Opposition Brief — Sherman v. Maryland

Supreme Court, U.S,

D Ji: FILED

No. 89-1580 | msm

=—L__ lee

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

TIMOTHY ScoTT SHERMAN,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GarRY E. Batr*

ANN N. BOSSE

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

(301) 576-6422

Counsel for Respondent

* Counsel of Record

June 21, 1990

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Did the Court of Special Appeals of Maryland cor-

rectly determine that a juror’s driving by the crime

scene during trial did not warrant Sherman’s being

granted a new trial?

ii

. PARTIES

The caption contains the names of all the parties

below.

iii

TABLE OF CONTENTS

Page

GRFEE EY MUMMPEEIO EDD cccccscccccevsccecsececonscecsoescceceess i

aliases cnccneecnnenonionssideaniivecen il

ESE ERLE a OO 1

STATEMENT OF JURISDICTION ...............ccceseeeceeees 1

CONSTITUTIONAL PROVISIONS AND PROCE-

DURAL RULES INVOLVED ................ccccccceesseees

BEASMOMITE GF TH CASE ....cccvcccccccccccsscscccsssecess

REASONS FOR DENYING THE WRIT ..................... 10

1. The petition for writ of certiorari is

EEE SEE a 10

2. The petition raises issues that were not

raised or decided in the Court of Special

Sal EER ea 13

3. The proposed standard of automatic reversal

conflicts with decisions of this Court .......... 15

4. The Court of Special Appeals correctly re-

solved the issues before it .............ccc000eeeeeees 16

I iia iemicidesasnibdinevninvetensedvesdesweredeone 21

iv

TABLE OF AUTHORITIES

Cases: Page

Adickes v. S.H. Kress & Co., 398 U.S. 144

GEEIEE sidilcnpadasidnccoldinaieeseistebensindiatcasendinmasannieisees 14

American Railway Express Co. v. Levee, 263 U.S.

Bey EE ceeeseskeahineestnieciinsstscnnioninsantanintatabaiaiees 11

Chambers v. Mississippi, 410 U.S. 284 (1973) ....... 17

Eades v. State, 75 Md. App. 411, 541 A.2d 1001,

cert. denied, 313 Md. 611, 547 A.2d 188

COE. cciicksnsiilahelniencdetndigalicaiandlaicssivennes 9,17,18,19

Mack v. State, 300 Md. 583, 479 A.2d 1344

_ RORRTRRRCESS SST... RRL SUA 20

Marshall v. Lonberger, 459 U.S. 422 (1983) .......... 17

Remmer v. United States, 347 U.S. 227 (1954) ..... 15,19

Schacht v. United States, 398 U.S. 58 (1970) ........ 13

Smith v. Phillips, 455 U.S. 209 (1982) .........00... 15,18,19

Wernsing v. General Motors Corp., 298 Md. 406,

ee I IE sas cscscocvincsbiouancinancantnventess 8,9,19

Constitutional Provisions:

United States Constitution:

cs cspummnenansiotian 2,7,9,14

Fourteenth Amendment ...............ccsceceseceeeeeeees 2,9

Statutes:

8 RE REE a rere one enn mR Br 2

Rules:

Rules of the Supreme Court:

BRED ERE eae alr PE ee 11,12

ET Ee a OOO a 2,10,11,13

Rules of Maryland Procedure:

S|” RA STAPLE EMRE AORTA A OEE MTT 16

| ___ RAREN A aae cern neon ROSEN CP Mena ane 2,12

Table of Authorities Continued

Page

EE EE ar ae 3,12

IIT deri iicicsnenesceatteiustiasssileanisaansoinicsac 4,12,13

Pe MINED sc sccccnssinctssiasitaiecsieiilinccscaemuse: 12

come ee ET

ves Se

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-1580

TIMOTHY ScotT SHERMAN,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS OF MARYLAND

Respondent, the State of Maryland, respectfully re-

quests that this Court decline to issue a writ of

certiorari to review the judgment and unreported

opinion of the Court of Special Appeals of Maryland.

OPINION BELOW

The unreported per curiam opinion of the Court of

Special Appeals of Maryland is reprinted in the Ap-

pendix to the Petition.

STATEMENT OF JURISDICTION

The unreported opinion of the Court of Special

Appeals of Maryland affirming Petitioner Timothy

Scott Sherman’s convictions was filed on May 16,

1989. Sherman filed a timely petition for writ of

certiorari in the Court of Appeals of Maryland, and

Maryland’s highest appellate court denied the petition

on October 20, 1989. Sherman then filed a petition

for reconsideration of denial of petition for certiorari.

