# COURT OF APPEALS STANDING COMMITTEE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A8d05962d4ff1c677 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text 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 -4- 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 -5- 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 -8- 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 -21- ______ 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 -69- 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 -71- 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 -72- 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.” -78- 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 -81- 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: -82- 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 -83- 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: -84- 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A8d05962d4ff1c677. Public record. Not legal advice.