Circuit Court for Queen Anne's County Case No. 17-K-97-004789
Harrell Battaglia Greene Adkins McDonald [*] Bell Rodowsky, Lawrence F. (retired, specially assigned), JJ.
The appellant, Jody Lee Miles (Miles), is a convicted murderer who was condemned to death by a jury in the Circuit Court for Queen Anne's County on March 19, 1998. After numerous reviews,  Miles, in July 2011, filed a second motion to correct his sentence, claiming that it was illegal.
Miles asserts that his sentence is illegal because the Maryland death penalty statute violates the Declaration of Rights (MDR) Article 16, which reads:
"That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter."
Appellant's principal position is that, on November 3, 1776, when the Maryland Constitutional Convention adopted our first Constitution and Declaration of Rights, then
MDR Article 14, by its reference to "sanguinary laws, " abolished capital punishment, subject to the State safety exception, without regard to the nature of the crime or the method of imposition of that punishment. Article 14 read:
"That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time hereafter."
D. Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L. Rev. 637, 656 (1998) (Friedman-Temple).
Miles also contends that his sentence is illegal because it violates MDR Article 24, which provides:
"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land."
That argument is directed to the provision in the death penalty statute under which his jury determined "whether, by a preponderance of the evidence, the aggravating circumstances outweigh[ed] the mitigating circumstances." Maryland Code (1957, 1996 Repl. Vol.), Article 27, § 413(h)(1), more recently Maryland Code (2002, 2012 Repl. Vol.), § 2-303(i)(1) of the Criminal Law Article. The circuit court denied Miles's motion, and he noted this appeal. He presents two questions:
"1. Is Mr. Miles' death sentence unconstitutional and illegal under the 'sanguinary Laws' clause of Article 16 of the Maryland Declaration of Rights?
"2. Is Mr. Miles' capital sentence illegal where the jury did not find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors?"
We shall affirm for the reasons set forth below.
Motion to Dismiss
The State has moved to dismiss the appeal.
Maryland Rule 4-345(a) provides that "[t]he court may correct an illegal sentence at any time." The State correctly observes that Miles's use of Rule 4-345(a) is not within the letter of our previously decided cases. We have indicated, however, that a sentence may be reviewable under Rule 4-345(a) where a United States Supreme Court decision, promulgated after sentencing, announces a new judicial interpretation of a constitutional provision that brings into question the validity of the statute on which the sentence is based. See Evans v. State, 396 Md. 256, 272, 914 A.2d 25, 34-35 (2006), cert. denied, 552 U.S. 835, 128 S.Ct. 65 (2007). If the death penalty statute does not comply with the Declaration of Rights, the statute fails, and with it, the sentence. Here, Miles asks this Court to declare a constitutional rule of first impression. We hold that this issue of substantive constitutional law is within Rule 4-345(a).
We conclude otherwise with respect to the dismissal of Miles's appeal on the second issue. His contention is not within Rule 4-345(a) for the reasons ably stated by the circuit court.
"As noted supra, Defendant challenged this weighing procedure in his August, 2007 motion to correct illegal sentence. In that motion, defendant primarily relied on Cunningham v. California, 549 U.S. 270 (2007), a U.S. Supreme Court decision that was published in January, 2007. Defendant argued that, pursuant to Cunningham, Maryland's capital sentencing scheme violates the Sixth Amendment unless it requires that aggravating factors outweigh mitigating factors beyond a reasonable doubt. Defendant additionally asserted that the sentencing procedure violates Article 21 of the Maryland Declaration of Rights. See Md. Code, Ann., Const. Art. 21 (2003, 2011 Supp.).
"This Court denied the motion on January 4, 2008. Defendant timely appealed. Significantly, Defendant never explicitly raised the issue of the constitutionality of the weighing procedure under the Declaration of Rights. Rather, Defendant focused his argument on the Sixth Amendment. For reasons not directly pertinent to the issues currently before this Court, the Court of Appeals affirmed the denial of Defendant's motion, holding that 'Maryland's capital sentencing procedure does not violate [the] Sixth Amendment.' Miles v. State, 421 Md. 596, 607[, 28 A.3d 667, 673] (2011). The Court did not address the sentencing procedure's constitutionality with respect to the Maryland Declaration of Rights.