The petition was denied by the Court of Appeals on

January 10, 1990.

Sherman has invoked the jurisdiction of this Court

pursuant to 28 U.S.C. § 1257(a).

As explained more fully infra, a petition or motion

for reconsideration of the denial of a petition for writ

of certiorari is not recognized by the Maryland Rules

of Procedure. Consequently, the time for filing a

petition for writ of certiorari in this Court began to

run from October 20, 1989, the date when the Court

of Appeals of Maryland refused to exercise its dis-

cretionary power of review. Under this Court’s for-

mer Rule 20.1, Sherman was required to file his

petition for writ of certiorari within 60 days after

October 20, 1989. Because Sherman’s petition was

filed on April 10, 1990, and not on or before Decem-

ber 19, 1989, the petition was untimely filed.

CONSTITUTIONAL PROVISIONS AND

PROCEDURAL RULES INVOLVED

United States Constitution, Amendments VI and

XIV are set forth in the Petition at 3.

Maryland Rule 8-604 provides in pertinent part:

(a) Generally.—As to each party to an

appeal, the Court shall dispose of an appeal

in one of the following ways:

(1) dismiss the appeal pursuant to Rule

8-602;

(2) affirm the judgment;

(3) vacate or reverse the judgment;

(4) modify the judgment;

(5) remand the action to a lower court

in accordance with section (d) of this Rule;

or

(6) an appropriate combination of the

above.

Maryland Rule 8-605 provides in pertinent part:

(a) Motion; Response; No Oral Argu-

ment.—Except as otherwise provided in Rule

8-602(c), a party may file pursuant to this

Rule a motion for reconsideration of a de-

cision by the Court that disposes of the

appeal. The motion shall be filed (1) before

issuance of the mandate or (2) within 30 days

after the filing of the opinion of the Court,

whichever is earlier. A response to a motion

for reconsideration may not be filed unless

requested on behalf of the Court by at least

one judge who concurred in the opinion or

order. Except to make changes in the opinion

that do not change the decision in the case,

the Court ordinarily will not grant a motion

for reconsideration unless it has requested a

response. There shall be no oral argument on

the motion.

x* * *

(d) Disposition of Motion.—A motion for

reconsideration shall be granted only with the

consent of at least half the judges who con-

curred in the opinion. If a motion for recon-

sideration is granted, the Court may make a

finai disposition of the appeal without rear-

gument, restore the appeal to the calendar

for argument, or make other orders, includ-

ing modification or clarification of its opinion,

as the Court finds appropriate.

Maryland Rule 8-606 provides in pertinent part:

(a) To Evidence Order of the Court.—Any

disposition of an appeal, including a volun-

tary dismissal, shall be evidenced by the man-

date of the Court, which shall be certified by

the Clerk under the seal of the Court and

shall constitute the judgment of the Court.

STATEMENT OF THE CASE

At approximately 1:45 a.m. on Monday, October 12,

1987, deputies from the Harford County Sheriff’s De-

partment began arriving at the home of Stevenson,

Ann, and Timothy Sherman. (Tr. 5/24/88, at 92). They

found Stevenson and Ann Sherman lying dead in their

bed; each had been killed by a shotgun. (Tr. 5/24/88,

at 94; Tr. 5/25/88, at 7-18). In the hallway outside the

victims’ bedroom lay two expired Remington 12-gauge

shotgun shells. (Tr. 5/24/88, at 93; Tr. 5/27/88, at 59).

There were no signs of a forced entry or theft. (Tr. 5/

24/88, at 71-76; Tr. 5/26/88, at 49-52). Although the

doors and windows of the house were alarmed, the

alarm switch in the house was in the “‘off’’ position.

(Tr. 5/31/88, at 42-44).

Petitioner Timothy Scott Sherman, who, with his

grandfather William Gibson, was at the crime scene

wher. the deputies began to arrive, reported ‘‘that he

had no idea who it was that killed his Mom and Dad,

but whoever it was, that his Dad was shot first and

then he heard his Mom scream, and then they shot

his Mom.” (Tr. 5/24/88, at 93-94, 141). Sherman also

reported that he was in bed when the shootings oc-

curred and that, afterward, he dressed and ran to

Gibson’s house. (Tr. 5/24/88, at 94).

