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Calhoun-El v. State

Court of Special Appeals of Maryland

December 21, 2016


          Meredith, Graeff, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.


          GRAEFF, J.

         James A. Calhoun-El, appellant, appeals from the December 3, 2012, Order of the Circuit Court for Montgomery County, denying his Motion to Reopen Post-Conviction Relief. Appellant filed an Application for Leave to Appeal, which this Court granted on December 10, 2015.

         Pursuant to this Court's Order directing the parties to brief three issues, appellant presents the following three questions:

1. In light of Unger v. State, 427 Md. 383 (2012), did the trial court at appellant's 1981 trial commit reversible error by instructing the jury that (1) as to the offenses with which Calhoun-El was charged, the jury was "the sole judges of the law and facts, " (2) the court's instructions as to the offenses were "advisory, " and (3) the jury was "not bound to follow" the instructions?
2. If the trial court committed reversible error, then in light of Unger, did defense counsel's failure to object to the instructions constitute a waiver?
3. If defense counsel's failure to object to the instructions did not constitute a waiver, then in light of State v. Waine, 444 Md. 692 (2015), did the circuit court abuse its discretion in denying Calhoun-El's motion to reopen his post-conviction proceeding and err in failing to vacate his convictions and award him a new trial?

         For the reasons set forth below, we shall affirm the judgment of the circuit court.


         On November 3, 1981, a jury in the Circuit Court for Montgomery County convicted appellant of first degree murder of a police officer, first degree murder of a civilian, and several related offenses. It subsequently sentenced appellant to death for the murder of the police officer, and the circuit court sentenced appellant to life for the murder of the civilian, and an additional eighty years, consecutive, for the remaining convictions. Appellant's convictions were affirmed on appeal by the Court of Appeals.[1] Calhoun v. State, 297 Md. 563 (1983), cert. denied sub nom. Tichnell v. Maryland, 466 U.S. 993 (1984).

         For the purposes of this appeal, we adopt the "agreed statement of facts" set forth by the Court of Appeals in its opinion affirming appellant's convictions:

The W. Bell store is located at 1130 New Hampshire Avenue in White Oak, Montgomery County. Banging noises coming from the area of the Bell store were heard by a neighbor across the street at approximately 11:00 p.m. on March 26, 1981. She saw shadows in the area of the roof at the back of the store. The neighbor notified her father, who went outside their home with a flashlight to investigate. He saw people leaving. She saw a car, which looked like a hatchback, parked across the street.
An employee of Electro Protective Corporation testified that at 6:16 a.m. on March 27, 1981, both the safe alarm and the perimeter alarm at the Bell store were activated. He notified the police; Douglas T. Cummins, Jr., Bell's assistant manager; and David W. Myers, an employee of Electro. Officer Philip Carl Metz, the police officer covering that beat on that particular day, was dispatched to the Bell store.
Cummins testified that at approximately 6:20 or 6:25 a.m. on March 27 he received a telephone call from Electro. He arrived at the store at about 7:00 a.m. at which time he saw a white station wagon with Electro's name on the door in front of the store. He observed a late model two-door black Cadillac on the other side of the parking lot. A black male in the front seat was the sole occupant.
The technician in the Electro vehicle identified himself to Cummins. Cummins drove around the store and noticed that the outside of the building appeared to be secure. Officer Metz arrived on the scene at about 7:15 a.m. Cummins unlocked Bell's door with a set of master keys. He, Officer Metz, and Myers entered the building. They first checked the merchandise area. Then they proceeded to the cashroom. It had two doors, both of which supposedly could be opened only from the inside. Cummins put a key into the door. Upon his opening the door Officer Metz stepped in front of him to enter. At that moment Cummins noticed "a shoulder and about half of a back of an individual standing to the right of the doorway." Metz was pulled into the doorway as another, shorter individual armed with a pistol jumped into the hallway area. Cummins did not see the place from which the shorter man came. Myers drew his gun and stumbled back into a hallway door when he was shot. Cummins said he realized he had been shot in the upper shoulder area of his chest. After thirty to forty-five seconds the taller man opened the door and dragged Cummins into the office. Cummins at that point observed Metz lying on the floor and bleeding from the head. Cummins said that although he saw or heard no evidence of a third person he had no idea whether there might have been other individuals there who had left through another door by the time he was dragged into the room. He asserted that the shorter man shot him and he could only assume that it was the taller person who shot Metz.
Cummins complied with the taller man's order to open a combination safe. He was then asked by that same person to open a second safe. He was hit on the left side of his head with a pistol when he reached for his wallet which contained the combination to the second safe. Cummins said that after he failed twice in his efforts to open the second safe this taller person cocked a pistol, put it to the side of Cummins' head and informed him that if he did not open the safe that time he was a dead man. He succeeded in opening the safe. He was then told to sit on the floor. His wrist was handcuffed to a file cabinet drawer. He heard his assailants scramble up through the ceiling of the office "and then back down on the other side." He pulled himself onto a chair, pulled the file drawer from the cabinet, carried the drawer by its handle to a telephone in the loading dock area, and called the police. After failing to detect a pulse from Myers' neck, he went to the door and waited for help.
Cummins testified that both of the men that he saw were wearing stocking masks which covered their entire heads. Both men wore gloves on their hands. Cummins observed gaps between the sleeve cuffs and the top of the gloves of these persons from which he determined they were black.
James Adcock testified that while working as a plumber on the fourth floor of a building next door to the Bell store, at approximately 7:00 a.m. on March 27, 1981, he looked out the window and saw two black males running across the parking lot. He said they "skipped" over a fence, jumped over a wall and went into a parked "brown or maroon-looking car" that then drove away.
Evidence to connect Calhoun with the crime included that of an accomplice who testified pursuant to a plea agreement. His testimony included a description of an attempt by him and another to break into the Bell store through the roof shortly after midnight on the morning of this incident. They were frightened away when they noticed someone watching them with a flashlight from across the parking lot. He related how later, in the early hours of that morning, he and his associates encountered Calhoun, discussed the hole they had put in the Bell roof, and worked out a plan for entering the store. They then waited for the manager to arrive so that the robbery could be effected. He described the operation in detail including mention of weapons, a description of the stocking masks used and their source, and testimony as to the amount of money taken and its division. There was substantial other evidence adduced in addition to that of the accomplice including testimony concerning casts made of footprints found in the area. Two of these casts matched one of the shoes of the accomplice.

