Evans v. State

McAULIFFE, Judge,

concurring and dissenting.

I agree that the conviction should be affirmed, but I dissent from the decision to affirm the sentence of death.

The Court today holds that § 413(h) of Maryland’s capital punishment statute places the burden of persuasion upon the State to prove by a preponderance of the evidence that aggravating circumstances outweigh mitigating circum *540 stances before the penalty of death may be imposed. The Court further holds that Evans did not preserve for appellate review the adequacy of the jury instructions, and that in any event the instructions were correct.

I dissent, believing as to these issues that 1) the Court has rewritten the statute under pretense of interpretation, 2) the Court has failed to correctly apply the basic principles of Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975) and In Re Winship, 397 U.S. 358 , 90 5. Ct. 1068, 25 L.Ed. 368 (1970), and 3) Evans has fully preserved his valid contentions for our consideration and should be afforded a new sentencing proceeding. Because the decision of the majority on these issues relies upon Part IV of the decision in Foster v. State, 301 Md. 294 , 483 A.2d 6 , [Nos. 43 & 91, September Term, 1984] (1985), filed today, and because I believe that holding to be in error as well, I address both opinions in this dissent.

A

Interpretation of the Statute

I emphatically disagree with the holding of the majority that Article 27, § 413(h) does not place the burden of persuasion upon the defendant as to the ultimate and critical question of whether he should live or die. It does precisely that, and in the following clear and unequivocal language:

(h) Weighing mitigating and aggravating circumstances. — (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.

*541 (3) If it finds that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.

Subsection (h)(1) frames one and only one question: Has it been shown by a preponderance of the evidence that the mitigating circumstances outweigh the aggravating circumstances? Subsections (2) and (3) do not pose other or different questions, but instead state in simple language the result that shall obtain depending upon how that single question is answered. If the answer is no, the sentence is death; if the answer is yes, the sentence is life.

In the name of statutory interpretation this Court in Foster rewrote subsection (h)(2), finding that subsections (2) and (3) were intended to pose separate questions. As interpreted by the majority, those sections should be read as follows:

(2) If it finds that the aggravating circumstances outweigh the mitigating circumstances, the sentence shall be death.

(3) If it finds that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.

The Foster majority then said:

If the Legislature had added a fourth paragraph to subsection (h), specifying the result if the sentencing authority found that mitigating and aggravating circumstances were in a state of even balance or if the sentencing authority was unable to determine which outweighed the other, there would have been a clear inference regarding the allocation of the burden or risk.

304 Md. 297 , 498 A.2d 1184 (Emphasis added.)

The conclusion of the Foster majority is incorrect in two respects. First, the legislature said nothing about aggravating circumstances outweighing mitigating circumstances, but spoke only of whether the mitigating circumstances outweighed the aggravating circumstances; and second, the *542 legislature clearly placed the burden of persuasion as to this question on the defendant.

I acknowledge the familiar proposition that “where there are two possible constructions, and one of them makes a statute of doubtful constitutionality, courts will adopt that view of the enactment which establishes it free of fundamental objections.” State v. Petrushansky, 183 Md. 67, 70 , 36 A.2d 533 (1944). I differ with the majority in my inability to find two possible constructions of the plain language of § 413(h). At the root of our disagreement is the majority’s belief that the phrase “mitigating circumstances do not outweigh aggravating circumstances” means the same as “aggravating circumstances outweigh mitigating circumstances,” and I cannot accept that proposition. Webster’s Third New International Dictionary 1605 (1963) defines “outweigh” as “to exceed in weight, value or importance,” and I am unaware of any contrary connotation or usage. Roget’s International Thesaurus, § 36.6, (4th ed. 1977) lists “preponderate” as a synonym of “outweigh.”