While his hands were being tested for gunshot

primer residue, Sherman explained that he had been

hunting the previous Saturday and had been reloading

shells on Sunday afternoon. (Tr. 5/26/88, at 19). He

also remarked and demonstrated that, when he fired

a shotgun, he pulled the trigger with his middle finger

and placed his index finger on the metal plate above

the trigger guard. (Tr. 5/26/88, at 20-21).

Officers at the scene recovered a box of Remington

12-gauge shotgun shells from under the mattress of

Timothy Sherman’s bed. (Tr. 5/26/88, at 61-63; Tr. 5/

31/88, at 52). The box, which was designed to hold

five shotgun shells, contained three shells that

matched the two expended shells found outside the

victims’ bedroom. (Tr. 5/25/88, at 80; Tr. 5/26/88, at

62; Tr. 5/27/88, at 63-64). During the morning of Oc-

tober 12, Sherman told Lieutenant James Isennock

that he had purchased a box of shells on the day

before and had fired his gun two times. (Tr. 5/25/88,

at 39-41).

Hidden in a pine tree beside Gibson’s house, de-

puties found a Stevens 12-gauge shotgun that be-

longed to the Shermans. (Tr. 5/24/88, at 53-58). The

F.B.I.’s examination of this weapon disclosed that it

had fired the two shells found in the hallway of the

Shermans’ home and that fingerprints on the weapon

were those of Timothy Sherman. (Tr. 5/27/88, at 63;

Tr. 5/31/88, at 12-13). One of those prints was located

above the trigger assembly. (Tr. 5/31/88, at 13).

By indictment filed in November, 1987, Sherman

was charged with murdering his parents. (R. 6-8). Fol-

lowing a lengthy jury trial in the Circuit Court for

Harford County, Maryland, Sherman was convicted

of two counts of first degree murder. (Tr. 6/7/88, at

3-7). After the jury foreman’s statement of the verdict

was taken, each member of the jury was individually

polled and each juror stated that Sherman was guilty

of the first degree murder of Ann and Stevenson

Sherman. (Tr. 6/7/88, at 3-7). -

On September 2, 1988, the trial court heard ar-

gument and testimony in connection with Sherman’s

motion for new trial. (Tr. 9/2/88, at 3-70). Sherman

had filed a new trial motion on June 16, 1988, in

which he had alleged, inter alia, ‘‘[t]hat the jurors

committed misconduct during the trial and delibera-

tions.” (R. 183-84). Despite this allegation, the defense

did not learn, until the morning of September 2, that

juror Blane Howard Miller Jr. had visited the scene

during trial. (Cert. Pet. filed in Ct. App. of Md. at

8). Likewise, the State did not learn about Miller’s

visit until the morning of September 2, even though

the State had interviewed Miller several days earlier

in connection with another incident that formed a

ground for Sherman’s new trial! motion. (Tr. 9/2/88,

at 17-18).

‘Most of the testimony at the new trial hearing, including

that of Miller, focused on whether the trial judge had had an

ex parte communication with the jury after deliberations had

begun. That issue is currently the subject of a State post-con-

viction proceeding.

2

At the hearing on September 2, Miller testified that,

“two or three days into the case,’”’ he and his wife

drove to the scene of the killings after the jury had

been dismissed for the evening. (Tr. 9/2/88, at 16). In

describing where he had gone, Miller stated: “I went

to the Sherman house and then I drove back the

streets from the Sherman house, back to the entrance

of Gibson Manor in looking for a tree that was so

involved in the case.” (Tr. 9/2/88, at 16). Miller con-

firmed that he had seen both the house and the tree.

(Tr. 9/2/88, at 16-17). During cross-examination, Miller

acknowledged that he had visited the scene after hav-

ing viewed a videotape of the outside of the Sherman

house and pictures of the tree. (Tr. 9/2/88, at 25-26).

Miller could not remember if his visit occurred after

_aerial and other photographs of the scene had been

shown to the jury. (Tr. 9/2/88, at 25-26). He explained

again that ‘‘the reason why I went there was so I

could see the tree that was so much in question.”’

(Tr. 9/2/88, at 26).

Following argument of counsel, during which the

defense alluded generally to Sherman’s Sixth Amend-

ment rights and in particular to Sherman’s Sixth

Amendment right to a fair trial, (Tr. 9/2/88, at 48-

62; id. at 56-60), the trial court stated, in part, ‘‘that

I think that [Miller’s] activity is not of such magnitude

as to warrant a new trial or reversible appeal.” (Tr. 9/

2/88, at 64).2 After also rejecting Sherman’s other

grounds for a new trial, the trial court sentenced

Sherman to two consecutive terms of life imprison-

ment. (Tr. 9/2/88, at 157).

