# Opposition Brief — Evans v. Maryland

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1202%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1150

## Text

(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 . . 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1202%3A2. Public record. Not legal advice.