In Foster this Court said that a “principal misunderstanding” of our death statute is that it places the burden on the capital defendant to convince the sentencing authority that mitigating circumstances outweigh the aggravating circumstances, and then held that the Maryland statute places no such burden on the defendant. I disagree, and more importantly, I am persuaded that § 413(h) has been consistently interpreted by trial judges, jurors and attorneys throughout this State as placing precisely that burden upon the defendant.

First, as to the existence of any burden, it is clear from the language of § 413(c)(3) that the legislature intended to establish a burden of proof in § 413(h), 1 and to require that *543 the jury be instructed as to that burden. Section 413(c)(3) provides:

After presentation of the evidence in a proceeding before a jury, in addition to any other appropriate instructions permitted by law, the court shall instruct the jury as to the findings it must make in order to determine whether the sentence shall be death or imprisonment for life and [as to] the burden of proof applicable to these findings in accordance with subsection ... (h). (Emphasis added.)

Implicit in the language of subsection (h) is the conclusion that the burden of persuasion to prove that the mitigating circumstances outweigh the aggravating circumstances is upon the defendant. This conclusion becomes even more apparent if one substitutes the correlative term “risk of nonpersuasion” 2 for that of “burden of persuasion,” and considers who will lose if the proposition is not made out. Clearly it is the defendant who will lose, and lose dearly, if the sentencing authority is not persuaded that the mitigating circumstances outweigh the aggravating circumstances. If, for example, the sentencing authority finds that the aggravating and mitigating factors are equally balanced, it must by definition find that the mitigating do not outweigh the aggravating circumstances and in that event our statute mandates death. The risk of nonpersuasion is evident.

It is puzzling that the majority in Foster has no difficulty in finding that subsection (d) implicitly places the burden of persuasion upon the State to prove the existence of aggravating circumstances, and that subsection (g) implicitly places the burden of persuasion on the defendant to prove the existence of mitigating circumstances, but is unable to *544 fathom the implication of subsection (h)(1) even though nearly identical language is used in subsections (g) and (h)(1). A comparison of the three subsections and the interpretation of the majority as to each should make the point:

(d) ... [T]he court or jury ... shall first consider whether, beyond a reasonable doubt, any of the following aggravating circumstances exist____

(Majority holds burden on State — beyond a reasonable doubt.)

(g) ... [T]he court or jury ... shall then consider whether, based upon a preponderance of the evidence, any of the following mitigating circumstances exist____

(Majority holds burden on defendant — preponderance of the evidence.)

(h) (1) ... [T]he court or jury ... shall determine whether, by a preponderance of the evidence, the mitigating circumstances outweigh the aggravating circumstances.

(Majority holds burden on State — preponderance of the evidence.)

It is clear to me that the Rules Committee of this Court also interpreted § 413(h) to place the ultimate burden of persuasion upon the defendant. Maryland Rule 4-343 mandates the use of a Findings and Sentencing Determination form in capital sentencing proceedings, and the language and structure of that form will leave no doubt in the mind of the user as to which party has the burden of persuasion. Sections I and II provide for the listing of those aggravating and mitigating circumstances found to exist. Section III poses the ultimate question to be decided in those cases in which at least one aggravating and one mitigating circumstance are found, and the sentence that must be imposed depending upon how that question is answered.

Section III

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.......

yes no

*545 DETERMINATION OF SENTENCE

Enter the determination of sentence either “Life Imprisonment” or “Death” according to the following instructions:

1. . . .

2. If Section III was completed and was marked “yes,” enter “Life Imprisonment.”

3. ...

4. If Section III was completed and was marked “no,” enter “Death.”

Nowhere in this form, nor in Rule 4-343, nor indeed in the Maryland Death Penalty Statute will one find any mention of the necessity of considering whether aggravating circumstances outweigh mitigating circumstances. That significantly different question has been constructed by the majority in an obvious attempt to avoid the constitutional implication of forcing a defendant to shoulder the burden of persuading the sentencing authority he should not be put to death.