2 The full text of the trial court’s ruling regarding Miller’s

visit to the scene is reproduced in the Petition at 18-19.

On appeal to the Court of Special Appeals of Mary-

land, Sherman attacked the trial court’s failure to

grant a new trial on account of Miller’s crime scene

visit. In the heading to his written argument, Sher-

man complained that ‘‘the trial court committed re-

versible error by violating the appellant’s

constitutional rights of due process in a fair and im-

partial trial by not granting the appellant’s motion

for a new trial.’’ (Appellant’s Brief at 25). In the text

of his brief, Sherman claimed that Miller’s conduct

violated the juror’s oath and the court’s instructions

regarding the evidence to be considered and seques-

tration. (Appellant’s Brief at 26). Sherman suggested

that it was an abuse of discretion for the trial court

to have denied his motion for new trial, and that

Miller’s site visit could not be deemed harmless error.

(Appellant’s Brief at 26-27). The Court of Special

Appeals rejected Sherman’s contentions in an unre-

ported opinion, saying:

Sherman argues that the trial court should

have granted a new trial because a juror and

his wife drove to the neighborhood of the

murder scene.

When the precise extraneous matter is

known but direct evidence as to its effect on

the deliberations is not, ‘‘a sound balance is

struck by a rule which looks to the proba-

bility of prejudice from the fact of extraneous

matter in relation to the circumstances of the

particular case.”’ Wernsing v. General Motors

Corp., 298 Md. 406, 419-20 (1984). When rul-

ing on a motion for new trial, the judge must

evaluate the degree of probable prejudice to

the defendant in order to discern whether a

new trial is justified. Wernsing at 420.

The grant or denial of a motion for new

trial rests within the sound discretion of the

trial judge. Eades v. State, 75 Md. App. 411,

419-20 (1988). Judge Whitfill found that a

new trial was not warranted, particularly in

light of the numerous testimonial references,

videotapes, and photographs relating to and

depicting the crime scene. We perceive no

abuse of discretion in that ruling.

Sherman next alleges that there was a vi-

olation of the sequestration order because of

the fact that the juror was accompanied by

the juror’s wife when he visited the crime

scene. Sherman asserts that conduct man-

dates reversal. Sherman’s bald averment fails

to indicate how the juror’s improper action

prejudiced the case.

(Pet. App. 15a-17a).

In the petition for writ of certiorari that he filed

in the Court of Appeals of Maryland, Sherman, with-

out citation to either the Sixth or Fourteenth Amend-

ments to the United States Constitution and with but

one reference to a denial of an impartial jury, chal-

lenged the unreported decision of Maryland’s inter-

mediate appellate court on the issue of juror Miller’s

visit to the crime scene. (Cert. Pet. filed in Ct. App.

of Md. at 8-10). The Court of Appeals of Maryland

denied Sherman’s petition on October 20, 1989. (Pet.

App. 24a-25a). Thirty days later, Sherman filed a

petition for reconsideration of denial of petition for

certiorari. In this petition, Sherman claimed that Mill-

10

er’s conduct deprived him “of his right to trial by an

impartial jury, his right to confront the witnesses

against him, his right to a fair trial, and his right to

the assistance of counsel.’’ (Pet. for Reconsideration

at 19). This petition was denied on January 10, 1990.

(Pet. App. 26a).

REASONS FOR DENYING THE WRIT

Sherman’s petition for a writ of certiorari to review

the judgment and unreported decision of Maryland’s

intermediate appellate court should be denied for any

one of four reasons. Not only has Sherman failed to

file his petition within the time requirements of this

Court’s procedural rules, his petition raises issues that

were not raised or decided by the Court of Special

Appeals of Maryland. Additionally, the per se rule of

law that Sherman proposes as a standard for review

is in conflict with relevant decisions of this Court.

And, Sherman’s alternative suggestion that the Court

of Special Appeals required him to show actual prej-

udice is incorrect; the Court of Special Appeals cor-

rectly decided that Sherman was not entitled to a

new trial. Accordingly, notwithstanding conflicts in

the law on the subject of unauthorized crime scene

visits by jurors, Sherman is not entitled to the relief

that he claims has been erroneously withheld by the

Maryland courts.

