 Md. at 212 , 522 A.2d at 1342 (quoting Elmer v. State , 239 Md. 1 , 10-11, 209 A.2d 776 , 782 (1965) ). Md. Rule 4-325(c), assisting a trial court in delivering jury instructions, whether given sua sponte or requested by a party, provides: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.

The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. Md. Rule 4-325(c) is not entirely self-contained, however. Gunning v. State , 347 Md. 332 , 347, 701 A.2d 374 , 381 (1997).

Evans v. State , interpreted Md. Rule 4-325(c) as requir[ing] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given. 333 Md. 660 , 691, 637 A.2d 117 , 132 (1994). Stabb explained that an improper jury instruction in the context of an anti-CSI effect message is one that operates to relieve the state of its burden to prove a criminal defendant's guilt beyond a reasonable doubt. Stabb , 423 Md. at 464 , 31 A.3d at 928 (citing Evans , 278 Md. at 207 , 362 A.2d at 635 ). d. Direct Appeal v. Belated Appeal: Does It Make a Difference to the Law To Be Applied Here?

As noted earlier, on 1 December 2016, "post-conviction counsel [and the State and the circuit court] entered into a consent order allowing [, among other things, Taylor] to file a belated notice of appeal and application for review of his sentence in exchange for waiving his right to pursue any further post-conviction relief under the Maryland Uniform Post-Conviction Procedure Act." Taylor contends that, under the consent order, the present case should be treated as a direct appeal , which relates-back to when a timely appeal should have been taken in 2008 and running through the present, and, on that basis, he is entitled to the benefit of Stabb and Atkins . The State counters that, between 2008 and 2016, "[t]his case was not on direct review ... this belated appeal is a post-conviction remedy, coming before this Court by way of a consent order from the post-conviction court." According to the State, therefore, we must review Taylor's jury instruction error contentions under Evans only. Although there is not much serious consideration in Maryland cases regarding whether a "belated appeal" is a direct appeal, we think that the State's assertion is incorrect. "[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final" and where the issue has been preserved.

Griffith v. Kentucky , 479 U.S. 314 , 328, 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987) ; see also Allen , 204 Md. App. at 721 , 42 A.3d at 720 . Generally, post-conviction proceedings, under the Uniform Post-conviction Procedure Act 20 (the Act), are not unto themselves a means in which direct appellate review is given in such a proceeding, Kelly v. Warden , Maryland Penitentiary , 243 Md. 717 , 718, 222 A.2d 835 , 836 (1966), however: It was early established that [the Act] was procedural only and did not create new substantive rights not given before its passage by habeas corpus , coram nobis or other writs available at common law. State v. McCray , 267 Md. 111 , 132-133, 297 A.2d 265 [, 275] (1972) ; Jordan v. State , 221 Md. 134 , 140, 156 A.2d 453 [, 456] (1959) ; State v. D'Onofrio , 221 Md. 20 , 28-29, 155 A.2d 643 [, 647] (1959)... [Exceptions exist at common law] to the general rule that a post[-]conviction proceeding may not serve merely as an appeal, Cheeseboro v. Warden [ of the Maryland Penitentiary ], 224 Md. 660 , 661, 168 A.2d 181 (1961), and was not designed to review the regularity of judicial proceedings as an alternative to appeal[.] Warrington v. Warden [ of the Maryland Penitentiary ], 222 Md. 601 , 604, 159 A.2d 360 , 362 (1960)... In certain circumstances, therefore, the lower courts have granted belated appeals under post-conviction procedures, and [our] appellate courts have entertained them.

