# Conyers v. State

> Court of Appeals of Maryland · May 17, 1999 · 354 Md. 132

URL: https://www.frixlaw.com/law-library/cases/9700588

## Case

- **Full name:** Clarence CONYERS, Jr. v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** May 17, 1999
- **Citations:** 354 Md. 132; 729 A.2d 910; 1999 Md. LEXIS 253
- **Precedential status:** Published
- **Opinion:** Dissent by Raker
- **Judges:** Chasanow, Raker
- **Cited by:** 114 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/9700588

## How later opinions describe it (automated extraction)

- explaining that “[w]e usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would … help correct a recurring error” or otherwise further the administration of justice
- stating that "[tjhe rules for preservation of issues have a salutary purpose of preventing unfairness and requiring that all issues be raised in and decided by the trial court, and these rules must be followed in all cases ....”
- stating that "[t]he rules for preservation of issues have a salutary purpose of preventing unfairness and requiring that all issues be raised in and decided by the trial court, and these rules must be followed in all cases ...."
- explaining that “the plain error doctrine is used sparingly” and is invoked only in “situations that are ‘compelling, extraordinary, exceptional, or fundamental to assure the defendant a fair trial’ ” (citation omitted)
- Explaining that any error in allowing State to impeach defense witness with prior convictions was harmless where jury was well aware of witness’ incarceration.

## Opinion text

RAKER, Judge,
dissenting:
I would reverse the judgment of the Circuit Court for Wicomico County and remand the case for a new sentencing proceeding. Accordingly, I respectfully dissent.
The trial court committed reversible error in several respects: (1) in permitting Detective Marll to express an opinion that key prosecution witness Charles Johnson was credible; and (2) in erroneously restricting the direct examination of defense witnesses Arthur Rogers and Ventura McLee.
The Preservation Issues
As a threshold matter, I disagree with the general approach taken by the majority with respect to the question of preservation of issues for appellate review. Maj. op. at 147. The majority goes to great length to emphasize that “ ‘the tried and tested rules of evidence' and procedure still apply [in death penalty cases],’ ” maj. op. at 150 (quoting Bruce v. State, 328 Md. 594, 611 , 616 A.2d 392, 400 (1992)), and
that where counsel wishes to object to the admission of any evidence, he or she must do so in a timely fashion or the issue will not be preserved for review. Counsel should not rely on this Court, or any reviewing court, to do their thinking for them after the fact. Furthermore, we have stated that even in a death penalty case, with the potential finality of its outcome, litigation cannot continue ad infinitum through counsel ‘withholding issues or framing the questions differently each time.’ Foster, 305 Md. at 316, 503 A.2d at 1331.
*201 Maj. op. at 151. Then, in apparent contradiction to the previous exhortations, the majority proceeds to “exercise [its] discretion and briefly discuss all of the issues Appellant raises, including the eight unpreserved ones.” Maj. op. at 151.
When addressing issues that are not preserved, I suggest the following framework. First, Rules 4-325, with respect to jury instructions, 5-103, with respect to rulings on evidence, and 8-131, with respect to trial error generally, apply as much in capital cases as they do in other cases. There is no exception stated in any of those rules for capital cases. Second, each of those rules, explicitly or implicitly, permits an appellate court to address and resolve otherwise unpreserved issues. Third, ordinarily, the appellate court will not exercise that discretion. It is important that the rules retain vitality and not be regarded as merely hortatory. They have the salutary purposes of allowing all issues to be resolved in the first instance by the trial court, preventing the unfairness of allowing a party to try the case on one theory and conceal and reserve other issues for appeal in the event that theory proves unsuccessful, and averting unnecessary appeals. Finally, in a capital ease, because the ultimate issue is one of life or death, this Court should more readily exercise its discretion to review an unpreserved issue when the challenged ruling, if wrong, would have been truly prejudicial and the failure to preserve was likely not a matter of trial tactics.
