Calhoun v. State

*646

Davidson, J.,

dissenting:

I adhere to my view that under Maryland Code (1957, 1982 Repl. Vol.), Art. 27, § 414 (e) the inventory of cases utilized for proportionality review must include not only those death-eligible cases in which the prosecutor has sought the death penalty, whether it was imposed or not, but all those death-eligible cases in which the prosecutor did not seek the death penalty. Tichnell v. State, 297 Md. 432, 485 , 468 A.2d 1, 26 (1983) (Davidson J., dissenting) (Tichnell III). For the reasons expressed in Part I of my dissenting opinion in Tichnell III, I would vacate the death sentence in this case. Accordingly, I respectfully dissent.

In addition, however, I feel impelled to note that the majority’s decision is indefensible for other reasons as well — for today the majority permits a defendant, deprived of a fair and impartial sentencing proceeding, to be executed because his lawyer allegedly made a mistake. In my view, the admission of testimony concerning an incident that occurred at the Montgomery County Detention Center in August 1981 involving the defendant and a correctional officer constituted prejudicial error. For the additional reasons expressed below, I would vacate the death sentence in this case.

The majority here refuses to consider whether the trial court committed prejudicial error when, during the sentencing proceeding, it admitted into evidence testimony concerning the Montgomery County Detention Center incident in August 1981. The majority finds that the defendant’s specific objection to this testimony was that it "bore no relationship to the specified aggravating circumstances.” Additionally, the majority finds that the specific objection "was narrowed by defense counsel to whether the incident at the detention center was relevant to 'a mitigating circumstance.’ ” Relying upon von Lusch v. State, 279 Md. 255 , 368 A.2d 468 (1973), the majority determines that the *647 defendant waived his right to object to the admission of the evidence on the ground that it was inadmissible under Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 413 (c) (1) (iii). I do not agree.

The defendant’s specific objections, as recognized by the majority, were that the testimony concerning the Montgomery County Detention Center incident was not relevant to either an aggravating or mitigating circumstance. In essence, the defendant’s specific objections were that the testimony was inadmissible under Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 413 (c) (1) (i) and (ii). More particularly, with respect to mitigating circumstances, the defendant’s specific objection was that this testimony was not relevant to the mitigating circumstance delineated in Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 413 (g) (7) — that the defendant was unlikely to engage in further criminal activity.

I do not, however, agree with the majority that by specifying § 413 (c) (1) (i) and (g) (7) the defendant waived an objection on the ground that the objected to testimony was inadmissible under § 413 (c) (1) (iii) and, therefore, failed to preserve that question for review. In my view, § 413 (c) (1) (i), (g) (7), and (c) (iii) are integrally related. 1 Both § 413 (c) (1) (i) and (c) (1) (iii) are component parts of § 413 (c) (1) that must be read in conjunction with one another. Scott v. State, 297 Md. 235, 248 , 465 A.2d 1126, 1133 (1983). Testimony inadmissible under § 413 (c) (1) (iii) is inadmissible under § 413 (c) (1) (i) to disprove the existence of the mitigating circumstance delineated in § 413 (g) (7). Indeed, this Court has held that § 413 (c) (1) (i) and (iii) preclude "in a death penalty case, the admission of evidence of crimes of violence for which there have been no convictions----” Scott, 297 Md. at 247 , 465 A.2d at 1133 . In sum, § 413 (c) (1) (iii) is subsumed in § 413 (c) (1) (i).

*648 In the instant case, the defendant was not required to and did not in fact specify the reasons underlying his objection and supporting his contention that under § 413 (c) (1) (i) the objected to testimony was irrelevant to the mitigating circumstance delineated in § 413 (g) (7). Under these circumstances, the question before the trial court was whether the objected to testimony was inadmissible because under § 413 (c) (1) (i) it was irrelevant to the mitigating circumstance delineated in § 413 (g) (7). In order to resolve that question, the trial court was required to consider all of the reasons for which the objected to testimony might be irrelevant to the mitigating circumstance delineated in § 413 (g) (7).