Wilson v. State , 284 Md. 664 , 671-72, 399 A.2d 256 , 260 (1979). "There exists, [therefore,] no rule [ ] preventing courts from providing belated appeals as a remedy under the [ Act ]." Garrison v. State , 350 Md. 128 , 139, 711 A.2d 170 , 175 (1998) (citing Wilson , 284 Md. at 672 , 399 A.2d at 260 ) (emphasis added). 21 Belated appeals have been permitted when " 'a timely direct appeal was attempted, but thwarted by the action of State officials,' " Wilson , 284 Md. at 672 , 399 A.2d at 260 (quoting Sewell v. Warden , 235 Md. 615 , 618, 200 A.2d 648 , 649 (1964) ) (the Court granted a belated direct appeal from a post-conviction on issues not raised on direct appeal because the failure to raise such issues was due to appellate counsel's incompetence), or when a defendant is denied an appeal through no fault of his own. 22 Beard v. Warden , 211 Md. 658 , 661, 128 A.2d 426 , 427 (1957) ; see also Creighton v. State , 87 Md. App. 736 , 738, 591 A.2d 561 , 563 (1991) ("Belated appeals have been allowed where it is shown that the defendant requested an appeal, but either his request was not honored or an appeal noted was summarily dismissed because of (1) actions or omissions by State officials, (2) actions or omissions by trial counsel; (3) actions or omissions by appellate counsel; or (4) State laws that violate due process." (citations omitted) ); Waters v. State , 76 Md. App. 548 , 553, 547 A.2d 665 , 668 (1988). The Act contemplates that belated appeals insure remedially that a defendant receives a full review of his or her case as if his or her appeal had been pursued timely and properly. Wilson , 284 Md. at 676 , 399 A.2d at 263 ("In light of the legislative scheme apparent in the Uniform Post-Conviction Procedure Act, we believe that it contemplates that an accused be granted a belated appeal as a remedy to obtain full appellate review of his allegations of error, constitutional in scope, and neither finally litigated nor waived, when he has been denied his entitled appellate review of his claims due to improper action of his appellate counsel.

We think that [the Act] entitles the petitioner to a belated appeal as a remedy to insure that the accused obtain as full a review as if his appeal had been properly pursued."). 23 We conclude that a belated appeal, granted as post-conviction relief, restores the availability of appeal within the meaning of Griffith . See Griffith, 479 U.S. at 321 n.6, 107 S.Ct. at 712 n.6 (a case has reached finality when "a judgment of conviction has been rendered, the availability of appeal exhausted , and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. (citing United States v. Johnson, 457 U.S. 537 , 542 n.8, 102 S.Ct. 2579 , 2583 n.8, 73 L.Ed.2d 202 (1982) ). We view the applicability of the law existing at the time a belated appeal is granted (restoring the timeliness of the appeal) no different than if post-conviction court were to grant a new trial. i.

Moreover- Allen v. State. Even if the State's argument had heft, Taylor is entitled to the benefit of Stabb and Atkins under the retrospectivity basis approved by Allen v. State because of our resolution of the preservation question. In Allen v. State , we addressed the conundrum whether Atkins and Stabb apply to cases "decided" before Atkins and Stabb were decided and, if so, under what circumstances. Allen's trial on a charge of possession of cocaine with intent to distribute began on 4 February 2011.

Allen , 204 Md. App. at 703 , 42 A.3d at 710 . At the close of all evidence, the trial judge instructed the jury, at the State's request, employing an "anti-CSI" instruction similar to the one given by the trial judges in Atkins and Stabb : during the trial you've heard testimony and you may hear argument of counsel that the State did not utilize a specific investigative technique or techniques or scientific tests, I instruct you that there's no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Id. Allen was convicted on 7 February 2011.

Allen , 204 Md. App. at 705 , 42 A.3d at 711 . On appeal, Allen contended that the instruction was improper under Atkins (decided on 18 August 2011) and Stabb (decided on 22 November 2011). Allen , 204 Md. App. at 706 , 42 A.3d at 711 . The State, on the other hand, "while conceding that with the hindsight of Atkins and Stabb [ ] it may have been error for the court to issue the instruction challenged here, asserts that those cases should be applied only prospectively and not to convictions ... rendered before those cases were decided." Id.

(internal quotation marks omitted). After reviewing case law addressing the prospective/retrospective application of common law changes in criminal law, 24 we concluded that Atkins and Stabb applied to Allen's case retrospectively because there was no final disposition in Allen's case at the time those cases were decided, and the question of the propriety of the instruction had been preserved. Allen , 204 Md. App. at 721 , 42 A.3d at 720 . In concluding that Atkins and Stabb applied to our analysis of Allen's appellate questions, we noted that: under current Maryland law, the question of whether a new constitutional or statutory decision in the criminal law area should be applied prospectively or retroactively arises only when the decision declares a new principle of law, as distinguished from applying settled principles to new facts.

If it does not declare a new principle, it is fully retroactive and applies to all cases. Denisyuk [ v. State ], 422 Md. [462,] 478-79, 30 A.3d 914 [, 923 (2011) ]. A new constitutional or statutory ruling, in the criminal law context, ordinarily applies to the facts in the case announcing the change and those cases pending on direct review in which the issue was preserved. A new constitutional or statutory decision will also be fully retroactive, i.e., apply to convictions which were final, when the change affected the integrity of the fact finding process or the change involved the ability to try a defendant or impose punishment.

