Opposition Brief — Evans v. Maryland

(2) Supreme Coot US |

TILED

No. 04-818 | JAN 1 8 2005 |

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

VERNON LEE EVANS, JR.

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

On Petition For Writ of Certiorari

To The Court of Appeals of Maryland

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

KATHRYN GRILL GRAEFF

ANNABELLE L. LISIC*

Assistant Attorneys General

Office of the Attorney General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6428

Counsel for Respondent

*Counsel of Record

i

CAPITAL CASE

QUESTION PRESENTED

Did the Court of Appeals of Maryland correctly conclude

that there was no ex post facto violation in Evans’s capital

sentencing proceeding?

li

TABLE OF CONTENTS

Page

QUESTION PRESENTOMD ...5 sce 050 ees betes eseenes i

BRIEF IN OPPORITERMS 5 625560005 bes ee eee eae 1

OPINIONS BELOW... 2. :5490 eee 1

JURISDICTION . . <.«<dscsceee eee l

CONSTITUTIONAL PROVISIONS INVOLVED ....... l

STATEMENT OF ‘THEE CARIES a ccc cuussssceeuusaeces ]

A. Procedival MIMGRY 5.x .vi5n ea saeenennaeea eae l

B. Statement of FO ..545000se0000s eee 5

REASONS FOR DENYING THE WRIT .............. 8

THE COURT OF APPEALS OF MARYLAND

CORRECTLY CONCLUDED THAT THERE

WAS NO EX POST FACTO VIOLATION IN

EVANS’S CAPITAL SENTENCING |

PROCERDNIAR. «0.55405 5be a eee 8

1. Carmell v. Texas Is Not Retroactive. ...... 9

2. There Has Been No Ex Post Facto

Viebatieth. ...4s 1a Sauce eee 11 7

CONCLUSION | .....<c..505s en 19

ill

TABLE OF AUTHORITIES

Page

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000) .....------ 4

Beard v. Banks, 124 S. Ct. 2504 (2004) ......---2+ eee 10

Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68,

68, 70 L.Ed. 216 (1925) ....-----eeeererrc ret 12

Booth v. Maryland, 506 U.S. 988 (1992) .....-----ee-> 17

Booth v. State, 306 Md. 172, 507 A.2d 1098 (1986) ..... 14

Booth v. State, 327 Md. 142, 608 A.2d 162,

cert. denied, 506 U.S. 988 (1992) ....-----08: 8, passim

Booth-El v. Nuth, 288 F.3d 571 (4th Cir.),

cert. denied, 537 U.S. 959 (2002) ....------ eee 16, 17

Brady v. Maryland, 373 U.S. 83 (1963) ...----- sete 3

Cage v. Louisiana, 498 U.S. 39 (1990)(per curiam) .. .. 10

Calder v. Bull, 3 U.S. 386 (3 Dall. 1798) ..-------- 17, 18

Carmell v. Texas, 529 U.S. 513 (2000) .....---- 8, passim

Caspari v. Bohlen, 510 U.S. 383 (1994) ......---- +e: 10

Collins v. Youngblood, 497 U.S. 37,

110 S.Ct. 2715, 111 L-Ed.2d 30 (1990) .....- 12, passim

iV

Page

Dobbert v. Florida, 432 U.S. 282,

97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) ....... 13, passim

Evans v. Maryland, 478 U.S. 1010 (1986) ............. 2

Evans v. Maryland, 513 U.S. 833 (1994) .............. 3

Evans v. Smith, 54 F. Supp.2d 503 (D. Md. 1999) ....... 3

Evans v. Smith, 220 F.3d 306 (4th Cir. 2000) ........... 4

Evans v. Smith, 532 U.S. 925 (2001) ...............2.. 4

Evans v. State, 301 Md. 45, 481 A.2d 1135 (1984),

Grandison v. Maryland, 470 U.S. 1034 (1985) ...... 2,6

Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985) .... 2,6

Evans v. State, 333 Md. 660, 637 A.2d 117 (1994) ....... 2

Evans vy. State, 345 Md. 524, 693 A.2d 780,

Cart. Gee, FES UF FST vc ew ch bone csnvnees 3

Evans v. State, 382 Md. 248, 855 A.2d 291 (2004) .. 1,4, 17

Evans v. State, Misc. No. 10, Sept. Term, 2001 (order) ... 4

Evans v. State, Misc. No. 18, Sept. Term, 1999 (order) ... 3

Evans v. Thompson, 881 F.2d 117 (4th Cir.1989),

cert. denied, 497 U.S. 1010, 110 S.Ct. 3255,

TEE Re FR 59.5 bo naka ae ea nee eee 13, 14

—-—— ——-

Page

Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985),

cert. denied, 478 U.S. 1010, 106 S.Ct. 3310,

92 LEAD 723 CG << his tee ese eee 12