In deciding whether or how to exercise its discretion, this Court has essentially three choices: (1) hold the matter unpreserved and not address it at all, leaving the reason for and prejudice vel non caused by the non-preservation to post-conviction; (2) hold the issue unpreserved but affirmatively exercise the discretion allowed under the rules to address and resolve the issue on the merits; or (3) hold the matter unpreserved but address the issue only by way of dicta, for the guidance of a subsequent post-conviction court. 1
*202 With respect to jury instructions, Rule 4-325(e) states that an appellate court may “take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” This suggests a three step inquiry, once a failure to object is found. First, was the instruction erroneous? If not, there is nothing to notice. Second, if it was erroneous, did it amount to “plain error?” Third, if it was plain error, “was the error material to the rights of the defendant?” Because errors in jury instructions are generally errors of law, rather than of fact, it is difficult for me to distinguish between ordinary and plain errors, so the inquiry may really be a dual one. That is, if the instruction was sufficiently erroneous that, had the proper objection been made, we would reverse, then the appellate court should examine the question of prejudice.
The three basic options should be applied on a case-by-case and issue-by-issue basis. If the ruling would be that the alleged error was not error, or that in the case of a jury instruction, it was not material to the rights of the defendant, or that it was harmless under a broader harmless error analysis, we should, ordinarily, either not address the unpreserved issue or hold that it was unpreserved and address it only in dicta. That should be the general practice. It preserves the vitality of the rules, implements their salutary function, arid does no practical harm to the defendant.
There are two circumstances in which a different practice may be justified. One is if, for whatever reason, guidance on the issue is important in other cases; it is somewhat the same justification for addressing moot points. See Coburn v. Coburn, 342 Md. 244, 250 , 674 A.2d 951, 954 (1996) (stating that the Court “may address the merits of a moot case if [it] is convinced that the case presents unresolved issues in matters of important public concern that, if decided, will establish a *203 rule for future conduct”). The more frequent circumstance, especially in, but not necessarily limited to, a capital case, is when we conclude either that the error was truly prejudicial, or in the case of a jury instruction, was material to the rights of the defendant. A finding of prejudice or materiality, in that sense, necessarily precludes a determination that the error was harmless and probably would suffice to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). From the perspective of both fairness and efficient judicial administration, therefore, we should address and resolve the issue and not leave it to future collateral proceedings.
Under this approach, in this case, this Court should examine each of the unpreserved issues and determine which of the three basic options to take. If, in examining the issue, we would conclude either that there was no error, or that the error was harmless, (or in the jury instruction issue, not material to Conyers’s rights), we should adopt either the first approach of holding the issue unpreserved and not addressing it at all or the third approach of holding the issue unpreserved and addressing it only in dicta. If the issue would have resulted in a reversal had it been preserved and there is no indication that the non-preservation was a matter of deliberate trial tactics, we should hold it unpreserved but affirmatively exercise and resolve it as a holding. When we make clear that we are exercising discretion, there is no inconsistency between the holding of non-preservation and resolution of the issue on the merits.
Detective Maril’s Testimony about Charles Johnson
The majority holds that “Appellant was not deprived of a fair hearing by Marll’s testimony regarding prosecution witness Charles Johnson, and reversal is not warranted.” Maj. op. at 154. I disagree.
Whether Appellant was a principal in the first degree was a critical issue for this sentencing jury. See Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 418(e)(1); Baker v. State, *204 332 Md. 542, 570 , 632 A.2d 783, 796 (1993) (holding that under Maryland law, except in murder-for-hire cases, only those individuals found guilty of first degree murd.er as a principal in the first degree may be sentenced to death). Charles Johnson, an inmate at the Maryland Department of Corrections, was the State’s primary witness on this issue. Thus, his credibility was central to the question of whether Conyers was eligible for the death sentence. The defense case consisted primarily of an attack upon the credibility of Charles Johnson in an attempt to convince the jury that Conyers never confessed to Johnson, the jailhouse snitch, that he shot Wanda Johnson.
