COURT OF APPEALS STANDING COMMITTEE

COURT OF APPEALS STANDING COMMITTEE

ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee held in Training

Rooms 5 and 6 of the Judiciary Education and Conference Center,

2011-D Commerce Park Drive, Annapolis, Maryland on June 19, 2009.

Members present:

Hon. Alan M. Wilner, Chair

Linda M. Schuett, Esq., Vice Chair

Lowell R. Bowen, Esq.

Albert D. Brault, Esq.

Hon. Ellen L. Hollander

Hon. Joseph H. H. Kaplan

Richard M. Karceski, Esq.

Robert D. Klein, Esq.

Hon. Thomas J. Love

Zakia Mahasa, Esq.

Timothy F. Maloney, Esq.

Robert R. Michael, Esq.

Hon. John L. Norton, III

Anne C. Ogletree, Esq.

Scott G. Patterson, Esq.

Hon. W. Michel Pierson

Debbie L. Potter, Esq.

Sen. Norman R. Stone, Jr.

In attendance:

Sandra F. Haines, Esq., Reporter

Sherie B. Libber, Esq., Assistant Reporter

Brittany L. King, Rules Committee Intern

Sharon R. Holback, Esq., Office of the State’s Attorney for

Baltimore City

Kenneth J. MacFadyen, Esq.

Jeffrey Nadel, Esq.

Jeffrey B. Fisher, Esq.

Brian L. Zavin, Esq., Office of the Public Defender

Mary Ann Burkhart, Esq., Office of the State’s Attorney for

Baltimore City

Michele M. Nethercott, Esq., Office of the Public Defender

Scott D. Shellenberger, Esq., Office of the State’s Attorney for

Baltimore County

Lauren Marini, Esq.

John Burson, Esq.

Laura O’Sullivan, Esq.

Bedford T. Bentley, Esq., State Board of Law Examiners

The Chair convened the meeting.

He welcomed the Honorable

W. Michel Pierson of the Circuit Court of Baltimore City, the

newest member of the Committee.

The Chair announced that the

past Tuesday, the Court of Appeals had held a hearing on the

161st Report, which pertained to conforming the Foreclosure Rules

to the statutes enacted by the General Assembly in 2009.

The

Supplement to that Report was sent about a week later to conform

the Rules to federal legislation that President Obama signed on

May 20, 2009.

The Foreclosure Rules are now in effect.

The

Chair added that he expects that there will be more legislation

in 2010.

The Chair announced that Mr. Brault was included in the list

of superlawyers in Washington, D.C.

The Chair congratulated Mr.

Brault as did the Committee.

Agenda Item 1. Reconsideration of a proposed Rule change

pertaining to capital cases - Amendments to Rule 4-343

(Sentencing - Procedure in Capital Cases)

_________________________________________________________________

Mr. Karceski presented two versions of Rule 4-343,

Sentencing - Procedure in Capital Cases, for the Committee’s

consideration.

ALTERNATIVE #1

[Amend current Rule 4-343, without

bifurcation of sentencing proceeding]

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 300 - TRIAL AND SENTENCING

-2-

AMEND Rule 4-343 by adding to the form

set forth in section (h) a new “Preliminary”

section containing five issues for

determination, by adding a new paragraph to

Section VI of the form referring to the new

“Preliminary” section, and by deleting

the last sentence of section (i), as follows:

Rule 4-343. SENTENCING - PROCEDURE IN

CAPITAL CASES

. . .

(h) Form of Written Findings and

Determinations

Except as otherwise provided in

section (i) of this Rule, the findings and

determinations shall be made in writing in

the following form:

(CAPTION)

FINDINGS AND SENTENCING DETERMINATION

VICTIM:

[Name of murder victim]

Preliminary

[Submit the following only to the extent these issues are

presented and remain for determination by the sentencing jury.]

Based upon the evidence, we unanimously find that each of

the following statements marked “proved” has been proved BEYOND A

REASONABLE DOUBT and that each of those statements marked “not

proved” has not been proved BEYOND A REASONABLE DOUBT.

Statement 1.

The State has produced biological evidence or

DNA evidence that links the defendant to the act of murder.

-3-

_____

proved

Statement 2.

_____

not

proved

The State has produced a videotaped, voluntary

interrogation and confession of the defendant to the murder.

______

proved

Statement 3.

______

not

proved

The State has produced a video recording that

conclusively links the defendant to the murder.

______

proved

______

not

proved

(If one or more of the above Statements are marked “proved,”

proceed to Statements 4 and 5. If Statements 1, 2, and 3 are all

marked “not proved,” proceed to Section VI and enter

“Imprisonment for Life.”)

Statement 4.

At the time of the murder, the defendant was

18 years of age or older.

______

proved

Statement 5.

______

not

proved

The State has not relied solely on evidence

provided by eyewitnesses.

______

proved

______

not

proved

(If Statements 4 and 5 are BOTH marked “proved,” proceed to

Section I. If one or both Statements are marked “not proved,”

proceed to Section VI and enter “Imprisonment for Life.”)

Section I

Based upon the evidence, we unanimously find that each of

the following statements marked "proved" has been proved BEYOND A

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REASONABLE DOUBT and that each of those statements marked "not

proved" has not been proved BEYOND A REASONABLE DOUBT.

1. The defendant was a principal in the first degree to the

murder.

______

proved

______

not

proved

2. The defendant engaged or employed another person to commit

the murder and the murder was committed under an agreement or

contract for remuneration or the promise of remuneration.

______

proved

______

not

proved

3. The victim was a law enforcement officer who, while in the

performance of the officer's duties, was murdered by one or more

persons, and the defendant was a principal in the second degree

who:

(A) willfully, deliberately, and with premeditation

intended the death of the law enforcement officer; (B) was a

major participant in the murder; and (C) was actually present at

the time and place of the murder.

______

proved

______

not

proved

(If one or more of the above are marked "proved," proceed to

Section II. If all are marked "not proved," proceed to Section

VI and enter "Imprisonment for Life.")

Section II

Based upon the evidence, we unanimously find that the

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following statement, if marked "proved," has been proved BY A

PREPONDERANCE OF THE EVIDENCE or that, if marked "not proved," it

has not been proved BY A PREPONDERANCE OF THE EVIDENCE.

At the time the murder was committed, the defendant was

mentally retarded.

______

proved

______

not

proved

(If the above statement is marked "proved," proceed to Section VI

and enter "Imprisonment for Life." If it is marked "not proved,"

complete Section III.)

Section III

Based upon the evidence, we unanimously find that each of the

following aggravating circumstances that is marked "proved" has

been proved BEYOND A REASONABLE DOUBT and we unanimously find

that each of the aggravating circumstances marked "not proved"

has not been proved BEYOND A REASONABLE DOUBT.

1. The victim was a law enforcement officer who, while in the

performance of the officer's duties, was murdered by one or more

persons.

______

proved

______

not

proved

2. The defendant committed the murder at a time when confined

in a correctional facility.

______

proved

-6-

______

not

proved

3. The defendant committed the murder in furtherance of an

escape from or an attempt to escape from or evade the lawful

custody, arrest, or detention of or by an officer or guard of a

correctional facility or by a law enforcement officer.

______

proved

______

not

proved

4. The victim was taken or attempted to be taken in the

course of a kidnapping or abduction or an attempt to kidnap or

abduct.

______

proved

______

not

proved

5. The victim was a child abducted in violation of Code,

Criminal Law Article, §3-503 (a)(1).

______

proved

______

not

proved

6. The defendant committed the murder under an agreement or

contract for remuneration or the promise of remuneration to

commit the murder.

______

proved

______

not

proved

7. The defendant engaged or employed another person to commit

the murder and the murder was committed under an agreement or

contract for remuneration or the promise of remuneration.

______

proved

______

not

proved

8. At the time of the murder, the defendant was under the

sentence of death or imprisonment for life.

-7-

______

proved

______

not

proved

9. The defendant committed more than one offense of murder in

the first degree arising out of the same incident.

______

proved

______

not

proved

10. The defendant committed the murder while committing or

attempting to commit a carjacking, armed carjacking, robbery,

under Code, Criminal Law Article, §3-402 or §3-403, arson in the

first degree, rape in the first degree, or sexual offense in the

first degree.

______

proved

______

not

proved

(If one or more of the above are marked "proved," complete

Section IV. If all of the above are marked "not proved," do not

complete Sections IV and V and proceed to Section VI and enter

"Imprisonment for Life.")

Section IV

From our consideration of the facts and circumstances of this

case, we make the following determinations as to mitigating

circumstances:

1. The defendant has not previously (i) been found guilty of

a crime of violence; (ii) entered a plea of guilty or nolo

contendere to a charge of a crime of violence; or (iii) been

granted probation before judgment for a crime of violence.

(As used in the preceding paragraph, "crime of violence"

means abduction, arson in the first degree, carjacking, armed

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carjacking, escape in the first degree, kidnapping, mayhem,

murder, robbery under Code, Criminal Law Article,

§3-402 or §3-403, rape in the first or second degree, sexual

offense in the first or second degree, manslaughter other than

involuntary manslaughter, an attempt to commit any of these

offenses, or the use of a handgun in the commission of a felony

or another crime of violence.)

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

2. The victim was a participant in the defendant's conduct or

consented to the act which caused the victim's death.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

3. The defendant acted under substantial duress, domination,

or provocation of another person, even though not so substantial

-9-

as to constitute a complete defense to the prosecution.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, that it is more likely

than not that the above circumstance exists.

4. The murder was committed while the capacity of the

defendant to appreciate the criminality of his or her conduct or

to conform his or her conduct to the requirements of law was

substantially impaired as a result of mental incapacity, mental

disorder, or emotional disturbance.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

5. The defendant was of a youthful age at the time of the

murder.

-10-

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

6. The act of the defendant was not the sole proximate cause

of the victim's death.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

7. It is unlikely that the defendant will engage in further

criminal activity that would constitute a continuing threat to

society.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

-11-

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

8. (a) We unanimously find that it is more likely than not

that the following additional mitigating circumstances exist:

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

(Use reverse side if necessary)

(b) One or more of us, but fewer than all 12, find that it is

more likely than not that the following additional mitigating

circumstances exist:

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

(Use reverse side if necessary)

(If the jury unanimously determines in Section IV that no

mitigating circumstances exist, do not complete Section V.

Proceed to Section VI and enter "Death." If the jury or any

juror determines that one or more mitigating circumstances exist,

complete Section V.)

Section V

Each individual juror has weighed the aggravating

circumstances found unanimously to exist against any mitigating

circumstances found unanimously to exist, as well as against any

-12-

mitigating circumstance found by that individual juror to exist.

We unanimously find that the State has proved BY A

PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances

marked "proved" in Section III outweigh the mitigating

circumstances in Section IV.

______

yes

______

no

Section VI

Enter the determination of sentence either "Imprisonment for

Life" or "Death" according to the following instructions:

a.

If Statements 1, 2, and 3 in the “Preliminary” Section

are all marked “not proved,” enter “Imprisonment for Life.”

b.

If Statement 4 in the “Preliminary” Section is marked

“not proved,” enter “Imprisonment for Life.”

c.

If Statement 5 in the “Preliminary” Section is marked

“not proved,” enter “Imprisonment for Life.”

1. d. If all of the answers in Section I are marked "not

proved," enter "Imprisonment for Life."

2. e. If the answer in Section II is marked "proved," enter

"Imprisonment for Life."

3. f. If all of the answers in Section III are marked "not

proved," enter "Imprisonment for Life."

4. g. If Section IV was completed and the jury unanimously

determined that no mitigating circumstance exists, enter "Death."

5. h. If Section V was completed and marked "no," enter

"Imprisonment for Life."

-13-

6. i. If Section V was completed and marked "yes," enter

"Death."

We unanimously determine the sentence to be ____________________.

Section VII

If "Imprisonment for Life" is entered in Section VI, answer

the following question:

Based upon the evidence, does the jury unanimously determine

that the sentence of imprisonment for life previously entered

shall be without the possibility of parole?

______

yes

______

no

____________________________

Foreperson

____________________________

Juror 7

____________________________

Juror 2

____________________________

Juror 8

____________________________

Juror 3

____________________________

Juror 9

____________________________

Juror 4

____________________________

Juror 10

____________________________

Juror 5

____________________________

Juror 11

____________________________

Juror 6

____________________________

Juror 12

or,

____________________________

JUDGE

(i)

Deletions from Form

Section II of the form set forth in section (h) of this

-14-

Rule shall not be submitted to the jury unless the issue of

mental retardation is generated by the evidence.

Unless the

defendant requests otherwise, Section III of the form shall not

include any aggravating circumstance that the State has not

specified in the notice required under Code, Criminal Law

Article, §2-202 (a) of its intention to seek a sentence of death.

Section VII of the form shall not be submitted to the jury unless

the State has given the notice required under Code, Criminal Law

Article, §2-203 of its intention to seek a sentence of

imprisonment for life without the possibility of parole.

Committee note: Omission of some aggravating circumstances from

the form is not intended to preclude argument by the defendant

concerning the absence of those circumstances.

. . .

Rule 4-343 was accompanied by the following Reporter’s Note.

Amendments to Rule 4-343 are proposed to

conform the Rule to Chapter 186, Laws of 2009

(SB 279), which precludes a sentence of death

unless the State did not rely solely on

evidence provided by eyewitnesses and there

is (1) biological evidence or DNA evidence

that links the defendant to the act of

murder, (2) a videotaped, voluntary

interrogation and confession of the defendant

to the murder, or (3) a video recording that

conclusively links the defendant to the

murder.

Because the issues are threshold ones, a

new section is added to the beginning of the

Findings and Sentencing Determination form in

section (h), requiring determination as to

whether any of the conditions for eligibility

for the death penalty have been proved.

Imposition of the death penalty also is

prohibited if the defendant was under 18

years of age at the time of the murder. A

-15-

determination as to that issue also is added

to the new section. References to this new

“Preliminary” section are added to Section

VI.

The statute provides that if the State

failed to present the requisite evidence and

had filed a notice under Code, Criminal Law

Article, §2-202 that it intended to seek the

death penalty, that notice is considered to

have been withdrawn, and it is deemed that

the State filed the proper notice under Code,

Criminal Law Article, §2-203 to seek a

sentence of life imprisonment without the

possibility of parole. Therefore, the last

sentence of section (i), which requires the

State to give §2-203 notice before Section

VII can be submitted to the jury, is deleted.

ALTERNATIVE #2

[Rule 4-343 - Bifurcated Sentencing

Proceeding]

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 300 - TRIAL AND SENTENCING

DELETE current Rule 4-343 and ADD new

Rule 4-343, as follows:

Rule 4-343. SENTENCING - BIFURCATED

PROCEDURE IN CAPITAL CASES

(a)

Applicability

This Rule applies when:

(1) a sentence of death is sought under

Code, Criminal Law Article, §2-303; and

-16-

(2) the defendant has been found guilty

of murder in the first degree, the State has

given the notice required under Code,

Criminal Law Article, §2-202 (a), and the

defendant may be subject to a sentence of

death.

(b) Statutory Sentencing Procedure;

Bifurcation of Proceeding

A sentencing proceeding, separate from

the proceeding at which the defendant's guilt

was adjudicated, shall be conducted as soon

as practicable after the trial pursuant to

the provisions of Code, Criminal Law Article,

§2-303 and this Rule. Upon recordation of

the verdicts returned by the jury or judge,

the court shall bifurcate the sentencing

proceeding into two phases. A Phase I

Findings form required by section (h) of this

Rule and, if necessary, a separate Phase II

Findings and Sentencing Determination form

required by section (i) of this Rule shall be

completed with respect to each death for

which the defendant is subject to a sentence

of death.

(c) Presentence Disclosures by the State's

Attorney

If not previously disclosed pursuant

to Rule 4-263, the State’s Attorney shall

disclose to the defendant or counsel,

sufficiently in advance of Phase I of the

sentencing proceeding to afford the defendant

a reasonable opportunity to investigate, any

information that the State expects to present

to the court or jury for consideration in

sentencing. Upon request by the defendant,

the court may postpone the sentencing

proceeding if the court finds that the

defendant reasonably needs additional time to

investigate the State’s disclosure.

