Circuit Court for Wicomico County Case No. 22-K-07-000921
Wright, Kehoe, Harrell, Glenn T., Jr. (Senior Judge,
Specially Assigned), JJ.
you got some 'splainin' to do."
Desi Arnaz (as Ricky Ricardo) to Lucille Ball, "I Love
Lucy." (CBS, 1951-57)
Devon Taylor, condemns the Circuit Court for Wicomico County
for abusing its discretion during his 4 December 2008
criminal trial. The principal vehicle of abuse was the giving
preemptively and sua sponte by the trial judge of an
"anti-CSI effect"instruction to the jury, which had
the now asserted effect of relieving the State of meeting its
high burden of proof. As a result, he maintains that the
instruction invaded the province of the jury and deprived him
of a fair trial. Moreover, the trial judge abused his
discretion further by "coercing the jury to come to a
verdict, " and by relying impermissibly on certain
considerations in sentencing Taylor.
the State of Maryland, responds that Taylor failed to
preserve properly his challenge to the CSI effect jury
instruction because his objection "failed to state
distinctly the matter to which he objected and the grounds of
the objection, " as required by Md. Rule 4-325(e).
Furthermore, the State maintains that the trial judge adhered
to the language of the Maryland Pattern Jury Instructions
(MPJI) when instructing the jury regarding the unanimity
requirement, and sentenced properly Taylor.
end of the day, although we shall hold that the trial judge
abused his discretion in propounding to the jury the CSI
effect instruction, the error was harmless, beyond a
reasonable doubt, on this record. Moreover, we hold that
Taylor waived his challenge to the trial judge's
continuing deliberation instruction to the jury. Finally, the
trial court did not abuse its discretion in considering
evidence of Taylor's adult and juvenile records during
sentencing. Consequently, we affirm the judgment of the
following evidence was adduced by the State at trial. On the
morning of 13 June 2008, the victim was alone in her
apartment in Salisbury. At approximately 1:00 a.m., someone
knocked on her front door. She opened the door "just a
crack" and saw a nude man masturbating, while standing
to the left on her patio and looking at, but not facing
directly, her. As she was shutting the door, the man tried
unsuccessfully to push his way in. The victim locked the door
and dialed 9-1-1. The man broke the lock on the door and
entered the apartment. He wore only a t-shirt hanging around
his neck, which he pulled over the lower part of his face
upon entering the apartment. The shirt, according to the
victim, fell to his neck and revealed his full face during
victim ran to her kitchen and retrieved a 12-inch knife. The
man approached her and "grabbed or touched her arm"
holding the knife. She was able to twist her arm free, which,
in the process, caused the knife to make contact with the
intruder, without inflicting apparent injury. The victim was
able to see clearly the man's face because her living
room lights, and possibly her kitchen lights, were on during
the encounter in the apartment.
backed-off when the knife touched him. Then, he noticed the
victim's purse on the kitchen counter. He seized the
purse, containing the victim's wallet, and fled the
apartment. The victim testified that the incident lasted
"three to four minutes."
Baker arrived at the scene at 1:03 a.m., shortly after the
man fled. He observed "golf-ball sized holes or
dents" in the victim's apartment door. The victim
told Officer Baker that the intruder was "medium skinned
with no tattoos or scars, and that he had a grey t-shirt
around his neck." The officer did not seize the knife from
the crime scene for forensic testing.
Detective Corporal Richard Kaiser became the lead
investigator regarding the incident. During his review of the
police case file compiled to that point, he noticed that the
apartment door had not been processed for fingerprints or the
holes/dents photographed. Detective Kaiser contacted the
property manager for the apartment complex and learned that a
maintenance person had replaced the victim's door, moving
her former door to another apartment in the complex. He went
to the location of the "suspect" door and dusted
its knob for prints. No usable fingerprints were recovered.
Detective Kaiser noted also that the door had several large
"golf ball size[d]" dents in it. He too did not
seize the victim's kitchen knife for forensic examination nor
attempt to secure any fingerprints from inside the apartment.