Although the issue was not preserved for appellate review because there was no objection to the testimony at trial, the majority holds that there was no error. The majority reasons that Marll did not offer an opinion as to Johnson’s credibility as a witness but rather, that he was simply testifying as to the verified accuracy of Johnson’s statements, and that he had compared each of them against the documents in the case. Maj. op. at 154. The majority believes that Marll was testifying as to whether Johnson’s information, not Johnson himself, was found to be accurate and therefore truthful. I find this rationale unsound.
Marll’s testimony violates the well-settled principle that a witness is not permitted to express an opinion as to whether another witness is telling the truth. As we said in Bohnert v. State, 312 Md. 266, 278 , 539 A.2d 657, 663 (1988), “[tjestimony from a witness relating to the credibility of another witness is to be rejected as a matter of law.” To me, the testimony “[tjhese statements which I knew upon hearing them from Mr. Johnson to be truthful, and I was able to verify each and every statement that he gave us” can be interpreted only as an expression of the witness’s opinion bearing on the credibility of another witness, Johnson.
. Clearly, the issue was not preserved for appellate review because defense counsel lodged no objection. This evidence would fall into category two of my suggested framework for *205 addressing preservation issues. I would hold the issue unpreserved but would affirmatively exercise the discretion allowed under the rules to address and resolve the issue on the merits. This is a capital case, the evidence is highly prejudicial, and there is no indication that the non-preservation was a matter of deliberate trial strategy. The evidence was elicited by the State in rebuttal, and the witness’s response was an unanticipated, gratuitous comment on Johnson’s credibility. I would hold that the admission of Marll’s testimony regarding Charles Johnson deprived Appellant of a fair hearing and constitutes reversible error.
Direct Examination of Arthur Rogers
During direct examination of Arthur Rogers, defense counsel sought to introduce two statements: Rogers’s warning to Conyers that he should not talk to Johnson because Johnson was looking at court documents of inmates, and Johnson’s statement that “you need to take care of number one first” as his reason for looking into the court documents of other inmates. The majority concludes that the evidence was properly excluded on several grounds. First, the majority emphasizes that while the court excluded defense counsel’s desired evidence, the judge permitted Rogers to testify that he warned Appellant not to talk with Johnson about his case, and that the trial judge properly exercised his discretion in limiting the testimony. Maj. op. at 154. Second, the majority concludes that the statement that Johnson was taking care of number one first was inadmissible hearsay. Maj. op. at 158 - 59. Third, the majority holds that any alleged error was harmless beyond a reasonable doubt. Maj. op. at 160.
I agree that the testimony proffered by the defense, that Johnson had told Rogers “you need to take care of number one first,” was hearsay. There is no evidence, proffered or otherwise, that Rogers told Conyers of Johnson’s alleged statement that “he was looking out for number one first.”
Rogers’s proffered testimony that he had warned Conyers that he should not talk to Johnson because Johnson was *206 looking through other inmates’ court documents was improperly restricted. This evidence was admissible to render it less likely that Conyers spoke to Johnson at. all, because the warning not' to talk to Johnson, and the statement to Conyers that Johnson was looking through inmates’ papers would have caused a person motivated by rational self-interest to realize that Johnson was only gathering information for his own purposes, and should therefore be avoided. The critical point Conyers wished to convey to the jury was that Conyers, if informed of activity attributed to Johnson, would not have spoken to him. While the court permitted Conyers to ask Rogers whether he advised Conyers not to talk, the court did not permit Rogers to relate that he told Conyers that Johnson was looking at other inmates’ papers. Because the testimony was restricted, the defense was unsuccessful in conveying to the jury that Rogers not only warned Conyers not to speak to Johnson, but also explained to Conyers that Rogers had observed Johnson “rifling” the court records of others.