Foster, Evans, and Huffington v. State, 305 Md. 306,

563 A.26 1526, TRIS CTR ot baecas eee eee 2

Graham v. Collins, 506 U.S. 461 (1993) .............. 10

Grandison v. State, 305 Md. 685,

506 A.2d 580, cert. denied, 479 U.S. 873, 107 S.Ct. 38,

93 LAE PCIe 000aciesdemee eee 14

Hunt v. State, 321 Md. 387, 583 A.2d 218 (1990),

cert. denied, 502 U.S. 835, 112 S.Ct. 117,

116 L. BESO GR CIS). 66 iiediiede sce 12

Lambrix v. Singletary, 520 U.S. 518 (1997) ............ 9

Mills v. Maryland, 486 U.S. 367 (1988) ............... 2

Penry v. Lynaugh, 492 U.S. 302 (1989) ...........5... 9

Saffle v. Parks, 494 U.S. 484 (1990) ............... 9,10

Schriro v. Summerlin, 124 S. Ct. 2519 (2004) .......... 10

State v. Evans, Misc. No. 8, Sept. Term, 1991

(onder Tied FU, TSE) a occ ks cucu sesadivas 2,3

Teague v. Lane, 489 U.S. 288 (1989) .............. 9,10

Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980) .... 14

vi

Page

Tyler v. Cain, 533 U.S. 656 (2001) ............20005. 10

United States v. Mest, 789 F.2d 1069 (4th Cir.1986),

cert. denied, 479 U.S. 846, 107 S.Ct. 163,

93 L.BG.26 102 (19GB) 2. ccaceccccesevssede 13, 14, 17

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960,

67 L.BG.26 17 CIDER) vic a cccccscdacscevessetsaus 15

Statutes:

IS UBC. SIR .vcicncdnccesscavedssasaneetenses 5

18 U.S.C. 6 1582 «. 0. cccsenancteccccvesuvaeuseaceea 5

28 USC. § 12SRED .cccccusccusveeceusteueutuneess |

Maryland Annotated Code:

Astiete 27, G4AS okkdcccccusccscaseeass 11, passim

Criminal Law Astitle, § B-S08 «sos n cn cccevascses 11

Rule:

Rule GD wc ccccccsecevecneasesaseuueusueunaekaae -

Miscellaneous:

1963 DEG. Lawe, CR. BOO vsasvecccssncaseace 11, passim

L. Tribe, American Constitutional Law,

& 10-3 (2d of. 19GR) 2. iccvesccctwesescseneces 15, 16

| Te a

ae

BRIEF IN OPPOSITION

Respondent, the State of Maryland, respectfully requests

that this Court deny the Petition for Writ of Certiorari of

Petitioner, Vernon Lee Evans, Jr. Evans is under sentence of

death in Maryland, havirs been convicted in the Circuit Court

for Worcester County, Maryland, in 1984, of first degree

murder and other crimes.

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland, Evans v.

State, 382 Md. 248, 855 A.2d 291 (2004), is reproduced in the

appendix to Evans’s petition. (App. 1a-38a). The unpublished

memorandum opinion and order of the Circuit Court for

Baltimore County denying relief is likewise reproduced in the

appendix to Evans’s petition. (App. 41a-46a).

JURISDICTION

Evans has invoked this Court’s jurisdiction pursuant to 28

U.S.C. § 1257(a). (Pet. for Cert. at 1).

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional and statutory provisions on which Evans

relies are reproduced in the appendix to the Petition for

Certiorari. (App. 47a-53a)

STATEMENT OF THE CASE

A. Procedural history

By an indictment presented in the Circuit Court for

Baltimore County, Maryland, on June 30, 1983, the-State of

Maryland (“State”) charged Evans with first degree murder of

2

David Scott Piechowicz, first degree murder of Susan Kennedy,

and other offenses. Evans v. State, 304 Md. 487, 495,499 A.2d

1261, 1265 (1985) (Evans II). The State notified Evans of its

intention to seek the death penalty. /d. Pursuant to Evans’s

exercise of his automatic nght of removal, the case was

transferred to the Circuit Court for Worcester County,

Maryland. /d. That court denied Evans’s pretrial motion to

dismiss under the Double Jeopardy Clause, and in Evans’s

ensuing interlocutory appeal the Maryland Court of Appeals

affirmed. Evans v. State, 301 Md. 45, 58, 481 A.2d 1135, 1141

(1984), cert. denied sub nom. Grandison v. Maryland, 470 U.S.

1034 (1985) (Evans J).