We conclude that the Atkins and Stabb holdings apply to the case before us. There was no final judgment at the time of the Atkins and Stabb decisions, and the issue is preserved. First, as noted above, the decisions were constitutionally based. They did not announce changes in Maryland common law and, thus, are not of the type to be applied only 'to the instant case and to all criminal trials commencing and trial in progress on or after the date this opinion is filed.' Ruffin v. State , 394 Md. 355 , 373 [ ]n. 7, 906 A.2d 360 (2006) (citations omitted).

Second, it is not clear that a retroactivity analysis is implicated. The Atkins and Stabb holdings are clearly based on constitutional principles, Atkins , 421 Md. at 443 [ 26 A.3d at 983 -84 ], Stabb , 423 Md. at 472 [ 31 A.3d at 932 -33 ], but we read the decisions not as creating new constitutionally based principles but rather as applying settled federal and State constitutional guarantees to "new and different factual situations." Potts v. State , 300 Md. 567 , 577, 479 A.2d 1335 (1984). The Court of Appeals did not overrule our decision in Evans ; it clarified and distinguished it. In such a case, "the decision always applies retroactively." Id.

Third, if Atkins and Stabb did contain new constitutional principles, the decisions come within the general rule and apply to all cases pending on direct review in which the issue was preserved. Allen , 204 Md. App. at 721 -22 , 42 A.3d at 720 -21 . ii. The Current Gold Standard: Robinson , Stabb , and Atkins . Robinson v. State , Stabb , and Atkins established, after pointing-out the "inconclusive state of the scholarly legal and/or scientific research taken as a whole" 25 regarding the existence vel non of a "CSI effect," that Maryland disapproves of preemptive anti-CSI messages delivered by the court to the venire or the empaneled jury. 26 Stabb , 423 Md. at 473 , 31 A.3d at 933 (to the extent that such an instruction is employed, its use ought to be confined to situations where it corrects overreaching by the defense, i.e., a curative instruction); State v. Stringfellow , 425 Md. 461 , 473-74 n.4, 42 A.3d 27 , 34-35 n.4 (2012) (" Stabb and Atkins discuss when it may be permissible for courts to pose a voir dire question or a jury instruction to counter what has been referred to popularly as the 'anti-CSI effect.' Suffice it to say, these cases hold that it is erroneous to pose such a question or instruction as a pre-emptive measure.").

For a potentially valid CSI-effect message to be delivered, there must be, at minimum, some form of relevant misstatement(s) of law or over-reaching conduct by counsel before the court may issue an appropriate 27 and curative CSI effect jury instruction, or analogous anticipatory grounds to ask a voir dire question. See Hall v. State , 437 Md. 534 , 540-41, 87 A.3d 1287 , 1290-91 (2014). By the same token, defense counsel's mere reference to, or argument regarding (or announced intent to argue), the absence from (or insufficiency in) the State's presentation during its case of scientific evidence does not warrant, in and of itself, the court's injection of a CSI message. See Robinson v. State , 436 Md. 560 , 580, 84 A.3d 69 , 81 (2014).

We turn briefly to a consideration of Atkins , Stabb and their progeny, and their application here. Atkins was convicted of second-degree assault because he threatened the victim (in alleged self-defense) with a pocketknife. Atkins , 421 Md. at 439 , 26 A.3d at 981 . In the execution by the police of a search warrant for Atkins' home, they located a "non-foldable black knife, approximately 12[-]inches in length." Id.

The police did not "perform any scientific or forensic testing on the knife[,] and there was no testimonial evidence from witnesses linking the particular knife found in Atkins' home to the crime." Id. After the close of the evidence, the trial judge administered to the jury, at the State's request and over defense counsel's objection, the following instruction: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty.

However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon the evidence the defendant's guilt beyond a reasonable doubt. Atkins , 421 Md. at 441 -42 , 26 A.3d at 982-83 (emphasis omitted). Atkins , in distinguishing Evans , explained that the relevant legal reasoning [in Evans ] regarding the instruction is dicta.