The information contained within Rogers’s warning to Conyers had bearing on Conyers’ state of mind, which in turn went directly to the credibility of Johnson’s testimony. Johnson testified that Conyers told him that Conyers was the shooter. The defense theory was that if Conyers was warned of Johnson’s behavior, he would not have talked to Johnson. If the jury had heard this evidence, it may not have believed Johnson. Evidence that would have made it less likely that Conyers would have confessed to Johnson, and thus more likely that Johnson’s testimony was false, would have been central to the critical issue of principalship. Principalship directly governs Conyers’s eligibility for a death sentence. The evidence was admissible, and its exclusion cannot be considered harmless.
Because of the importance of Johnson’s testimony in this case, and the critical role his testimony played in the jury’s determination of principalship, the trial court abused its discretion in excluding the evidence. Moreover, the error was not harmless. See Dorsey v. State, 276 Md. 638 , 350 A.2d 665 *207 (1976). For this reason, I would reverse the sentence of death and remand for a new sentencing proceeding.
Direct Examination of Ventura McLee
The excluded testimony of the warnings told to Conyers by McLee was admissible for the same reasons that Rogers’s testimony was admissible. Counsel attempted to elicit the substance of McLee’s advice to Conyers about speaking with Johnson and his warnings not to speak to Johnson. The evidence was not hearsay and was offered by the defense to show that Conyers, having been warned not to talk to Johnson, and having been told of the reasons underlying the warnings, was less likely to actually have spoken to Johnson. The trial court prevented the witness from telling the jury the substance of the advice he gave to Conyers. As discussed earlier, the jury could have found that McLee’s testimony tended to make it less likely that Conyers would have spoken to Johnson, and in turn more likely that Johnson’s testimony was not credible. Because Johnson’s credibility was so crucial to the State’s case, I cannot say that the error was harmless.
As for the preservation issue, I would find that the error was preserved. Non-preservation should not be applied in such a technical fashion as to ignore the obvious, and to the reality of the dynamics in the courtroom. In my view, it was fairly obvious to the trial judge that defense counsel was seeking the same information from McLee as he sought from Rogers. When the answer to a question is obvious, counsel need not proffer the substance of an answer sought. See Mills v. State, 310 Md. 33, 46 , 527 A.2d 3, 9 (1987), vacated and remanded on other grounds 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988).
Victim Impact Witness Testimony
Defense counsel made no objection to the evidence Conyers now claims deprived him of a fair hearing. I would hold that this evidence falls within category one: that the matter was unpreserved and I would not address it at all. Failure to object to victim impact testimony may be a strategic decision *208 by counsel to avoid alienating the jury. The majority holds that although the issue is not preserved for appellate review, the trial court committed no error; and that assuming error, it was harmless. The majority addresses the merits of the claim and holds that the issue has no merit. Maj. op. at 177. The majority reasons that the jury had not been made aware that Appellant had been previously sentenced to death and that the sentence had been overturned, but simply that he had been tried and convicted of murder, and that Gibson’s remarks appeared to refer to this prior trial. Maj. op. at 179. Reasoning that Gibson’s vague comment cannot be said to have conveyed to the jurors that Appellant received the death penalty in a prior sentencing proceeding, the majority holds that even if the claim of error was preserved, it is without merit; moreover, if error, it is harmless. Maj. op. at 179.
The issue was not preserved, and I would not address it. The testimony in question included the following comments: “It was two years before we went to trial, and we were trying to heal from it, and it came back. And, now, it’s another two years, and we are back here again in here now. My sister was murdered, and it is just unfair to the family.” Because the majority considers the issue, and holds that there was no error, I simply note that in my view, the comment was not admissible; it was not relevant to any issue before the jury; and thus, it was error. See Williams v. State, 342 Md. 724, 736 , 679 A.2d 1106, 1113 (1996).