A jury subsequently convicted Evans on both first degree

murder counts and other charges. Evans IJ, 304 Md. at 494,

499 A.2d at 1264. In the ensuing capital sentencing hearing the

same jury imposed two sentences of death. /d. On direct

appeal, the Maryland Court of Appeals affirmed the convictions

and sentences. Jd. at 539, 499 A.2d at 1288. The court also

denied Evans’s subsequent motion for reconsideration. Foster,

Evans, and Huffington v. State, 305 Md. 306, 319, 503 A.2d

1326, 1333 (1986) (Evans III). This Court denied certiorari on

June 30, 1986. Evans v. Maryland, 478 U.S. 1010 (1986)

(order). —

On March 28, 1991, the Circuit Court for Worcester County

partially granted Evans’s petition for post conviction relief by

vacating Evans’s death sentences pursuant to Mills v.

Maryland, 486 U.S. 367, 384 (1988), but denied relief as to

Evans’s guilt/innocence convictions. The Maryland Court of

Appeals denied the State’s application for leave to appeal and

Evans’s cross-application. State v. Evans, Misc. No. 8, Sept.

Term, 1991 (order filed June 4, 1991).

Evans, in connection with the re-sentencing, filed a

suggestion for removal and the case was returned to the Circuit

Court for Baltimore County. Evans v. State, 333 Md. 660, 666,

637 A.2d 117, 120 (1994) (Evans IV). A jury in a capital re-

stent sia A RA. Ce Sa a

re Sa ae

I eth nN RIO PN Ne es hel

3

sentencing hearing in that court returned two death sentences.

Id. On direct appeal, the Maryland Court of Appeals affirmed.

Id. at 699, 637 A.2d at 136. This Court denied certiorari on

October 3, 1994. Evans v. Maryland, 513 U.S. 833 (1994)

(order).

On August 29, 1995, Evans filed in the Circuit Court for

Baltimore County another petition for post conviction relief.

After an evidentiary hearing, the court denied the petition in its

entirety by a decision dated January 24, 1997. The Maryland

Court of Appeals denied Evans’s apriication for leave to appeal

from the denial of post conviction relief on May 7, 1997.

Evans v. State, 345 Md. 524, 693 A.2d 780, cert. denied, 522

U.S. 966 (1997).

Evans filed a federal habeas petition on November 3, 1997,

180 days after the state appellate court’s final order. On April

12, 1999, Evans filed a motion for stay of the federal habeas

proceeding, asking the district court to hold his petition in

abeyance while he returned to state court to litigate an alleged

Brady v. Maryland, 373 U.S. 83 (1963), violation, and then

permit him to amend the petition if unsuccessful in state court.

The district court denied the motion, finding that allowing

Evans a stay and then leave to amend his petition would

circumvent the intent of the habeas statute. The district court

then denied Evans’s petition on June 30, 1999, Evans v. Smith,

54 F. Supp.2d 503 (D. Md. 1999), and a motion to alter or

amend judgment.

On August 25, 1999, Evans filed in the Circuit Court for

Baltimore County a motion to re-open his post conviction

proceedings based on the alleged Brady violation. The Circuit

Court for Baltimore County denied the motion without a

hearing on October 20, 1999. Evans’s application for leave to

appeal that denial was denied by the Court of Appeals of

Maryland on December 16, 1999. Evans v. State, Misc. No. 18,

Sept. Term, 1999 (order). On February 1, 2000, Evans filed

another petition for writ of habeas corpus in federal district

4

court raising the Brady claim Simultaneously, he filed a

motion in the Fourth Circuit for authorization to file a second

or successive petition. Before either court ruled on his filings,

Evans filed another motion with the district court on February

3, 2000, asking that the February 1 habeas filing be treated as

a Rule 60(b) motion. On February 16, 2000, the Fourth Circuit

denied Evans authorization to file a second or successive

petition and his motion to stay.

On July 17, 2000, the Fourth Circuit affirmed the district

court’s denial of Evans’s federal habeas petition and affirmed

the district court’s denial of a stay. Evans v. Smith, 220 F.3d

306, 325 (4th Cir. 2000). Evans filed a petition for writ of

certiorari with this Court on December 12, 2000, which was

denied on March 19, 2001. Evans v. Smith, 532 U.S. 925

(2001) (order).

On April 2, 2001, Evans filed another motion to re-open

post conviction proceedings and a motion for stay in the Circuit

Court for Baltimore County. The motion to re-open post

conviction was based on claims that the indictment was fatally

defective under Apprendi v. New Jersey, 530 U.S. 466 (2000),

and that his death sentence was based on racial bias. Those

motions were denied on October 12, 2001. The Court of

Appeals of Maryland denied Evans’s application for leave to

appeal those rulings on December 14, 2001. Evans v. State,

Misc. No. 10, Sept. Term, 2001 (order).