Section 413 (c) (1) (i) and (iii) collectively establish that only evidence of unrelated crimes for which there has been a conviction is admissible and that evidence of unrelated crimes for which there has been a conviction is inadmissible to prove or disprove the existence of any mitigating circumstance, including the mitigating circumstance delineated in § 413 (g) (7). Scott, 297 Md. at 235, 465 A.2d at 1133 . Accordingly, one of the reasons the trial court was required to consider in determining whether the objected to testimony was irrelevant to the mitigating circumstance delineated in § 413 (g) (7) was that it was unrelated to a crime for which there had been a conviction. The trial court determined that the objected to testimony was admissible under § 413 (c) (1) (iii) and, therefore, was admissible under § 413 (c) (1) (i) to disprove the existence of any mitigating circumstance, including the mitigating circumstance delineated in § 413 (g) (7). Thus, in light of the integral relationship be *649 tween § 413 (c) (1) (i), (g) (7), and (c) (1) (iii), the trial court determined the question whether the objected to testimony was irrelevant to the mitigating circumstance delineated in § 413 (g) (7) and, therefore, inadmissible under § 413 (c) (1) (i) because it was inadmissible under § 413 (c) (1) (iii). There was nothing further that the defendant was required to do in order to preserve that question for appellate review. Md. Rule 522 a. 2 In short, the question presented to this Court was raised in and decided by the trial court and, therefore, was properly preserved for review.

Even if I agreed with the majority that the question whether the objected to testimony was inadmissible under § 413 (c) (1) (iii) was not properly preserved for review, I would, nonetheless, consider and determine that question. In von Lusch, 279 Md. at 262-64 , 368 A.2d at 472 , relied upon by the majority, this Court established a principle of waiver premised upon Maryland Rules 522 d and 725 f. 3 There, this Court said:

"[W]here one objecting to the admission of evidence, although not requested by the court to state his grounds, goes ahead and delineates the specific grounds for his objection, he will be bound by those grounds and will ordinarily be deemed to have waived other grounds not mentioned.” von Lusch, *650 279 Md. at 263 , 368 A.2d at 472-73 (emphasis added).

The use of the word "ordinarily” makes it plain that under certain circumstances this Court may determine whether evidence was improperly admitted for reasons other than those specified at trial. Manifestly, this Court has discretion in the application of this waiver principle. I would exercise that discretion in this death penalty case.

The statutory scheme embodied in §§ 413 and 414 evidences the General Assembly’s recognition that the unique severity of the death penalty necessitates unprecedented modes of appellate review that require extraordinary scrutiny by this Court. 4 More particularly, § 414(a) provides:

"Whenever the death penalty is imposed, and the judgment becomes final, the Court of Appeals shall review the sentence on the record.” (Emphasis added.)

This automatic direct appeal mandates that this Court review a death sentence even when unchallenged by the defendant. This ■ legislative mandate suggests that unchallenged errors that occur at a death penalty sentencing proceeding should not be ignored. See State v. Osborn, 102 Idaho 405, 410-11 , 631 P.2d 187, 192-93 (1981); Commonwealth v. McKenna, 476 Pa. 428, 439-44 , 383 A.2d 174, 180-81 (1978). Indeed, the legislative mandate that the right to review a death sentence cannot be waived, supports the conclusion that the principles of waiver ordinarily applicable in criminal cases should not be rigidly applied by this Court in reviewing a death penalty sentencing proceeding.

*651 This Court has consistently recognized that the principles of waiver ordinarily applicable in criminal cases should not be rigidly applied in death penalty cases. Johnson v. State, 292 Md. 405 , 412 n.3., 439 A.2d 542 , 547 n.3 (1982); Bartholomey v. State, 260 Md. 504, 513 , 273 A.2d 164, 169 (1971). More particularly, in Bartholomey, 260 Md. at 513 , 273 A.2d at 169 , this Court said:

"Questions 1, 3, and 5 do not appear to have been raised below and ordinarily we will not consider such questions on appeal pursuant to Maryland Rule 885. This, however, is a case involving the death penalty and we have decided to consider and determine all of the questions briefed and argued by the appellant before us whether or not tried and decided by the lower court.” (Emphasis in original).

Similarly, in Johnson, 292 Md. at 412 n.3, 439 A.2d at 547 n.3, Judge Digges, writing for the majority, said:

"[W]e shall assume without deciding that appellant’s claim is properly preserved for review. We note, however, that, while 'ordinarily’ we will not consider questions not properly preserved for appeal pursuant to Maryland Rule 885, in a previous death penalty case we demonstrated a less strict application of this principle and exercised our discretion to consider and determine questions briefed and argued before us whether or not properly preserved for review. See Bartholomey v. State, 260 Md. 504, 513 , 273 A.2d 164, 169 (1971).”

*652 Courts in other jurisdictions employing a variety of rationales have similarly concluded that the principles of waiver ordinarily applicable in criminal cases should not be applied in death penalty cases. 5 Illustrative is the case of State v. Britt, 235 S.C. 395, 424 , 111 S.E.2d 669, 684 (1959), in which the Supreme Court of South Carolina said:

"The power of the law to take the life of human beings for a violation of the law is one which should be and is exercised with extreme caution. The frailties of human nature are so manifold and manifest until the law should and does place around the defendant, whose life will be taken for a violation of the law, every safeguard to enable such defendant to secure a fair and impartial trial. This Court has taken the position that in all cases involving the life of the defendant, it is not bound down to a consideration of the exceptions raised, but if anything appears in the record which would warrant a reversal of the cause, this Court will consider that matter as if raised by the exceptions.”