Domestic Violence Testimony
Appellant claims the court erred in admitting testimony in the nature of “other crimes” evidence. The evidence consisted of Monica Wilson’s testimony that the week before the killing, Appellant became violent, mean, and threatened to shoot her; and her testimony that, when Appellant and Wilson lived together, Appellant owned a .38 caliber handgun that she “had pulled ... out on him and he pulled ... out on [her].”
No objection was lodged at trial to this testimony. I agree with the majority that Appellant’s objection at the earlier *209 sentencing proceeding did not preserve the issue for review. I would hold that the issue falls within category one: that it was not preserved for appellate review, and I would not address it at all, leaving the issue for consideration on post-conviction. The majority addresses the merits of the claim of error, and does so, in a manner that does violence to the rules regarding “other crimes” evidence in future capital sentencing proceedings.
The majority states:
Appellant’s failure to object at the time the evidence was admitted effectively precluded the trial court from applying the evidentiary protections set forth in the capital sentencing statute, Md. Rule 5-404(b) and Md. Rule 5-403, ie., whether the prejudice of admitting the evidence outweighs its probative value. Our case law interpreting Md. Rule 5-404(b) clearly holds that the weighing component of the test for admitting other crimes evidence “implicates the exercise of the trial court’s discretion.” Terry v. State, 332 Md. 329, 335 , 631 A.2d 424, 427 (1993) (quoting State v. Faulkner, 314 Md. 630, 635 , 552 A.2d 896, 898 (1989)). Without an objection and the trial court’s response in the record, we cannot say whether the trial court abused its discretion, and we will only reverse if the error caused substantial prejudice to Appellant.
Maj. op. at 181. The majority apparently recognizes that a trial court, when considering whether “other crimes” evidence is admissible in a capital sentencing hearing, should apply Maryland Rule 5-404(b) and the case law interpreting that rule, including State v. Faulkner. Under Faulkner , a court considering “other crimes” evidence is required to find (a) that the acts have special relevance; (b) that there is clear and convincing evidence that the acts occurred; and (c) that the probative value is not outweighed by unfair prejudice. 314 Md. at 634-35 , 552 A.2d at 898 .
The majority then proceeds, however, to analyze the admissibility of “other crimes evidence” under a different legal *210 standard. Citing Hunt v. State, 321 Md. 387, 431-32 , 583 A.2d 218, 239 (1990), it states:
Section 413(e)(v), governing the admissibility of evidence in a capital sentencing proceeding, provides the trial court with the authority to admit ‘any ... evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements.’ Since Wanda Johnson and Lawrence Bradshaw were both shot with a .38 caliber handgun, Wilson’s testimony in the sentencing proceeding that Appellant had a .38 caliber handgun and that they had pulled it out on each other helped the prosecution establish that Appellant was a principal in the first degree to Wanda Johnson’s murder, which the State was required to prove under the death penalty statute. See § 413(e)(1). Moreover, in other capital sentencing proceedings we have upheld the admission of “other crimes” evidence after concluding that the evidence was appropriate for considering in whether to apply the death penalty. In Hunt , ... we explained why evidence of other crimes is treated differently in a capital sentencing proceeding than in the guilt/innocence phase of trial. “[The Defendant] stood before the court as a convicted murderer, not as an accused defendant entitled to the presumption of innocence. While irrelevant to the guilt/innocence phase of a criminal trial, [the defendant’s] ‘dangerousness,’ as exemplified by his past conduct, was relevant in the sentencing phase of the trial.” We do not suggest that any evidence of dangerousness or past violence is admissible; the trial court must evaluate the reliability of the evidence and its prejudicial impact on the defendant. Wilson’s testimony in this case is not significantly prejudicial, and, as in Hunt , in this case the evidence is “reliable information ... which is of probative value and relevant to sentencing[,] ... [and] the defendant [was] accorded a fair opportunity to rebut any statements.”
Maj. op. at 182 - 83 (citations omitted).