On May 8, 2000, during the pendency of his appeal in the

Fourth Circuit, Evans filed a motion for new trial and a motion

to correct an illegal sentence in the Circuit Court for Baltimore

County. Hearings were held on April 18 and December 3,

2002. The tnal court denied the motions on July 18, 2003.

(App. 41a-46a). On July 23, 2004, the Court of Appeals of

Maryland affirmed the rulings of the lower court. Evans v.

State, 382 Md. 248, 855 A.2d 291 (2004). (App. 1a-38a). On

September 10, 2004 the Court of Appeals of Maryland denied

Evans’s motion for reconsideration. (App. 1a).

B. Statement of Facts

On direct appeal from Evans’s guilt/innocence trial, the

Court of Appeals of Maryland summarized the salient facts of

Evans’s offenses as follows:

The basic facts of the case are as follows.

According to the State’s evidence, the defendant Evans

and Anthony Grandison entered into an agreement

whereby Evans would kill David Scott Piechowicz and

his wife, Cheryl, because the couple were scheduled to

testify against Grandison in a narcotics case pending in

the United States District Court for the District of

Maryland. Evans was to receive $9,000.00 from

Grandison for performing the murders.

David Scott Piechowicz and Cheryl Piechowicz

were employed at the Warren House Motel in Baltimore

County. On April 28, 1983, Susan Kennedy, the sister

of Cheryl Piechowicz, was working in place of Cheryl

at the Warren House Motel. The evidence was

sufficient to prove beyond a reasonable doubt that, on

April 28th, Evans went to the motel and, not knowing

the Piechowiczes, shot David Scott Piechowicz and

Susan Kennedy with a MAC-11 machine pistol.

Nineteen bullets were fired at the victims, who died

from the multiple gunshot wounds. :

A two count indictment was filed against Evans and

Grandison in the United States District Court. They

were charged with violating the Piechowicz’s civil

rights by interfering with their right to be witnesses in

a judicial proceeding, in violation of 18 U.S.C. § 241,

and with witness tampering, in violation of 18 U.S.C. §

1512.

Subsequently the present case began with a four

count indictment in the Circuit Court for Baltimore

County, charging Evans and Grandison each with two

6

counts of first degree murder, one count of conspiracy

to commit murder, and use of a handgun in the

commission of a felony or crime of violence. Upon the

defendants’ requests for removal, Grandison’s trial was

transferred to the Circuit Court for Somerset County

and Evans’s trial was transferred to the Circuit Court

for Worcester County.

Prior to the tnal in the instant case, Evans was

convicted on the federal charges and sentenced to life

plus ten years imprisonment. He then filed a pretrial

motion to dismiss the charges in this case on double

jeopardy grounds. The motion was denied by the trial

judge, and this Court affirmed. Evans v. State, 301

Md. 45, 481 A.2d 1135 (1984), cert. denied, 470 U.S.

1034, 105 S. Ct. 1411, 84 L.Ed.2d 795 (1985).

Evans IT, 304 Md. at 494-96, 499 A.2d at 1264-65.

The United States Court of Appeals for the Fourth Circuit

reviewed the evidence presented at Evans’s trial as follows:

During the state trial, the prosecution offered

overwhelming incriminating evidence against Evans

through a number of witnesses. The most damaging

testimony came from Charlene Sparrow, who was

Evans’ girlfriend at the time of the murders. Sparrow

testified that she accompanied Evans and Janet Moore

to the Baltimore City Jail two days before the shooting.

At the jail, Evans and Moore met with Grandison, who

was awaiting his federal drug trial. Sparrow then

inspected the reception desk area of the Warren House

Motel. She reported to Evans concerning the people

working there and the presence or absence of security

features. Sparrow also obtained a room at the motel

with Evans’ funds at his request. On the day of the

murders, Evans told Sparrow to wait for him in the car

behind the motel. Just before Evans walked to the

motel, Sparrow looked inside the brown canvas bag he

7

was carrying and saw a machine gun. Some ten to

fifteen minutes later, Evans returned to the car, gave the

smoking MAC-11 machine gun to Sparrow, and asked

her to wipe it down. Evans had also told her that he

would receive $9,000 “ifhe knocked both of them off.”

Evans and Sparrow went to the mall that night to spend

part of the proceeds from the murders.

Other witnesses also supplied incriminating

testimony as to Evans’ central role in the murders. For

example, Moore testified as to her and Evans’ visit to

Grandison at the jail two days before the killings.

Calvin Harper testified concerning the day of the

murder and the two days leading up to it. Harper’s

testimony included a description of Evans’ acquisition

of the machine pistol used in the crime from Rodney

Kelly and Evans’ statement that he liked the gun.