"Defendant's current motion, again, challenges the sentencing procedure under the Declaration of Rights. Defendant concedes that although Article 21 was mentioned in the 2007 motion, the Declaration of Rights issue was not explicitly raised before the Court of Appeals. Defendant now 'requests that this Court vacate his sentence of death on the ground that permitting the death sentence based on a jury finding by a preponderance of the evidence that the aggravating factors outweighed the mitigating factors violated the Maryland Declaration of Rights.' Revised Supplemental Motion at 2. This time, Defendant primarily relies on Article 24 of the Declaration of Rights which provides, in pertinent part, that 'no man ought to be ... deprived of his life ... but by the judgment of his
"Defendant cites no new judicial interpretation in the case at bar. Consequently, Defendant's motion may be cognizable under Rule 4-345(a) only under the general rule, where the alleged error resulted in illegality of the sentence itself. Defendant's Article 24 argument does not challenge the inherent illegality of his death sentence. Rather, it alleges error in the underlying procedure that resulted in the sentence. 'The notion of an "illegal sentence" ... deals with substantive law, not procedural law.' Corcoran v. State, 67 Md.App. 252, 255[, 507 A.2d 200, 202] (1986). An error in a sentencing procedure, even if it is of a constitutional dimension, may very well result in an inherently and substantively legal sanction. Cf. State v. Wilkins, 393 Md. 269, 275[, 900 A.2d 765, 769] (2006) (citing Randall [Book Corp. v. State], 316 Md. [315, ] 323[, 558 A.2d 715, 719 (1989)]) ('An error committed by the trial court during the sentencing proceeding is not ordinarily cognizable under Rule 4-345(a) where the resulting sentence or sanction is itself lawful.'); Evans [396 Md. at 271-72, 914 A.2d at 34]. Indeed, 'a sentence, proper on its face, [does not] become an "illegal sentence" because of some arguable procedural flaw in the sentencing procedure.' Corcoran, 67 Md.App. at 255[, 507 A.2d at 202]. Therefore, the motion to correct an illegal sentence is not an appropriate vehicle to address Defendant's Article 24 argument.
"The Court's decision is consistent with the narrow scope of the motion to correct illegal sentence. See Tshiwala [v. State], 424 Md. , 619[, 37 A.3d 308, 312 (2012)]. A [Rule] 4-345(a) motion is generally cognizable only where there is no conviction warranting any sentence, see, e.g., Ridgeway v. State, 369 Md. 165[, 797 A.2d 1287] (2002), or where the sentence exceeds the limits imposed by law, see, e.g., Matthews [v. State], 424 Md. 503[, 36 A.3d 499 (2012)]. See Chaney v. State, 397 Md. 460, 466[, 918 A.2d 506, 509-10] (2007). Because imposing a punishment under these circumstances is particularly egregious, Rule 4-345(a) 'creates a limited exception to the general rule of finality, and sanctions a method of opening a judgment otherwise final and beyond the reach of the court.' State v. Griffiths, 338 Md. 485, 496[, 659 A.2d 876, 882] (1995). In all other cases, the interests of finality outweigh a defendant's interests in challenging alleged errors beyond a direct appeal and a post-conviction petition."
Because Miles's second contention is not cognizable under Rule 4-345(a), the circuit court was correct in denying relief under that rule on the preponderance argument. That does not result, however, in a dismissal of the appeal on that issue. Rather, we shall affirm.
The principal argument advanced by Miles is that, textually, Article 14 of the 1776 MDR abrogated capital punishment. The argument consists of four steps, which we have reordered.
1. "A 'sanguinary law' is a law authorizing the imposition of the death penalty";
2. "The word 'ought' means 'shall'";
3. "'[T]o be avoided' means 'to be refrained from' or 'to be made void'"; and
4. "The phrase 'as far as is consistent with the safety of the State' means 'unless necessary for the security of the State of Maryland.'"
Miles undertakes, in the major portion of his brief, to demonstrate that, in 1776, the well understood meaning of "sanguinary, " particularly when modifying "laws, " was capital punishment. His hypothesis is that, in 1776, the constitutional convention proscribed capital punishment for any offense, including murder, that did not impact State security, and that the proscription operated without regard to the method of executing the sentence. This absolutist position is essential to Miles's hypothesis because Maryland's modern death penalty statute, if applied to Miles, does not infringe constitutional prohibitions against cruel or unusual punishment or against cruel and unusual pains and penalties. See, e.g., Johnson v. State, 303 Md. 487, 542, 495 A.2d 1, 29 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868 (1986); Stebbing v. State, 299 Md. 331, 373, 473 A.2d 903, 924, cert. denied, 469 U.S. 900, 105 S.Ct. 276 (1984); Colvin v. State, 299 Md. 88, 126-27, 472 A.2d 953, 972, cert. denied, 469 U.S. 873, 105 S.Ct. 226 (1984); Calhoun v. State, 297 Md. 563, 606, 468 A.2d 45, 65 (1983) (holding that modern death penalty statute satisfies Eighth and Fourteenth Amendments to the United States Constitution and MDR Articles 16 and 25), cert. denied, 466 U.S. 993, 104 S.Ct. 2374 (1984); Johnson v. State, 292 Md. 405, 436, 439 A.2d 542, 559-60 (1982); Tichnell v. State, 287 Md. 695, 729, 415 A.2d 830, 848 (1980) (finding that modern death penalty statute satisfied Eighth and Fourteenth Amendments to the United States Constitution and MDR Article 25 but remanding for re-sentencing because death sentence had been applied arbitrarily).