The legal test which the majority seems to craft would • require a court to find that the evidence is probative and *211 relevant to sentence, and that the defendant is accorded a fair opportunity to rebut the evidence. In addition, the majority would have the court “evaluate the reliability of the evidence and its prejudicial impact on the defendant.”
If the majority test does not include the clear and convincing evidence requirement of Faulkner , I disagree with this test. Section 413(c)(v) does not authorize the admission of other crimes evidence generally. Neither does Hunt . 2
The majority ignores the clear holding of Scott v. State, 297 Md. 235, 249 , 465 A.2d 1126, 1134 (1983), that in a capital sentencing proceeding, the type of admissible evidence is more circumscribed than in a non-death penalty case. It strain’s *212 the reasoning of Scott to permit evidence of other crimes in death penalty sentencing proceedings based solely on a finding of relevance and fair opportunity to rebut and Rule 5-404(b) without at least applying the test set out in State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989) for admissibility of “other crimes” evidence. See McClain, Evidence (1994 ed.), commentary, Rule 5-404(b) (“This .provision codifies the Maryland case law, under which evidence of prior acts will be admissible if proved by clear and convincing evidence, e.g., State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896, 898 (1989), and if substantially probative of (having ‘special relevance’ to) some contested issue in the case, other than simply to show conduct ‘in character.’ ”); Scott, 297 Md. at 246-52 , 465 A.2d at 1132-35 (recognizing that the type of evidence admissible pursuant to the sentencing statutory scheme in a death penalty case is generally more restricted than evidence admissible at sentencing in a non-death penalty case and holding that § 413(c)(l)(ii) “precludes, in a death penalty case, any but the most rehable type of evidence of unrelated crimes—a conviction”); see also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 801 (1997) (“Conyers I”) (recognizing Scott’s holding that § 413(c)(l)(i) and (iii) prohibit “the admission of evidence of unrelated crimes, in a death penalty case, if the defendant had not either been convicted of those crimes or entered a plea of guilty or nolo contendere.”) 3
Under the majority’s reasoning, in order to admit “other crimes” evidence in a non-capital case, a court must find by clear and convincing evidence that the prior act occurred; yet, in order to admit that same evidence before a capital sentencing jury deciding the issue of life or death, the court need only find “reliable” evidence that the prior act occurred. Nonetheless, the two standards are not inconsistent. This Court made the determination that in the context of “other crimes” evidence, to be admissible the trial court must find by clear and *213 convincing evidence that the act(s) occurred. See Cross v. State, 282 Md. 468, 478-79 , 386 A.2d 757, 763-64 (1978). Presumably, this standard ensures reliability. The protections of State v. Faulkner, governing the admissibility of evidence in criminal trials, in my view, are applicable in death sentencing proceedings.
As to the merits of the claim, the majority reasons:
[A]t least initially, the trial court may have considered the testimony favorable to Appellant. Wilson stated that only a week before the murder the couple had been fighting and that Wilson moved out of the home she shared with Appellant. The hostile break-up of the relationship could have been initially viewed as supporting a mitigating circumstance involving Appellant’s emotionally disturbed state of mind at the time of the murder.
Maj. op. at 183. I find it untenable to conclude that the State’s introduction of evidence of the hostile break-up of the Conyers-Wilson relationship could have been considered as mitigating evidence favorable to Conyers. At the very best, the evidence is a double-edged sword. Whether to introduce the evidence in question as a mitigator was Conyers’s call, not one for the State.
Mitigating Circumstance of Sympathy or Mercy
The majority holds that Appellant’s claim of error regarding the trial court’s instruction on mitigating circumstances was not preserved for review. Maj. op. at 166. I agree. The majority continues, however, and concludes that even if preserved, the instructions were thorough, and when viewed as a whole, precluded a juror “from not considering a factor he or she perceived as mitigating because it was not ‘raised by the evidence.’ ” Maj. op. at 173. I disagree.