Several other witnesses were able to place Evans in the

motel lobby during the time immediately preceding the

murders. For example, Etta Horne, who worked at the

motel, identified Evans as the man she saw sitting in the

motel lobby shortly before the murders. Helen

Kondilidis, who had entered the motel shortly before

the murders, also identified Evans as the man she saw

sitting in the lobby.

220 F.3d at 310.'

' Evans refers in his petition to what he claimed in his most

recent state appeal was newly discovered evidence that showed

that he was not the shooter. Pet. at 8 n.5. The Court of

Appeals of Maryland considered each piece of evidence offered

by Evans and concluded as follows:

Evans’s present argument is based upon a

farfetched theory unsupported by any evidence. It rests

entirely upon the well-known fact that eyewitness

8

REASONS FOR DENYING THE WRIT

I.

THE COURT OF APPEALS OF MARYLAND

CORRECTLY CONCLUDED THAT THERE WAS

NO EX POST FACTO VIOLATION IN EVANS’S

CAPITAL SENTENCING PROCEEDING.

Evans claims that the jury instruction given at sentencing

and re-sentencing, which reflected a change in Maryland’s

death penalty statute, violated the prohibition against ex post

facto laws. Pet. at 9-10. Specifically, he argues that, when the

Maryland legislature removed intoxication from the list of

statutory mitigating factors in 1983, after the crimes were

committed in his case, it unfairly increased his burden of proof.

Id. Although the Court of Appeals of Maryland rejected

reasoning identical to that of Evans in Booth v. State, 327 Md.

142, 608 A.2d 162, cert. denied, 506 U.S. 988 (1992), Evans

maintains that, in light of this Court’s decision in Carmell v.

Texas, 529 U.S. 513 (2000), the earlier holding of the state

court in Booth is no longer good law. Pet. at 9-10. The Court

of Appeals of Maryland properly rejected this claim.”

descriptions of an individual or estimates of time will

likely vary. In our view, there is virtually no possibility

that any jury would find that Evans was involved in the

murders only as a principal in the second degree. The

evidence «* Evans was the “triggerman” is

overwhelming.

382 Md. at 264-72, 855 A.2d at 300-05.

? Although the State argued that Evans’s sentence was not

inherently illegal under Maryland law and, further, that Evans

had waived any ex post facto claim by failing to raise it before

9

i. Carmell v. Texas Is Not Retroactive.

Relying on this Court’s opinion in Carmell, Evans asserts

that that case makes the Maryland court’s holding in Booth

erroneous. However, in order to prevail on such a theory,

Evans must first establish that the holding in Carmell is

retroactive.’ This he cannot do.

Carmell is not retroactive under federal law. Under this

Court’s doctrine of nonretroactivity, “‘new constitutional rules

of criminal procedure will not be applicable to those cases

which have become final before the new rules are announced,’”

Lambrix v. Singletary, 520 U.S. 518, 527 (1997) (quoting

Teague v. Lane, 489 U.S. 288, 310-11 (1989)), unless “the

relief sought falls within one of two narrow exceptions to

nonretroactivity.” Jd.

The first exception permits the retroactive application

of anew rule ifthe rule places a class of private conduct

beyond the power of the State to proscribe, see Teague,

[489 U.S. at 311], or addresses a ‘substantive

categorical guarante[e] accorded by the Constitution,’

such as a rule prohibiting a certain category of

punishment for a class of defendants because of their

status or offense.”” Saffle v. Parks, [494 U.S. 484, 494

(1990)](quoting Penry v. Lynaugh, [492 U.S. 302, 329

(1989)]....

The second exception is for “‘watershed rules of

criminal procedure’ implicating the fundamental

now on direct or collateral review in state or federal court, the

Court of Appeals, nonetheless, chose to review the claim on its

merits. 382 Md. at 278-80, 855 A.2d at 309-10.

3. The Court of Appeals of Maryland did not address the

issue of retroactivity under either federal or state law, although

the State raised that issue in its brief.

10

fairness and accuracy of the cnminal proceeding. /bid.

(quoting Teague, [489 U.S. at 311.

520 U.S. at 539-40. Accord Beard v. Banks, 124 S. Ct. 2504,

2513 (2004).

Evans’s conviction was final well before the decision in

Carmell. This Court’s decision in 7yler v. Cain, 533 U.S. 656

(2001), resoundingly dismisses any claim that Carmell is

retroactive in the context of Evans’s jury instruction complaint.