B

The Constitutional Issues

By a pretrial motion to dismiss the State’s notice of intention to seek the death penalty, and by exceptions timely taken to instructions given the jury, Appellant argued to the trial judge that the statute unconstitutionally cast the burden upon the defendant to prove that the mitigating circumstances outweighed the aggravating circumstances. 3 The question thus posed is difficult and im *546 portant. It is not answered by black letter law from antecedent cases, but by careful application of accepted principles underlying the law in analogous situations.

I am persuaded that this portion of our death penalty statute is unconstitutional, and that the jury was improperly instructed concerning the ultimate burden of persuasion.

In allocating the ultimate burden of persuasion to the defendant our legislature quite likely tracked similar provisions of the Florida death penalty statute that survived constitutional attack in Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976). Fla.Stat.Ann. § 921.-141(2)(b) and (c) (Supp. 1976-77) required the jury to consider “[wjhether sufficient mitigating circumstances exist ... which outweigh the aggravating circumstances found to exist” and § 921.141(3) required the trial judge 4 to certify that “sufficient [statutory] aggravating circumstances exist ... and ... [t]hat there are insufficient [statutory] mitigating circumstances ... to outweigh the aggravating circumstances” before the death penalty could be imposed. Although the Florida death penalty statute survived every constitutional attack made upon it in Proffitt , the precise question now presented appears not to have been raised in that case, probably because the trial judge had found specifically that none of the statutory mitigating circumstances existed. I note, however, the recent determination of the Supreme Court of Florida that an instruction which allocates to the defendant the burden of proving that mitigating circumstances outweigh aggravating circumstances may be constitutionally impermissible. In Arango v. State, 411 So.2d 172, 174 (Fla.1982), that court stated:

In the present case, the jury instruction, if given alone, may have conflicted with the principles of law enunciated *547 in Mullaney and Dixon [State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943 , 94 S.Ct. 1950 , 40 L.Ed.2d 295 (1974) ]. A careful reading of the transcript, however, reveals that the burden of proof never shifted. The jury was first told that the state must establish the existence of one or more aggravating circumstances before the death penalty could be imposed. Then they were instructed that such a sentence could only be given if the state showed the aggravating circumstances outweighed the mitigating circumstances. These standard jury instructions taken as a whole show that no reversible error was committed.

In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976) and Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), decided on the same day as Proffitt , this question was not presented for review. The statutes of Georgia and Texas provided for ultimate weighing of aggravating against mitigating circumstances, but were silent as to the burden of proof on that issue.

The resolution of this important issue lies in the proper application of the principles of Winship, Mullaney and Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), to the final stage of decision making in the sentencing phase of a capital punishment case. Because the holdings in those cases deal with the adjudicatory stage of a criminal trial they are not susceptible of direct application to the procedures involved in fixing the penalty in a death case, so that careful attention to the principles involved in the rationale underlying the decisions is required.

Winship and Mullaney confirm the basic principle that due process protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Winship extends this protection to juvenile delinquency proceedings because of the potentially serious consequences of an adjudication of delinquency. Patterson does not *548 retreat from this basic principle, but makes clear the right of the states to allocate to the defendant the burden of proving an affirmative defense. Central to the holding in Patterson is the proposition that the state must shoulder the burden of proof beyond a reasonable doubt as to every fact necessary to prove the principal issue, i.e. that the crime charged was committed by the accused, and no burden may be placed upon the defendant with respect to any essential element of the crime or with respect to identification of the offender. Only where the state has provided for mitigation or for relief from criminal sanctions upon the showing of separate facts may the state cast the burden of establishing those facts upon the defendant. Thus, in Patterson where the crime of murder was established by proof that the defendant intentionally caused the death of another person it was constitutionally proper to require the defendant to establish that he acted under the influence of extreme emotional disturbance to reduce the crime to manslaughter.