The thesis advanced by Miles begins with an intellectually influential work by Cesare Beccaria (1738-1794), An Essay on Crimes and Punishments, written in Italian in 1764 and first published in English in 1767 (Beccaria). See also XI W. Holdsworth, A History of English Law, at 575, notes 11 & 12 (1938) (Holdsworth). Beccaria advocated proportionality in sentencing. Beccaria at 21-26. He opposed capital punishment and proposed lifelong slavery as the alternative punishment for murder. Id. at 102-17. Because of the possibility that a revolutionary might escape, he believed that capital punishment was justified only to protect the safety of the state. Id. at 103-04.
The term "sanguinary" does not appear in the English translation of Beccaria's work. The Legal Classics English edition includes an unsigned commentary, usually attributed to Voltaire, that uses the term "sanguinary" in the title of chapter thirteen, which describes the death sentence imposed on a poor French man for breaking his Lenten fast by eating "a morsel of horse-flesh, " out of "the most intolerable hunger." Commentary at 43. The point of the commentary is the shocking lack of proportionality in that case.
Miles, acknowledging computer searches for his ability to survey the subject, has presented us with an array of quotations using the term "sanguinary" in historical, political, philosophical, legal, and other writings, particularly from the eighteenth and nineteenth centuries. For example, we are referred to eleven writers of those centuries who, as Miles synthesizes their quotations, "say that Solon abolished the sanguinary laws of Draco, except the ones for murder, thereby implying that the death penalty for murder is a sanguinary law." Brief of Appellant at 16 n.4.
Miles also directs our attention to the use of "sanguinary" by those who opposed capital punishment under any circumstances. The Maine Constitution, Article I, § 9 (1820), provided: "Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense ... nor cruel nor unusual punishments inflicted." In 1836 a Joint Select Committee on Capital Punishment considered this provision and reported, in relevant part:
"Sanguinary is derived from a Latin word which signifies blood, and is synonymous with the Latin sanguinarius and the French sanguinaire, both of which signify bloody, murderous, cruel. These are the definitions given by Webster, and other lexicographers; and it is in this sense that it is here used. If an objection be raised to this construction, on the ground that the law requiring the punishment of death by hanging, for certain offences, is not one requiring the blood of a fellow-being, it will be readily perceived that such an objection is unwarranted by the common use of language. If one man shall put to death another, whether by poisoning, strangulation, or suffocation, he is said to be guilty of the blood of the murdered person, and is even said to have shed his blood, although no blood has literally been spilt. It is in this sense that the advocates of the punishment of death explain and make the practical application of the passage of Scripture, 'Whoso sheddeth man's blood, by man shall his blood be shed.' Hence, they say, the man who has shed the blood of another should be hung upon the gallows; that is, his blood should be shed to expiate the crime. It is obviously true that the taking of life and the shedding of blood are used synonymously. In this sense, hanging a man with a halter till he is dead is as much a sanguinary punishment as decapitation. The law, therefore, prescribing this mode of punishment is a sanguinary law, and consequently unconstitutional."
T. Purrington, Report of Capital Punishment, Made to the Maine Legislature in 1836, at 28-29 (2d ed. 1852). Maine abolished the death penalty in 1876, reinstated it for murder in 1883 and permanently abolished it in 1887. See D.W. Denno, Getting to Death, Are Executions Constitutional?, 82 Iowa L. Rev. 319, 448 n.824 (Jan. 1997).
With respect to "ought" in the sanguinary laws clause, Miles asserts that it is mandatory, and not directory. Significantly, Miles recognizes that the clause is a "'restriction' and 'limitation' on the power of the General Assembly." Appellant's Brief and Appendix at 8 (quoting Harford County v. Board of Supervisors of Elections, 272 Md. 33, 39-40, 321 A.2d 151, 154-55 (1974)). Citing to Samuel Johnson's 1775 dictionary and to Black's Law Dictionary 136 (6th ed. 1990) for the meaning of "to avoid, " Miles observes that the seventh meaning assigned by the former, and a meaning included by the latter, is "to annul." He concludes that, in the sanguinary laws clause, it
"could mean either 'to be refrained from' or 'to be made void.' If it means the former, the clause would prohibit the legislature from enact[ing] 'sanguinary Laws' to the extent that such a prohibition was 'consistent with the safety of the State." If the latter, the clause would require that 'sanguinary Laws' be voided 'as far as it is consistent with the safety of the State.' Under either interpretation, the result is the same."
Appellant's Brief and Appendix at 8-9.