With respect to the second exception, which is the only one

Evans could conceivably rely on, the Court in Tyler v. Cain

explained why the rule of Cage v. Louisiana, 498 U.S. 39

(1990)(per curiam), regarding a reasonable doubt instruction,

was not retroactive:

[T]he second Teague exception is reserved only for

truly “watershed” rules. See O'Dell, supra, at 167; see

also Caspari v. Bohlen, 510 U.S. 383, 396

(1994)(describing such rules as “groundbreaking”);

Graham vv. Collins, 506 U.S. 461, 478

(1993)(explaining that the exception is limited to “a

small core of rules,” which not only seriously enhance

accuracy but also “requir[e] ‘observance of those

procedures that . . . are implicit in the concept of

ordered liberty’’)(quoting Teague, supra, at 311

(internal quotation marks omitted)); Saffle v. Parks, 494

U.S. 484, 495 (1990)(focusing on “primacy and

centrality” of the rule). As we have recognized, it is

unlikely that any of these watershed rules ‘“‘ha[s] yet to

_ emerge.”

533 U.S. at 666 n.7 (emphasis added)(citation omitted). Accord

Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004). See also

Banks (“it should come as no surprise that we have yet to find

a new rule that falls under the second Teague exception’’).

This Court has not said that Carmell is retroactive and,

given its more recent retroactivity analysis, there is no reasoned

basis to believe that the Court would ever do so.

11

2. There Has Been No Ex Post Facto Violation.

Even if Evans could surmount the retroactivity hurdle

necessary to place the ex post facto claim before this Court. the

claim would fail on the merits. When the murders took piace

on April 28, 1983, Maryland’s death penalty statute listed seven

specific mitigating circumstances, including:

The murder was committed while the capacity of the

defendant to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law was

substantially impaired as a result of mental incapacity,

mental disorder, emotional disturbance, or intoxication.

Md. Code Ann., Art. 27, § 413(g)(4)(1982 Repl. Vol.).* Then,

as now, Maryland’s statutory death penalty scheme also

allowed the sentencer to consider “{a]ny other facts which the

jury or the court specifically sets forth in writing that it finds as

mitigating circumstances in the case.” Id., § 413(g)(8).

Approximately one month after the murders, Maryland’s

governor signed an act, the effective date of which was July 1,

1983, that amended Article 27, Section 413(g)(4) to eliminate

intoxication as a statutorily enumerated mitigating

circumstance. 1983 Md. Laws, Ch. 296.

On direct appeal from his third death sentence, another

Maryland capital litigant, John Booth-F], complained that the

1983 change, whereby intoxication was eliminated as a specific

statutory mitigating circumstance, violated the federal and state

constitutional prohibitions against ex post facto laws. In

response to Booth-El’s complaint, the Court of Appeals of

Maryland described the effect of this change in law as follows:

Prior to the 1983 enactment the burden was on the

‘ That provision is now found in the Criminal Law Article,

Section 2-303(h)(2)(iv). The State will cite to the codification

as it existed at the time of Evans’s sentencing proceedings.

12

murderer to prove by a preponderance of the evidence

diminished capacity as a result of intoxication. If the

jury found that fact, then the statute determined that that

circumstance was mitigating and that it was to be

considered in weighing whether the aggravating

circumstance outweighed intoxication and any other

mitigating circumstances. After the change, the

murderer has the burden of proving by a preponderance

of the evidence both the fact of diminished capacity due

to intoxication and that that fact is a mitigating

circumstance. See Hunt v. State, 321 Md. 387, 437, 583

A.2d 218, 242 (1990), cert. denied, 502 U.S. 835, 112

‘S.Ct. 117, 116 L.Ed.2d 86 (1991); Foster v. State, 304

Md. 439, 482, 499 A.2d 1236, 1258 (1985), cert.

denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 723

(1986). Both before and after the 1983 amendment, the

amount of weight to be given to intoxication as a

mitigating circumstance turned on the judgment of each

individual juror.

327 Md. at 169, 608 A.2d at 175 (footnote omitted). The Booth

court went on to hold as follows:

The prohibition against ex post facto laws is defined

by three historic categories. Collins v. Youngblood, 497

U.S. 37, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30 (1990).

“Any statute which punishes as a crime an act

previously committed, which was innocent

when done; which makes more burdensome the

punishment for a crime, after its commission, or

which deprives one charged with crime of any

defense available according to law at the time

when the act was committed, is prohibited as ex

post facto.”

Id. at ----, 110 S.Ct. at 2719 (quoting Beazell v. Ohio,

269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216

(1925)). The change to § 413 did not deprive Booth of

13

any defense to the crime of murder that was available at

the time of the murder. The change, which involves

only procedures at the sentencing phase of trial, does

not fit in either of the other ex post facto categories.

Changes in trial or appellate procedure that had

consequences far more disadvantageous to the

defendant than the change to Maryland’s § 413 have

been held not to offend the ex post facto clause. See

Collins; Dobbert v. Florida, 432 U.S. 282, 97 S.Ct.