In a sentencing proceeding conducted pursuant to our death penalty statute the State bears the burden of proving beyond a reasonable doubt that the defendant committed the crime of murder in the first degree, that the defendant was a principal in the first degree or procured the murder for hire, and that one or more statutory aggravating circumstances exist. The defendant must then shoulder the burden of proving by a preponderance of the evidence the existence of any mitigating circumstances. To this point the process is in harmony with the principles established by Winship, Mullaney and Patterson .

Beyond this point, however, the opportunity for direct application of established rules ends. In the adjudicatory stage of a criminal case the matter is complete and the result is known when this stage is reached. Utilizing Patterson for illustration, if the State has proven the murder but the defendant has not proven the existence of the mitigating circumstances, the verdict is murder. If, on the other hand, the defendant has proven the mitigating circum *549 stances, the verdict is manslaughter. But in a capital sentencing proceeding the production of evidence and proof of existence of aggravating and mitigating circumstances does not produce an automatic result, but simply sets the stage for the all-important final phase of considering the total circumstances and determining the ultimate issue— whether the defendant should be put to death. Concerning this centra] issue there must be a burden of persuasion — a risk of nonpersuasion. Who is to lose if the mind of the sentencing authority is in a state of equipoise after consideration of all the circumstances? And the standard of proof must be established. Must the sentencing authority be persuaded one way or the other by a preponderance of the evidence, by clear and convincing evidence, or by proof beyond a reasonable doubt? The decision maker must be given the answers to these questions to make an intelligent decision. Professor Wigmore explains the need for a standard of proof in these words:

After the tribunal having the function of deciding upon facts, i.e. the jury, has retired to reach and frame its decision, a question arises as to the quality, or degree of its persuasion. Here, it is to be noticed we are no longer concerned with the incidence of the duty or burden of proof as between the parties to the cause, but merely with the tribunal’s own duty and conduct as to its standard of persuasion.

Now the logical notion involved in the situation is that the tribunal must be persuaded to believe the affirmation of the burden-bearer before it can be asked to act as desired, but that this persuasion or conviction in the mind of the tribunal may have more than one degree or quality of positiveness; and an attempt is made by the law to define the degree of positiveness or persuasion which must exist in order to justify action in the shape of a verdict for the burden-bearer.

9 Wigmore, Evidence § 2497 (3d ed. 1940).

*550 To the same effect, see Addington v. Texas, 441 U.S. 418, 423-27 , 99 S.Ct. 1804, 1808-10 , 60 L.Ed.2d 323 (1979), in which the Court said:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 , 90 S.Ct. 1068, 1076 , 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.

£ sje jfc s}c ^

In cases involving individual rights, whether criminal or civil, “[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.” ■

[Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir.1971)].

Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

It is difficult to conceive of a situation where the necessity of impressing the factfinder with the importance of the decision is greater than in the case of a jury charged with the weighing of aggravating and mitigating circumstances and the decision as to whether the defendant should die. The death penalty can be constitutionally imposed only if the procedure ensures reliability in the determination that “death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976).

Drawing upon the basic principles of Winship, Mullaney and Patterson , I conclude due process requires that the burden of persuasion on this ultimate issue must be upon the State, and the jury must be persuaded beyond a reason *551 able doubt that the aggravating circumstances outweigh the mitigating circumstances before the penalty of death can be imposed. The importance of the issue to be decided and the societal interest in attempting to ensure an accurate decision are quite apparent, and the Supreme Court has made it clear that the allocation of the burden of persuasion to the State and the use of the reasonable doubt standard are mandated when the decision will involve loss of liberty or stigma of criminal conviction.

Winship is concerned with substance rather than ... formalism. The rationale of-that case requires an analysis that looks to the “operation and effect of the law as applied and enforced by the State,” St. Louis S.W.R. Co. v. Arkansas, 235 U.S. 350, 362 , 35 S.Ct. 99, 102 , 59 L.Ed. 265 (1914), and to the interests of both the State and the defendant as affected by the allocation of the burden of proof.

In Winship the Court emphasized the societal interests in the reliability of jury verdicts:

“The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. ...