(d)

Reports of Defendant's Experts

Upon request by the State after the

defendant has been found guilty of murder in

the first degree, the defendant shall produce

and permit the State to inspect and copy all

written reports made in connection with the

-17-

action by each expert the defendant expects

to call as a witness at the sentencing

proceeding, including the results of any

physical or mental examination, scientific

test, experiment, or comparison, and shall

furnish to the State the substance of any

such oral report or conclusion. The

defendant shall provide this information to

the State sufficiently in advance of Phase I

of the sentencing proceeding to afford the

State a reasonable opportunity to investigate

the information. Upon request by the State,

if the court finds that the information was

not timely provided, the court may postpone

sentencing.

(e)

Judge

Except as provided in Rule 4-361, the

judge who presided at trial shall preside at

both phases of the sentencing proceeding.

(f) Notice and Right of Victim's

Representative to Address the Court or Jury

(1)

Notice and Determination

Notice to a victim's representative

of proceedings under this Rule is governed by

Code, Criminal Procedure Article, §11-104

(e). The court shall assure that the

requirements of that section have been

satisfied.

(2)

Right to Address the Court or Jury

The right of a victim's

representative to address the court or jury

during a sentencing proceeding under this

Rule is governed by Code, Criminal Procedure

Article, §§11-403 and 11-404. Any exercise

of that right shall occur during Phase II of

the sentencing proceeding.

Committee note: Code, Criminal Procedure

Article, §11-404 permits the court (1) to

hold a hearing outside the presence of the

jury to determine whether a victim's

representative may present an oral statement

to the jury and (2) to limit any unduly

prejudicial portion of the proposed

-18-

statement. See Payne v. Tennessee, 501 U.S.

808 (1991), generally permitting the family

members of a victim to provide information

concerning the individuality of the victim

and the impact of the crime on the victim's

survivors to the extent that the presentation

does not offend the Due Process Clause of the

Fourteenth Amendment, but leaving undisturbed

a prohibition against information concerning

the family member's characterization of and

opinions about the crime, the defendant, and

the appropriate sentence.

Cross reference: See Code, Criminal

Procedure Article, §§11-103 (b), 11-403 (e),

and 11-404 (c) concerning the right of a

victim's representative to file an

application for leave to appeal under certain

circumstances.

(g)

Allocution

Before sentence is determined, the

court shall afford the defendant the

opportunity, personally and through counsel,

to make a statement, and shall afford the

State the opportunity to respond. If the

defendant elects to allocute during the

sentencing proceeding, the statements and

response shall be made during Phase II of

that proceeding.

Committee note: A defendant who elects to

allocute may do so before or after the

State's rebuttal closing argument. If

allocution occurs after the State's rebuttal

closing argument, the State may respond to

the allocution.

(h)

Phase I of Sentencing Proceeding

(1)

Issues

In Phase I of the Sentencing

proceeding, only the following issues, to the

extent that they are raised and remain for

determination, shall be presented to the

sentencing jury or judge for determination by

special verdict:

(A) whether at the time of the murder

-19-

the defendant was 18 years of age or older;

(B) whether at the time of the murder

the defendant was not mentally retarded, as

defined in Code, Criminal Law Article,

§2-202 (b);

(C) whether the State has presented to

the jury or judge, sitting as the trier of

fact at the trial on guilt or innocence or at

the sentencing proceeding, biological

evidence or DNA evidence that links the

defendant to the act of murder;

(D) whether the State has presented to

the jury or judge, sitting as the trier of

fact at the trial on guilt or innocence or at

the sentencing proceeding, a videotaped,

voluntary interrogation and confession of the

defendant to the murder;

(E) whether the State has presented to

the jury or judge, sitting as the trier of

fact at the trial on guilt or innocence or at

the sentencing proceeding, a video recording

that conclusively links the defendant to the

murder;

(F) whether the State, at the trial on

guilt or innocence or at the sentencing

proceeding, has relied solely on evidence

provided by eyewitnesses;

(G) whether the defendant was a

principal in the first degree to the murder;

(H) whether the defendant engaged or

employed another person to commit the murder

and the murder was committed under an

agreement or contract for remuneration or the

promise of remuneration; and

(I) Whether the victim was a law

enforcement officer who, while in the

performance of the officer’s duties, was

murdered by one or more persons, and the

defendant was a principal in the second

degree who: (i) willfully, deliberately, and

with premeditation intended the death of the

law enforcement officer; (ii) was a major

participant in the murder; and (iii) was

-20-

actually present at the time and place of the

murder.

(2)

Evidence, Instructions, and Argument

The court shall limit evidence,

instructions, and argument in the Phase I

proceeding to the issues submitted under

subsection (h)(1) of this Rule.

(3)

Findings and Determinations

The findings and determinations of

the jury or judge in the Phase I proceeding

shall be made in the following form, except

that the requirement of unanimity applies

only if the issues are submitted to a jury:

(CAPTION)

PHASE I FINDINGS

VICTIM: [Name of murder victim]

Section I

Based upon the evidence, we unanimously find that each of

the following statements marked “proved” has been proved BEYOND A

REASONABLE DOUBT and that each of those statements marked “not

proved” has not been proved BEYOND A REASONABLE DOUBT.

1. At the time of the murder, the defendant was 18 years of

age or older.

______

proved

2.

______

not

proved

The State has produced biological evidence or DNA

evidence that links the defendant to the act of murder.

______

proved

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______

not

proved

3.

The State has produced a videotaped, voluntary

interrogation and confession of the defendant to the murder.

______

proved

4.

______

not

proved

The State has produced a video recording that

conclusively links the defendant to the murder.

______

proved

5.

______

not

proved

The State has not relied solely on evidence provided by

eyewitnesses.

______

proved

6.

______

not

proved

The defendant was a principal in the first degree to the

murder.

______

proved

7.

______

not

proved

The defendant engaged or employed another person to

commit the murder and the murder was committed under an agreement

or contract for remuneration or the promise of remuneration.

______

proved

8.

______

not

proved

The victim was a law enforcement officer who, while in

the performance of the officer's duties, was murdered by one or

more persons, and the defendant was a principal in the second

degree who: (A) willfully, deliberately, and with premeditation

intended the death of the law enforcement officer; (B) was a

-22-

major participant in the murder; and (C) was actually present at

the time and place of the murder.

______

proved

______

not

proved

Section II

Based upon the evidence, we unanimously find that the

following statement, if marked “proved, has been proved BY A

PREPONDERANCE OF THE EVIDENCE or that, if marked “not proved,” it

has not been proved BY A PREPONDERANCE OF THE EVIDENCE:

9.

At the time of the murder, the defendant was mentally

retarded as defined in Code, Criminal Law Article, §2-202 (b).

______

proved

______

not

proved

____________________________

Foreperson

____________________________

Juror 7

____________________________

Juror 2

____________________________

Juror 8

____________________________

Juror 3

____________________________

Juror 9

____________________________

Juror 4

____________________________

Juror 10

____________________________

Juror 5

____________________________

Juror 11

____________________________

Juror 6

____________________________

Juror 12

or,

____________________________

JUDGE

-23-

(4)

Entry of Findings

If the Phase I findings were made by a jury, the written

findings shall be returned to the court and entered as special

verdicts.

If the findings were made by a judge, they shall be

entered in the record.

(i) Phase II of Sentencing Proceeding

(1)

Findings and Sentencing Determinations

(A) In Phase II, subject to the deletions permitted or

required by section (j) of this Rule, the sentencing jury or

judge shall complete the entire Phase II Findings and Sentencing

Determination form set forth in this section if on the Phase I

Findings form:

(i) the statement numbered 1, if submitted to the

sentencing authority, was marked “proved;”

(ii) at least one of the statements numbered 2, 3, or 4

was marked “proved;”

(iii) the statement numbered 5 was marked “proved;”

(iv) at least one of the statements numbered 6, 7, or 8

was marked “proved;” and

(v) the statement numbered 9, if answered, was marked

“not proved.”

(B) In all other cases, if the judge is the sentencing

authority, the judge shall enter a sentence of “Imprisonment for

Life” and determine whether the imprisonment shall be without the

possibility of parole.

If the jury is the sentencing authority,

the judge shall instruct the jury to enter a sentence of

-24-

“Imprisonment for Life,” and to complete only Section V of the

Findings and Sentencing Determination form.

(2)

Form of Written Phase II Findings and Determinations

Except as otherwise provided in section (j) of this

Rule, the Phase II findings and determinations shall be made in

writing in the following form:

(CAPTION)

PHASE II

FINDINGS AND SENTENCING DETERMINATION

VICTIM:

[Name of murder victim]

Section I

(Aggravating Circumstances)

Based upon the evidence, we unanimously find that each of

the following aggravating circumstances that is marked "proved"

has been proved BEYOND A REASONABLE DOUBT and we unanimously find

that each of the aggravating circumstances marked "not proved"

has not been proved BEYOND A REASONABLE DOUBT.

1. The victim was a law enforcement officer who, while in the

performance of the officer's duties, was murdered by one or more

persons.

______

proved

______

not

proved

2. The defendant committed the murder at a time when confined

in a correctional facility.

______

proved

-25-

______

not

proved

3. The defendant committed the murder in furtherance of an

escape from or an attempt to escape from or evade the lawful

custody, arrest, or detention of or by an officer or guard of a

correctional facility or by a law enforcement officer.

______

proved

______

not

proved

4. The victim was taken or attempted to be taken in the

course of a kidnapping or abduction or an attempt to kidnap or

abduct.

______

proved

______

not

proved

5. The victim was a child abducted in violation of Code,

Criminal Law Article, §3-503 (a)(1).

______

proved

______

not

proved

6. The defendant committed the murder under an agreement or

contract for remuneration or the promise of remuneration to

commit the murder.

______

proved

______

not

proved

7. The defendant engaged or employed another person to commit

the murder and the murder was committed under an agreement or

contract for remuneration or the promise of remuneration.

______

proved

-26-

______

not

proved

8. At the time of the murder, the defendant was under the

sentence of death or imprisonment for life.

______

proved

______

not

proved

9. The defendant committed more than one offense of murder in

the first degree arising out of the same incident.

______

proved

______

not

proved

10. The defendant committed the murder while committing or

attempting to commit a carjacking, armed carjacking, robbery,

under Code, Criminal Law Article, §3-402 or §3-403, arson in the

first degree, rape in the first degree, or sexual offense in the

first degree.

______

proved

______

not

proved

(If one or more of the above are marked "proved," complete

Section II.)

(If all of the above are marked "not proved," do not complete

Sections II and III but proceed to Section IV, enter

"Imprisonment for Life," and complete Section V)

Section II

(Mitigating Circumstances)

From our consideration of the facts and circumstances of

this case, we make the following determinations as to mitigating

circumstances:

1. The defendant has not previously (i) been found guilty of

-27-

a crime of violence; (ii) entered a plea of guilty or nolo

contendere to a charge of a crime of violence; or (iii) been

granted probation before judgment for a crime of violence.

(As used in the preceding paragraph, "crime of violence"

means abduction, arson in the first degree, carjacking, armed

carjacking, escape in the first degree, kidnapping, mayhem,

murder, robbery under Code, Criminal Law Article,

§3-402 or §3-403, rape in the first or second degree, sexual

offense in the first or second degree, manslaughter other than

involuntary manslaughter, an attempt to commit any of these

offenses, or the use of a handgun in the commission of a felony

or another crime of violence.)

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

2. The victim was a participant in the defendant's conduct or

consented to the act which caused the victim's death.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

-28-

likely than not that the above circumstance exists.

3. The defendant acted under substantial duress, domination,

or provocation of another person, even though not so substantial

as to constitute a complete defense to the prosecution.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, that it is more likely

than not that the above circumstance exists.

4. The murder was committed while the capacity of the

defendant to appreciate the criminality of his or her conduct or

to conform his or her conduct to the requirements of law was

substantially impaired as a result of mental incapacity, mental

disorder, or emotional disturbance.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

-29-

likely than not that the above circumstance exists.

5. The defendant was of a youthful age at the time of the

murder.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

6. The act of the defendant was not the sole proximate cause

of the victim's death.

(Mark only one.)

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

7. It is unlikely that the defendant will engage in further

criminal activity that would constitute a continuing threat to

society.

(Mark only one.)

-30-

[ ] (a) We unanimously find that it is more likely than not

that the above circumstance exists.

[ ] (b) We unanimously find that it is more likely than not

that the above circumstance does not exist.

[ ] (c) After a reasonable period of deliberation, one or more

of us, but fewer than all 12, find that it is more

likely than not that the above circumstance exists.

8. (a) We unanimously find that it is more likely than not

that the following additional mitigating circumstances exist:

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

(Use reverse side if necessary)

(b) One or more of us, but fewer than all 12, find that it is

more likely than not that the following additional mitigating

circumstances exist:

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

(Use reverse side if necessary)

(If the jury unanimously determines in Section II that no

mitigating circumstances exist, do not complete Section III.

Proceed to Section IV and enter "Death." If the jury or any

juror determines that one or more mitigating circumstances exist,

complete Section III.)

-31-

Section III

(Weighing of Aggravating and Mitigating Circumstances)

Each individual juror has weighed the aggravating

circumstances found unanimously to exist against any mitigating

circumstances found unanimously to exist, as well as against any

mitigating circumstance found by that individual juror to exist.

We unanimously find that the State has proved BY A

PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances

marked "proved" in Section I outweigh the mitigating

circumstances in Section II.

______

yes

______

no

Section IV

(Determination of Sentence of Death or Imprisonment for Life)

Enter the determination of sentence either "Imprisonment for

Life" or "Death" according to the following instructions:

1. If, based upon the special verdicts entered in Phase I,

the court finds or instructs the jury to enter “Imprisonment for

Life,” enter “Imprisonment for Life.”

2. If all of the answers in Section I are marked "not

proved," enter "Imprisonment for Life."

3. If Section II was completed and the judge, if sitting as

the sentencing body, or the jury unanimously determined that no

mitigating circumstance exists, enter "Death."

4. If Section III was completed and marked "no," enter

"Imprisonment for Life."

-32-

5. If Section III was completed and marked "yes," enter

"Death."

We unanimously determine the sentence to be ____________________.

Section V

(Parole Eligibility)

If "Imprisonment for Life" is entered in Section IV or

if the judge has instructed you that the defendant’s sentence is

determined to be “Imprisonment for Life,” answer the following

question:

Based upon the evidence, does the jury unanimously determine

that the sentence of imprisonment for life shall be without the

possibility of parole?

______

yes

____________________________

______

no

____________________________

Foreperson

Juror 7

____________________________

____________________________

Juror 2

Juror 8

____________________________

____________________________

Juror 3

Juror 9

____________________________

____________________________

Juror 4

Juror 10

____________________________

____________________________

Juror 5

Juror 11

-33-

____________________________

____________________________

Juror 6

Juror 12

or,

____________________________

JUDGE

(j)

Deletions from Phase II Form

Unless the defendant requests otherwise, Section II of the

Phase II form shall not include any aggravating circumstance that

the State has not specified in the notice required under Code,

Criminal Law Article, §2-202 (a) of its intention to seek a

sentence of death.

Committee note: Omission of some aggravating circumstances from

the form is not intended to preclude argument by the defendant

concerning the absence of those circumstances.

(k)

Advice of the Judge

At the time of imposing a sentence of death, the judge

shall advise the defendant that the determination of guilt and

the sentence will be reviewed automatically by the Court of

Appeals, and that the sentence will be stayed pending that

review.

At the time of imposing a sentence of imprisonment for

life, the court shall cause the defendant to be advised in

accordance with Rule 4-342 (i).

Cross reference:

(l)

Rule 8-306.

Report of Judge

After sentence is imposed, the judge promptly

shall prepare and send to the parties a report in the following

form:

-34-

(CAPTION)

REPORT OF TRIAL JUDGE

I. Data Concerning Defendant

A. Date of Birth

B. Sex

C. Race

D. Address

E. Length of Time in Community

F. Reputation in Community

G. Family Situation and Background

1.