2290, 53 L.Ed.2d 344 (1977); Evans v. Thompson, 881

F.2d 117 (4th Cir.1989), cert. denied, 497 U.S. 1010,

110 S.Ct. 3255, 111 L.Ed.2d 764 (1990); United States

v. Mest, 789 F.2d 1069 (4th Cir.1986), cert. denied, 479

U.S. 846, 107 S.Ct. 163, 93 L.Ed.2d 102 (1986).

327 Md. at 170-71, 608 A.2d at 175-76. After relating the

circumstances in each of these cited cases, the Court stated as

follows:

Following the change in the Maryland statute the

defendant continues to have the burden of producing

evidence on intoxication and of persuading as many

jurors as possible to find as a fact that the defendant

was intoxicated. The change affects only the procedure

for determining whether the fact, if found, is mitigating.

It is absolutely clear that amended § 413 does not

remove intoxication as a potential mitigating

circumstance in death penalty proceedings. The

preamble to the amending act declares:

“The General Assembly is aware that the

Supreme Court has held that evidence of the

intoxication of a defendant in a case involving

the death penalty must be allowed and

considered as a factor in mitigation. The

General Assembly further believes that such

mitigating factor should be considered under the

eighth mitigating factor and not highlighted

a

14

specifically so as to appear more as justification

than as one of the many factors that may be

considered as possible mitigation. In striking

the word intoxication from the fourth

mitigating factor, the General Assembly is not

eliminating the consideration of intoxication but

altering the emphasis presently indicated....”

Chapter 296 of the Acts of 1983."

* * ~

The amendment to § 413 did not change the fact

that first-degree murder during commission of arobbery

was punishable by death, a fact of which pre- existing

Maryland law gave Booth clear notice. See Dobbert,

432 US. at 297-98, 97 S.Ct. at 2300 (death penalty law

in effect at time of murders and later found

unconstitutional nevertheless “clearly indicated

Florida’s view of the severity of murder and of the

degree of punishment which the legislature wished to

impose”); Grandison v. State, 305 Md. 685, 754, 506

A.2d 580, 614 (change specifying impact statements

from families of murder victims to be used in capital

sentencing did not change the “quantum of punishment

attached to the crime”), cert. denied, 479 U.S. 873, 107

S.Ct. 38, 93 L.Ed.2d 174 (1986); Booth IT, 306 Md. at

222, 507 A.2d at 1123-24 (same); Tichnell v. State, 287

Md. 695, 737, 415 A.2d 830, 852 (1980) (even if

Maryland statute were unconstitutional before addition

of catch-all mitigation instruction, statute gave

defendant “fair warning as to the degree of culpability

which Maryland ascribes to the act of murder”); Evans,

881 F.2d at 120. The amendment did not remove any

factors from the jury’s consideration in finding

mitigation; nor did it make inadmissible any previously

admissible evidence. See United States v. Mest, 789

F.2d at 1071-72; see also Collins, 110 §.Ct. at 2719 n.

15

J

None of the purposes of the prohibition against ex

post facto laws would be served by applying the

prohibition here. In Weaver v. Graham, 450 US. 24,

101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme

Court, in a case involving punishment additional to that

prescribed at the time of the offense, identified two

principal protections the clause affords. First, “the

Framers sought to assure that legislative Acts give fair

warning of their effect and permit individuals to rely on

their meaning until explicitly changed.” 450 U.S. at

28-29, 101 S.Ct. at 964. As we have already pointed

out, § 413 gave fair warning that first-degree murder in

the commission of a robbery was potentially punishable

by death. To paraphrase Professor Tnbe in his

discussion of Dobbert, “[Booth’s] reliance interest [on

the benefits of being intoxicated while he murdered]

hardly deserves mention, let alone respect.” See L.

Tribe, American Constitutional Law § 10-3, at 640 (2d

ed. 1988).

Second, “[t]he ban also restricts governmental

power by restraining arbitrary and potentially vindictive

legislation.” 450 U.S. at 29, 101 S.Ct. at 964. Even

murderers “are entitled to something better than_a

legislative lynching.” L. Tribe, supra, at 640. But in

this case, as in Dobbert, there was no actual risk of

legislative abuse. House Bill 62, which later became

Chapter 296 of the Acts of 1983, was pre-filed in the

1983 legislative session. The bill was introduced in the

House of Delegates on January 12, 1983. It passed the

House on March 23 and in the Senate on April 6, 1983.

The Attorney General approved the bill for

constitutionality and legal sufficiency on May 11, 1983.