“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 397 U.S., at 363, 364 . *552 ship the ultimate burden of persuasion remained with the prosecution, although the standard had been reduced to proof by a fair preponderance of the evidence. In this case, by contrast, the State has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction.

*551 Not only are the interests underlying Winship implicated to a greater degree in this case, but in one respect the protection afforded those interests is less here. In Win-

*552 Mullaney v Wilbur, 421 U.S. at 699-701 , 95 S.Ct. at 1889-91 (footnotes omitted).

The interests underlying Winship are most certainly implicated in the excruciating process of balancing circumstances to determine whether a defendant should be put to death.

[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 .

In Baldwin v. Alabama, — U.S.-, 105 S.Ct. 2727 , 86 L.Ed.2d 300 (1985), the issue presented by this case was not raised, but we note that in interpreting § 13-11-4 of the Alabama Death Penalty Statute, which is silent as to the appropriate burden and standard of persuasion, the Supreme Court said:

The judge’s discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime — in this case the fact that the homicide took place during the commission of a robbery — and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circum *553 stance, outweighs any statutory and nonstatutory mitigating circumstances.

Id. at-, 105 S.Ct. at 2732-33 (footnote omitted).

I believe the views expressed by this dissent are consistent with the views expressed by Justice Marshall in his dissent from the denial of certiorari in White v. State, — U.S.-, 105 S.Ct. 1779 , 84 L.Ed.2d 837 (1985), and Stebbing v. Maryland, —— U.S.-, 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984), and by Justice Stevens in a similar dissent in Smith v. North Carolina, 459 U.S. 1056 , 103 S.Ct. 474 , 74 L.Ed.2d 622 (1982).

C

Preservation of Issues for Appellate Review

The majority agrees that at the trial level Appellant specifically challenged the constitutionality of that portion of the statute which allocated to the defendant the burden of persuasion on the ultimate sentencing determination, and seasonably noted exceptions to the instructions that accomplished the same result. The majority suggests, however, that he failed to preserve this issue for appellate review by failing to include any argument on the question in his brief. I disagree. At pages 81-87 of his brief, under the heading “The Maryland Capital Penalty Statute is Unconstitutional” Appellant argued:

[I]n at least two respects — mandatoriness and a defendant’s burdens — the Maryland procedure is substantially different from procedures found constitutional by the Supreme Court. As Justice Marshall, joined by Justice Brennan, pointed out in his dissent to the Supreme Court’s denial of a petition for writ of certiorari in Stebbing v. Maryland, [— U.S. -], [ 105 S.Ct. 276 ] 83 L.Ed.2d 212 (1984), serious flaws exist in Maryland’s statutory scheme. Specifically, the statute places two different burdens of proof upon the defendant at the sentencing stage....

*554 Art. 27, Sec. 413, as implemented by Md. Rule 772A, not only places the burden on the capital defendant “to convince [the sentencer] that mitigating circumstances outweigh [ ] the aggravating circumstances,” Tichnell v. State, 290 Md. 43, 61 , 427 A.2d 991 (1981), but further requires the sentence of death once the bare existence of a statutory aggravating factor is established if the defendant fails to meet his burden of proof and persuasion. Thus, in this state a sentence of death in circumstances may be mandated where the sentencer is unconvinced that death is the appropriate punishment. This procedure is inconsistent with the Supreme Court’s repeated insistence that state procedures assure “reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, supra, 428 U.S. at 305, 96 S.Ct. at 2991 .

Maryland law, therefore, differs dramatically from the statutes of the majority of the states which permit the jury or judge to return a life sentence even where no “mitigating circumstances” are found or which place upon the prosecution the ultimate burden of persuasion on the question of life or death, in some instances beyond a reasonable doubt [citing statutes of eighteen states].