Situation at time of offense (describe defendant's

living situation including marital status and number

and age of children)

2.

Family history (describe family history including

pertinent data about parents and siblings)

H. Education

I. Work Record

J. Prior Criminal Record and Institutional History (list any

prior convictions, disposition, and periods of

incarceration)

K. Military History

L. Pertinent Physical or Mental Characteristics or History

M. Other Significant Data About Defendant

II.

Data Concerning Offense

A. Briefly describe facts of offense (include time, place,

-35-

and manner of death; weapon, if any; other participants

and nature of participation)

B. Was there any evidence that the defendant was impaired by

alcohol or drugs at the time of the offense? If so

describe.

C. Did the defendant know the victim prior to the offense?

Yes

.......

No

.......

1. If so, describe relationship.

2. Did the prior relationship in any way precipitate the

offense? If so, explain.

D. Did the victim's behavior in any way provoke the offense?

If so, explain.

E. Data Concerning Victim

1. Name

2. Date of Birth

3. Sex

4. Race

5. Length of time in community

6. Reputation in community

F. Any Other Significant Data About Offense

III.

A. Plea Entered by Defendant:

Not guilty

.......; guilty .......; not criminally

responsible .......

B. Mode of Trial:

Court

..... Jury

.....

If there was a jury trial, did defendant challenge the

-36-

jury selection or composition? If so, explain.

C. Counsel

1. Name

2. Address

3. Appointed or retained

(If more than one attorney represented defendant,

provide data on each and include stage of proceeding

at which the representation was furnished.)

D. Pre-Trial Publicity - Did defendant request a mistrial

or a change of venue on the basis of publicity? If so,

explain.

Attach copies of any motions made and exhibits

filed.

E. Was defendant charged with other offenses arising out of

the same incident? If so, list charges; state whether

they were tried at same proceeding, and give

disposition.

IV. Data Concerning Sentencing Proceeding

A. List aggravating circumstance(s) upon which State relied

in the pretrial notice.

B. Was the proceeding conducted

before same judge as trial?

.......

before same jury?

.......

If the sentencing proceeding was conducted before a jury

other than the trial jury, did the defendant challenge the

selection or composition of the jury?

If so, explain.

C. Counsel - If counsel at sentencing was different from

-37-

trial counsel, give information requested in III C above.

D. Which aggravating and mitigating circumstances were raised

by the evidence?

E. On which aggravating and mitigating circumstances were the

jury instructed?

F. Sentence imposed:

Imprisonment for life

Death

Imprisonment for life without

the possibility of parole

V. Chronology

Date of Offense

Arrest

Charge

Notification of intention to seek penalty of death

Trial (guilt/innocence) - began and ended

Post-trial Motions Disposed of

Sentencing Proceeding - began and ended

Sentence Imposed

VI.

Recommendation of Trial Court As To Whether Imposition of

Sentence of Death is Justified.

VII. A copy of the Findings and Sentencing Determination made in

this action is attached to and made a part of this report.

......................................

Judge

-38-

CERTIFICATION

I certify that on the ...... day of ..............., ......,

(month)

(year)

I sent copies of this report to counsel for the parties for

comment and have attached any comments made by them to this

report.

......................................

Judge

Within five days after receipt of the report, the parties

may submit to the judge written comments concerning the factual

accuracy of the report.

The judge promptly shall file with the

clerk of the trial court and with the Clerk of the Court of

Appeals the report in final form, noting any changes made,

together with any comments of the parties.

Committee note: The report of the judge is filed whenever a

sentence of death is sought, regardless of the sentence imposed.

Source: This Rule is derived in part from the 2008 version of

former Rule 4-343 and is in part new.

Rule 4-343 was accompanied by the following Reporter’s Note.

The proposed revision of Rule 4-343

provides for a bifurcated sentencing

procedure in capital cases.

In Phase I, the sentencing jury or judge

makes the findings necessary to determine

whether the technical requirements of

eligibility for the death penalty have been

met.

In Phase II, the sentencing jury or

judge finds and weighs aggravating and

mitigating circumstances and determines

whether the sentence is for “imprisonment for

life” or “death.” Also in Phase II, if

-39-

“imprisonment for life” is the sentence,

whether as a result of the Phase I

determinations or as a result of the Phase II

process, the sentencing jury or judge then

determines whether “imprisonment for life” is

with or without the possibility of parole.

Mr. Karceski explained that the proposed changes to the two

versions of Rule 4-343 are as a result of Chapter 186, Laws of

2009 (SB 279).

The Rule was discussed at the May, 2009 Rules

Committee meeting.

The bill restricts the death penalty to

situations where the State is able to present biological evidence

or DNA evidence that links the defendant to the act of murder; a

videotaped, voluntary interrogation and confession of the

defendant to the murder; or a video recording that conclusively

links the defendant to the murder.

The bill also prohibits the

State from seeking the death penalty in situations where the

State relies solely on evidence provided by eyewitness testimony.

Mr. Karceski observed that there are two ways that the

Subcommittee has approached conforming the Rule to the statute.

One is Alternative #1, which amends current Rule 4-343.

second, Alternative #2, bifurcates the process.

adds a new section (h) to the current Rule.

The

Alternative #1

It also adds a new

paragraph to Section VI of the Rule and deletes a portion of

section (i).

In a general sense, for the death penalty to apply,

there has to be a first degree murder, and a principal in the

first degree.

Code, Criminal Law Article, §2-303 provides an

exception to this.

The State has to present one of the three

forms of evidence listed in the statute.

-40-

The death penalty is

not available if the State relies solely on eyewitness testimony.

Mr. Karceski said that the changes begin at section (h),

because this is the point at which there will or will not be a

death penalty case.

Section (h) requires that one of the three

elements listed in the statute must be proved beyond a reasonable

doubt.

If the jury finds that any of these elements has not been

proved beyond a reasonable doubt, the jury is instructed to go to

Section VI of the form.

There is an entry of “imprisonment for

life,” because the death penalty is not available.

The jury

would then determine whether the sentence would be “imprisonment

for life” or “imprisonment for life without parole.”

If one of

the three elements is proved, then the jury goes to Statements 4.

and 5., which are on page 2 of the Rule.

Those issues are

whether the defendant is 18 years of age or older and whether the

State has relied solely on eyewitness identification.

If

Statements 4. and 5. are proved, then the jury is directed to

Section I.

If either Statements 4. or 5. are not proved, then

the jury is directed to Section VI.

Mr. Karceski continued that in most of the statements that

are to be considered, the proof must be beyond a reasonable

doubt.

In Section I, there are three issues for the jury to

consider, and all must be proved beyond a reasonable doubt.

These are: (1) the defendant was a principal in the first degree,

(2) the defendant engaged or employed another person to commit

the murder, which was committed under an agreement or contract

for remuneration or the promise of remuneration, and (3) the

-41-

victim was a law enforcement officer.

These issues have not

changed from the original Rule that was in place prior to the

passage of SB 279.

Mr. Karceski commented that if one or more of the issues in

Section I are proved beyond a reasonable doubt, then the jury is

directed to Section II.

issues at one time.

The jury is deliberating all of these

There is no bifurcation.

They are given all

of the issues to determine at once, and they are given a list of

how to proceed from step to step.

If any of the issues in

Section I are proved, the jury moves on to Section II; if the

issues are not proved, the jury would be directed to go to

Section VI and to enter a sentence of “imprisonment for life.”

Mr. Karceski noted that Section II is the issue of whether

it has been proved by a preponderance of the evidence that the

defendant is mentally retarded.

to Section VI.

Section III.

If that is proved, the jury goes

If it is not proved, then the jury is directed to

Sections III and VI are the aggravating

circumstances and the mitigating circumstances that the jury will

next consider if they have gotten this far.

There is a list of

10 aggravating circumstances any of which must be proved beyond a

reasonable doubt.

Only one of those must be proved, and if so,

then the jury goes to Section IV and considers the mitigating

circumstances.

If the jury finds that the evidence is

insufficient to prove any one of the aggravators, then the jury

goes to Section VI.

If none of the mitigating circumstances are

found, the jury goes to Section VI and enters a sentence of

-42-

death.

If one or more mitigators are found, the jury moves to

Section V.

There is a weighing process, and the jury determines

by a preponderance of the evidence whether the aggravating

factors outweigh the mitigating factors.

or “no.”

The jury answers “yes”

If the aggravators do not outweigh the mitigators, then

the jury goes to Section VI, and there is a determination as to

whether there should be a sentence of imprisonment for life or

death.

Mr. Karceski stated that Section VI has a listing of the

statements previously discussed in section (a), which reads as

follows: “If Statements 1., 2., and 3. in the ‘Preliminary’

Section are all marked ‘not proved,’ enter ‘Imprisonment for

Life.’”

The first three Statements have been added to the Rule

based on SB 279.

The jury will consider each Statement depending

on what they have or have not found in Section VI, and they will

make a unanimous finding.

If the sentence that was determined by

the jury is life imprisonment rather than death, in Section VII,

the jury then decides whether the period is life or life without

the possibility of parole.

Mr. Karceski observed that Alternative #1 uses the existing

Rule as a template, and additions to that Rule are made to

incorporate the new legislation.

At the end of Alternative #1,

section (i) has language deleted at the end.

Judge Norton

pointed out that on page 2, it may be more logical to move

Statements 4. and 5. to the beginning as Statements 1. and 2.

If

it is found that the State relied solely on eyewitness testimony,

-43-

why is it necessary to consider the other issues?

If the

defendant is not of the required age, why does the jury need to

determine the other issues?

If the jury finds that those

criteria are met, then the issues in the second tier can be

considered.

Mr. Karceski agreed that this was a good suggestion.

On

page 1, the Rule provides that only the issues that remain are

submitted to the jury.

They do not get all of the items listed

in the Rule if the issues have not been raised.

The issue of

eyewitness testimony will take as much discussion as Statements

1., 2., or 3.

If Statement 4. becomes an issue, it should be

relatively easier to address.

It may be better to number it

Statement 1. and move Statement 1. to 2., etc.

Judge Norton’s

comment indicates that it takes a long time to discuss Statements

1., 2., and 3. and come to a conclusion, whichever one may be

before the jury.

Judge Norton explained that his point was that

if the jury determines Statement 5., that would answer Statements

1., 2., and 3.

The Chair said that the problem is that there may be an

ambiguity in Statement 5.

He was not sure whether the State’s

reliance solely on eyewitness testimony also applies to the

sentencing proceeding.

If the State has not relied solely on

eyewitness testimony at a trial on guilt or innocence, but relies

on it to show principalship or something else at a sentencing

proceeding, does this erase the possibility of the death penalty?

Mr. Patterson noted that the ambiguity would exist whether

-44-

at the end or at the beginning of the trial.

issue that has to be resolved by the jury.

It still is an

Judge Norton’s point

is that if the jury is going to resolve that ambiguity by holding

that the only evidence relied on by the State was eyewitness

identification, therefore under the statute that answers

everything that follows, why not resolve the ambiguity up front

as opposed to having to go through all of the other issues?

It

is a threshold question, and it must be decided at some point.

The determination should be made early, and then the case can

move on.

Judge Norton acknowledged that Mr. Cassilly was saying

that some of the other issues may be clearer or quicker to

discern particularly if the issue is tangential.

The Vice Chair noted that one of the two alternatives

addresses the issue regarding evidence in the sentencing

proceeding.

The Chair responded that both alternatives do this.

The Vice Chair inquired whether the Committee should decide

whether to choose Alternative #1 or #2.

The Chair answered that

the Committee is not being asked to decide which of the two

alternatives are to be presented to the Court of Appeals.

His

understanding was that the bifurcated proceeding may be the

better way to address conforming the Rule to the statute, but

that decision is up to the Court.

The Committee would send up

the two versions of the Rule as alternatives.

Alternative #1 is

all that is necessary to satisfy the statute, but Alternative #2

is the more rational way to deal with the problem.

will not recommend one or the other.

-45-

The Committee

Mr. Karceski pointed out

that the State’s Attorneys favor Alternative #1, and the Office

of the Public Defender favors Alternative #2.

Mr. Shellenberger, the State’s Attorney for Baltimore

County, said that at the Subcommittee meeting, he had noted that

Alternative #1 was preferred by the State’s Attorneys.

If one

adjustment is made to Alternative #2, he would be more

comfortable with that version of the Rule.

The case law, which

is set out in Hunt v. State, 321 Md. 387 (1990), is that

sentences cannot be bifurcated.

could order bifurcation.

By rule, the Court of Appeals

The problem with Alternative #2 is that

it streamlines the five issues that would save time in sentencing

proceedings, but it adds a sixth issue, whether the defendant is

mentally retarded, that does not streamline the proceedings.

In

Alternative #2, mental retardation could be moved to what used to

be Section I but is now Section II.

Mr. Shellenberger noted that the issues of DNA evidence,

age, and eyewitness testimony can be resolved very quickly.

When

a prosecutor is at a death penalty sentencing, his or her first

statement to the judge is that the prosecutor incorporates the

entire trial.

The prosecutor can say anything at sentencing that

was already stated at trial.

The prosecutor probably would not

put on any more evidence than he or she had previously put on in

the actual trial.

However, the issue of mental retardation would

involve two experts for the defense and at least one expert for

the State.

If there is an issue of streamlining by adopting

-46-

bifurcation, it would be better to move the issue of mental

retardation out from the other issues.

debate that took three or four days.

This is a summary of a

He acknowledged the work of

the Subcommittee on drafting the two alternatives.

Mr. Karceski told Mr. Shellenberger that he had been helpful

when the two versions of the Rule were discussed.

Mr. Karceski

asked Mr. Shellenberger if the problem with the issue of mental

retardation is that it would take a long time to present.

Mr.

Shellenberger replied affirmatively, adding that there is no

point in having a two-week long sentencing hearing when there are

five or six threshold issues that the State must prove.

If it

fails to do so, the defendant’s background or history need not be

addressed.

Mr. Shellenberger said that if the purpose of bifurcation is

to streamline a death penalty sentencing hearing, the issue of

mental retardation does not help in the streamlining process.

is a subject that could take days and days to decide.

It

The

defense will have a psychologist, school records will be

considered, and there will probably be a social worker to discuss

the defendant’s background.

The State would have a right to have

the defendant examined, so the prosecutor would bring in his or

her expert to talk about whether it is an issue of mental

retardation or an issue of diminished capacity.

If mental

retardation is in the second phase, under mitigating

circumstances, the defense would get a second bite of the apple

to be able to include all of the same information to allege some

-47-

form of diminished capacity.

No time is being saved if the issue

of mental retardation remains where it is.

Mr. Karceski cited Mr. Shellenberger’s comment that he would

agree with Alternative #2 if the Rule were changed to move the

reference to the issue of the mental retardation of the

defendant.

Mr. Karceski asked Mr. Shellenberger if he would

prefer Alternative #2 if the suggested change were made.

Mr.

Shellenberger responded that he preferred Alternative #1, but if

he were pressed as to his opinion of Alternative #2, he would say

that as a prosecutor, the change in Alternative #2 is much

preferred, and it would save time for the jury.

Mr. Karceski asked if Mr. Shellenberger’s opinion was that

with or without Alternative #1, the change should be made.

Shellenberger answered affirmatively.

this was very helpful.

on this issue.

Mr.

Mr. Karceski said that

He asked Mr. Zavin if he had any opinions

Mr. Zavin replied that the Office of the Public

Defender, would support Alternative #2, which would streamline

the process.

This would include keeping in the first phase of

the Rule the issue of whether the defendant is mentally retarded.

If the State does not meet its burden, at that point in the case,

there is a very high likelihood of plea bargaining taking place.

In order to get a sentence of life without parole, the State

would have to go before a jury.

If, at the end of Phase I, any

of those five questions are not answered “yes,” in addition to

the issue of mental retardation, there may not be a need to go to

the next phase of trial.

-48-

The Chair clarified that the defense has the burden of

proving mental retardation.