1. The petition for writ of certiorari is untimely.

The Court of Appeals of Maryland denied Sher-

man’s petition for writ of certiorari on October 20,

1989. As of that date, former Rule 20 of this Court’s

Rules of Procedure was in effect. Paragraph .1 of

that rule provided in relevant part that ‘‘[a] petition

for writ of certiorari to review the judgment in a

A eA nS hy A I Hi!

att cnctrt sci saectcson —

————re _ ——— —_ —

11

criminal case of a state court of last resort... shall

be deemed in time when it is filed with the Clerk

within 60 days after the entry of such judgment.”

Under former Rule 20.1, then, the time for filing

Sherman’s petition began to run from the date the

Court of Appeals denied discretionary review, and the

time expired on December 19, 1989. See American

Railway Express Co. v. Levee, 263 U.S. 19, 20-21

(1923) (where highest state court has discretion to

review, but declines to do so, time for filing runs

from date of refusal to review).®

Given that Sherman did not file his petition for writ

of certiorari until April 10, 1990, he is apparently

relying upon this Court’s current Rule 13, para-

graphs .1 and .4, and the fact that he filed, in the

Court of Appeals, a petition for reconsideration of

denial of petition for certiorari. The petition for re-

consideration was denied by the Court of Appeals on

January 10, 1990.

Rule 13.4, like former Rule 20.4, states in relevant

part that “if a petition for rehearing is timely filed

in the lower court by any party in the case, the time

for filing the petition for a writ of certiorari... runs

from the date of the denial of the petition for re-

hearing or the entry of a subsequent judgment.” As-

suming, without conceding, that a petition for

reconsideration is otherwise a petition for rehearing

’ Current Rule 13.1 of this Court’s Rules of Procedure seems

to codify the language of the Levee case by providing in relevant

part that ‘‘[a] petition for a writ of certiorari seeking review of

a judgment of a lower state court which is subject to discre-

tionary review by the state court of last resort shall be deemed

in time when it is filed with the Clerk within 90 days after the

entry of the order denying discretionary review.”

12

within the meaning of Rule 13.4, the filing of Sher-

man’s petition for reconsideration should not be

viewed as extending the time for filing the instant

petition for writ of certiorari.

Rule 8-605 of the Maryland Rules of Procedure does

not expressly permit or preclude the filing of a motion

for reconsideration of a denial of a petition for writ

of certiorari. Rule 8-605 is, however, derived in part

from a former rule that did expressly preclude a mo-

tion for reconsideration of a decision denying

certiorari. When new Rule 8-605 is read together

with Rule 8-604, which addresses the subject of dis-

position, and Rule 8-606, which deals with the subject

of mandates, there is no reason to conclude that new

Rule 8-605 has effected a change in the previous

Maryland practice of not permitting parties to seek

reconsideration of the decision to deny certiorari.

Rule 8-605(a) speaks in terms of ‘‘a decision by the

Court that disposes of the appeal.’’ Rule 8-604(a) out-

lines the ways in which the Maryland appellate courts

*Former Maryland Rule 850, which governed reconsideration

of decisions of the Court of Appeals of Maryland, provided in

pertinent part in subsection (a) that ‘[a] motion for reconsider-

ation of a decision other than one granting or denying certiorari,

specifying the grounds therefor, may be filed within thirty days

after the opinion of this Court has been filed.’’ Effective July

1, 1988, Rule 850 was rescinded, as were all Maryland Rules

of Procedure pertaining to the Maryland Court of Appeals and

the Court of Special Appeals. Like many of the new rules re-

garding procedure in the Maryland appellate courts, current Rule

8-605 governs reconsideration of decisions of both the Court of

Appeals and the Court of Special Appeals, without distinguishing

between the two appellate courts, and it replaces former rules

that addressed the same subject matter, but which pertained to

each appellate court individually.

13

“shall dispose of an appeal.”’ Denial of a petition for

writ of certiorari is not one of the six enumerated

ways of disposing of an appeal. Rule 8-606(a), in turn,

states that ‘‘[a]ny disposition of an appeal, including

a voluntary dismissal, shall be evidenced by the man-

date of the Court, which shall be certified by the

Clerk under the seal of the Court and shall constitute

the judgment of the Court.’”” No mandate of the Court

of Appeals is issued when that court denies a petition

for writ of certiorari.

Because Maryland procedure does not contemplate

a motion for reconsideration of a denial of certiorari,

Sherman’s petition for reconsideration and the order

denying same should not be viewed as extending the

time in which Sherman was required, under former

Rule 20.1, to file his petition for writ of certiorari.