Moreover, in death penalty cases, this Court has repeatedly considered and determined questions briefed and *653 argued before us even when not properly preserved for appellate review. Poole v. State, 295 Md. 167, 185-86, 187-88 , 453 A.2d 1218, 1228, 1229-30 (1983); Johnson, 292 Md. at 412 n.3, 439 A.2d at 547 n.3; Tichnell v. State, 287 Md. 695, 714-15 , 415 A.2d 830, 840 (1980); Bartholomey, 260 Md. at 513 , 273 A.2d at 169 . Indeed, in Calhoun, the very case presently before us, the majority recognizes and applies this virtually universal principle. The majority twice expressly exercises its discretion to consider and determine questions that have not been properly preserved for appellate review. Thus, Judge Smith, writing for the majority, states:

"There is both a short and a long answer to Calhoun’s contentions. The short answer is that counsel said, '[W]e are satisfied!,]’ after the last juror was sworn subsequent to the exhaustion of Calhoun’s peremptory challenges. The State then announced its satisfaction. Thus, the point is waived. However, because of the nature of the case we shall give the ’long answer’ to Calhoun’s contentions.” (Citation omitted. Emphasis added.)

Similarly, Judge Smith subsequently states:

"As in iii, there is a short and a long answer to Calhoun’s contention. The short answer is that no request for such instruction was made at trial nor was any objection made upon that basis to the instructions which were given as required by Rule 757 (f). Rule 757 (h) provides that an objection is not reviewable as of right unless it is made in compliance with Rule 757 (f). We are urged that we should take cognizance of this as 'plain error’ within the meaning of Rule 757 (h). In State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980), we indicated that an appellate court should take cognizance of unobjected to error only when the error is so ’compelling, extraordinary, exceptional or fundamental [as] to [deny] the defendant a fair *654 trial.’ There is no such error in this case. Because this is a capital case in which we are affirming a sentence of death, however, we shall give the long answer to Calhoun’s contention.” Emphasis added.)

Additionally, in death penalty cases, this Court has repeatedly considered and determined questions briefed and argued before it without any discussion or comment concerning allegations that those questions had not been properly preserved for appellate review. Poole, 295 Md. at 182 , 453 A.2d at 1226 -27 and Appellee’s Brief at 6; Johnson, 292 Md. at 430-31 , 439 A.2d at 557 and Appellee’s Brief at 18-20; Poole v. State, 290 Md. 114, 125 , 428 A.2d 434, 440 (1981) and Appellee’s Brief at 25; Tichnell, 287 Md. at 714, 717-19 , 415 A.2d at 840, 842-43 , and Appellee’s Brief at 23, 24. Indeed, in the instant case, the majority, in Section iv Approver and Section ix C Constitutional Issues, determines questions without any discussion or comment concerning the State’s allegations that those questions had not been properly preserved for appellate review. 6

Notwithstanding the legislative requirement of extraordinary scrutiny by this Court in death penalty sentencing *655 proceedings and this Court’s own previous and present express agreement with the virtually universal rule that the principles of waiver ordinarily applied in criminal cases should not be rigidly applied in death penalty cases, the majority here, without explanation or comment, applies a waiver principle. In my view, principles of waiver ordinarily applied with respect to questions not properly preserved for appellate review should not be rigidly applied in a death penalty case. Rather, in such a case, discretion should be exercised to consider and determine questions briefed and argued even if not properly preserved for appeal. Thus, unlike the majority, I would consider and determine the question, raised and argued here — whether testimony concerning the Montgomery County Detention Center incident was inadmissible under § 413 (c) (1) (iii).