The defense would have to prove by a

preponderance of the evidence that the defendant was mentally

retarded.

He asked Mr. Zavin if he objected to moving the issue

of mental retardation out of Phase I and putting it into Phase

II.

Mr. Zavin answered that his office believes that all of

these issues should be in Phase I of the trial.

However, having

this in Phase II is better than the first alternative.

Mr.

Karceski noted that the underlying purpose of the bifurcation is

to try to end this process earlier rather than later when

possible.

The mental retardation issue is kept in the first

section.

Whenever it becomes an issue, it is going to delay the

trial.

The Chair questioned whether anyone had an opinion about

moving the issue of mental retardation to Phase II.

Mr. Karceski

suggested that this be discussed when this part of the Rule is

reached by the Committee.

Master Mahasa inquired whether the

term “mental retardation” is a Diagnostic and Statistical Manual

of Mental Disorders (“DSM”) diagnosis.

Mr. Karceski replied that

it is based on the DSM definition and on expert testimony,

including from psychiatrists, psychologists, and even lay

persons.

The experts may reference a disorder or disorders found

in the DSM.

Master Mahasa remarked that the law has adopted the

term “mental retardation.”

The Assistant Reporter noted that the

term has been changed by the legislature.

Chapter 119, Laws of

2009 (HB 20) changed the term “mental retardation” to

-49-

“intellectual disability” in some statutes.

The Vice Chair asked the meaning of the instruction on page

1 of Alternative #1 which read: “Submit the following only to the

extent these issues are presented and remain for determination by

the sentencing jury.”

Her understanding was that Statement 1.,

for example, is always presented.

The Chair explained that

either Statements 1., 2., or 3. can be presented, but not all of

the statements have to be presented.

Mr. Karceski added that one

of those three must exist, but the jury only considers those that

have been satisfactorily presented.

If DNA is not an issue in

the case, then this is not a subject for the jury to consider.

The Vice Chair questioned whether any issue not in the case

would be crossed off on the form.

Mr. Karceski answered that any

issue not in the case would not appear on the form that the jury

is given.

It is not a good idea to submit a form to the jury

that contains items that they should not consider.

Mr. Patterson

commented that the statement referred to by the Vice Chair is a

bracketed instruction to the court as to how the verdict sheet

should appear.

Mr. Karceski said that what the Vice Chair was

asking was whether all three of the statutory issues will appear

regardless of whether they are issues in the case.

The Vice

Chair observed that the form has been in the Rules for a long

time, and it has always been a form that it is submitted.

Part

of her question was whether the Rule is saying that this is not a

form and has to be altered for each case.

The Chair expressed the view that Statements 1., 2., and 3.

-50-

always have to be presented on the form, because unless one of

them is proved, that is the end of the death penalty as a

possible punishment.

Mr. Karceski asked if this will be sent to

the jury if there is no DNA evidence in the case.

Mr. Patterson

responded that it is stipulated that it would be “not proved,”

because there is no DNA analysis done.

The Chair noted that if the State stipulates, the judge

would instruct the jury to mark this issue “not proved.”

Mr.

Patterson inquired as to why it should even be on the form if it

does not exist.

If it was not even brought up or hinted at as

any part of the case, it is not an issue.

The Chair pointed out

that if this is the case, then there is no sentencing proceeding

at all.

The case would never get to Phase I or Phase II, because

the State is going to stipulate that it does not have Statements

1., 2., or 3.

Judge Hollander remarked that the State may be relying on a

confession, and she asked why the other two statements would have

to be on the form.

Mr. Patterson noted that if there is evidence

of Statements 2. and 3., or there is evidence of Statement 2. or

of Statement 3., that is what the jury has to decide -- whether

it is proved or not proved.

But if DNA evidence is not an issue,

the jury should not be confused by including it on the form.

The

Vice Chair questioned as to who decides what is or is not an

issue.

Mr. Karceski said that a scenario that is easy to understand

is if there is no confession in a case.

-51-

If the State has

nothing, why should it be submitted?

Some of the jurors may

think that there is a confession when one does not exist.

Mr.

Shellenberger stated that under the death penalty law, what is on

the form is whatever the defendant wants on it.

The defense

counsel will tell the judge that he or she does not want every

possible aggravator to be on the form, only the aggravator that

is an issue.

Some defense counsel will ask for all 12

aggravators on the form, so that if only one is proved, counsel

can make the point that his or her client is not so bad.

totally up to defense counsel to decide.

that he has seen this done both ways.

It is

Mr. Shellenberger added

The judge would tell the

jury that it is agreed that no confession exists, but there may

be an issue as to the other two grounds.

The judge would ask if

the defendant wants it on the form, and it is up to the defense.

It is purely trial strategy.

The Vice Chair commented that this issue exists throughout

the entire case, not just as to what is on the form.

Mr.

Shellenberger agreed, noting that case law holds that if there is

a statutory mitigator, defense counsel can ask that it be

included or not included, because counsel may not want the jury

to consider the long list of other mitigators where the jury is

marking “no.”

The Vice Chair asked whether defense counsel would

determine whether or not all five of the issues would go on the

form.

Mr. Shellenberger answered that it would be the first

three issues from which the defense would pick.

The Chair commented that it is not clear how this will play

-52-

out, because the statute has not yet taken effect.

Mr.

Shellenberger remarked that sometimes the State pre-marks the

form.

For instance, if there is no crime of violence, the

defense will ask that this be pre-marked, and the State will do

so, conceding that there are no prior convictions that qualify.

The Chair said that he would assume that with respect to

Statements 1., 2., and 3., they would be on the form, because one

of them has to be proved in order for the case to proceed.

If

counsel agree that the State has not produced Statements 1., 2.,

or 3., the judge would instruct the jury to mark those statements

“not proved.”

Mr. Shellenberger noted that one possibility is that the

jury would mark the form.

In death penalty law, if the defense

counsel or his or her client states that the defendant did not

want something that was on the form, the case would have to be

retried.

Mr. Karceski inquired whether the trial judge gives the

jury the form and instructs them to mark “not proved.”

The Chair

responded that this can be done if the parties agree.

Mr. Karceski remarked that it would not make sense to give

the jury the form and tell them to mark it “not proved.”

would be the function of the jury at that point?

What

It makes better

sense for the judge not to put it on the form or to give it to

the jury to let them decide on their own whether the element that

is before them exists.

If they had heard nothing about DNA or

biological evidence in the entire case, they would now have to

decide whether the State has proved it.

-53-

The language that reads:

“Submit only to the extent that the issues are presented and

remain” would solve this problem.

If there is nothing about a

confession in the case, why would this issue be submitted to the

jury?

Mr. Klein commented that from the perspective of a noncriminal law practitioner, Section VI of the document, which ties

back to the “Preliminary” section, is extraordinarily

complicated.

If something is deleted from the “Preliminary”

section, it would require editing of Section VI.

Mr. Karceski

responded that it is not that difficult to edit Section VI.

said that Mr. Klein’s point is valid.

He

The Committee has to

decide whether this proposal goes to the jury to the full extent,

or whether the trial judge is to redact or delete any of the

statements or provisions.

Is there a middle ground, so that the

court can say to the jury that there has been a stipulation?

If

there is no stipulation, that is where the problem arises.

Mr. Klein suggested that instead of the language, “Submit

the following only...,” the Rule could provide that if they are

not issues, the parties should stipulate that they should be premarked.

The Vice Chair pointed out that this concept is true

throughout the entire form.

section.

It does not apply only to this

Would deleting the language that begins with “Submit

the following” cause problems?

Mr. Klein reiterated that as soon

as something is taken out of the “Preliminary” section, Section

VI must be edited.

The Vice Chair noted that Section VI assumes

that all of the statements are on the form.

-54-

She explained that

she was not suggesting that any of the statements on the form be

deleted.

Her suggestion is to delete the instruction to the

trial judge, which is in the brackets after the word

“Preliminary.”

Judge Hollander referred to Statement 5., which reads: “The

State has not relied solely on evidence provided by

eyewitnesses.”

She asked if this is duplicative, because

depending on the answers to Statements 1., 2., and 3., the answer

is already known.

The Chair explained that this is one of the

ambiguities in the statute.

one time.

Statements 1., 2., and 3. came in at

Mr. Shellenberger added that Statement 5. came in

first as amended, and then Statements 1., 2., and 3. came in as a

second amendment.

the same.

Judge Hollander questioned whether they are

Mr. Shellenberger replied that they are the same.

Judge Hollander expressed the view that this is confusing.

Her concern was that a jury would answer “proved” to Statements

1., 2., and 3. and answer “not proved” to Statement 5.

Mr.

Shellenberger said that the Rule should not change what the

legislature has done, or the case will have to be retried.

Judge Hollander inquired whether Statement 5. is unnecessary.

Mr. Shellenberger responded that it is unnecessary, but the

legislature felt that it was important.

Logistically, Statement

5. was the first amendment offered by one senator, and Statements

1., 2., and 3. came in on a second amendment offered by another

senator.

Judge Hollander said that she thought that they were

the same issue.

If Statements 1., or 2., or 3. have been proven,

-55-

Statement 5. has been answered.

The Chair said that if this is not put on the form, there

will be an appellate issue.

The Vice Chair hypothesized that the

jury has just been told that they have to mark the form, and the

burden of proof is beyond a reasonable doubt.

How does the jury

figure out that a video recording that conclusively links the

defendant to the murder has been proven beyond a reasonable

doubt?

Mr. Shellenberger responded that the arguments of counsel

will be that the surveillance camera is not conclusive enough.

He has a case now where the person videotaped looks like the

defendant, but a jury could find that it is someone else.

The

arguments of counsel will go around those “weasel” words, such as

“conclusively” and “solely.”

Does the victim’s blood found on

the defendant “link” the defendant to the crime?

The Vice Chair

pointed out that in Statement 1., the word “conclusively” was not

put before the word “links” as in Statement 3.

noted that the Rule tracks the statute.

Mr. Shellenberger

The Chair added that the

statute was not well-drafted.

Mr. Patterson told the Committee that he had previously

served on Judge Raker’s Criminal Pattern Jury Instruction

Committee for a long time.

He asked about the juxtaposition

between the rule that is ultimately adopted by the Court of

Appeals and the jury instruction.

When Judge Raker’s committee

forms the actual instruction, it goes into the book that the

judges use.

Often the instructions come with notes on their use.

-56-

It sounds as if the Rules Committee is arguing the same thing as

far as instructions on the Rule as opposed to what comes from

Judge Raker’s committee.

He explained that his question is a

result of the fact that he is fairly new to the Rules Committee.

Is the function of the Rules Committee to come up with a rule

that tracks the statute, so that the statute is implemented by

rule?

As far as the nuances, is the fact that everything is in

there a function of the Jury Instruction Committee?

The Chair said that he had spoken with Judge Raker about

this, so that she can coordinate with what the Court of Appeals

ultimately does.

The sentencing form is in the Rule, but it is

not a matter of pattern jury instructions.

The Committee is

recommending an amendment to the Rule, either Alternative #1 or

Alternative #2.

Judge Raker understands that whatever the Court

does with the Rule, the Criminal Pattern Jury Instructions

Committee will have to fashion a jury instruction to conform to

the changes to the Rule.

Mr. Patterson questioned whether the bracketed instruction

on page 1 of Alternative #1 is a form issue or a jury

instructions issue.

The bracketed instruction reads as follows:

“Submit the following only to the extent these issues are

presented and remain for determination by the sentencing jury.”

The Vice Chair moved to delete the language in the brackets.

motion was seconded.

The

Mr. Karceski asked if the deletion of the

language would mean that all of the issues would be submitted to

the jury.

The Vice Chair responded that it would be worked out

-57-

by counsel.

Mr. Karceski inquired if there would be no judicial

intervention.

The Vice Chair responded that she was not certain

how it would be effected.

Whatever is done should be done to the

entire form.

Mr. Michael questioned whether, if the judge concludes as a

matter of law that an issue has not been proved, the form could

be pre-marked as “not proved.”

The Vice Chair expressed the

concern that the trial judge gets to determine whether or not

there is an issue.

Mr. Patterson said that some deference has to

be given to the comments by Mr. Shellenberger, because of the

experience that Baltimore County has in these types of cases

which may equal the rest of the State combined.

Based on

experience, what Mr. Shellenberger is saying is that defense

counsel can ask for the judge to not instruct on any of the

issues that do not apply.

The form can be changed, so that it

only has what needs to be proved or not proved.

It seems that

the Rule allows the court to be given the form that can be

expanded upon or limited as the need arises, by the parties

agreeing.

Is this the procedure in these cases?

Mr. Shellenberger answered that the form is modified by

agreement, by the judge making a determination, or by pre-marking

the form, which is done very often, particularly in the area of

no crimes of violence.

If the defense attorney tells the judge

that everyone agrees that the defendant has no other criminal

record, the form will be pre-marked upon the request of defense

counsel.

He agreed that the language being discussed does not

-58-

exist in any other part of the form, so by including it, it seems

to signal something that does not exist.

The Chair pointed out

that it is not necessary to have this language.

The Chair called for a vote on the motion to delete the

bracketed language.

The motion passed unanimously.

The Vice Chair asked if the issue of the order of the

Statements had been resolved.

Earlier in the discussion, Judge

Norton had suggested that Statements 4. and 5. should be moved to

become Statements 1. and 2.

The Vice Chair inquired as to the

meaning of the language after Statement 3. that reads:

“If one

or more of the above statements are marked ‘proved,’ proceed to

Statements 4. and 5.”

The Chair replied that the way the Rule is

structured now, if at least one of the items listed in Statements

1., 2., and 3. is not available, that is the end of the

applicability of the death penalty.

The Vice Chair questioned as to the result if the defendant

had been 16 years old at the time of the murder.

Judge Hollander

remarked that it is not necessary to consider Statements 4. and

5., if all of the first three Statements are not proved.

The

Chair explained that the reason that Statements 4. and 5. are

singular, is that if either one of them is marked “not proved,”

then there is no availability of the death penalty.

1., 2., and 3 are together.

Statements

There could be one not proved, two

not proved, or three proved.

The Vice Chair expressed the view that it makes sense to put

Statements 4. and 5. first, because they are much simpler issues.

-59-

Judge Hollander noted that Statement 4. is very simple, but she

was not sure about moving Statement 5. to the beginning, because

someone who is not familiar with eyewitness evidence may find it

to be a daunting task.

Answering Statements 1., 2., and 3. would

help someone figure out the answer to Statement 5.

Mr. Karceski suggested that Statement 4. should be moved to

the beginning as Statement 1.

The Reporter expressed the concern

that this may cause the addition of many more instructions in

terms of where to go next.

The Vice Chair said that if Statement

4. becomes Statement 1., then the instruction would be that if it

is marked “not proved,” what is now Statements 1., 2., and 3.

would be considered.

Judge Hollander expressed the view that

logically it would make sense to keep Statements 1., 2.,3., and

5. together.

The Reporter pointed out that Statements 1., 2., and 3. have

to stay together, because they are in the statutory list of

requirements that have to be met to apply the death penalty.

The

Vice Chair explained that Judge Hollander is suggesting that

Statement 5. would become Statement 4., and Statement 4. would

become Statement 1.

The Reporter said that Statements 1., 2.,

and 3. are in the same category.

The Chair commented that

another division would be needed if this change is made.

Judge

Norton remarked that he suggested that the Statements be moved to

save time, but if it is going to cause confusion, he would

withdraw his motion.

The person who seconded the motion agreed

to the withdrawal.

-60-

Mr. Patterson referred to the information in the parentheses

after Statement 3., which reads: “(If one or more of the above

Statements are marked ‘proved,’ proceed to Statements 4. and 5.

If Statements 1., 2., and 3. are all marked ‘not proved,’ proceed

to Section VI and enter ‘Imprisonment for Life’.”

this sounds like a pattern jury instruction.

He noted that

He suggested that

the language could be: “If the above Statements are not proved,

then the death penalty is not appropriate.”

The Chair pointed

out that the language in the parentheses is similar to the

language currently in the form.

Judge Raker will not have a

problem with this.

