On petition for writ of certiorari to the Court of Appeals of
Maryland.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting in this case and in Evans v.
Maryland, 478 U.S. 1010 and Foster v. Maryland, 478 U.S. 1010.
Petitioners were sentenced to death pursuant to a procedural
scheme that they strenuously contend is unconstitutional. The
Maryland Court of Appeals, through a highly creative reading of
Maryland law and a heavy dose of procedural technicality, managed
to affirm petitioners' sentences without reaching their
constitutional claim. I consider such evasion repugnant, and I
dissent from the Court's denial of certiorari.
The dispute in these cases rests on Md.Ann.Code, Art. 27, 413(h)
( 1957). That section, designed to guide the deliberations of the
sentencing jury in capital cases, provides:
"(1) If the court or jury finds that one or more of these
mitigating circumstances exist, it shall determine whether, by a
preponderance of the evidence, the mitigating circumstances
outweigh the aggravating circumstances.
"(2) If it finds that the mitigating circumstances do not
outweigh the aggravating circumstances, the sentence shall be
death.
Page 478 U.S.
1023 , 1024
"(3) If it finds that the mitigating circumstances outweigh the
aggravating circumstances, the sentence shall be imprisonment for
life."
The language of these provisions is clear: death shall be
imposed whenever mitigating circumstances do not outweigh
aggravating circumstances. It follows that death must be imposed
when mitigating and aggravating circumstances are in equipoise. Put
another way, death must be imposed unless mitigating circumstances
outweigh aggravating circumstances: the burden of proof on the
question of whether mitigating circumstances outweigh aggravating
circumstances is on the defendant.
This understanding of the statute is confirmed by Maryland Rule
4-343, a recodification of Md.Rules Proc. 772A (superseded), which
prescribes the verdict sheet used in Maryland capital sentencing
proceedings. In Section I of that verdict sheet, the jury lists the
aggravating circumstances it has found. In Section II, it lists the
mitigating circumstances it has found. In Section III, it is
instructed to answer "yes" or 'no' to the following statement:
"Based on the evidence, we unanimously find that it has been proven
by A PREPONDERANCE OF THE EVIDENCE that the mitigating
circumstances marked 'yes' in Section II outweigh the aggravating
circumstances marked 'yes' in Section I." The jury is further
instructed that if Section III is marked "no," it must enter a
sentence of death. This rule, enacted contemporaneously with 413,
effectuates the plain language of the statute-the jury must return
a sentence of death unless the defendant affirmatively proves that
mitigating outweigh aggravating circumstances.
Despite the apparent clarity of the statutory language and the
verdict sheet, the Maryland Court of Appeals in Tichnell v. State,
287 Md. 695, 730, 415 A.2d 830, 848-849 (1980), appeared to read
the statute differently. It stated:
"Section 413 does not explicitly specify which party has the
burden of producing evidence and the burden of persuasion. . . .
[I] f the sentencing authority finds, by a preponderance of the
evidence, that the mitigating circumstances do not outweigh the
aggravating circumstances, the death penalty must be imposed.
413(h)(2). Because the State is attempting to establish that the
imposition of the death penalty is an appropriate sentence, the
statute places the risk of nonpersuasion
Page 478 U.S.
1023 , 1025
on the prosecution with respect to whether the aggravating
factors outweigh the mitigating factors."
The court did not attempt to reconcile this reading with the
language of 413(h), or indeed with the court rule it had approved
two years earlier.
Pronouncements of the Maryland Court of Appeals in cases
subsequent to Tichnell were conflicting. The Maryland courts
continued to agree that the rule established by that court as
Md.Rules Proc. 772A and Rule 4-343, instructing the jury that it
must return a sentence of death if mitigating circumstances do not
outweigh aggravating, was valid under the Court of Appeals'
decisions. Capital defendants, in case after case, continued
unsuccessfully to challenge 413(h) as unconstitutionally allocating
that burden. See Stebbing v. Maryland,
469 U.S. 900 (1984)
(MARSHALL, J., dissenting from denial of certiorari) (Court should
review constitutionality of 413(h) because it appears to place
burden on defendant); Foster v. State, 304 Md. 439, 471, 499 A.2d
1236, 1253 (1985) (argument that Maryland capital punishment
statute places improper burden on defendants at sentencing phase
"made in virtually all death sentence appeals in this Court"). The
Maryland Court of Appeals did not return to the point directly,
except occasionally to refer back to Tichnell or to quote or
paraphrase the language of the statute. E.g., Johnson v. State, 303
Md. 487, 537, 495 A.2d 1, 26 (1985), cert. denied, 474 U.S. 1093
(1986); Trimble v. State, 300 Md. 387, 415, n. 16, 478 A.2d 1143,
1157, n. 16 (1984), cert. denied, 469 U.S. 1230 (1985); Johnson v.
State, 292 Md. 405, 438, 439 A.2d 542, 560-561 (1982). The jury
instruction required by Rules 772A and 4-343 continued in use.