Although the State recognizes that this Court may

waive the untimely filing of a petition in a criminal

ease, Schacht v. United States, 398 U.S. 58, 63-64

(1970), there are no compelling reasons to counte-

nance the untimely filing in the instant case. The

Court should, therefore, decline to issue the requested

writ of certiorari because Sherman’s petition was un-

timely filed.

2. The petition raises issues that were not raised or

decided in the Court of Special Appeals.

On page 22 of his petition in this Court, Sherman

asserts: ‘‘Although the courts below did not even ac-

knowledge that Miller’s site visit amounted to a dep-

rivation of Timmy Sherman’s federal constitutional

rights, in fact there can be no doubt that such an

escapade violates the defendant’s federal rights of

confrontation, cross-examination, assistance of

counsel, trial by an impartial jury, and due process.”

14

To the extent that the lower courts failed to ac-

knowledge the constitutional deprivations alleged in

Sherman’s petition, the omissions are directly attrib-

utable to Sherman’s failure to raise such claims in

the courts below.

In the trial court, although Sherman referred gen-

erally to his Sixth Amendment rights in several in-

stances, in only one instance did Sherman elucidate

what Sixth Amendment rights had been implicated.

(Tr. 9/2/88, at 56-60). In that single instance, Sherman

claimed that his ‘‘Sixth Amendment right to a fair

trial’ had been violated. (Tr. 9/2/88, at 57).

On appeal to the Court of Special Appeals of Mary-

land, Sherman was even more cryptic than he had

been in the trial court. In his brief’s argument head-

ing relating to Miller’s visit, Sherman suggested that

“the trial court committed reversible error by violat-

ing the appellant’s constitutional rights of due process

in a fair and impartial trial.’’ (Appellant’s Brief at

25). Sherman’s substantive argument spoke of Miller’s

conduct as having violated the juror’s oath, the court’s

instructions, and the court’s sequestration orders.

(Appellant’s Brief at 26). Sherman also argued about

adverse prejudice to the defendant, an abuse of dis-

cretion in the denial of the new trial motion, and the

inability of the State to prove harmless error. (Ap-

pellant’s Brief at 27). At no time did Sherman allege

the constitutional violations catalogued on page 22 of

his instant petition. (Appellant’s Brief at 25-28).

In Adickes v. S.H. Kress & Co., 398 U.S. 144, 147

n. 2 (1970), this Court declined to consider an issue

of trial court error that was raised in Adickes’s

petition for certiorari, but which had not been raised

in or ruled on by the Court of Appeals. Here, where

15

Sherman claims violations of constitutional rights, e.g.,

confrontation, cross-examination, assistance of

counsel, that were never brought to the attention of

the court whose judgment would form the basis of

review, this Court should decline to — the over-

inclusive petition for certiorari.

3. The proposed standard of automatic reversal con-

flicts with decisions of this Court.

Sherman’s first contention for why this Court

should issue a writ of certiorari is that the Court of

Special Appeals’ decision conflicts with the decisions

of several state courts of last resort. (Pet. at 26-35).

In this regard, Sherman suggests that, as have some

lower courts, ‘‘[t]his Court should adopt, as a matter

of federal constitutional law, the rule that an unau-

thorized visit by a juror to a crime scene whose phys-

ical description is in issue automatically mandates

reversal.”” (Pet. at 34-35).

The fallacy of Sherman’s contention, and that which

militates against review by this Court, is that deci-

sions of this Court involving analogous situations sug-

gest that a per se rule of reversal is not

constitutionally mandated. See Smith v. Phillips, 455

U.S. 209, 215 (1982) (‘[tJhis Court has long held that

the remedy for allegations of juror partiality is a hear-

ing in which the defendant has the opportunity to

prove actual bias’); Remmer v. United States, 347

U.S. 227, 229 (1954) (although an attempt to bribe a

juror is presumptively prejudicial, ‘‘the presumption

is not conclusive, but the burden rests heavily upon

the Government to establish, after notice to and hear-

ing of the defendant, that such contact with the juror

was harmless to the defendant’’).

16

Accordingly, even if the unreported decision of the

Court of Special Appeals, which decision “‘is neither

precedent within the rule of stare decisis nor per-

suasive authority,’’ Md, Rule 8-114(a),° can be said to

conflict with the decisions of other state courts, the

rule of law espoused by these other courts is incon-

sistent with decisions of this Court. Accordingly, the

perceived conflict in state court decisions does not

provide an appropriate basis for granting Sherman’s

petition for writ of certiorari.