Mr. Karceski reiterated that the motion to move the

Statements has been withdrawn.

The Vice Chair referred to the

Reporter’s note at the end of Rule 4-343, Alternative #1, which

explained that the statute provides that if the State failed to

present the requisite evidence and had filed a notice that it

intended to seek the death penalty, the notice is considered to

have been withdrawn, and it is deemed that the State filed the

proper notice to seek a sentence of life imprisonment without the

possibility of parole.

She inquired as to what would the result

be if no notice had been filed.

The Chair answered that it would

never get to this point, because there can be no death sentence

hearing if no notice has been filed.

If the State does not give

the notice of its intent to seek the death penalty (which

includes in that notice each aggravating factor that it intends

to rely on), the case would never reach this point.

-61-

The Vice

Chair remarked that this is what the sentence used to say.

The Reporter observed that previously the State would have

to give a notice of intent to seek the death penalty and a notice

of intent to seek life imprisonment without the possibility of

parole.

The State could notify about either or both.

What the

new statute is saying is that the notice about life imprisonment

without the possibility of parole is included implicitly in the

notice of the death penalty.

If the death penalty is stricken

due to the way the jury has answered the questions in the form,

then the case proceeds to life imprisonment without parole even

if the State did not give that notice.

The Vice Chair said that

she thought that the point of this sentence was to say notice

must be given in the first place.

Mr. Shellenberger responded that there are two issues.

No

prosecutor is going to file the notice of intent to seek the

death penalty without filing the second notice of intent to seek

imprisonment for life without parole.

The statute provides that

in certain cases in which the State has filed a notice to seek a

sentence of death, the notice shall be considered withdrawn and

be considered to be a notice of intent to seek life imprisonment

without parole.

If the State does not prove one of the three

items listed in the statute, the statute automatically converts

the notice to imprisonment for life without the possibility of

parole.

The jury will always have to make a decision after they

enter the option of life imprisonment if it is with or without

the possibility of parole.

The Chair clarified that this is true

-62-

provided that the prosecutor filed the death notice.

The Vice Chair asked why the sentence that specifically

stated that if the State did not file the notice of intention to

seek the death penalty, Section VII shall not be submitted to the

jury was in the Rule before.

notices.

The Chair said that there are two

This sentence refers to the situation where the State

filed a notice of intention to seek the death penalty but did not

file the notice of intention to seek a sentence of life without

the possibility of parole.

Mr. Shellenberger added that it used

to be that if the jury could not decide whether the defendant

should get the death penalty, the jury would have to decide if

the defendant would be sentenced to life imprisonment.

There

were many cases before the sentence of life imprisonment without

parole was created.

Mr. Karceski told the Committee that Alternative #2 was the

bifurcated process of sentencing.

The Rule is new.

He referred

to the language in section (b) that reads: “Upon recordation of

the verdicts returned by the jury or judge, the court shall

bifurcate the sentencing proceeding into two phases.

A Phase I

Findings form required by section (h) of this Rule and, if

necessary, a separate Phase II Findings and Sentencing

Determination Form...”.

The procedure is similar to the one set

out in Alternative #1.

Phase I requires certain decisions to be

made by the jury or the judge, whichever is the trier of fact, as

to whether or not, if proved, the issue of the applicability of

the death penalty moves on to Phase II.

-63-

Counsel will, to the

extent that these are issues for consideration in Phase I

findings, be able to present evidence on and argue those issues,

and it limits the presentation of evidence to the least common

denominator.

The theory is that when this is done, and the jury

acts, it may end the process if certain issues are not proved as

they were required to be proved in Alternative #1.

Although the

Rule is new, sections (c) and (d) track the language of the

current Rule.

The Vice Chair inquired whether sections (c) and (d) are

exactly the same language as the current Rule.

Mr. Karceski

answered that they are not verbatim the same as the current Rule,

but the language is fairly close to the language of the current

Rule.

Except for the addition of the reference to “Phase I of

the sentencing proceeding,” sections (c) and (d) are the same as

the current Rule.

Mr. Karceski said that the Committee had previously

discussed the issues pertaining to the language of Phases I and

II.

To a large extent, what the Committee had discussed at the

last meeting related more to the prosecutor’s responsibility to

come forward and state whether there was sufficient evidence for

them to proceed.

The Subcommittee, at its last meeting,

discussed this and decided that this is a very complicated

process that may not move the case forward.

The State’s

Attorneys who were present at that meeting commented that if they

do not have a case, they would not choose to go forward,

considering all of the time, effort, and monies involved in

-64-

prosecuting it.

There was not a great deal of discussion as to

what is done in Phase I or in Phase II.

Issues raised in Phase I

in section (h) are similar to the issues discussed in Alternative

#1.

The issues are listed beginning with subsections (h)(1)(A)

through (h)(1)(I).

The Vice Chair inquired as to why the issues are in a

different order in Alternative #2.

The order of the issues in

Alternative #1 had been discussed at great length earlier in the

meeting.

The age of the defendant is listed first in this

version of the Rule.

The Reporter responded that at this point

in the proceedings, the case goes back to the judge who looks at

what the jury marked and decides what to do next.

On the form in

Alternative #1, the jury has to figure out what to do next; at

this point in the proceedings pursuant to Alternative #2, the

judge figures out what to do next.

Mr. Karceski said that he was

not sure why the sequence is different in Alternative #2.

The

Chair pointed out that in Alternative #1, all of the issues are

together, including instructions as to where to go next on the

form depending on what has been proved.

In Phase 1 of

Alternative #2, there are only specific issues to determine, and

the jury does not have to be instructed to go to a different

place on the form.

The Vice Chair commented that whether or not the proceedings

are bifurcated, if the trier of fact is the jury, they should get

the same form.

Why should they get a different form depending on

which version of the Rule applies?

-65-

Mr. Shellenberger answered

that the jury is only going to get one form or the other.

They

will not have compared the forms, so they will not know any

better.

This is a matter of the triggering issues.

It was

difficult to try to move the issue of age to the beginning of the

form in Alternative #1.

An instruction was necessary to check

off which of the three statutory items apply, if any.

What will

happen with Phase I of Alternative #2 is that the jury checks off

whether the listed issues apply, and then the judge decides what

the next step will be.

is moving forward.

The jury will not know whether the case

This is why there is a difference.

The order

in Alternative #2 is more logical, but it is too hard to fix in

Alternative #1.

Mr. Karceski remarked that the jury has to consider all of

these issues in the first phase not knowing that one of them may

generate a case where the death penalty is not applicable.

jury goes through all nine of these issues in Phase I.

The

The Vice

Chair asked if it would make sense to delete the phrase in

subsection (h)(1) that reads: “to the extent that they are raised

and remain for determination,” since it was deleted in

Alternative #1.

Mr. Karceski replied that if the phrase was

deleted in Alternative #1, it should be deleted in Alternative

#2, and he moved that it be deleted.

The motion was seconded,

and it passed unanimously.

The Vice Chair commented that she was confused by the

addition of the concept in subsection (h)(1)(C) that not only is

the sentencing jury or the judge to determine at the trial on

-66-

guilt or innocence whether the State has presented biological

evidence or DNA evidence linking the defendant to the murder, but

also that this can be determined at the sentencing proceeding.

She did not see this in Alternative #1.

Alternative #2?

Why was it added to

It is also in subsections (h)(1)(D), (E), and

(F), but it is not in the other subsections.

The Chair responded

that it does not affect the other subsections.

The Vice Chair noted that in Alternative #1, there is no

reference to evidence at the sentencing hearing.

The Chair

responded that one answer with respect to the video recording

linking the defendant to the murder is that this evidence may be

presented during the guilt or innocence phase, but at that point,

the jury does not have to determine whether it conclusively links

the evidence to the murder.

Mr. Shellenberger added that there

could be a court trial for guilt or innocence and a jury for

sentencing.

This happens when the case is basically tried two

times with a court trial for guilt or innocence, and a jury trial

for sentencing.

The Vice Chair questioned whether the language follows the

language of the form in Alternative #1.

Mr. Karceski answered

that it does not follow the language of the Alternative #1 form.

The Vice Chair said that she had several questions about it.

It

is not in Alternative #1, and it is not in the forms in

subsection (h)(3) on pages 6 and 7.

It does not track the form

that is going to be submitted to the jury.

Mr. Shellenberger noted that what is stated in the Rule is

-67-

that these are the issues that would be decided in this new

bifurcated procedure.

The problem is that there is case law from

the past 30 years that explains the meaning of the items in the

form in Alternative #1.

Now the suggestion is to move this to a

new stage -– what will the issues be in a bifurcated sentencing

hearing?

The Vice Chair inquired whether an issue in the

bifurcated sentencing hearing would be if there were evidence of

a confession.

Mr. Shellenberger replied that this is the only

place where it is an issue in the bifurcated hearing, because as

a prosecutor, he would have to prove this to keep going forward

to the death penalty.

statute were met.

The issue is if the standards of the new

The Rule will state which issues the

prosecutor has to prove.

It may be proved in the guilt or

innocence phase or in the sentencing phase that the prosecutor

has a videotaped confession.

The Vice Chair inquired what the result would be if the

videotaped confession were introduced at the sentencing phase.

The Chair answered that it may depend on what else is there.

There could be an inculpatory statement by the defendant that has

been shown to be voluntary for the purpose of admitting it into

evidence.

The jury has this statement.

At the sentencing, the

State must show that not only is this a confession, as opposed to

a mere inculpatory statement, and that it was voluntary, but that

the entire interrogation was videotaped, not just the confession.

Mr. Shellenberger added that the State could win the guilt or

innocence case by simply having the police officer say that the

-68-

officer gave the Miranda (Miranda v. Arizona, 384 U.S. 436

(1966)) warnings, and the defendant then confessed to the crime.

But at the sentencing, the State has to have a videotape,

although it was not necessary at the guilt or innocence stage.

Mr. Shellenberger said that a better answer comes in the

area of whether DNA evidence “conclusively links” the defendant

to the murder.

When the witness takes the stand, he or she may

identify the defendant by saying it is one out of a billion that

it is the defendant’s DNA, or the witness may identify the

defendant as one out of 4 million.

This may be enough in the

guilt or innocence stage to justify a

guilty verdict, but the

issue would become whether it conclusively links the defendant to

the murder.

The prosecutor may have to put in more evidence

during the sentencing phase to prove the “conclusive” link.

These “weasel” words would affect whether it would be an issue at

sentencing.

The Chair commented that it is the same issue with

the video recording of the crime scene.

link the defendant to the murder.

This has to conclusively

To put the video in at the

guilt or innocence stage, it is not required that it conclusively

link the defendant to the murder.

The Vice Chair inquired why this does not have to be

addressed anywhere else if this is an important concept to

address in the bifurcated Rule.

Mr. Shellenberger replied that

30 years of litigation have been associated with the form as it

is now.

Mr. Karceski asked whether the Vice Chair was referring

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to the language in subsection (h)(1)(D) that reads “... at the

trial on guilt or innocence or at the sentencing proceeding...”.

The Vice Chair replied that she was referring to the language

“...or at the sentencing proceeding...” that appears in

subsections (h)(1)(C), (D), (E), and (F).

The Chair said that if

that phrase is stricken, the phrase “...to the jury or judge...”

should be stricken.

The Vice Chair remarked that if the attorneys who practice

this kind of law agree with the wording, then she would be

willing to withdraw her question about it.

The Chair commented

that if anyone feels that this language causes a problem, the

language that would have be deleted is: “...to the jury or judge

sitting as the trier of fact at the trial on guilt or innocence

or at the sentencing proceeding...”.

Mr. Karceski expressed the

view that none of the language should be eliminated.

He noted

that the confusion arises, because the Vice Chair had noted that

Alternative #1 does not use this language anywhere.

Alternative

#1 is a “dinosaur” that has been around for some time.

Should

the Rule be changed to incorporate the language that was

discussed?

Should the language referring to “guilt or innocence”

or “the sentencing proceeding” be put into Alternative #1?

The

Vice Chair said that she thought that the only real issue between

the two versions is whether time will be saved, or whether the

proceeding should be bifurcated.

She expressed the opinion that

it did not make sense that the bifurcated proceeding is similar

to the other one, except that it is done in two different phases.

-70-

Mr. Shellenberger explained that practitioners who handle

death penalty cases know what the issues are and what needs to be

addressed in a single sentencing proceeding.

what should be added to the form.

The question is

What he has learned from

reading reversals in Court of Appeals death penalty cases is not

to make changes to the form.

Alternative #1 only adds the

references to what is required by the new statute, and it makes

no other changes to anything that has already been approved by

the Court of Appeals.

A bifurcation in a death penalty

sentencing is a new concept.

The reason the language “whether or

not” has been added is because the nine issues that have to be

decided at Phase I of the sentencing must be identified.

The Chair pointed out that the form in Phase II is exactly

the same as in Alternative #1.

in both forms.

The jury sees the same questions

The Vice Chair asked what the purpose of

subsection (h)(1) is.

Mr. Shellenberger responded that it tells

attorneys what the issues are.

Mr. Karceski drew the Committee’s attention to the “Phase I

Findings” in subsection (h)(3).

Although the issues for the jury

to determine are not in the same order as they were in

Alternative #1, the Committee had discussed moving it into this

order.

The first issue is whether the defendant was 18 years of

age or older.

Section I.

Then the jury goes through eight of the issues in

Statements 2., 3., 4., and 5. are the issues listed

in the new statute.

reasonable doubt.

Only one of these has to be proved beyond a

There could be more than one, but only one is

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needed for the death penalty to apply.

Only one of Statements

6., 7., and 8. is necessary for the case to move forward.

Statement 1., whether the defendant was 18 years of age or older,

has to be proved before the case moves to Phase II.

Section II

applies only to the issue of whether the defendant was mentally

retarded.

The Committee seems to have separated the first eight

issues from that one, because of the quantum of proof necessary.

The defendant has to prove by a preponderance of the evidence

that he or she is mentally retarded.

Mr. Shellenberger remarked that it is logical to take this

out, because it requires a different burden of proof and a

different person presenting the evidence.

The first eight

statements are proved by the State beyond a reasonable doubt.

Suddenly, in Section II, the burden is on the defendant to prove

by a preponderance of the evidence that he or she is mentally

retarded.

Mr. Patterson added that Statements 1. through 8. are

fairly objective issues to be decided.

The issue of mental

retardation in Statement 9. is subjective.

It is not a question

of the burden of proof; it is a question of grappling with the

issue.

If the State cannot prove Statements 1. through 8., the

amount of time involved in proving mental retardation, which is

an entirely different angle, belies the idea of bifurcating the

trial.

Mr. Klein noted that what he had heard about the length of

time it takes to prove Statement 9. suggested to him that it

should not be in Phase I.

He referred to Mr. Zavin’s comment

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earlier about plea bargaining, and he asked Mr. Zavin what his

prediction would be about being able to plea bargain at the end

of Phase I if there would be a bifurcated trial.

Presumably, the

State knows that this will be raised as a defense, and each side

knows what the other side’s experts will say.

Mr. Zavin inquired

whether this means without a jury finding, and Mr. Klein replied

affirmatively.

Mr. Zavin said that if each side has full

knowledge what the other side’s experts are going to say, it is

possible to do so without a jury finding, but it is better to

have the jury determine the issue.

Mr. Klein remarked that his view was that not having the

issue decided by the jury is better for the defendant, because if

the jury finds against the defense position, then the defendant

is in no position to plea bargain.

Having some ambiguity where

each side has something at risk means that there is more give and

take in the bargaining process.

Mr. Zavin referred to the burden

of proof that switches as well as to the standard of proof that

will apply regardless of whether it is Phase I or Phase II.

Whether the case is bifurcated or not, the jury will be asked to

switch between the State proving and the defense proving.

The

question becomes whether the State really wants to pursue a

sentence of life imprisonment or whether the State wants to go

through a separate death penalty sentencing phase to get the

death sentence.

At that point, the State has a jury finding, and

they may offer a sentence of life imprisonment.

