“holding that when a defendant failed to object to trial court’s advisory instructions after Stevenson, the defendant’s claims had been waived for the purposes of his post-conviction petition”
How later courts described this case
- “holding that when a defendant failed to object to trial court’s advisory instructions after Stevenson, the defendant’s claims had been waived for the purposes of his post-conviction petition”
- finding that robbery had been committed in victim’s presence where the victim was stabbed in different room of the house from which the property was taken
- finding no ineffective assistance of counsel for the failure to object to testimony that was admissible
- decision not to object to admissible testimony wasn’t ineffective assistance because “[h]ad [counsel] made any objection, it should not have been sustained”
Written by the judges who cited it.
The opinion
BLACKWELL, Judge,
dissenting.
Maryland Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(e)(1) requires that a defendant be guilty of murder in the first degree as a principal in the first degree to be subject to death penalty sentencing proceedings. 1 To be guilty as a principal in the first degree means to have been found guilty of doing the physical act causing death, such as pulling the trigger of a gun, or wielding of a knife used in stabbing. It is not enough that a defendant be guilty of murder in the first degree as an “aider or abettor” of a co-defendant.
The majority concludes the issue of principal in the first degree can be decided during the sentencing proceeding in the second trial. I conclude under the clear language of the statutory mandate, it must be determined during the guilt innocence phase of a death penalty trial, otherwise a “person” or “defendant” does not qualify under the definitions section of 413(e)(1). Section 413(a) provides:
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Separate sentencing proceeding required.
If a person is found guilty of murder in the first degree, and if the state had given the notice required under § 412(b), a separate sentencing proceeding shall be conducted as soon as practicable after the trial has been completed to determine whether he shall be sentenced to death.
Section 413(e) provides in pertinent part:
Definitions. — As used in this section, the following terms have the meanings indicated unless a contrary meaning is clearly intended from the context in which the terms appears:
(1) The terms “defendant” and “person”, ... include only a principal in the first degree.” (Emphasis added).
Stated in other terms, a person or defendant is not subject to a separate death penalty sentencing proceeding directed by Article 27, § 413(a) unless he (or she) is determined to be a principal in the first degree. That determination must be made prior to the death penalty sentencing proceeding, otherwise no proceeding is authorized by the statute. The requirement of the definition section would not have been met.
The missing ingredient cannot be later supplied during a sentencing proceeding by a jury that is considering evidence which would not have been admissible at trial. Md. Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(c). An impartial decision would be unlikely where the panel is confronted with evidence of a prior record, hearsay, or any other information that the court deems probative and relevant to sentencing.
I therefore respectfully dissent from the conclusion that defendant’s participation as a principal in the first degree can be determined for the first time during a new sentencing proceeding. I would remand for a new trial.
Judge ADKINS has authorized me to state that he concurs with the views expressed herein.
. Maryland Code (1957, 1976 Repl.Vol., 1981 Cum.Supp.), Art. 27, § 413(d)(7) sets forth an exception to the principal in the first degree qualification: “The defendant engaged or employed another person to commit the murder and the murder was committed pursuant to an agreement or contract for remuneration or the promise of remuneration.”