Id. at 572-74.

         In 1985, after his convictions were upheld on direct appeal, appellant filed a motion for post-conviction relief, arguing, inter alia, that the trial court's "advisory" jury instructions during the guilt/innocence phase of the trial were improper. The post-conviction court rejected this claim, finding that the contention was waived because defense counsel failed to raise the issue at trial and on appeal.[2]

         In 1989, appellant filed a "supplemental" petition for post-conviction relief, and the State conceded that appellant was entitled to a new sentencing proceeding. In 1990, after a multi-day sentencing proceeding, the jury determined that appellant should be sentenced to life, not death, for the murder of the police officer, with this sentence to be served consecutively to appellant's other sentences.

         Appellant subsequently filed multiple motions for collateral review. All of those motions were denied without a hearing.

         The motion at issue here is the Motion to Reopen appellant's post-conviction case, which was filed on July 5, 2012. After the circuit court denied appellant's motion without a hearing, appellant filed an application for leave to appeal, which this Court granted.


         The issues in this case are all based on appellant's contention that the "trial court committed reversible error when it told the jury that its instructions on reasonable doubt, the burden of proof, and the substantive definitions of the offenses were advisory and could be disregarded." He contends that the law is clear that "jurors must be told that instructions regarding constitutional requirements and the undisputed law of the crimes alleged 'are binding on the jury and counsel as well.'" Before addressing the parties' contentions, we first will address the rather tortured path of the law in Maryland regarding "advisory" jury instructions.


         History of Advisory Instructions

         Article 23 of the Declaration of Rights provides that the jury in a criminal case "shall be the Judges of the Law, as well as of fact." In 1980, the Court of Appeals addressed the propriety of "advisory rather than binding (jury) instructions" and whether such an instruction "facially deprives a defendant of the federally secured right to due process of law" under the 14th Amendment to the U.S. Constitution. Stevenson v. State, 289 Md. 167, 169, 172 n.2 (1980), overruled by Unger, 427 Md. 383 (2012). In addressing this issue, the Court stated that it first would determine what "law" the jury is entitled to "judge" under Article 23. Id. at 176. The Court stated that previous decisions made clear that the right of juries to decide the law was not "all-inclusive, " but rather, it was much more limited in scope. Id. at 177. Indeed, past decisions "make it quite evident" that the jury's role in judging the law was "confined 'to resolv(ing) conflicting interpretations of the law ...

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