The Chair questioned whether the State would be more

-73-

inclined to plea bargain if they had a jury verdict not proving

mental retardation.

point.

They would have much less to lose at this

Mr. Shellenberger observed that typically, presenting the

issue of mental retardation is where the State would have its

best evidence.

The questions are whether the I.Q. tests were

administered properly, whether they were given at the appropriate

age, and whether the defendant had an I.Q. of 70 or less.

If the

State loses on this issue, there is no point in going forward.

Mr. Zavin said that if there is compelling evidence of diminished

capacity not reaching the point of mental retardation that is

presented in Phase I, it would provide an impetus for a plea

bargain.

The Chair asked whether the Committee thought that the issue

of mental retardation should be moved to Phase II.

Mr. Zavin

questioned whether both versions of the Rule will be presented to

the Court of Appeals.

The Chair responded that the Committee

will give the Court Alternatives #1 and #2.

any of the language.

either one.

The Court can modify

The Committee would not be recommending

It is a policy issue for the Court.

Because of the

complications, the Committee wanted to give the Court the option

of picking whichever version they preferred.

The Reporter added

that the drafts of both versions will be published for comment.

Mr. Karceski moved to take the issue of mental retardation

out of Phase I and move it to Phase II of the Rule.

was seconded, and it passed unanimously.

The motion

The Chair pointed out

that this will require some redrafting of both versions of the

-74-

Rule.

This will have to be sent to the Court quickly.

The Court

has set a hearing for September 9, 2009 on the 162nd Report that

will contain these two versions of the Rules along with the Rules

pertaining to DNA testing.

The Rules will have to be decided on

that day or very soon thereafter, because the death penalty

statute goes into effect on October 1, 2009, and there are

currently death penalty cases pending.

The Chair asked if the

Committee would be satisfied with both versions of the Rule being

redrafted to implement the decision to move the issue of mental

retardation without the Rule being brought back in September for

the Committee to reconsider it.

By consensus, the Committee

agreed to this.

Mr. Karceski drew the Committee’s attention to section (i)

of Alternative #2, Phase II of Sentencing Proceeding.

Statement

9. will no longer be listed in subsection (i)(1)(A)(v) for

consideration at that time by the jury.

The jury will only have

to consider (1) whether the defendant was 18 years of age or

older; (2) one of the following: whether there was biological or

DNA evidence that links the defendant to the act of murder;

whether the State has produced a videotaped, voluntary

interrogation and confession of the defendant to the murder, or

whether the State has produced a video recording that

conclusively links the defendant to the murder; whether the State

was relying solely on evidence provided by eyewitnesses; and (3)

one of the following:

whether the defendant was a principal in

the first degree to the murder, whether the defendant engaged or

-75-

employed another person to commit the murder and the murder was

committed under an agreement or contract for remuneration or the

promise of remuneration, whether the victim was a law enforcement

officer.

Mr. Karceski said that the issue of whether the defendant

was mentally retarded has been moved to Phase II.

In all other

cases, if the issues just enumerated have not been proved, then

the judge will enter a sentence of imprisonment for life or

imprisonment for life without parole if it is a judge’s decision.

If it is a jury decision, they would be instructed to enter one

or the other of these punishments.

Phase II begins in subsection

(i)(2), Phase II Findings and Sentencing Determination.

virtually tracks what is in Alternative #1.

with the aggravating circumstances.

This

Section I begins

A determination as to where

the issue of mental retardation should be put has to be made.

The Chair responded that it might be a good idea to put this

issue first, because if the trier of fact finds that the

defendant is mentally retarded, then the death penalty does not

apply.

Mr. Patterson inquired whether the idea of putting this

first would be for the jury to determine this before it gets to

aggravating and mitigating factors.

Mr. Shellenberger expressed

the opinion that the issue of mental retardation should be placed

in the Rule right after the aggravators and separated out as it

was previously and before the mitigating factors.

It would be

placed right above Section II, Mitigating Circumstances, and it

-76-

would stand by itself.

The Chair inquired whether this would go before the

aggravators.

If the trier of fact finds in the defendant’s

favor, it will not be necessary to go through all of the

aggravators and mitigators.

Mr. Patterson noted that the jury

will have to make the determination before they consider the

aggravators and mitigators.

Mr. Shellenberger said that he

envisioned that Phase II would be the entire sentencing hearing,

and both sides would have to prove each of their burdens.

The

Chair stated that if the issue of mental retardation is put

first, then the Rule would state that if the jury finds this

issue proved, they would next go to Section VI on the form.

Mr.

Patterson noted that all of the testimony will come in anyway.

The Chair added that much of it may be relevant to the issue of

mental retardation, and Mr. Shellenberger agreed.

Mr. Karceski remarked that if the issue of mental

retardation becomes the first item in Phase II, then it will be

followed by the aggravating circumstances for the jury’s

consideration.

There has to be an aggravator as in Alternative

#1 followed by the mitigating circumstances.

Then there is the

weighing process to see if the aggravating circumstances outweigh

the mitigating circumstances by a preponderance of the evidence.

Section IV is entitled “Determination of Sentence of Death or

Imprisonment for Life,” and if the sentence is “imprisonment for

life,” Section V will state whether the sentence is life

imprisonment or life imprisonment without parole.

-77-

These sections

generally follow the pattern of Alternative #1.

The only

difference in Phase II, other than that there is no bifurcation

in Alternative #1, is that the issue of mental retardation has

been moved into Phase II.

Mr. Karceski questioned whether there

were any comments on the rest of Alternative #2.

Master Mahasa inquired as to the difference between a

unanimous finding of “more likely than not” versus “fewer but not

all.”

The Chair replied that for mitigators, each juror can find

something that is a mitigating circumstance that the others may

not find.

That juror has to then balance what he or she finds to

be the mitigators against the aggravators.

The mitigators are

found individually, but the aggravators have to be decided

unanimously by all of the jurors.

The mitigators can be found

unanimously, but each juror can find them individually.

Mr. Shellenberger noted that what often happens is that the

defendant’s upbringing will be an issue that is raised, and the

defense will argue that this is one of the mitigators.

Some may

feel that the upbringing did contribute to the ultimate crime.

Some jurors may reject this.

The case law holds that when a

juror gets to the last procedure of weighing mitigators, he or

she is allowed to consider what that juror found individually

plus the mitigators that were found unanimously.

The Vice Chair commented that in section (b), the word

“recordation” is used.

It has a very specific meaning.

The

Chair responded that he had suggested that word, and he proposed

that the word be changed to the word “recording.”

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The Vice Chair

said that in the civil arena, it means noted on the files, and

the land records are recorded.

She had looked at the criminal

rules and did not find a reference to how the verdict is

memorialized.

The Chair said that the current Rule uses the word

“recording.”

The Vice Chair asked if the word “death” in the

language in section (b) that reads: “...completed with respect to

each death...” should be “murder.”

The Chair responded that this

language is in the current law and should not be changed.

The Vice Chair noted that section (c) has some internal

inconsistencies that were created by adding in the words “or

counsel.”

The last sentence begins “[u]pon request by the

defendant...”.

The Chair noted that this is the wording of the

current Rule.

The Vice Chair expressed the view that there are

mistakes in the way the words “or counsel” are added in.

It

should be either added in everywhere, or the assumption should be

made that the references to the words “the defendant” include

counsel.

Master Mahasa remarked that the person is the

“defendant” whether or not he or she has counsel.

The Chair

reiterated that this is the language that is in the current Rule.

The reason for the difference may be that the information that

the State expects to present to the court should be disclosed to

the defendant or counsel, but the decision about postponement may

be a personal one for the defendant to do and not for the

attorney.

By consensus, the Committee approved both versions of Rule

4-343 as amended.

-79-

-80-

Agenda Item 2. Reconsideration of proposed new Title 4, Chapter

700, Post Conviction DNA Testing

_________________________________________________________________

Mr. Karceski explained that the general scheme of the Post

Conviction DNA Testing Rules is based on the Rules in Title 4,

Chapter 400, Post Conviction Procedure.

Mr. Karceski presented Rule 4-701, Scope, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-701, as follows:

Rule 4-701.

SCOPE

The Rules in this Chapter apply to

proceedings filed under Code, Criminal

Procedure Article, §8-201.

Source:

This Rule is new.

Rule 4-701 was accompanied by the following Reporter’s Note.

Rules 4-701 through 4-710 are new and

implement the provisions of Chapter 337, Laws

of 2008 (SB 211), which became effective on

January 1, 2009 and amended Code, Criminal

Procedure Article, §8-201. The general

scheme of the Rules is based on the Chapter

400, Post Conviction Procedure, Rules 4-401

through 4-408.

Mr. Karceski explained that Rule 4-701 had been revised at

the last meeting.

There being no comment, by consensus, the

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Committee approved Rule 4-701 as presented.

Mr. Karceski presented Rule 4-702, Definitions, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-702, as follows:

Rule 4-702.

DEFINITIONS

In this Chapter, the terms “biological

evidence,” “DNA,” “law enforcement agency,”

and “scientific identification evidence” have

the meanings set forth in Code, Criminal

Procedure Article, §8-201 (a).

Source:

This Rule is new.

Mr. Karceski said that Rule 4-702 had been changed at the

last meeting.

There being no discussion, by consensus, Rule 4-

702 was approved as presented.

Mr. Karceski presented Rule 4-703, Commencement of

Proceeding; Venue, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-703, as follows:

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Rule 4-703.

VENUE

(a)

COMMENCEMENT OF PROCEEDING;

Generally

A proceeding under this Chapter is

commenced by the filing of a petition under

Code, Criminal Procedure Article, §8-201 by a

person who:

(1) was convicted of a violation of Code,

Criminal Law Article, §§2-201, 2-204, 2-207,

or 3-303 through 3-306; and

(2) seeks (A) DNA testing of scientific

identification evidence that (i) the State

either possesses or may acquire, with or

without a court order, from a third party and

(ii) is related to the judgment of

conviction, or (B) a search by a law

enforcement agency of a law enforcement

database or log for the purpose of

identifying the source of physical evidence

used for DNA testing of a law enforcement

database or log.

(b)

Venue

The petition shall be filed in the

criminal action in the circuit court where

the charging document was filed.

Source:

This Rule is new.

Mr. Karceski told the Committee that subsection (a)(2)(A) of

Rule 4-703 has been changed.

New language has been added to part

(i) that reads, “...the State either possesses or may acquire,

with or without a court order, from a third party...”.

This is

to address those situations where the State does not have direct

control and possession of the items in question.

Ms. Nethercott commented that in subsection (a)(2)(B), the

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language at the end that reads, “...of a law enforcement database

or log” is superfluous.

Mr. Shellenberger remarked that he had

spoken with the Chair about that sentence.

Mr. Karceski pointed

out that this language is taken directly from the statute.

Mr.

Shellenberger noted that the Subcommittee had spent some time

arguing over this language.

Ms. Nethercott asked whether the statute has the language

“used for DNA testing of a law enforcement database or log.”

This sounds like it refers to DNA testing of a log, which is

inappropriate.

Mr. Klein said that it is not in the statute.

The Assistant Reporter recalled that there had been an issue

discussed previously as to what the language “used for DNA

testing” means.

Ms. Nethercott observed that the statutory

language in Code, Criminal Procedure Article, §8-201 (b)(2) is

“...the source of physical evidence used for DNA testing.”

The

Chair suggested that subsection (a)(2)(B) end after the word

“testing,” and the Committee agreed by consensus to this change.

By consensus, the Committee approved Rule 4-703 as amended.

Mr. Karceski presented Rule 4-704, Petition, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-704, as follows:

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Rule 4-704.

PETITION

(a) Content

(1)

In General

Each petition shall state:

(A) the petitioner’s name and, if

applicable, place of confinement and inmate

identification number;

(B) the court in which the charging

document was filed, the date and place of

trial, each offense of which the petitioner

was convicted, and the sentence imposed for

each offense;

(C) a description of all previous

proceedings in the case, including direct

appeals, motions for new trial, habeas corpus

proceedings, post-conviction proceedings, and

all other collateral proceedings, including

(i) the court in which each proceeding was

filed, (ii) the case number of each

proceeding, (iii) the determinations made in

each proceeding, and (iv) the date of each

determination; and

(D) a statement regarding whether the

petitioner is able to pay the cost of testing

and to employ counsel. If indigent, the

petitioner may request that the court appoint

counsel.

(2)

Request for DNA Testing

If the request is for DNA testing of

scientific identification evidence, the

petition shall contain:

(A) a description of the specific

scientific identification evidence that the

petitioner seeks to have tested; and

(B) a statement of the factual basis

for the claims that (i) the State possesses

that evidence, (ii) the evidence is related

to the conviction, including a concise

description of how the evidence is related to

the conviction, and (iii) a reasonable

probability exists that the requested DNA

-85-

testing has the scientific potential to

produce exculpatory or mitigating evidence

relevant to a claim of wrongful conviction or

sentencing.

(C) to the extent known: (i) a

description of the type of DNA testing the

petitioner seeks to employ and (ii) a

statement of the factual basis for a claim

that DNA testing method has achieved general

acceptance within the relevant scientific

community.

(3) Request for Search of Law

Enforcement Database or Log

If the request is for a search of a

law enforcement agency database or log, the

petition shall:

(A) identify with particularity the law

enforcement agency whose database or logs are

to be searched; and

(B) state the factual basis for any

claim that there is a reasonable probability

that a search of the database or log will

produce exculpatory or mitigating evidence

relevant to a claim of wrongful conviction or

sentencing or will identify the source of

physical evidence used for DNA testing of a

law enforcement database or log.

Committee note: A petition filed by an

unrepresented petitioner may be lacking in

some of the details required by subsections

(a)(2) and (3) of this Rule. To justify an

order requiring DNA testing or a search of

law enforcement databases or logs, however,

those details must be provided at some point.

That may be achieved by the appointment of

counsel under Rule 4-707 and an appropriate

amendment to the petition.

(b)

Amendment

Amendments to the petition shall be

freely allowed in order to do substantial

justice. If an amendment is made, the court

shall allow the State a reasonable

opportunity to respond to the amendment.

-86-

(c)

Withdrawal

On motion of a petitioner, the court

may grant leave for the petitioner to

withdraw a petition. If the motion is filed

before the court orders DNA testing or a

search of a law enforcement agency database

or log, the leave to withdraw shall be

without prejudice. If such an order has been

issued, the leave to withdraw shall be with

prejudice unless the court, for good cause,

orders otherwise.

Source:

This Rule is new.

Mr. Karceski explained that subsection (a)(1)(D) of Rule 4704 had been changed.

At the last meeting, the issue of the

petitioner alleging the inability to pay the cost of testing or

to employ counsel because of poverty was thoroughly discussed.

The Rule had provided that the petitioner shall proceed in

conformance with Rule 1-325 (a).

concept, had been changed.

The wording, but not the

It is less cumbersome.

Subsection

(a)(2) is the same as it was when considered by the Committee on

May 15, 2009.

There is a change in subsection (a)(2)(C) that is

the addition of the language “to the extent known...” at the

beginning.

This was discussed at the May meeting and at the last

Subcommittee meeting.

The point had been made that the petitions

may be filed pro se initially.

A petitioner is hardly going to

be in a position to be able to set forth the information about

the type of testing.

This is why the new language was added.

There is a provision for the appointment of counsel in Rule 4707, Denial of Petition; Appointment of Counsel.

-87-

The Chair added that the Committee note at the end of

section (a) goes along with subsection (a)(2)(C).

Master Mahasa

referred to the language in the Committee note that reads,

“...those details must be provided at some point.”

She inquired

as to who determines when the details must be provided.

The

Chair responded that the court will not order the testing unless

the details have been shown, because this is required by the

statute.

Ms. Holback referred to subsection (a)(2)(C)(ii) and

suggested that the word “said” should be added after the word

“that” and before the words “DNA testing.”

The first phrase

refers to “the type of DNA testing that the petitioner seeks to

employ,” and the second phrase refers back to this.

It would be

appropriate to add the word “said” or the word “the.”

suggested that the word “the” be added.

The Chair

By consensus, the

Committee agreed to this change.