In Scott , the question presented was whether under § 413 (c) (1) evidence is admissible at a sentencing proceeding to show that an accused convicted of premeditated murder has committed other unrelated crimes for which the accused has not been convicted. The accused there contended that under § 413 (c) (1) (i) and (iii), admissible evidence of unrelated crimes is restricted to evidence of prior convictions. The State contended that evidence of unrelated crimes for which the accused has not been convicted is admissible at a sentencing proceeding under § 413 (c) (1) (v). This Court stated that the language of § 413 (c) (1) (i) through (iv) "collectively unambiguously restricts the type of evidence admissible in a sentencing proceeding in a death penalty case to something less inclusive than what generally is admissible in a sentencing proceeding in a nondeath penalty case.” Scott, 297 Md. at 246 , 465 A.2d at 1132 . More particularly, we concluded that § 413 (c) (1) (i) and (iii) preclude "in a death penalty case, the admission of evidence of crimes of violence for which there have been no convictions....” Scott, 297 Md. at 247 , 465 A.2d at 1133 . Additionally, we indicated that those sections not only restrict the type of admissible evidence of unrelated crimes to crimes for which the defendant had been convicted, but also to crimes defined *656 as crimes of violence under § 413 (g) (l). 7 Scott, 297 Md. at 247 , 465 A.2d at 1133 . Finally, we concluded that the language of § 413 (c).(l) (v) "cannot be construed as authorizing evidence of unrelated crimes to be admitted in a death penalty case, even where there has been no conviction. .. Scott, 297 Md. at 247 , 465 A.2d at 1133 .

The record here shows that the State neither proffered nor introduced any evidence to show that the defendant had been convicted of any crime relating to the Montgomery County Detention Center incident. Manifestly, the State has failed to satisfy its burden of proof. Moreover, the dockets of both the Circuit Court for Montgomery County and the District Court of Maryland sitting in Montgomery County reveal that subsequent to July 1981 the defendant had not been convicted of any crimes other than those relating to the instant case. 8 Consequently, I, unlike the majority, can only conclude that the defendant had not been convicted of any crime related to the Montgomery County Detention Center incident. Under these circumstances, the holding in Scott that in a death penalty case § 413 (c) (1) (i) and (iii) preclude the admission of evidence of unrelated crimes for which there have been no convictions is dispositive here. Accordingly, I would hold that the testimony concerning the Montgomery County Detention Center incident was inadmissible under § 413 (c) (1) (iii). 9

*657 Here, the trial court admitted evidence of an unrelated battery for which there was not a conviction. Under § 413 (c) (1) (i) and (iii), this evidence was inadmissible. The admission of this evidence exposed the jury to inflammatory, detailed testimony concerning the underlying facts and circumstances surrounding the unrelated crime. In closing argument, the State’s Attorney drew the jury’s attention to this inadmissible inflammatory testimony when he said:

"Can you say that he doesn’t present a threat to the personnel who are charged with running our penal institutions if he could do what he did to Sgt. Hunt with that bottle of excrement. And that before being sentenced, before even going to trial, knowing that kind of information could perhaps be presented in any judicial proceeding.”

In light of the impact of this testimony and the State’s Attorney’s reference to it in closing argument, defense counsel felt impelled to respond by addressing the jury as follows:

"And what should we think of and how shall we apply the evidence that he threw excrement on a guard at the detention center? Shall he go to the gas chamber for that? Why is that offered? It is for you to believe that he is an animal, that he is not human, that you are not really killing a human being.”

In my view, the inadmissible evidence was significantly prejudicial to the defendant. Its admission constituted reversible error. Accordingly, I would vacate the death sentence for this reason, as well as for the reasons expressed in Part I in my dissenting opinion in Tichnell III. 10

. § 413 (c) (1) provides in pertinent part:

"The following type of evidence is admissible in this proceeding:

*648 "(i) Evidence relating to any mitigating circumstance listed in subsection (g);

"(iii) Evidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures...

§ 413 (g) (7) establishes as a mitigation circumstance that:

"It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.”

. Md. Rule 522 a provides:

"A formal exception to a ruling or order of the court is unnecessary.”

. Md. Rule 522 d 1 provides:

"Unless requested by the court, it is not necessary to state the grounds for objections to evidence.”

Md. Rule 725 f provided:

"Exceptions shall be governed by the provision of Rules 522 (Objections to Ruling or Order — Method of Making), 510 (Reservation of Points for Court In Banc), and 564 b 3 (Trial by Court — No Instructions, Objections or Exceptions).”

Md. Rule 761, effective 1 July 1978, supplanted Md. Rule 725 f without any change relevant here.