In these cases, petitioners were convicted of murder and
sentenced to death. At the trial and appellate levels, they
strenuously challenged the burdens established by Maryland law,
attacking 413(h) "as implemented by Md. Rule 772A" as placing the
burden on the capital defendant to convince the sentencer that
mitigating circumstances outweigh aggravating circumstances. See
Evans v. State, 304 Md. 487, 554, 499 A.2d 1261, 1296 ( 1985)
(McAuliffe, J., concurring and dissenting) (quoting petitioner
Evans' appellate brief).
The Maryland Court of Appeals rejected petitioners' challenge.
Their attack, it explained, reflected a misunderstanding of
Tichnell and of Maryland law. The language of the Maryland
statute,
Page 478 U.S.
1023 , 1026
the court stated, in fact did not speak to the "case where the
sentencing authority found the aggravating and mitigating
circumstances to be evenly balanced or was unable to determine
which outweighed the other." Foster, supra, 304 Md., at 478-479,
499 A.2d, at 1256. The burden of proof in such cases, the court
definitively stated, was on the prosecution.
One might think that this ruling would have been cause for
celebration by petitioners. Petitioners were condemned to death
pursuant to instructions that had put the burden of proof on them
at a key point in the sentencing proceeding. They had strenuously
challenged that scheme both at the trial and appellate levels. And
the Maryland Court of Appeals had just held that state law would
not permit such an imposition of the burden. One might forgive
petitioners for believing that they were therefore due to receive
new sentencing proceedings. The Maryland Court of Appeals, however,
disagreed.
The Maryland Court of Appeals did not contest that petitioners
had challenged the constitutionality of the statute at length both
at the trial and appellate levels. It held, however, that
petitioners had committed a fatal error in drafting their appellate
briefs. They had limited their challenge to the statute, and had
neglected explicitly to challenge the state-prescribed instructions
and verdict sheet, which tracked the statutory language. Since the
statute as interpreted was constitutional, the court reasoned, and
petitioners had preserved no other challenges, there was no cause
for reversal. The court noted that counsel for at least one
petitioner had expressly objected at trial when the trial judge,
instructing the jury on the weighing of aggravating and mitigating
circumstances, used the language of 413(h). Even were the issue not
waived on appeal, the court ruled, there was no error, because the
language of 413(h) itself " 'does not place any burden . . . upon
the accused.' " Foster v. State, 305 Md. 306, 318, 503 A.2d 1326,
1332 (1986).
I find this result unconscionable. I have long believed that the
Maryland statute, as written, unconstitutionally places the burden
of proof on capital defendants at the sentencing phase of their
trials. See Stebbing v. Maryland, supra. I am gratified that the
Maryland Court of Appeals has read that burden of proof out of the
statute. But I am wholly unconvinced by the reasoning that that
court used to avoid extending the benefits of its decision to
petitioners.
Page 478 U.S.
1023 , 1027
First, it is plain that any rational juror would understand the
language of 413(h) and Rule 4-343 as placing the burden of
persuasion on the accused. Indeed, I cannot imagine any other way
to read the statute that does not completely ignore its words. No
fair-minded juror could have understood from these instructions
that the burden was upon the State to prove by a preponderance of
the evidence that aggravating circumstances must outweigh
mitigating circumstances before a sentence of death could be
returned. "It is distressing to accept a judicial construction that
black is white; it is folly to suggest that jurors will arrive at
the same conclusion." Evans, supra, 304 Md., at 558, 499 A.2d, at
1298 (McAuliffe, J., concurring and dissenting).
The Court of Appeals' resolution of the waiver issue, further,
allowed it to frustrate key federal rights only by means of
technicality worthy of 17th-century pleading. Once petitioners
attacked the burden of proof imposed by the language of the
statute, their failure explicitly to argue that instructions
precisely tracking the language of the statute were similarly
flawed was, to say the least, understandable. Reasonably prudent
counsel could have assumed that if the Court of Appeals had found
that the language of the statute impermissibly imposed the ultimate
burden on defendants, it would have similarly disapproved
instructions to the same effect. Only the court's "interpretation"
of 413(h) to obviate the constitutional claim created petitioners'
dilemma. The court stated that it was merely reaffirming what had
been the law since Tichnell; yet, as the partially dissenting judge
below remarked:
"The frequency with which defense
counsel have argued since Tichnell I that the statute improperly
places the burden of ultimate persuasion upon the defendant, and
the failure of experienced and able defense counsel to argue for an
instruction to the opposite effect upon the authority of Tichnell I
suggests to me that the 'interpretation' announced [in this case]
must be ranked among the best kept secrets in this State." Evans,
supra, at 556, n. 5, 499 A. 2d, at 1297, n. 5 (McAuliffe, J.,
concurring and dissenting).
I do not complain about the fact that the Maryland Court of
Appeals has chosen to correct the error of the Maryland Legislature
in drafting 413(h). Its decision to deny petitioners the benefit of
that change, however, epitomizes the arbitrary and capricious
Page 478 U.S.
1023 , 1028
administration of the death penalty in this Nation. I would
grant the petitions for certiorari.
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