Ms. Holback said that another minor point is in subsection

(a)(3)(A) where the word “logs” is plural, but elsewhere in the

Rules, the word is singular.

She suggested that the word should

be singular throughout the Rules.

By consensus, the Committee

agreed to change the word “logs” to the word “log.”

Mr. Karceski said that subsection (a)(3) has not been

changed, since it was discussed at the last meeting.

The Chair

had pointed out the Committee note at the end of the subsection.

Sections (b) and (c) have not been changed.

By consensus, the Committee approved Rule 4-704 as amended.

-88-

Mr. Karceski presented Rule 4-705, Notice of Petition, for

the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-705, as follows:

Rule 4-705.

(a)

NOTICE OF PETITION

To State’s Attorney

Upon receipt of a petition, the clerk

shall promptly forward a copy of it to the

State’s Attorney and the county

administrative judge. If the petition seeks

a search of the database or log of an

identified law enforcement agency, the

State’s Attorney shall send a copy of the

petition to that law enforcement agency.

(b)

To Public Defender

If the petition alleges that the

petitioner is unable to pay the costs of

testing or to employ counsel, the clerk shall

promptly forward a copy of the petition to

the Public Defender’s Inmate Services

Division.

Source:

This Rule is new.

Mr. Karceski explained that there were no changes the Rule

4-705, except that in section (b), the phrase “the costs of

testing” had been “the costs of the proceeding.”

By consensus,

the Committee approved Rule 4-705 as presented.

Mr. Karceski presented Rule 4-706, Answer; Motion to

Transfer, for the Committee’s consideration.

-89-

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-706, as follows:

Rule 4-706.

(a)

ANSWER; MOTION TO TRANSFER

Duty to File

The State’s Attorney shall file an

answer to the petition or a motion to

transfer.

(b) Motion to Transfer

(1)

Time for Filing

The motion shall be filed no later

than 30 days after the State’s Attorney

receives notice of the petition.

(2)

Content

A statement of facts establishing

proper venue, including the case number,

shall be attached to the motion to transfer.

(3)

Determination; Transfer

The court promptly shall grant or

deny the motion to transfer. If the court

grants the motion, the court shall transfer

the action to the county where the petition

should have been brought.

(4)

Notice of Transfer

If an action is transferred pursuant

to subsection (b)(3) of this Rule, the clerk

of the receiving court promptly shall comply

with the notice requirements of Rule 4-705.

(c)

Answer

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(1)

Time for Filing

The answer shall be filed no later

than the later of 60 days after the State’s

Attorney receives notice of the filing or

transfer of the petition or 60 days after the

court denies a motion to transfer. If an

answer is not filed within the time required

by this Rule or an extended time allowed by

the court, the court shall take such action

as it deems appropriate.

Cross reference: For extension of time

requirements, see Rule 1-204.

(2)

Content

The answer shall state or contain:

(A) whether the specific scientific

identification evidence that the petitioner

desires to have tested exists and, if so, the

location of the evidence, the name and

business address of the custodian of the

evidence, whether the evidence is appropriate

for DNA testing, and if not, the reasons why

it is not appropriate for DNA testing;

(B) if the State asserts that it has

been unable to locate the evidence, an

affidavit containing a detailed description

of all steps it took to locate the evidence,

including (i) a description of all law

enforcement records, databases, and logs that

were searched, (ii) a description and

documentation of when and how the searches

were conducted, and (iii) the names and

business addresses of the persons who

conducted them;

(C) if the State asserts that the

evidence has been destroyed, an affidavit (i)

containing a description and documentation of

all relevant protocols pertaining to the

destruction of the evidence, and (ii) stating

whether the evidence was destroyed in

conformance with those protocols and, (a) if

so, providing documentation of that fact,

and, (b) if not, stating the reasons for noncompliance with the protocols; and

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(D) a response to each allegation in

the petition.

(d) Service

The State’s Attorney shall serve a copy

of the answer or objection to venue on the

petitioner and, if the petitioner alleges an

inability to pay the costs of testing or to

employ counsel, on the Public Defender’s

Inmate Services Division.

Source:

This Rule is new.

Mr. Karceski told the Committee that Rule 4-706 was

previously entitled “Answer.”

has been added to the Rule.

Attorney has to do.

The “motion to transfer” option

The Rule lays out what the State’s

Subsection (b)(1) has a time for filing,

which is no later than 30 days after the State’s Attorney

receives notice of the petition.

The content must establish

proper venue through a statement of facts, including the case

number.

The Chair suggested adding the language “of the case in

which the judgment of conviction was entered” after the phrase

“case number” in subsection (b)(2).

By consensus, the Committee

agreed to add this language to subsection (b)(2).

Mr. Karceski said that subsection (b)(3) provides that the

court promptly grants or denies the motion, and if the court

grants it, the action shall be transferred to the county where

the petition should have been brought.

Subsection (b)(4) is the

notice of transfer, which shall comply with Rule 4-705.

Mr. Karceski continued that subsection (c)(1) has been

changed, because there is a motion to transfer that could have

-92-

been filed by the State’s Attorney, so the answer is filed no

later than 60 days after the State’s Attorney receives the notice

of the filing or transfer of the petition or 60 days after the

court denies a motion to transfer.

There had been some

discussion as to the next sentence providing that if an answer is

not filed within the time required by the Rule or an extended

time allowed by the court, the court shall take such action as it

deems appropriate.

Subsections (c)(2)(A) and (B) have been

changed to add the word “business” before the word “address.”

Otherwise, the content of the answer remains the same.

The

Assistant Reporter pointed out that the phrase “objection to

venue” in section (d) has been changed to “motion to transfer,”

and by consensus, the Committee agreed to correct this.

Mr. Karceski noted that the reference to “Public Defender’s

Inmate Services Division” had previously been the phrase “Public

Defender.”

This is consistent with the language in the prior

Rule.

By consensus, the Committee approved Rule 4-706 as amended.

Mr. Karceski presented Rule 4-707, Denial of Petition;

Appointment of Counsel, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-707, as follows:

-93-

Rule 4-707.

OF COUNSEL

(a)

DENIAL OF PETITION; APPOINTMENT

Denial of Petition

Upon consideration of the State’s

answer, the court may deny the petition if it

finds as a matter of law that (1) the

petitioner has no standing or (2) the facts

alleged in the petition do not entitle the

petitioner to relief.

(b)

Appointment of Counsel

Unless the court denies the petition

as a matter of law, a petitioner who is

indigent and who has requested counsel shall

be appointed counsel by the court provided

counsel has not already filed an appearance

to represent the petitioner within 30 days

after the State has filed its answer.

Source:

This Rule is new.

Mr. Karceski explained that Rule 4-707 was formerly entitled

“Response to Answer.”

Rule 4-707 has been placed in front of

Rule 4-708, “Response to Answer,” and it is new.

pertains to the denial of the petition.

the petition on its face.

Section (a)

There can be a denial of

The Rule incorporates the appointment

of counsel at this stage of the proceedings.

Section (b)

provides that unless the court denies the petition as a matter of

law, an indigent petitioner who has requested counsel shall be

appointed counsel by the court, provided counsel has not already

filed an appearance to represent the petitioner within 30 days

after the State has filed its answer.

Mr. Bowen commented that the second line of section (b)

seems to indicate that the petitioner who requested counsel but

-94-

is not indigent will get counsel appointed.

that the Rule needs to be restyled.

The Chair responded

The Reporter said that Mr.

Bowen had already restyled section (b) to read as follows:

“If

the court finds that a petitioner who has requested the

appointment of counsel is indigent, the court shall appoint

counsel within 30 days after the State has filed its answer

unless (1) the court denies the petition as a matter of law or

(2) counsel has already filed an appearance to represent the

petitioner.”

The Chair noted that this implements what the

Committee wanted to do at the last meeting, which is to get

counsel involved earlier in the process when the State files its

answer even before a response is due.

By consensus, the

Committee approved the language suggested by Mr. Bowen.

Judge Pierson remarked that he was trying to figure out how

this process would work.

Section (a) provides: “...if it [the

court] finds as a matter of law...”.

The more correct language

would be if the court “concludes” or “determines” as a matter of

law.

Judge Pierson added that he did not think that the Rule

should imply that the court is making a factual finding, but if

the court is making a factual finding, it is not fair to do this

unless the petitioner is able to file a response.

in the Rule is somewhat ambiguous.

The language

Often it is the same issue in

the Habeas Corpus Rules, Rules 15-301 et. seq., involving the

right of the petitioner to file a response to the response before

the case goes any further.

The Chair pointed out that the Committee and the Subcom-95-

mittee had discussed the problem that the petition may be lacking

in a number of respects simply because the petitioner is

unrepresented.

Once the State files an answer, it may be clear

as a matter of law that the petitioner does not have standing or

may not have been convicted of the appropriate crime.

The

petition can be dismissed, and it is not a fact issue.

Unless

the petition can be dismissed, counsel should be appointed to

represent the petitioner before the response is due.

The

response is going to have to address whatever the State is saying

and straighten out the petition which may be lacking in detail.

It would be difficult for the petitioner to do this without the

help of an attorney.

That is why section (b) was included.

Judge Pierson responded that in habeas corpus petitions,

frequently the petitioner’s reply will clarify what was in the

original petition.

He asked if the Public Defender will be able

to represent the petitioners in the DNA petitions.

The Chair

answered that the Committee had been told that the Office of the

Public Defender screens the petitions to some extent to decide

which ones they want to get involved in.

If the Public Defender

is willing to take the case, the issue of who to appoint is moot.

The Rules provide that the Public Defender gets copies of the

petition and the State’s answer, so that they can decide if they

want to represent the petitioner.

If the Public Defender opts

out, and there is no pro bono attorney assigned, should counsel

be appointed before the response is due?

Mr. Karceski added that

there is no requirement that the Public Defender take the case

-96-

and no funding.

The Chair asked Judge Pierson if he had a suggested

amendment.

Judge Pierson suggested that the word “finds” in

section (a) be changed to the word “determines.”

Mr. Bowen noted

that section (b) would have to be changed also to be consistent.

Judge Hollander expressed the view that section (a) should not be

changed.

Judge Pierson inquired whether it is a factual

determination or a determination as a matter of law.

Judge

Hollander remarked that a finding of no standing is a legal

determination.

facts.

Judge Pierson asked whether the judge finds

Judge Hollander commented that the petition may not have

what is necessary to go forward.

Judge Pierson said that this

may be because the petitioner does not have sufficient facts for

the case to go forward.

The petitioner may allege that the State

has DNA evidence that would establish the petitioner’s innocence.

There is nothing legally insufficient about the way the

petitioner alleges this.

This is not at the proof stage.

Mr. Shellenberger observed that if the State responds by

saying that the DNA evidence was destroyed, and the petitioner

was convicted 30 years ago when there was no protocol to keep the

evidence, then the evidence does not exist.

It would be better

to get an attorney to say that there should have been protocols,

and some did exist at that time.

The Chair said that another

argument would be that the State did not look for the evidence in

the proper places.

Judge Pierson questioned whether in his

judicial capacity, he is going to be weighing these allegations,

-97-

or he is going to determine that it is a failure to state a claim

upon which relief can be granted.

The Chair stated that there are two questions.

One is

whether the word “find” should be changed to the word

“determine.”

The other is whether the court is able to deny the

petition before the response is filed.

Mr. Shellenberger noted

that the statute uses the word “find.”

No change was recommended

by the Committee.

By consensus, the Committee approved Rule 4-707 as amended.

Mr. Karceski presented Rule 4-708, Response to Answer, for

the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-708, as follows:

Rule 4-708.

RESPONSE TO ANSWER

Not later than 60 days after the later

of service of the State’s answer or entry of

an order appointing counsel pursuant to Rule

4-707, the petitioner may file a response to

the answer. The response may challenge the

adequacy or the accuracy of the answer and

request that a search of other law

enforcement agency databases or logs be

conducted and be accompanied by an amendment

to the petition. The petitioner shall serve

the response on the State’s Attorney.

Source:

This Rule is new.

-98-

Mr. Karceski explained that Rule 4-708 had formerly been

Rule 4-707, but because the Rule providing for counsel was

included, this Rule has been moved back.

When there is an answer

to be filed, an attorney will have been appointed to represent

the petitioner, or the petitioner will have elected not to have

an attorney.

The court is going to appoint someone as counsel,

but the language in the Rule provides that the appointment can be

rejected.

If the petitioner wants to continue without counsel,

he or she is able to do so.

If counsel is appointed, and the

petitioner accepts counsel, there is a period of 60 days after

the later of service of the State’s answer or entry of an order

appointing counsel for a response to the State’s answer to be

filed.

The petitioner may file a response, challenging the

adequacy or accuracy of the answer and requesting that a search

of other law enforcement agency databases or logs be conducted.

The provision in the Rule that pertained to the appointment of

counsel has been deleted, because the issue of appointment of

counsel has been moved to Rule 4-707.

Ms. Holback suggested that the acronym “DNA” be added before

the word “databases” and after the word “agency,” so that people

do not think that they can ask to search other databases or logs.

Mr. Karceski supported that.

By consensus, the Committee agreed

to Ms. Holback’s suggested change.

Ms. Potter inquired whether it may be stylistically

preferable to restructure the first sentence of the Rule as

follows:

“The petitioner may file a response to the answer no

-99-

later than 60 days after...”.

She also suggested that it may be

better to state that the answer should be filed “within 60 days

after...”.

The Vice Chair agreed that the Rule should be

restyled.

Mr. Karceski said that the Rule should be rewritten

for style purposes only and not substantively.

By consensus, the Committee approved Rule 4-708 as amended.

Mr. Karceski presented Rule 4-709, Hearing; Procedure if No

Hearing, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-709, as follows:

Rule 4-709.

(a)

HEARING; PROCEDURE IF NO HEARING

When Required

Except as otherwise provided in

subsection (b)(2) of this Rule, the court

shall hold a hearing if, from the petition,

answer, and any response, the court finds

that the petitioner has standing to file the

petition, the petition is filed in the

appropriate court, and one of the following:

(1) specific scientific identification

evidence exists or may exist that is related

to the judgment of conviction, a method of

DNA testing of the evidence may exist that is

generally accepted within the relevant

scientific community, and there is or may be

a reasonable probability that the testing has

the scientific potential to produce

exculpatory or mitigating evidence relevant

to a claim of wrongful conviction or

sentencing;

-100-

(2) if the State contends that it has

been unable to locate the evidence, there is

a genuine dispute as to whether the State’s

search was adequate;

(3) if the State contends that the

evidence existed or may have existed but was

destroyed, there is a genuine dispute whether

the destruction was in conformance with any

relevant governing protocols or was otherwise

lawful;

(4) the State is unable to produce

scientific evidence that the State was

required to preserve pursuant to Code,

Criminal Procedure Article, §8-201 (i)(l); or

(5) there is some other genuine dispute

as to whether DNA testing or a database or

log search by a law enforcement agency should

be ordered.

(b)

Not Required

(1)

Denial of Petition Without a Hearing

The court shall deny the petition

without a hearing if it finds that:

(A) the petitioner has no standing to

request DNA testing or a search of a law

enforcement agency database or logs; or

(B) as a matter of law, the facts

alleged in the petition pursuant to

subsections (a)(2) and (3) of Rule 4-704 do

not entitle the petitioner to relief under

Code, Criminal Procedure Article, §8-201.

(2)

Grant of Petition Without a Hearing

The court may enter an order

granting the petition without a hearing if

the State and the petitioner enter into a

written stipulation as to DNA testing or a

database or log search and the court is

satisfied with the contents of the

stipulation. An order for DNA testing shall

comply with the requirements of Rule 4-710

(a)(2)(B).

-101-

(c)

Discretionary

In its discretion, the court may hold

a hearing when one is not required.

(d)

Time

Any hearing shall be held within (1)

90 days after service of any response to the

State’s answer or, (2) if no response is

timely filed, 120 days after service of the

State’s answer.

(e)

If No Hearing

If the court declines to hold a

hearing, it shall enter a written order

stating the reasons why no hearing is

required. A copy of that order shall be

served on the petitioner and the State’s

Attorney.

