Argued: June 2, 2016
Court for Anne Arundel County Criminal Case No.
02-K-10-002057 Postconviction Case No. 21, 155
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
Battaglia, Lynne A. (Retired, Specially Assigned), JJ.
Uniform Postconviction Procedure Act ("UPPA") gives
the circuit court the discretion to reopen a postconviction
proceeding if doing so is "in the interests of
justice." Md. Code Ann., Crim. Proc. § 7-104 (2001,
2008 Repl. Vol.). We granted the State's petition for a
writ of certiorari in this case to decide whether that same
provision likewise grants the Court of Special Appeals the
authority to afford the same relief. We conclude easily that it
does not. The answer to that particular question, however,
does not resolve the matter at hand.
we must look to another aspect of the UPPA and, further,
review once again advisory only instructions given at the
time that they were mandated by Article 23 of the Maryland
Declaration of Rights. Today, we put to an end finally any
question surrounding such instructions and the effect that
they have upon an individual's criminal trial. We
reaffirm our holding in State v. Waine, 444 Md. 692
(2015), that structural error results from the giving of
advisory only instructions that include expressly or by
implication the presumption of innocence and the standard of
proof. Such error, upon a proper petition for postconviction
relief or motion to reopen a postconviction proceeding,
entitles an individual to a new trial. We further hold that
the Court of Special Appeals is statutorily authorized to
review for an abuse of discretion a circuit court's
denial of a motion to reopen and may remand the matter to the
circuit court with instruction to award appropriate relief if
the circuit court abused that discretion.
only instructions have a tortured history in this State. They
are derived from Article 23, which reads: "In the trial
of all criminal cases, the Jury shall be the Judges of Law,
as well as of fact, except that the Court may pass upon the
sufficiency of the evidence to sustain a conviction."
Based upon that constitutional mandate, we required judges
under then-Maryland Rule 756b "[i]n every case in which
instructions are given to the jury [to] instruct the jury
that they are the judges of the law and that the court's
instructions are advisory only."
1980, in Stevenson v. State, 289 Md. 167 (1980), we
were asked to decide whether Article 23 violated the Due
Process Clause of the Fourteenth Amendment. The Court held
that Article 23 was constitutional on its face, reasoning
that Article 23 limited the jurors' role as judges of the
law only with respect to "disputes as to the substantive
'law of the crime.'" Id. at 180.
Although the court's instructions on the law of the crime
were advisory, the Court determined that all other
instructions on the law were always binding upon the jury.
Id. The following year, the Court in Montgomery
v. State, 292 Md. 84, 90 (1981), subscribed to that
standard by concluding that the trial court erred in advising
the jury that all of the court's instructions
were advisory. The Montgomery Court reasoned that,
because "certain bedrock characteristics" of a
criminal trial, such as the presumption of innocence and the
standard of proof, "are not 'the law of the
crime'" they are likewise "not advisory."
Id. at 91.
confronted again with a postconviction case concerning
advisory only instructions in State v. Adams, 406
Md. 240 (2008). We reaffirmed the constitutional standard
articulated in Stevenson and Montgomery,
determined that the standard was not "new law, "
and, consequently, concluded that a criminal defendant who
had failed to object to the advisory only instruction at
trial waived the right to assert it as a ground for
postconviction relief. Id. at 256-61.
2012, we decided Unger v. State, 427 Md. 383 (2012).
We held that our precedent was clearly wrong in concluding
that the Stevenson interpretation of Article 23 was
not a new constitutional standard. Id. at 417. As a
result, we held that a defendant could challenge his
pre-Stevenson conviction through a postconviction
proceeding notwithstanding that the defendant did not object
to advisory only jury instructions at trial. Id. at
few years later, we were asked in Waine to overrule
Unger as a wrongful departure from principles of
stare decisis, and to resurrect what was once the
law under Stevenson, Montgomery, and
Adams. 444 Md. at 699. We held that Unger
was rightly decided and that stare decisis in fact
required us to adhere to it. Id. at 700-02.