July 2008, one month after the incident, Detective Scott
Elliott requested the victim look at a photo array to see if
she could identify anyone as the person who exposed himself
to and robbed her. She identified Taylor after "4
State charged Taylor in the circuit court with first, third,
and fourth-degree burglary, attempted second-degree rape,
robbery, second-degree assault, indecent exposure, malicious
destruction of property, and theft less than $100. At the
close of the evidence at his trial, during jury instructions,
the following occurred:
[The Court to the jury]: There is no legal requirement that
the State offer scientific evidence as part of its case, such
as DNA, fingerprinting, blood typing, fiber analysis, hair
follicle analysis, or anything of that nature. 
* * *
[At the close of all instructions]
[The Court to counsel]: Any additions or exceptions?
[Taylor's Counsel]: We would except, [y]our Honor.
[The Court]: Yes.
* * *
[Taylor's Counsel]: Your honor, I would just except to
the Court's scientific evidence instruction.
[The Court]: All right.
jury convicted Taylor of all charges, save attempted
second-degree rape. The trial court "sentenced [Taylor]
to [seventeen] years for count one, first-degree burglary;
ten years for count four, robbery; and three years for count
seven, indecent exposure. The sentences were to run
consecutively, for a total of [thirty] years executed time.
The remaining convictions merged."
appeal was filed timely. Appellant filed a pro se
petition for post-conviction relief on 9 June 2016, alleging
that his trial attorney's performance was ineffective and
prejudiced Taylor's rights by failing to "file both
a notice of appeal and an application for review of his
sentence by a three-judge panel." On 1 December 2016,
Taylor's recently-acquired post-conviction public
defender (joined by the State and accepted by the circuit
court) entered into "a consent order that [among other
forms of relief] allowed [Taylor] to file a belated notice of
appeal [from his 2008 conviction] and [an] application for
review of his  sentence in exchange for waiving his
right to pursue any further postconviction relief."
Accordingly, Taylor filed, on 29 December 2016, a Notice of
Appeal. This is the posture in which the matter reaches us.
appeal, Appellant frames the following questions:
I. Did the trial court err when propounding to the jury an
anti-CSI effect instruction;
II. Did the trial court commit reversible error by coercing
the jury to come to a verdict; and
III. Did the trial court consider evidence impermissibly in
sentencing Taylor to thirty years executed time where the
sentencing guidelines called for 1-5 years?
The CSI Effect Jury Instruction.
maintains that the trial judge committed reversible error
when, over Taylor's objection, he propounded
preemptively and spontaneously a CSI effect instruction to
the jury. Relying on Stabb v. State, 423 Md. 454, 31
A.3d 922 (2011) and Atkins v. State, 421 Md. 434, 26
A.3d 979 (2011), Taylor asserts that the trial judge's
CSI effect jury instruction invaded the province of the jury,
relieved the State of its burden of proof, and deprived
Taylor of his right to a fair trial. Although Taylor's
trial occurred in 2008 (before the Court of Appeals decided
Stabb and Atkins), the case is before us as
a belated appeal from his convictions because of the consent
order granting his post-conviction petition, which
transmogrified the proceeding into a direct appeal from the
final judgment entered by the circuit court in December 2008.
Stabb and Atkins, therefore, should compel
us to hold that the instruction administered here was an
abuse of the trial court's discretion, based either on a
contemporary application to this appeal of the CSI effect
cases decided after Taylor's 2008 trial or a
retrospective application of that case law, as permitted by
Allen v. State, 204 Md.App. 701, 42 A.3d 708 (2012).
response to the State's non-preservation argument, Taylor
protests that he preserved the CSI effect jury instruction
issue by objecting timely to the court's scientific
evidence instruction. Taylor urges, alternatively, that
should we hold inadequate his objection as not in strict
compliance with Md. Rule 4-325(e), we ought to hold his
effort sufficient to have complied substantially with the
rule. If all else fails, Taylor asserts that we should
consider his contention under plain error review.