The Circuit Court's Decision and The State's Submission
In a thirty-nine page opinion, the learned circuit court undertook to define a sanguinary law. Addressing the plain meaning of the text of 1776 MDR Article 14, it reviewed the dictionaries of the era.
"The many founding-era dictionaries consulted by the Court do not directly define the phrase 'sanguinary laws.' The dictionaries of the time, however, consistently define the word 'sanguinary' as 'cruel; bloody; murderous.' Samuel Johnson, A Dictionary of the English Language: Abstracted from the Folio Edition (1768); Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799); William Kendrick, A New Dictionary of the English Language (1773); John Walker, A Dictionary of the English Language (1775); Nathan Bailey, A Universal Etymological English Dictionary (1794); Thomas Sheridan, A Complete Dictionary of the English Language (1796); Noah Webster, A Compendious Dictionary of the English Language (1806). The word 'sanguinary' is, indeed, rooted in the Latin word 'sanguis, ' meaning 'blood.' D. P. Simpson, Cassell's Latin Dictionary ([Funk] & Wagnalls 1977) (1959).
"It is instructive to further define the words that comprise the definition of 'sanguinary.' The word 'cruel, ' was defined by founding-era dictionaries as '[p]leased with hurting others; inhuman, hard-hearted; barbarous.' Samuel Johnson, A Dictionary of the English Language: Abstracted from the Folio Edition (1768); Noah Webster, A Compendious Dictionary of the English Language (1806) ('hardhearted, inhuman, bloody, fierce'). The term 'blood, ' in turn, means 'stained with blood, murderous, cruel.' Noah Webster, A Compendious Dictionary of the English Language (1806); Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799) ('cruel; murderous: applied either to men or facts'). 'Inhuman' was defined as '[b]arbarous; savage; cruel; uncompassionate.' Samuel Johnson, A Dictionary of the English Language: In Which the Words are Deduced from their Originals (1799). Similarly, 'barbarous' had a meaning of '[c]ruel; inhuman' and '[s]tranger to civility; savage; uncivilized.' Samuel Johnson, A Dictionary of the English Language: Abstracted from the Folio Edition (1768). Finally, 'murderous' was defined as '[b]loody, guilty of murder.' Richard Coxe, Walker's Dictionary, A Critical Pronouncing Dictionary of the English Language (1813)."
The court reviewed the historical context of the sanguinary laws clause from "The Bloody Code of England" through the "Harsh Laws in Colonial Maryland, " to "The Age of Enlightment." It concluded:
"The overwhelming weight of evidence reveals that 'sanguinary laws' are laws which impose severe, inhumane, barbarous, cruel, and grossly disproportionate punishment. Sanguinary laws are reminiscent of the extreme punishments instituted by the Bloody Code of England. Through the Sanguinary Laws Clause, Maryland's founding fathers rejected the harsh punishments characteristic of the Bloody Code and declared that criminal sanctions shall be both humane and proportioned to the offence. The Sanguinary Laws Clause was a mandate to reform the criminal law by bringing punishments in line with Enlightment-era principles.
"Defendant's assertion that the phrase 'sanguinary laws' means laws that authorize the death penalty is neither consistent with the common usage of the phrase, nor with the historical context of Article 16. Certainly, if a statute made theft a capital crime, that law would be sanguinary. Common founding-era usage of the term 'sanguinary law, ' however, would not encompass imposition of the death penalty for the most serious and heinous crimes, such as first degree murder. This interpretation is consistent with history. Despite the reforms to criminal laws that followed the founding of the states whose constitutions limit 'sanguinary laws, ' the death penalty was never abolished for first degree murder and other serious offenses."
The State agrees with the circuit court's analysis, but it also points out that it is unnecessary to the decision of this case to define sanguinary laws for all purposes. It is sufficient to decide whether capital punishment for murder, carried out by lethal injection, is prohibited by current MDR Article 16.
Rules of Construction
In general, the same rules that apply to statutory construction apply to the construction of constitutional provisions. See, e.g., Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80 (2004). We look first to the plain meaning of the provision, in the context of the instrument as a whole. See Barbre v. Pope, 402 Md. 157, 172, 935 A.2d 699, 708 (2007). If the meaning remains ambiguous, we consult the history of the enactment or adoption, which we may consult in any event as a check or verification on the apparent plain meaning. See Robey v. State, 397 Md. 449, 454, 918 A.2d 499, 502 (2007).
In construing constitutional provisions,
"It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid. When that becomes necessary, however, it is permissible to inquire into the prior state of the law, the previous and contemporary history of the people, the circumstances attending the adoption of the organic law, as well as broad considerations of expediency. The object is to ascertain the reason which induced the framers to enact the provision in dispute and the purpose sought to be accomplished thereby, in order to construe the whole instrument in such way as to effect ...