Recognizing that the constitutional standard set forth in
Stevenson-that the jury is the judge of the law of
the crime and the judge's remaining instructions on the
law are binding-was a change in the law that must be applied
retroactively; we further held, pertinent to the case now
before us, that a motion to reopen based on Unger
satisfied the "interests of justice" standard under
the UPPA. Id. at 702-03; see Gray v. State,
388 Md. 366, 382-83 n.7 (2005) (concluding that,
"[w]hile it is within the trial court's discretion
to decide when 'the interests of justice' require
reopening, " a "change made in the law that should
be applied retroactively" satisfies this standard). We
held finally, informed by Sullivan v. Louisiana, 508
U.S. 275, 281-82 (1993), that an instruction that does not
satisfy the new constitutional standard announced by
Stevenson and Montgomery constitutes
"structural error not susceptible to harmless error
analysis." Waine, 444 Md. at 705.
this, we can discern that a petitioner whose conviction
resulted from a trial in which the jury was given advisory
only instructions is entitled to have his postconviction
proceedings reopened because such clearly erroneous
instructions implicate the petitioner's federal
constitutional right to due process. To deny reopening a
postconviction proceeding to a petitioner whose conviction
rests upon an error of constitutional dimension not subject
to a harmless error analysis would necessarily be an abuse of
discretion as "well removed from any center mark
imagined by the reviewing court and beyond the fringe of what
the court deems minimally acceptable." Gray,
388 Md. at 383 (internal quotation marks omitted).
1978, Respondent, James Leslie Adams-Bey, Jr., was convicted
by a jury of first degree rape and related offenses in the
Circuit Court for Anne Arundel County, and for those crimes
he was sentenced to life plus ten years of incarceration. His
convictions were affirmed by the Court of Special Appeals and
this Court. Adams v. State, 43 Md.App. 528 (1979),
aff'd, 289 Md. 221 (1981).
petitioned unsuccessfully for postconviction relief in 2010.
On August 14, 2012, shortly after we had decided
Unger, Respondent moved pro se to reopen
his postconviction proceeding on the ground that the jurors
at his criminal trial were given advisory only instructions
in violation of his constitutional right to due process of
law. Respondent argued that those instructions were
unconstitutional because the jury was not instructed to
follow the court's explanation of the law and the court
did not inform the jury of the binding nature of its
instructions on the State's burden of proof or the
presumption of innocence. The trial court instructed the
jury, in relevant part, as follows:
Madam Foreman, Ladies and Gentlemen of the jury, at this
point in the proceedings I am required to advise you
concerning the law in this case. I purposely use the
term "advise" since in a criminal case, under
Maryland law, you are the judges of both the law and the
facts. However, I wish foremost to impress upon you that
you should not reach any conclusion from anything that I have
said or may say from my tone of voice or manner in saying it,
that I have an opinion as to the guilt or innocence of the
accused. This decision is yours to make, solely, based upon
the facts derived from the competent testimony which has been
presented for your consideration as applied to the law as
you find it to be. In this regard, should court and
counsel appear to differ as to [the] law which is applicable,
you should apply the law as you find it to be, not as you
think it should be. And during this process you are not
privileged to make new law.
In arriving at your verdict, you're advised that
in this State an accused is entitled throughout the entire
proceedings to the presumption of innocence. The burden
constantly rests upon the State to convince you beyond a
reasonable doubt and to a moral certainty of every fact
material to the guilt of the accused, including every
circumstance that enters into [the] grade or the degree of
the crime charged.
You're further advised that the burden is on the
State to prove beyond a reasonable doubt not only that the
offense was committed but also it was the defendant who is
the person who committed these offenses.
. . . . And you must be satisfied beyond a reasonable doubt
of the accuracy of the identification of the defendant before
you may convict him.
To warrant a conviction in a criminal case, the charge must
be proved beyond a reasonable doubt. If you, the jury,
consider all the evidence and entertain a reasonable doubt as
to the defendant's participation in the crime, you
should acquit him. Thus, a defendant is entitled to
an acquittal if the alibi evidence taken into consideration
with all of the other evidence in the case, raises a
reasonable doubt of guilt.
Gentlemen, that concludes the advisory instructions.
State argued in response that the court's instructions
were not advisory because they did not permit the jury to
disregard the law. The State asserted that the instructions
given at Respondent's trial "materially differed
from the Unger Court's instructions"
because the court did not ...