The jury was instructed as to non-statutory mitigating factors that “[a]ny factor causing you to feel sympathy or mercy toward the defendant may be considered by you as a mitigating circumstance so long as such factor is raised by the *214 evidence.” 4 Even though the jury was instructed that allocution is evidence, the instructions nonetheless improperly restricted the juror’s consideration to evidence. The non-statutory, catch-all factor does not have to be based on evidence and thus, the instructions were inherently contradictory.
In assessing whether a sentencing instruction in a death penalty proceeding is invalid, the Supreme Court has stated that the test is
‘what a reasonable juror could have understood the charge as meaning.’ Francis v. Franklin, 471 U.S. 307, 315-16 , 105 S.Ct. 1965, 1971-1972 , 85 L.Ed.2d 344 (1985). To determine how a reasonable juror could interpret an instruction, we ‘must focus initially on the specific language challenged.’ Francis v. Franklin, 471 U.S. at 315 , 105 S.Ct. at 1971 . If the specific instruction fails constitutional muster, we then review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law.
California v. Brown, 479 U.S. 538, 541 , 107 S.Ct. 837, 839 , 93 L.Ed.2d 934 (1987). The majority concludes that the instruction, when viewed as a whole, correctly informed the jury that in determining whether there were any mitigating factors, the jury could consider anything presented to them during the sentencing proceeding, including relevant and material conduct of the defendant up to and including this sentencing proceeding. The majority reasons that the thoroughness of the jury instructions “effectively precluded a juror from not considering a factor he or she perceived as mitigating because if was not ‘raised by the evidence.’ ” Maj. op. at 173. This assertion, in my view, is unfounded.
*215 It is well settled in Maryland that the jury in sentencing proceedings is not confined to the evidence in determining the existence of a non-statutory mitigator. Writing for the Court in Foster v. State, 304 Md. 439, 474-75 , 499 A.2d 1236, 1254 (1985), Judge Eldridge pointed out:
A sentencing authority, unconvinced that death is appropriate, may list as a mitigating circumstance whatever factor or factors may have led to this conclusion, irrespective of what the defendant produced or argued. If the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that death may not be appropriate, it may treat such factor as a mitigating circumstance and decide that it outweighs the aggravating circumstances.
I believe that a rational juror could interpret the instruction given in this case as a requirement that a non-statutory mitigator must be based on evidence. The jury was presented with inconsistent instructions, creating a substantial likelihood that one or more jurors would interpret the court’s instruction as a constraint upon his or her duty to consider mitigating factors. This is contrary to Maryland law, and as such, it is error. Where the jury instructions are inconsistent and partially incorrect, and a possibility of misunderstanding exists, we should conclude the instruction is invalid. Such is the case here.
The majority, in footnote 6, quotes from Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), presumably to suggest that mitigating circumstances must be based solely on evidence in the case. The cases do not support the majority’s position.
In Eddings , the sentencing judge found as a matter of law that he was unable to consider evidence presented during the sentencing hearing as to the mitigating evidence of defendant’s family history. Id. at 113 , 102 S.Ct. at 876 . The issue before the Supreme Court in that case was whether the trial judge improperly failed to consider the relevant, mitigating *216 evidence presented by the defendant, and not, as the majority states, whether mitigating factors must be based on evidence. Id., 102 S.Ct. at 876 . The Supreme Court found that the limitations placed by the Oklahoma courts upon the mitigating evidence they would consider violated the rule in Lockett , and held that a sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence. Id. at 113-15, 102 S.Ct. at 876-77 . That is a far cry from holding that the sentencer may only consider evidence as support for a mitigating factor.
In Lockett , the Supreme Court explained that the rule the court was applying reflected “the law’s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Id. at 110, 102 S.Ct. at 874 . The Court went on to hold that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.” Id. at 112 , 102 S.Ct. at 875 .