Appellant then quotes from Justice Stevens’ opinion dissenting from denial of certiorari by the Supreme Court in Smith v. North Carolina, supra, including the following quotation from State v. Wood, 648 P.2d 71, 83 (Utah 1982):

It is our conclusion that the appropriate standard to be followed by the sentencing authority — judge or jury — in a capital case is the following:

“After considering the totality of the aggravating and mitigating circumstances, you must be persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation, and you must further be persuaded, beyond a reasonable doubt, that the imposition of the death penalty is justified and appropriate in the circumstances.”

*555 “These standards require that the sentencing body compare the totality of the mitigating against the totality of the aggravating factors. Not in terms of the relative numbers of the aggravating and the mitigating factors, but in terms of their respective substantiality and persuasiveness. Basically, what the sentencing authority must decide is how compelling or persuasive the totality of the mitigating factors are when compared against the totality of the aggravating factors. The sentencing body, in making the judgment that aggravating factors 'outweigh,’ or are more compelling than, the mitigating factors, must have no reasonable doubt as to that conclusion, and as to the additional conclusion that the death penalty is justified and appropriate after considering all the circumstances.”

Appellant concludes his argument on this issue with the following:

In perhaps no other area of the law has the need for reliability in the decisional process been stressed as it has been in the capital punishment context. In other areas where the Supreme Court has perceived a need to minimize the risk of error in the adjudicatory process, it has not hesitated to place a heightened standard of proof upon the party seeking to change the status quo. See, e.g., Santosky v. Kramer, 455 U.S. 745 [ 102 S.Ct. 1388 , 71 L.Ed.2d 599 ] (1982); Addington v. Texas, 441 U.S. 418 [ 99 S.Ct. 1804 , 60 L.Ed.2d 323 ] (1979); In Re: Winship, 397 U.S. 358 [ 90 S.Ct. 1068 , 25 L.Ed.2d 368 ] (1970). The Maryland scheme, however, permits the capital sentencing decision to be made on the basis of the “preponderance of evidence standard,” which “by its very terms demand[s] consideration of the quantity, rather than the quality of evidence,” Santosky v. Kramer, supra, at 764, 102 S.Ct. at 1400 , and “is quite consistent with want of belief.” Trickett, “Preponderance of Evidence and Reasonable Doubt,” 10 Dick.L.Rev. 76 (1906). Moreover, it places the ultimate burden of both production and persua *556 sion on the capital defendant, who must be executed if he fails in that regard.

The failure of Appellant to specifically argue that instructions which precisely track the language of the statute are similarly flawed is understandable. Reasonably prudent counsel could assume that if we found that the language of the statute impermissibly imposed the ultimate burden upon the defendant and/or permitted use of a standard of persuasion less than that constitutionally mandated, instructions to the same effect would be similarly disapproved. It is only the extraordinary “interpretation” of the statute by the majority that creates the present dilemma. 5 In previous capital cases we have relaxed the ordinarily strict application of the principle of waiver, Johnson v. State, 292 Md. 405 , 412 N.4, 439 A.2d 542 (1982); Bartholomey v. State, 260 Md. 504, 513 , 273 A.2d 164 (1971), and we should do so in this case. Particularly is that so where the issue was carefully preserved below and all relevant arguments have been presented to us, albeit as a challenge to the constitutionality of a portion of the statute.

*557 D

Erroneous Instructions

Judge Cathell instructed the jury on this issue in the following words:

If you find that no mitigating factor has been proven by a preponderance of the evidence and all of the mitigating factors are marked no on the verdict form and you have previously found that an aggravating factor exists beyond a reasonable doubt, then the sentence must be death. If, however, you find that one or more of the mitigating circumstances exist, you shall determine whether, by a preponderance of the evidence, the mitigating circumstances outweigh the aggravating circumstances.

If you find that the mitigating circumstances do not outweigh the aggravating circumstances, the sentence shall be death.

If you find that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall be imprisonment for life.