4. The Court of Special Appeals correctly resolved the

issues before it.

In his second argument for why this Court should

grant his petition for certiorari, Sherman challenges

the standard by which the Court of Special Appeals

analyzed his contentions in that court, saying that it

conflicts with the standards applied by other lower

’> Maryland Rule 8-114 provides in full as follows:

(a) Not Authority.—An unreported opinion of the

Court of Appeals or Court of Special Appeals is nei-

ther precedent within the rule of stare decisis nor

persuasive authority.

(b) Citation.—An unreported opinion of either Court

may be cited in either Court for any purpose other

than as precedent within the rule of stare decisis or

as persuasive authority. In any other court, an un-

reported opinion of either Court may be cited only

(1) when relevant under the doctrine of the law of the

case, res judicata, or collateral estoppel, (2) in a crim-

inal action or related proceeding involving the same

defendant, or (3) in a disciplinary action involving the

same respondent. A party who cites an unreported

opinion shal] attach a copy of it to the pleading, brief,

or paper in which it is cited.

17

courts. (Pet. at 35-53). For example, on page 36 of

his petition, Sherman argues as follows: ‘‘Constitu-

tional error was indisputably shown in this case, yet

the burden was placed on the defendant to show prej-

udice from the error, not on the State to rebut it.”’

Although a conflict regarding standards may exist,

Sherman is mistaken in his contention that the Court

of Special Appeals incorrectly resolved the issues be-

fore it.

A fair reading of the Court of Special Appeals’

decision suggests that the first three paragraphs of

the opinion address the contention that Miller’s site

visit deprived Sherman of a fair trial. The last par-

agraph of the opinion deals with the separate issue

of whether Miller’s visit to the scene with his wife

violated the trial court’s sequestration order. Only

with respect to this latter issue, which is not a subject

of Sherman’s petition in this Court and which in any

event is a matter best left to state courts to resolve,‘

did the Court of Special Appeals impose upon Sher-

man the burden of showing prejudice.

Although its decision as it relates to Sherman’s fair

trial contention is terse, the Court of Special Appeals’

citation to Hades v. State, 75 Md. App. 411, 541 A.2d

1001, cert. denied, 313 Md. 611, 547 A.2d 188 (1988),

demonstrates that the court properly analyzed, albeit

implicitly, the issue before it. In the Hades case, which

was decided less than a year before Sherman’s case,

*It is the long-standing policy of this Court to accord great

deference to a state’s establishment and implementation of crim-

inal trial procedures. E.g., Marshall v. Lonberger, 459 U.S. 422,

438 n. 6 (1983); Chambers v. Mississippi, 410 U.S. 284, 302-03

(1973).

18

the Court of Special Appeals had engaged in a com-

prehensive review of the law pertaining to juror mis-

conduct and extraneous influences on the jury. /d. at

416-25, 541 A.2d at 1004-08. In recognizing that a

motion for a new trial is committed to the sound

discretion of th» «rial judge, the Court of Special

Appeals also acknowledged that, where misconduct is

at issue,

the trial judge must account for the fact that

due process requires ‘‘a jury capable and will-

ing to decide the case solely on the evidence

before it, and a trial judge ever watchful to

prevent prejudicial occurrences and to deter-

mine the effect of such occurrences when

they happen.”’

Id. at 420, 541 A.2d at 1006 (quoting Smith v. Phil-

lips, 455 U.S. at 217). The intermediate appellate

court also acknowledged that ‘‘a motion for mistrial

or a new trial because of alleged jury misconduct will

be granted if the misconduct was such as to indicate

that a fair and impartial trial could not be had under

the circumstances.” Jd., 541 A.2d at 1006. All of the

above-quoted language appears on the pages of the

Eades opinion that the court refers to in its decision

in the instant case. (Pet. App. 16a).