Cross reference: For victim notification,

see Code, Criminal Procedure Article, §§11104 and 11-503.

Source:

This Rule is new.

Mr. Karceski told the Committee that Rule 4-709 was

previously entitled “Hearing.”

hearing is required.

Section (a) addresses when a

Except as provided in subsection (b)(2),

the Rule states that the court shall hold a hearing if the court

finds that the petitioner has standing, that the petition was

filed in the appropriate court, and that one of the following was

present: (1) scientific identification evidence exists or may

exist that is related to the judgment of conviction, there is a

method of testing that is generally accepted within the relevant

scientific community, and there is a reasonable probability that

the testing will produce exculpatory or mitigating evidence

-102-

relevant to the claim of wrongful conviction or sentencing, (2)

if the State contends that it has been unable to locate the

evidence, there is a genuine dispute as to whether the State’s

search was adequate, and (3) if the State contends that the

evidence did exist but was destroyed, there is a genuine dispute

whether the destruction was in conformance with any relevant

governing protocols or was otherwise lawful.

For these reasons,

a hearing would be appropriate as long as the petitioner has

standing.

Mr. Karceski said that subsections (a)(4) and (a)(5) have

been added.

Subsection (a)(4) is if the State is unable to

produce evidence that the State was required to preserve pursuant

to the statute.

Subsection (a)(5) is if there is some other

genuine dispute as to whether DNA testing or a database or log

search by a law enforcement agency should be ordered.

For the

five reasons listed, a hearing would be required.

Mr. Karceski said that section (b) addresses when a hearing

is not required.

This is a new addition to the Rule.

(b)(1) addresses a denial without a hearing.

Subsection

The court can deny

the petition if it finds that the petitioner has no standing to

request DNA testing or a search of the law enforcement agency

database or log, or as a matter of law, the facts in the petition

that are alleged pursuant to Rule 4-704 do not entitle the

petitioner to relief under the statute.

These two situations are

ones where there would be a denial of the petition without a

hearing.

Subsection (b)(2) pertains to the grant of the petition

-103-

without a hearing.

This happens if the State and the petitioner

enter into a written stipulation as to the DNA testing or the

search of a database or log.

This has also been added to the

Rule.

Ms. Ogletree inquired whether the term “DNA” will be added

before each reference to “database or log search” in the Rules.

Ms. Holback replied that the term should be added.

Ms.

Nethercott noted that in the context of language addressing a

search of databases or logs, the reference may not be to DNA

databases or logs necessarily.

databases.

They could be evidence-tracking

The search could be for a certain shirt.

Mr.

Shellenberger remarked that this section is not addressing this.

It is addressing the issue of whether there is unknown DNA on the

shirt, the petitioner is requesting that it be put through the

database to find out to whom it belongs, because it may belong to

the real murderer and not the petitioner.

The question is

whether the State has the shirt, and if so, there is a request to

test it.

This does refer to a DNA database or log search.

The

search Ms. Nethercott just spoke about is the other kind of

testing which is when the State has the requested item.

Ms.

Holback pointed out there is a duty to search under Arey v.

State, 400 Md. 491 (2007) and Blake v. State, 395 Md. 214 (2006),

the Rules, and the statute.

Mr. Karceski asked Mr. Shellenberger which provision in the

proposed Rules he was discussing.

-104-

Mr. Shellenberger answered

that he was referring to subsection (b)(2) of Rule 4-709.

The

term “DNA” would be added before the word “database” in the first

sentence of that provision.

Ms. Ogletree said that the term

“DNA” would have to be added throughout the Rules.

Mr.

Shellenberger agreed, noting that there are a few other places

where it would need to be placed.

Any time the Rule uses the

language “database or log search,” the term “DNA” would be added

before it.

This does not prevent the petitioner from asking the

State to look for the evidence.

The Chair stated that he wanted to make sure that if the

term “DNA” is added throughout the Rules, the scope of the

statute is not being limited.

Somehow the State may have the

duty to make the search, anyway.

Ms. Holback responded that the

State has the duty to search under Blake, Arey, the Rules, and

the statute.

The only databases and logs that they are entitled

to affirmatively ask a judge to search are DNA databases and

logs.

She added that this is how she reads the statute.

Ms.

Nethercott remarked that she did not have a problem with that in

this context, because it would be referring to a search of DNA

databases and logs.

She expressed the concern that it may not

apply in previous sections of the Rules.

Logically, it makes

sense in subsection (b)(2) of Rule 4-709.

The Chair pointed out that the statute provides in

subsection (b)(2) for a search by a law enforcement agency of a

law enforcement database or log for the purpose of identifying

-105-

the source of physical evidence used for DNA testing.

appears to mean that it is not just a DNA database.

This

He cautioned

that adding the term “DNA” throughout the Rules could limit the

applicability of the statute unless the statute will be read by

the Court of Appeals as implying that it only applies to DNA

databases or logs.

It is not known if the Court will read it

that way.

Mr. Shellenberger said that the concept of the Rule is that

there are two types of searches.

One is that a shirt was

involved in the petitioner’s case.

The petitioner was convicted,

but DNA testing did not exist at that time.

The petitioner asks

the State if it has the shirt, and if it does, the petitioner

requests that it be tested.

petitioner was convicted.

The other concept is that the

A hat with DNA evidence on it had been

at the scene, but it is not known whose DNA it is.

The

petitioner asks for the DNA to be run through the database to

identify whose DNA it is.

source.

This request is to identify the

Mr. Shellenberger expressed the concern that the statute

should not be expanded by searching other databases that have

nothing to do with DNA.

The term “DNA” only needs to be added to

the two places noted today.

Mr. Klein noted that the Rule does not contain the statutory

language “for the purpose of identifying the source of physical

evidence used for DNA testing.”

It may make sense to add this

language to Rule 4-709 in the places where the Rule refers to

“search of a database or log.”

This way it would not matter what

-106-

the database is called.

It clarifies what is being searched for.

The Chair noted that this would only modify the “database or log

search,” not the DNA testing.

language would go.

The Reporter asked where this

The Chair answered that it would be added

throughout the Rules wherever the language “database or log

search” appears.

By consensus, the Committee approved this

change.

Mr. Karceski pointed out that sections (c), (d), and (e)

have not been changed.

There had been a former section (d)

entitled “Appointment of Counsel” that has been stricken, because

at this point in the proceedings, counsel has already been

appointed in the newest version of the Rules.

By consensus, the Committee approved Rule 4-709 as amended.

Mr. Karceski presented Rule 4-710, Determination of Petition

After a Hearing, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 700 – POST CONVICTION DNA TESTING

ADD new Rule 4-710, as follows:

Rule 4-710.

A HEARING

(a)

DETERMINATION OF PETITION AFTER

DNA Testing

(1)

Denial of Petition

The court shall deny a petition for

DNA testing if it finds that:

-107-

(A) the State has made an adequate

search for scientific identification evidence

that is related to the judgment of

conviction, that no such evidence exists

within its possession, and that no such

evidence was intentionally and willfully

destroyed; or

(B) scientific identification evidence

exists but the method of testing requested by

petitioner is not generally accepted in the

relevant scientific community, or that there

is no reasonable probability that DNA testing

has the scientific potential to produce

exculpatory or mitigating evidence relevant

to a claim of wrongful conviction or

sentencing.

(2)

Grant of Petition

(A)

Order for DNA Testing

The court shall order DNA testing

if (i) the State agrees to the testing, or

(ii) after considering the petition, the

answer by the State’s Attorney, any response

by the petitioner, and any evidence adduced

at a hearing on the petition, the court finds

that specific scientific identification

evidence exists that is related to the

judgment of conviction and there is a

reasonable probability that the requested

testing has the scientific potential to

produce exculpatory or mitigating evidence

relevant to a claim of wrongful conviction or

sentencing.

(B)

Contents of Order

(i)

An order for DNA testing shall:

(a) designate the specific evidence

to be tested;

(b) specify the method of testing

to be used;

(c) specify the laboratory where

the testing is to be performed, provided

that, if the parties cannot agree on a

laboratory, the court may approve testing at

-108-

any laboratory accredited by the American

Society of Crime Laboratory Directors, the

Laboratory Accreditation Board, or the

National Forensic Science Technology Center;

(d) require that the laboratory

send a report of the results of the testing

as well as raw data and the laboratory notes

to the petitioner and the State’s Attorney;

and

(e) contain a provision concerning

the payment of the cost of the testing.

(ii) An order for DNA testing also

may:

(a) provide for the release of

biological evidence by a third party;

(b) require the preservation of

some of the sample for replicate testing and

analysis or, if that is not possible, the

preservation of some of the DNA extraction

for testing by the State; and

(c) contain any other appropriate

provisions.

Cross reference: Code, Courts Article, §10915.

(3) Inability of State to Produce

Scientific Evidence

If the State is unable to produce

scientific evidence that the State was

required to preserve pursuant to Code,

Criminal Procedure Article, §8-201 (i)(1),

and the court after a hearing determines that

the failure to produce evidence was the

result of intentional and willful

destruction, the court shall:

(i) if no post conviction proceeding

was previously filed by the petitioner under

Code, Criminal Procedure Article, §7-102,

open such a proceeding;

(ii) if a post conviction proceeding is

currently pending, permit the petitioner to

-109-

amend the petition in that proceeding in

light of the court’s finding; or

(iii) if a post conviction proceeding

was previously filed by petitioner under

Code, Criminal Procedure Article, §7-102, but

is no longer pending, reopen the proceeding

under Code, Criminal Procedure Article, §7104.

At any such post conviction hearing, the

court shall infer that the results of the

post conviction DNA testing would have been

favorable to the petitioner.

(b)

Database or Log Search

The court shall order a database or

log search by a law enforcement agency if (i)

the State agrees to the search, or (ii) after

considering the petition, the answer by the

State’s Attorney, any response by the

petitioner, and any evidence adduced at a

hearing on the petition, the court finds that

a reasonable probability exists that the

database or log search will produce

exculpatory or mitigating evidence relevant

to a claim of wrongful conviction or

sentencing. In all other cases, the court

shall deny the petition.

Source:

This Rule is new.

Mr. Karceski explained that this version of Rule 4-710 has

some changes.

Section (a) pertains to DNA testing as

distinguished from a database or log search.

addresses the denial of the petition.

Subsection (a)(1)

The court shall deny a

petition for DNA testing if it finds (1) that the State has made

an adequate search for scientific identification evidence related

to the judgment of conviction, that no such evidence exists

within its possession, and that the evidence was not

intentionally and willfully destroyed; or (2) that scientific

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identification evidence exists but the method of testing

requested is not generally accepted in the relevant scientific

community, or that there is no reasonable probability that DNA

testing has the scientific potential to produce exculpatory or

mitigating evidence relevant to a claim of wrongful conviction or

sentencing.

Senator Stone inquired if some other language is needed

because all evidence that was destroyed was done so intentionally

and willfully.

The Chair questioned whether the statute uses the

language “intentionally and willfully.”

Mr. Klein remarked that

he had raised this issue at a prior meeting, and the answer was

that this language is a term of art.

Mr. Shellenberger observed

that the problem is that more likely than not, the police had the

shirt 30 years ago, and the protocol was that it could be

destroyed after five years.

It was intentionally and willfully

but not wrongfully destroyed.

Should the word “unlawfully” or

the language “in violation of protocols” be added in to clarify

the meaning?

Judge Norton noted that “intentionally and willfully” is the

language in the statute.

The Chair inquired whether the word

“willfully” could be construed as meaning “unlawfully.”

are inconsistent about this language.

Courts

He asked the Committee if

they wanted to add the word “unlawfully” under the theory that

statutory construction is that it must mean that.

Senator Stone

responded that he did not believe that this would upset anyone in

the legislature.

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The Chair asked Ms. Nethercott if she agreed with adding

this.

Ms. Nethercott replied that she did not have a problem

substantively, but stylistically, it would require the use of

three adjectives together.

Ms. Holback suggested that the new

language could be “intentionally and willfully destroyed in an

unlawful manner.”

Judge Love suggested that a Committee note

could be added that would explain that the Committee was tracking

the language of the statute, and the Committee thinks that the

language means that the destruction was unlawful.

The Chair commented that it may not be a good idea to drop

the concept of “intentional.”

It may have been unlawful to

destroy the evidence, but it was not done intentionally or

willfully.

The statutory language has a specific meaning.

Mr.

Klein noted that the State may have destroyed the wrong item.

The words “intentionally” and “willfully” are necessary.

The

question is whether the word “unlawfully” should be added.

Master Mahasa referred to the language in subsection (a)(3)

of Rule 4-709 that reads, “... in conformance with any relevant

governing protocols or was otherwise lawful...,” and she asked if

language similar to this should be added to subsection (a)(1)(A)

of Rule 4-710.

The Chair responded that he was not sure that the

word “unlawful” would apply to this language.

As of 2001, the

statute requires the State to keep the evidence.

Before that the

State did not have to keep it, but there may have been protocols

that the police had for destroying evidence.

Since 2001, if the

State destroyed evidence that the law requires the State to keep,

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it is unlawful.

Mr. Shellenberger noted that it was unlawful,

but it might not have been willful or intentional.

The Chair said that before there was a duty to keep the

evidence, the destruction of it may not have been unlawful, but

protocols for destruction of the evidence existed that the State

did not follow.

Mr. Shellenberger added that if the protocols

were not followed, it would be willful and intentional, and the

judge would decide whether or not it was lawful under the

protocol.

Mr. Karceski expressed the view that this is why the word

“unlawful” should not be incorporated into the Rule.

Otherwise,

there would be a debate about whether destruction that took place

before 2001 is unlawful or lawful.

Ms. Holback commented that

the protocols in Baltimore City at the time of Arey did not cover

this.

Mr. Klein remarked that if the evidence has been

destroyed, regardless of how or why, there is nothing to test.

Ms. Holback observed that the statute provides that if the court

determines that the evidence was intentionally and willfully

destroyed, the court shall infer that the results of the post

conviction DNA would have been favorable to the petitioner.

Mr. Klein pointed out that the debate is whether a petition

for DNA testing would be denied if there is nothing to test.

Ms.

Nethercott said that there could be a situation where a request

is made as to whether the evidence is still in existence, and the

answer is affirmative.

A petition for DNA testing is filed.

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The

State answers that testing is not appropriate.

At some point

after this, the police detective requests that all of the

evidence be destroyed, and it is.

This is clearly a situation

where the petitioner states that he or she is entitled to an

inference, because the State willfully and intentionally

destroyed the evidence knowing that the petitioner wanted it.

The petitioner would state that he or she is entitled to an

inference that if he or she would have been able to test the

evidence, the petitioner would have gotten an exculpatory result.

The idea was to provide some sanction for the State’s conduct.

The Chair said that the petition would not be denied; the issue

is the remedy.

Judge Norton expressed the opinion that the language should

be left alone.

The legislature meant for the word “willful” to

modify the word “intentional,” and it is not necessary to add

another layer of review.

The words “and willfully” mean

something more than intent.

Master Mahasa asked about adding a

Committee note referring to conformance with whatever protocols

were in place at the time of the destruction of the evidence.

The Chair reiterated that after 2001, it no longer matters what

the protocols were, the evidence had to be kept.

Master Mahasa

remarked that it would be the protocols before 2001.

She

suggested that the language in subsection (a)(3) of Rule 4-709 to

which she had referred earlier would be appropriate -- “...in

conformance with any relevant governing protocols or was

otherwise lawful...”.

The Chair pointed out that there may not

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have been any protocols.

Master Mahasa explained that based on the discussion, she

felt that a clarification could be helpful.

She moved to add

this language to a Committee note after subsection (a)(1)(A) of

Rule 4-710.

opposed.

The motion was seconded, and it passed with only two

The Reporter asked what the exact wording would be.

Master Mahasa suggested that the language of Rule 4-709 (a)(3) be

tracked to apply to the destruction of evidence before 2001.

Mr. Karceski told the Committee that subsection (a)(2)

addr

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