As the court stated, the record clearly demonstrates that defendants counsel failed to object to the instruction at issue during the proceedings, and further that the defendant's failure to raise such issue in the trial court precludes us from such consideration on appeal. Despite holding that the issue was waived, the intermediate appellate court engaged in a legal analysis of the issue, which was therefore not authoritative or essential in the determination of the case. Further, unlike the case at hand, the missing evidence in Evans , i.e., photographic or video evidence of the drug transaction, was not of critical importance to the case. Instead, the State relied on the eyewitness testimony and identification of two detectives directly involved in the transaction.

The failure of police to provide additional evidence was therefore not a crucial issue, despite the defense argument that such evidence could possibly have served to bolster the State's case in order to establish guilt beyond a reasonable doubt ... Unlike in Evans where the non-existent evidence, pictures or video of the transaction, were supplemental evidence which would have supported the eye witness accounts, the evidence lacking here could have been direct evidence to affirmatively linking the knife introduced to the alleged assaults .... Finally, in Evans , defense counsel gave "robust and vehement closing argument" in addition to extensive cross-examination on the issue of the failure of police to record the transaction .... In the present case, defense counsel briefly cross-examined on the issue, but did not argue lack of evidence in closing.

Unlike in Evans , where counsel distorted the law, thus requiring a curative instruction, counsel in the present case merely pointed out on cross-examination what procedures were available but did not incorrectly state the law or the State's burden. Atkins , 421 Md. at 449 -51 , 26 A.3d at 987-88 (internal citation and quotation marks omitted). The Court held ultimately that [t]he instruction did not adequately protect Atkins's right to a fair trial because the instruction invaded the province of the jury and constituted commentary on the weight of the evidence, which comment was improper. As stated by Atkins, it was the jury's function to determine what inferences were to be drawn from the police officer's failure to test the knife for DNA evidence.

But the trial judge usurped this role. Basically, the instruction directed the jury to ignore the fact that the State had not presented evidence connecting the knife to the crime, implying that the lack of such evidence is not necessary or relevant to the determination of guilt, and to disregard any argument by defense to the contrary. In the words of Petitioner's counsel at oral argument before this court, 'the instruction effectively plugged a hole in the State's case.' Atkins , 421 Md. at 453 , 26 A.3d at 989 -90 . In Stabb , the Court fleshed-out further the standard for evaluating the appropriateness of a CSI effect jury instruction.

Stabb , 423 Md. at 456 , 31 A.3d at 923 . The trial court, at the close of the evidence and at the State's request and over defense counsel objection, propounded to the jury the following instruction: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not use a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all the evidence or lack of evidence in deciding whether a defendant is guilty.

However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon all the evidence the defendant's guilty beyond a reasonable doubt. Stabb , 423 Md. at 460 , 31 A.3d at 925 . Stabb held that this instruction was given preemptively, i.e., before any explicit argument by the defense (in closing or otherwise) regarding the absence of DNA or fingerprint testing of the victim or her clothing.

Stabb , 423 Md. at 471 , 31 A.3d at 932 . Stabb explained that the instruction given was identical to the one administered in Atkins , but [i]n Atkins , we found that the 'missing' forensic or other evidence connecting the alleged weapon to the crime was "of critical importance" to the State's case, as there was little evidence linking the foot-long knife recovered from Atkins's night stand with the crime. Atkins , 421 Md. at 450 , 26 A.3d at 988 . Here, the lack of forensic evidence, i.e., DNA or fingerprints corroborating Stabb's asserted misconduct towards Kaylen J., may not have been as critical to the strength of the State's case because of the victim's testimony and the circumstantial evidence supplied by the State's other witnesses.

In closing, although defense counsel commented on the lack of physical evidence, the overwhelming majority of her argument focused on the State's reliance on a single child witness, conflicting statements of the State's other witnesses, motive of Melissa R. and Jane R. to influence Kaylen J.'s statements, Stabb's alibi, and possibility of an alternative assailant. Nonetheless, the lack of scientific evidence was an integral part of the defense's theories. Stabb , 423 Md. at 470 -71 , 31 A.3d at 931 -32 . Stabb concluded that although we remain persuaded that 'anti-CSI effect' jury instructions are not improper per se, under the facts of this case, the trial court abused its discretion in providing essentially a preemptive jury instruction that there was no legal requirement for the State to utilize any specific investigative technique or scientific test to prove its case.