I disagree with the majority’s conclusion that once a jury is given a broad instruction as to what it should consider, that it is more likely that the jury would conclude that “evidence” consisted of all that they had seen and heard during the proceedings, along with their opinions and impressions. The jury had just participated in a sentencing hearing at which various documents and photographs were marked as exhibits and admitted into evidence. It is an equally, if not more plausible conclusion, that, given this experience during the sentencing hearing, the jury would have understood evidence simply to encompass the witnesses’ testimony and physical exhibits. Cf. Black’s Law Dictionary, Evidence (6th ed.1990), “Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc... ” (emphasis added).
The instruction given by the trial court in this case is clearly erroneous and should neither be blessed by this Court, nor considered by trial judges as legally appropriate. 5
*217
Conclusion
In sum, I would vacate the sentence of death and remand this case for a new sentencing proceeding because the trial court erred in permitting Detective Marll to express an opinion that key prosecution witness Charles Johnson was credible, and in restricting the direct examination of Rogers and McLee.
Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join in the views expressed herein.
. For example, the Court might state:
*202 Because the issue was not preserved, we shall not address it in this appeal. Had we addressed it, however, we would have found (i) no merit because ..., or (ii) that any error was harmless beyond a reasonable doubt because....
. The portion of Hunt cited by the majority involves the admission of information contained within a presentence investigation report. Specifically, the trial court had admitted evidence of two letters written by Hunt referencing escape attempts, as well as "prison infraction reports which detailed his violations of prison rules forbidding inmates from possessing weapons.” Hunt v. State, 321 Md. 387, 430 , 583 A.2d 218, 239 (1990). The Hunt Court noted that a presentence investigation report is admissible in a capital sentencing proceeding by statute. Id., 583 A.2d at 239 ; Art. 27, § 413(c)(iv). It is in this context that the Hunt Court held that "reliable information contained in a presentence investigation report, which is of probative value and relevant to sentencing, ordinarily is admissible provided the defendant is accorded a fair opportunity to rebut any statements.” Id. at 431-32 , 583 A.2d at 239 .
The Hunt Court went on to consider whether this evidence constituted "uncharged criminal conduct.” Id. at 433 , 583 A.2d at 240 . The Court looked to Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983), in which this Court found reversible error after the trial court admitted evidence of two unrelated unadjudicated murders. Id., 583 A.2d at 240 . The Hunt Court then stated;
Hunt does not come under the umbrella of Scott. Scott involved criminal conduct outside of the prison setting. There is simply no comparison between the admission of a reliable report of prison conduct, which concededly occurred, and the admission of unadjudicated murder charges. The relevant reliable information about Hunt’s institutional misconduct was admissible.
Id. at 433-34 , 583 A.2d at 240 . The Hunt Court recognized that there is "no comparison” between evidence of prison misconduct contained in a presentence report and evidence of unadjudicated criminal conduct. The majority’s reliance on Hunt in the instant case, in the context of unadjudicated criminal conduct not included in a presentence investigation report and not involving prison conduct, is misplaced.
. The defendant’s criminal history is admissible by statute if it is contained in the pre-sentence investigation report. See Maryland Code (1957, 1997 Repl.Vol., 1998 Supp.), Article 41, § 4-609(d).
. The trial judge instructed the jury as to what constitutes evidence. The court instructed as follows:
In making your decision, you must consider the evidence in this case. That is, the testimony from the witness stand, the physical evidence or exhibits that were admitted into evidence, the stipulations and the defendant’s allocution.
Although it is not technically correct to state that allocution is evidence, in so defining evidence for the jury, the jury was permitted to consider the defendant’s allocution as the basis of a non-statutory mitigator.
. This language is not contained in either the Maryland Criminal Pattern Jury Instructions or in D.E. Aaronson, Maryland Criminal Jury *217 Instructions and Commentary (2d ed.1988). While'trial courts are not required to follow slavishly pattern instructions, the safer course in death penalty proceedings is to conform to the pattern instructions. As to the form required by Md. Rule 4-343(g), the issue was not raised by either party and we should not consider its propriety.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700588. Public record. Not legal advice.