. § 414 (e) provides:

"In addition to the consideration of any errors properly before the Court on appeal, the Court of Appeals shall consider the imposition of the death sentence. With regard to the sentence, the Court shall determine:

*651 "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

"(2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413 (d);

"(3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances are not outweighed by mitigating circumstances; and

"(4) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

. E.g., Fisher v. United States, 328 U.S. 463, 467-68 , 66 S.Ct. 1318, 1320-21 (1946); Stewart v. United States, 247 F.2d 42, 47 (D.C.Cir. 1957); Austin v. United States, 208 F.2d 420, 421 (5th Cir. 1953); Suhay v. United States, 95 F.2d 890, 893 (10th Cir.), cert. denied, 304 U.S. 580 , 58 S.Ct. 1060 (1938); Butler v. State, 285 Ala. 387, 390 , 232 So.2d 631, 632-33 (1970), cert. dismissed, 406 U.S. 939 , 92 S.Ct. 1807 (1972); State v. Jeffers, 135 Ariz. 404, 432 , 661 P.2d 1105, 1133 (1983); State v. Osborn, 102 Idaho 405, 410-11, 422-23 , 631 P.2d 187, 192-93, 204-05 (1981); People v. Szabo, 94 Ill.2d 327, 354 , 447 N.E.2d 193, 206 (1983); State v. Martin, 243 Iowa 1323, 1326-28 , 55 N.W.2d 258, 260-61 (1952); State v. Spencer, 186 Kan. 298, 302 , 349 P.2d 920, 923 (1960); Smith v. Commonwealth, 366 S.W.2d 902, 906 (1963); Commonwealth v. Harris, 371 Mass. 462, 470-71 , 358 N.E.2d 982, 987-88 (1976); People v. Wood, 12 N.Y.2d 69, 78 , 187 N.E.2d 116, 122 , 236 N.Y.S.2d 44, 52 (1962); State v. Williams, 308 N.C. 47, 75-77 , 301 S.E.2d 335, 353-54 (1983); Tuggle v. State, 73 Okla.Crim. 208, 211-12 , 119 P.2d 857, 859 (1941); State v. Nodine, 198 Or. 679, 687 , 259 P.2d 1056, 1059 (1953); Commonwealth v. McKenna, 476 Pa. 428, 437-41 , 383 A.2d 174, 179-81 (1978); State v. Patterson, 278 S.C. 319, 320 , 295 S.E.2d 264, 264-65 (1982); State v. Brown, 607 P.2d 261, 264-65 (Utah 1980); State v. Morris, 41 Wyo. 128, 146-47 , 283 P. 406, 411 (1929). But see Hulsey v. State, 261 Ark. 449, 452 , 549 S.W.2d 73, 75 (1977), cert. denied, 439 U.S. 882 , 99 S.Ct. 220 (1978).

. This Court has decided ten death penalty cases since the enactment of Art. 27, §§ 413-415. Tichnell v. State, 297 Md. 432 , 468 A.2d 1 (1983); Scott v. State, 297 Md. 235 , 465 A.2d 1126 (1983); Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983); Harris v. State, 295 Md. 329 , 455 A.2d 979 (1983); Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983); Huffington v. State, 295 Md. 1 , 452 A.2d 1211 (1982); Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982); Poole v. State, 290 Md. 114 , 428 A.2d 434 (1981); Tichnell v. State, 290 Md. 43 , 427 A.2d 991 (1981); Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980). In each of these cases, a multiplicity of questions were presented for review. In Tichnell I, the first of these death penalty cases, ' 14 questions were briefed and argued. Appellee’s Brief at i-ii, Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980). The State alleged that five of those questions had not been properly preserved for appellate review and, therefore, had been waived. This Court found only one of those questions to be without merit on the sole ground that it had been waived. Tichnell, 287 Md. at 713-14 , 415 A.2d 840 . In the nine cases decided subsequent to Tichnell I, this Court has never refused to consider and determine any of the multiplicity of questions briefed and argued before it on the sole ground that it had not been properly preserved for appellate review.

. § 413 (g) (1) provides in pertinent part:

"As used in this paragraph, 'crime of violence’ means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence.”

. An appellate court may take judicial notice of the records of other courts within this State when required by the "demands of justice.” Davidson v. Miller, 276 Md. 54 , 67 n.7, 344 A.2d 422 , 430 n.7 (1975); Fletcher v. Flournoy, 198 Md. 53, 60-61 , 81 A.2d 232, 235 (1951); Campbell v. State, 37 Md.App. 89 , 97 n.5, 376 A.2d 866 , 870-71 n.5 (1977); James v. State, 31 Md. App. 666, 684-87 , 358 A.2d 595, 606-07 (1976).

. The majority here asserts that "[t]he conduct of Calhoun in this instance, if established in a criminal proceeding against him, would be the common law offense of battery.” That offense is not a crime of violence as defined in § 413 (g) (1). Thus, the testimony concerning the Montgomery *657 County Detention Center incident would also be inadmissible under the principle articulated in Scott that § 413 (c) (1) (i) restricts the type of admissible evidence to crimes of violence as defined in § 413 (g) (1).

. In light of this conclusion, I need not consider the other issues addressed in the majority opinion.