Stabb , 423 Md. at 462 -63 , 31 A.3d at 928 (internal quotations omitted). The CSI effect jury instruction relieved the State of its burden to prove Stabb was guilty beyond a reasonable doubt, invaded the province of the jury, and, thus, violated Stabb's constitutional right to a fair trial. Stabb , 423 Md. at 472 , 31 A.3d at 932 . In Robinson , the next most recent appellate decision (before State v. Armstead , 235 Md. App. 392 , 178 A.3d 556 (2018) ) addressing significantly a CSI effect message situation, the Court held that the trial court's anti-CSI effect instruction was not warranted by the trial record.

Robinson , 436 Md. at 580 , 84 A.3d at 81 . During opening statement and closing argument, Robinson contended that there was no scientific evidence of wrongdoing linking him to the charged crime. Robinson , 436 Md. at 566-68 , 70 , 84 A.3d at 72-73 , 75 . The trial judge instructed the jury at the close of all evidence, over defense counsel's objection, 28 During this trial, you've heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific tests.

You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon the evidence, the defendant's guilt beyond a reasonable doubt.

Robinson , 436 Md. at 561 -62 , 84 A.3d at 69 -70 . (emphasis omitted). Robinson echoed Stabb iterating that "the 'anti-CSI effect' instruction should not be given preemptively, as was suggested ... by the judge when he addressed possible closing argument by defense counsel." Robinson , 436 Md. at 579 , 84 A.3d at 80 (emphasis added). The Court explained that [w]hile it is true that Robinson's counsel opened by saying, in part, '[t]here will not be any fingerprints from any door ... [t]here won't be his DNA on anything, not on any screwdriver, not on any weather[-]stripping, not on any piece of tape, not on anything.

Quite frankly, there's just not, there's absolutely no evidence beyond a reasonable doubt that Mr. Robinson committed these crimes,' a mere reference to the lack of evidence does not trigger giving an 'anti-CSI effect' instruction . We have reflected, for example, when reference has been made by defense counsel to the lack of fingerprint evidence, that, when the State has failed to utilize a well-known, readily available, and superior method of proof to link the defendant with the criminal activity, the defendant ought to be able to comment on the absence of such evidence. Certainly, lack of evidence is a common defense in a criminal case to generate reasonable doubt just as in the instant case. Robinson's counsel's opening statement and cross-examination merely pointed out what procedures might have been available to the State, but did not misstate the law or the State's burden.

Robinson's counsel cross-examined the officers regarding whether testing had been ordered to compare the screwdrivers recovered to pry marks on the door to the apartment and whether fingerprint or DNA tests had been ordered, but did not insinuate that the State had any obligation to perform such testing or that had tests been performed, the results of such testing would have favored his client. Robinson , 436 Md. at 579 -80 , 84 A.3d at 80-81 (emphasis added) (internal citation and quotation marks omitted). iii. So, At the End of the Day, What About the CSI-Effect Jury Instruction in Taylor's Case? Looking to the record of Taylor's trial, we find no overreaching by the defense during trial in its maintenance of its contention as to the impact of the State's failure to adduce forensic evidence linking Taylor to the crime scene, such as might justify the giving of a curative CSI effect instruction.

Taylor's opening argument included the familiar refrain: And it's all going to boil down to that one identification a month later, because there are no other witnesses, there is no other forensic evidence, fingerprints, anything like that, it's going to come down to that one identification Taylor's cross-examination of Detective Kaiser followed that announced thrust: [Taylor]: You described processing the door, right? [Detective Kaiser]: Yes. [Taylor]: Tried but couldn't get prints? [Detective Kaiser]: Yes. * * * [Taylor]: So is there any reason the door wasn't processed or fingerprinted at the time, 1:05 or 1:15 a.m.? [Detective Kaiser]: Unfortunately I cannot answer that, I was not there. I was not called out that evening. I noticed the problem when I reviewed the case that morning. * * * [Taylor]: Did you attempt to secure any fingerprints from inside the house? [Detective Kaiser]: No, sir. [Taylor]: Did there ever come time when you learned that a knife may have been employed by [the victim]? [Detective Kaiser]: Yes. [Taylor]: Did there ever come a time when you secured that knife? [Detective Kaiser]: No. Appreciating that the defense pointed-out the lack of forensic evidence as part of the State's case, the State, in its re-direct examination of Detective Kaiser, sought to explain why that was so: [Taylor]: [Detective] Kaiser, why did you not secure the knife? [Detective Kaiser]: At the time, well, when I reviewed the report I understood that it was not recovered. And based on the fact that the, I did not believe there was any evidentiary value to