In Eades, the Court of Special Appeals went on to

discuss various standards that have been used by dif-

ferent courts to determine whether prejudice has re-

sulted when an irregularity has occurred.’ It

7In Eades, one of the jurors had asked her lawyer-husband

why it was that the judge had said that a witness could say

what she had. The husband had explained that the witness’s

statement was a spontaneous utterance. 75 Md. App. at 415,

541 A.2d at 1003-04.

Knees irs Mains os tii BODO 2

19

ultimately chose to “‘assume that the Supreme Court’s

holding in Remmer as to the presumptively prejudicial

effect of any private communication with a juror con-

cerning a matter pending before the jury remains the

law.’”’ 75 Md. App. at 423, 541 A.2d at 1008. In a

subsequent discussion regarding which party bears the

burden when the problem of improper juror contact

is raised, the court again assumed that it is the State

that bears the burden of establishing the harmlessness

of the contact beyond a reasonable doubt. Jd. at 425-

26 n. 4, 541 A.2d at 1008-09 n. 4.

Although the Court of Special Appeals did not, in

its decision of the instant case, expressly refer to the

standards it had applied in the Eades case, it is rea-

sonable to believe that the court was aware of these

standards and that it considered them in conjunction

with the language regarding ‘‘the degree of probable

prejudice” that it quoted from Maryland’s high court’s

decision in Wernsing v. General Motors Corp., 298

Md. 406, 419-20, 470 A.2d 802, 809 (1984). Conse-

quently, it is not reasonable to believe, as Sherman

suggests in his petition, that the Court of Special

Appeals imposed a burden upon him to prove that he

had been prejudiced. Indeed, the Court of Special

Appeals’ reliance upon Eades and Wernsing suggests

that the court affirmed the trial court’s denial of

Sherman’s new trial motion only after it was per-

suaded that the State had established that probable

prejudice to Sherman had not occurred beyond a rea-

sonable doubt. Such a standard is not significantly

different from the alternate standard proposed by

Sherman. Furthermore, assuming that such a stand-

ard is to be applied, despite language in Smith v.

Phillips that suggests that a less stringent standard

20

is appropriate, 455 U.S. at 215, the record before the

Court of Special Appeals reveals that the court’s res-

olution of the issues before it was correct.

As both the trial court and the Court of Special

Appeals recognized, the view of the scene was cu-

mulative of evidence introduced at trial. (Tr. 9/2/88,

at 63-64; Pet. App. 16a). Given Miller’s description

of what he did during the site visit, there is nothing

to -suggest that Miller did more than drive by the

house and the tree. There is also nothing to suggest

that Miller considered or discussed his observations

during deliberations.®

8 At various points in his petition, Sherman refers to his not

being permitted to adduce certain testimony from Miller. (E.g.,

Pet. at 16 & nn. 3 & 4; 47-48 n. 14; 49). To the extent that

Sherman is suggesting error in this regard, his contention is

without merit.

First, although the State consistently maintained in the State

courts that Miller should not have been permitted to testify

about his conduct, both the trial court and the Court of Special

Appeals considered the substance of Miller’s evidence.

Second, although the State also objected, at the new trial

hearing, to allowing the defense to ask Miller why he went to

the scene, on direct examination Miller explained that he was

“looking for a tree that was so involved in the case,”’ and on

cross-examination Miller said he had gone to the scene ‘“‘so I

could see the tree that was so much in question.” (Tr. 9/2/88,

at 16, 26). And, when the State objected to the defense’s asking

Miller if what he had seen had influenced his deliberations, de-

fense counsel] withdrew his question. (Tr. 9/2/88, at 17-18).

Finally, under Maryland law, ‘‘the question of whether the

exclusion of evidence is erroneous and constitutes prejudicial

error is not properly preserved for appellate review unless there

has been a formal proffer of what the contents and relevance

of the excluded testimony would have been.”’ Mack v. State, 300

21

In sum, when the Court of Special Appeals’ decision

is viewed in the context of the cases that the court

relied upon and the facts before it, Sherman’s criti-

cisms of the decision necessarily dissipate, and the

reasons for granting certiorari disappear. Accord-

ingly, this Court should decline to grant the petition

for writ of certiorari for the additional reason that

the Court of Special Appeals correctly affirmed the

trial court’s decision to deny Sherman a new trial.

CONCLUSION

For the foregoing reasons, the State of Maryland

respectfully requests that this Court deny the petition

for writ of certiorari.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GARY E. BaIrR*

ANN N. BOSSE

Assistant Attorneys General

200- Saint Paul Place

Baltimore, Maryland 21202

(301) 576-6422

Counsel for Respondent

* Counsel of Record

June 21, 1990

Md. 583, 603, 479 A.2d 1344, 1354 (1984). No proffers were

made as to any further reasons Miller had for going to the scene

or as to whether Miller, alone or with other jurors, considered

his site visit during deliberations.