Judge Cathell provided each juror with a copy of the Findings and Sentencing Determination form to follow during his instructions, and instructed the jury that “the law and the rules of procedure require you to use the forms we are providing for you.” As required by Rule 4-343, Section III of the form posed the ultimate question in the following language:

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.......

yes no

The jury answered that question in the negative and thereby determined the sentence to be death.

If the statute unconstitutionally places the ultimate burden upon the defendant, it is clear that the instructions were erroneous.

*558 However, even if the majority is correct in its conclusion that the words of the statute may be interpreted to the contrary, it is the antithesis of reality and common sense to suggest that the instructions conveyed any such message to the jury. 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. No fair-minded juror could possibly understand from these instructions that the burden was upon the State to prove by a preponderance of the evidence that the aggravating circumstances must outweigh the mitigating circumstances before a sentence of death could be returned. The erroneous instructions compel vacation of the sentence and remand for a new sentencing proceeding upon either interpretation of the statute. To hold otherwise and to fail to correct Rule 4-343 by an emergency rules order is to perpetuate confusion and error in a most important area of criminal jurisprudence.

CONCLUSION

As much as I dislike the prospect of the substantial expense and inconvenience of affording new sentencing hearings in a significant number of cases, I dislike even more the prospect of sending to their deaths those who have been sentenced based upon a misunderstanding of the proper burden and standard of proof. An enlightened society should impose the ultimate sanction upon an individual only in those cases where it has carefully observed the most basic concepts of fairness. I would vacate the sentence of death and remand this case for a new sentencing proceeding.

. “Burden of proof” may mean the burden of producing evidence or the burden of persuasion, or both. McCormick on Evidence § 336 (E. Cleary 3d ed. 1984). Because subsection (h) deals solely with the weighing of evidence already produced, the burden of proof with respect to that subsection means the burden of persuasion. The *543 burden of proof should not be confused with the standard (or measure) of proof. The former addresses the issue of which party must produce evidence or persuade; the latter addresses the question of the quantity or quality of evidence necessary to fulfill the burden of persuasion.

. See McCormick on Evidence § 336, n.4 (E. Cleary 3d ed. 1984).

. Appellant also contended the statute is unconstitutional because 1) it mandates death if at least one aggravating circumstance is found and no mitigating circumstance is found, and 2) it casts upon the defendant the burden of proving the existence of mitigating circumstances. The first of these arguments is not before us because the jury found the existence of a mitigating circumstance. Concerning the second argument, I agree with the majority in Foster that there is no constitutional infirmity in requiring a defendant to prove, by a preponderance of the evidence, the existence of mitigating circumstances. Knowledge of the nature and existence of mitigating circumstances is pecu *546 liarly with the defendant, and the convenience of proof will as well be with him. Patterson v. New York, 432 U.S. 197, 209 , 97 S.Ct. 2319, 2326 , 53 L.Ed.2d 281 (1977).

. Under the Florida Statute the jury's verdict is advisory only. The actual sentence must be determined by a trial judge.

. The majority in Foster concedes there may have been some "misunderstanding” of the statute as "authoritatively interpreted” in Tichnell v. State, 287 Md. 695, 720-37 , 415 A.2d 830 (1980) (Tichnell I) and Calhoun v. State, 297 Md. 563, 635-38 , 468 A.2d 45 (1983). I find the single statement made in Tichnell I, 287 Md. at 730 , 415 A.2d 830 , inadequate in the context of that case and in the context of the capital cases decided thereafter by this Court to effectively convey the import of the interpretation today clearly announced by the Court in Foster . The "authoritative interpretation” of Calhoun consists of nothing more than a repetition of the statement made in Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982), that the argument was "thoroughly considered and rejected” in Tichnell I . 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 áuthority of Tichnell I suggests to me that the “interpretation” announced by Foster must be ranked among the best kept secrets in this State. All counsel and the learned trial judge in the instant case were understandably led to believe that the burden was upon the defendant by the language of our capital cases subsequent to Tichnell I , as well, of course, by the language of the statute.