# Burch v. State > Court of Appeals of Maryland · July 3, 1997 · 346 Md. 253 URL: https://www.frixlaw.com/law-library/cases/9644323 ## Case - **Full name:** Heath William BURCH, v. STATE of Maryland - **Court:** Court of Appeals of Maryland - **Decided:** July 3, 1997 - **Citations:** 346 Md. 253; 696 A.2d 443; 1997 Md. LEXIS 91 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Wilner, Chasanow - **Cited by:** 91 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644323 ## How later opinions describe it (automated extraction) - noting that there was no basis for defendant’s alleged fear of retaliation should he not make a statement, because interviewing detective did not engage in abuse, abusing officers did not engage in force in an attempt to induce a statement, abusing officers were not present du… - affirming the trial court's decision that there was no basis for a depraved heart murder instruction as to the Davis victim, but there was a basis for the other instructions, including the intent-to-do-serious-bodily-harm variety of second-degree murder - rejecting arguments similar to Appellant’s that the Maryland death penalty statute is facially unconstitutional ## Opinion text *300 BELL, Chief Judge, dissenting. Md. Rule 4-343(e) prescribes the form to be used by a jury deliberating the appropriate sentence for a defendant who has been found guilty of murder in the first degree and to whom the State has given the notice required by Maryland Code (1957, 1996 Repl.Vol.) Article 27, § 412(b)(1), 1 stating its intention to seek the death penalty. As the majority recognizes and, indeed, the rule requires, in those cases, the jury’s “findings and determinations shall be made in writing in the ... form [set forth in the rule]” Md. Rule 4-343(e). As the majority also recognizes, “that form is cast in the singular, as though there was but one victim and thus one murder. Obviously, as the court below recognized, it cannot be used singularly, without some modification, in a multiple murder case where the defendant, under the holdings in Evans v. State, 304 Md. 487 , 499 A.2d 1261 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 722 (1986) and Grandison v. State, 305 Md. 685 , 506 A.2d 580 (1986), cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986) faces the prospect of more than one death sentence.” 346 Md. at 285, 696 A.2d at 459. Acknowledging the entitlement of both the State and the defendant to have the sentence for each crime subject to the death .penalty determined by a jury, if that is the defendant’s election, in accordance with the statute and the rule, the majority correctly points out that: It is the court’s function to develop a form that enables the jury to make the requisite findings with respect to each crime—whether the defendant was a principal in the first degree, which, if any, aggravating factors exist, which, if any, mitigating factors exist, whether the aggravating factors outweigh the mitigating factors, and what the sentence should be. In the absence of an alternative form in Rule 4-343 usable in multiple-murder situations, the court may discharge that function by using a separate form for each murder or by devising, preferably with the assistance of *301 counsel, one comprehensive form, whichever appears more appropriate and easy for the jury to understand. 346 Md. at 285-286, 696 A.2d at 459-460 (footnote omitted). Focusing on the case sub judice, it concluded that, though consistent with the instructions given the jury, the form used by the jury in this case “was inappropriate and, indeed, unnecessarily engendered the very issue we are now facing.” 346 Md. at 286, 696 A.2d at 460. Nevertheless, the majority states that “on this record, [it is] convinced, beyond any reasonable doubt, that the error does not require the vacation of both death sentences.” To reach that conclusion, the majority satisfied itself that all—each one—of the jurors concluded that the defendant should be put to death for at least one, if not both, of the murders. Id. Its reasoning in that regard is as follows: The jury determined that appellant was a principal in the first degree as to both murders. The two aggravating factors that it found necessarily applied to both victims; there was no basis for it to have found that either factor applied to one victim (or murder) but not the other. The one mitigating factor that the jury found to exist necessarily applied with respect to both murders; the five mitigating factors it found, unanimously, not to exist applied to both victims or murders; and the one interlineated group of mitigating factors that one or more but fewer than all jurors found to exist was peculiar to appellant and therefore necessarily applied to both victims or murders. The only factor that conceivably, though tenuously, could have been peculiar to one murder was that the murder was committed while appellant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired—a factor found by one or more but fewer than all of the jurors. But even the juror or jurors who found that factor to exist, whether as to one or both of the murders, also found that the aggravating factors outweighed all of the mitigating factors and therefore found death to be the appropriate sentence. *302 346 Md. at 286-287, 696 A.2d at 460 (footnote omitted). Thus, we are told that, given the jury’s determination that “the sentence” shall be death and that both sentences “are otherwise unimpeachable,” the appropriate remedy for the correction of the error is to vacate one of the death sentences, it matters not which, and allow the other sentence to remain undisturbed. Rather than being arbitrary and capricious, the majority asserts, that remedy simply effectuates the clear intent and determination of the jury. 346 Md. at 286-287, 696 A.2d at 460. With the first stated conclusion reached by the majority, that it was error not to require the jury to go through the prescribed procedure separately, utilizing a different form ■with respect to each victim and making separate findings as to each murder, and to permit the jury to return only one death sentence with respect to both murders, I concur. I can not, however, accept the latter. I simply am not persuaded by the reasons the majority offers in support of its conclusion that the two death sentences are unimpeachable. On the contrary, the rationale argued by the defendant is quite a bit more compelling. It is certainly plausible and logical that a jury asked to impose one sentence for two murders will approach the task from the perspective that the single sentence must “be sufficiently severe to punish two murders.” Moreover, as the defendant also argues, a jury required to make separate sentencing determinations in a multiple murder situation logically and reasonably could have decided that multiple sentences of life imprisonment without the possibility of parole would be sufficient. Nor is it implausible that, as the defendant further suggests, a jury determination of life without parole with respect to one of the murders, may have persuaded one or more jurors against voting in favor of the death penalty for the other murder. In any event, these arguments are no more speculative than those advanced by the majority. Having found error, the majority never adequately explains why one sentence, rather than the other, should be reversed. *303 In a matter so serious as this, one would assume, and has the right to expect, that the resolution of so important a matter would be clearly thought out and even more clearly explained. It simply is not sufficient to act arbitrarily; there must be, it seems to me, a rational basis, which then can be articulated, for the decision to reverse one sentence and not the other. But this is exactly what the majority has failed to do; in fact, the opposite appears to be precisely what the majority has done—acted arbitrarily. As Judge Chasanow, in dissent, put it: From what I can glean from the Court’s opinion, the choice as to which murder should not be punished by death was entirely arbitrary, conceivably arrived at by something as illogical as the flip of a coin. Cf. Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982)(referring to unconstitutionality of imposing death penalty in an arbitrary and capricious manner). 346 Md. at 310, 696 A.2d at 471-472 (1997) (Chasanow, J., concurring and dissenting). The defendant’s position is that both death sentences imposed by the trial court must be vacated and a new sentencing proceeding conducted. I agree. . Subsection (g) sets forth the exception for defendants under 18 years old or who are mentally retarded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644323. Public record. Not legal advice.