The Bronsteins were murdered on May 18. The only

action taken on the bill after the murders was its signing

16

by the Governor. Plainly the Legislature could not

have, and did not, contemplate John Booth when it

deleted intoxication as an express mitigating

circumstance on the sentencing form. See also L. Tnbe,

supra, at 640 n. 26 (speculating that legislation adding

an aggravating circumstance in response to the events

of a particular murder still might not violate the ex post

facto ban if the amendment were drawn “in terms broad

enough to encompass not just the particular individual

who is ultimately convicted of the specific killing at

issue but anyone else who meets similar criteria”).

* * *

For all these reasons, the changes to § 413 do not

violate ex post facto prohibitions.

'! The Legislature may have desired to avoid giving

the appearance of equating voluntary intoxication with

involuntary mental illness.

327 Md. at 172-76, 608 A.2d at 177-78.

Booth-E]l raised the claim of an ex post facto violation in his

federal habeas petition. While the federal district court found

that there had been an ex post facto violation, based on the 2000

decision in Carmell, the Fourth Circuit reversed that ruling,

finding that under the case law existing in 1992 when the

Maryland court decided Booth-El’s appeal, that decision was a

reasonable application of clearly established federal law.

Booth-El v. Nuih, 288 F.3d 571, 577-78 (4th Cir.), cert. denied,

537 U.S. 959 (2002). However, the Fourth Circuit further held

that the change in Maryland’s death penalty statute was purely

procedural. Jd. at 578-79. It did not remove intoxication as a

possible mitigator or remove any mitigating factors from the

jury’s consideration. Jd. at 579. As a procedural change, the

panel found it far less disadvantageous to a defendant than

others which have been found not to violate the Ex Post Facto

en Pee en ee mentee -

17

Clause, citing to Collins, Dobbert, and decisions of the Fourth

Circuit in Evans and Mest. Id. at 579-80. Booth-El’s petition

for writ of certiorari to this Court, raising inter alia the ex post

facto claim, was subsequently denied. Booth v. Maryland, 506

U.S. 988 (1992).

In Evans’s most recent appeal, the Court of Appeals of

Maryland reviewed its reasoning in Booth and found that it was

entirely consistent with this Court’s Carmell decision. 382 Md.

at 281-85, 855 A.2d at 310-13.

In our view, Carmell v. Texas neither overrules

Booth v. State, supra, 327 Md. at 168-176, 608 A.2d at

174-178, nor renders the fourth category of Calder v.

Bull applicable to Ch. 296 of the Acts of 1983. The

fourth category of Calder v. Bull and the holding of

Carmell relate to changes in rules of evidence to

facilitate a conviction. Such changes lessen the

prosecution’s burden of proof. As discussed in Part II

A of this opinion, the change brought about by Ch. 296

did not affect the evidence to establish the existence of

a mitigating circumstance, did not affect the weight to

be given a mitigating circumstance, and did not alter the

evidentiary burden of proof to establish any fact. As

earlier pointed out, Ch. 296 changed nothing with

regard to the existence of or weight to be given a

mitigating circumstance.

The only modification brought about by Ch. 296

concerned a judgment as to whether a particular

circumstance should be regarded as mitigating. Instead

of the Legislature indicating its judgment that

intoxication should be deemed mitigating, Ch. 296

provided that each juror should make that judgment. In

the final analysis, however, there was no significant

change regarding that judgment. Both before and after

the enactment of Ch. 296, the judgment as to how much

weight should be given the factor of intoxication

18

belonged to the jurors.

Ch. 296 of the Acts of 1983 was not a “law that

alters the /egal rules of evidence, and receives less . . .

testimony, than the law required at the time of the

commission of the offense, in order to [decide against]

the offender.” Calder v. Bull, 3 Dall. at 390, 1 L.Ed. at

650. Consequently, the application of Ch. 296 to

Evans’s 1992 sentencing hearing did not violate the ex

post facto prohibition.

382 Md. at 285, 855 A.2d at 312-13 (emphasis in onginal).

Thus, even if one were willing to overlook the fact that

Evans’s death sentence is not illegal, that he has waived the

claim by not raising it earlier, and that Carmell is not

retroactive, Evaris still would not prevail, because the change

in Maryland’s death penalty statute does not fit even within the

fourth Calder factor. It was procedural only and changed no

rule of evidence to Evans’s detriment. Under either statute,

Evans ultimately had to present evidence of intoxication

sufficient to convince the jury that such intoxication mitigated

against imposition of the death penalty. Finally, the jury at

Evans’s re-sentencing did consider his drug use, citing it as a

mitigating factor. Thus the jurors who so found were required

to weigh it into their decision to impose the death penalty.

19

CONCLUSION

For the foregoing reasons, Respondent respectfully requests

that the petition for writ of certiorari filed herein be denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

_ KATHRYN GRILL GRAEFF

ANNABELLE L. LISIC*

Assistant Attorneys General

Counsel for Petitioner

* Counsel of Record

January 18, 2005