State argues that Taylor failed to preserve his objection to
the CSI effect jury instruction for appellate review. Under
Md. Rule 4-325(e), Taylor was obliged to "state
distinctly the matter to which the party objects and the
grounds of the objection." Taylor fell short of that
mark because he offered the trial court no explication of the
grounds for his objection to the CSI effect jury instruction.
Moreover, substantial compliance with Md. Rule 4-325(e) by
making only a general objection cannot be adequate because,
at the time of Taylor's trial, the trial judge did not
have the benefit of the holdings and reasoning of
Stabb and Atkins to appreciate that what he
did may not have been appropriate on the trial record before
him. Thus, "it is unfair to hold the trial
court to that standard, when under Evans v. State[,
174 Md.App. 549, 922 A.2d 620 (2007)], [(the only reported
appellate case on this area of law at the time of
Taylor's trial)] the instruction was proper." The
State maintains that Taylor's case, as a belated appeal,
is not a direct appeal. Thus, Allen v. State is
inapplicable to our analysis of this proceeding.
State contends finally that, even if this Court were to find
the CSI effect jury instruction challenge preserved, the
error, if any, was harmless. The complained-about missing
forensic evidence, i.e., Taylor's DNA or fingerprints
linking him to the crime scene, was not essential to the
State's case-in-chief meeting the standard of guilt
proven beyond a reasonable doubt.
Rule 4-325(e), governing objections to jury instructions,
No party may assign as error the giving or the failure to
give an instruction unless the party objects on the record
promptly after the court instructs the jury, stating
distinctly the matter to which the party objects and the
grounds of the objection. Upon request of any party, the
court shall receive objections out of the hearing of the
jury. An appellate court, on its own initiative or on the
suggestion of a party, may however take cognizance of any
plain error in the instructions, material to the rights of
the defendant, despite a failure to object.
rule "makes clear that an objection to a jury
instruction is not preserved for review unless the aggrieved
party makes a timely objection after the instruction is given
and states the specific ground of objection
thereto." Gore v. State, 309 Md. 203, 207,
522 A.2d 1338, 1339 (1987) (emphasis added). While
"general" objections may be sufficient to preserve
appellate arguments in some contexts, i.e., the admissibility
of evidence, see Md. Rule 4-323(a),  Md. Rule 4-325(e)
requires a distinct and specific objection to a jury
instruction to preserve the challenge for appeal. See
Newcomb v. Owens, 54 Md.App. 597, 603, 459 A.2d 1130,
1134 (1983). The principal reason for this standard is to
enable the trial court to correct any inadvertent error or
omission in the oral charge, as well as to limit the review
to those errors which are brought to the trial court's
attention.' In this manner, the trial judge is afforded
'an opportunity to amend or supplement his charge if he
deems an amendment necessary.' Succinctly put, then, the
rule is designed to afford the trial judge and opposing
counsel ample opportunity to be informed of the nature and
grounds of the exception.
Sergeant Co. v. Pickett, 283 Md. 284, 288, 388 A.2d
543, 546 (1978).
Taylor objected timely to the trial judge's CSI effect
instruction by stating, "Your honor, I would just except
to the Court's scientific evidence instruction, " he
failed to state any explicit grounds for his objection. Thus,
we must hold that Taylor's objection failed to comply
strictly with Md. Rule 4-325(e).
first fallback position is that we should find his challenge
preserved nonetheless under the standard of substantial
compliance with the rule. To show substantial compliance with
Md. Rule 4-325(e):
There must be an objection to the instruction; the objection
must appear on the record; the objection must be accompanied
by a definite statement of the ground for objection
unless the ground for objection is apparent from the
record[, ] and the circumstances must be such that a
renewal of the objection after the court instructs the jury
would be futile or useless.
Gore, 309 Md. at 209, 522 A.2d at 1341 (emphasis
added). No ground need be stated "where the record makes
clear that all parties and the court understood the reason
for the objection." Exxon Corp. v. Kelly, 281
Md. 689, 694 n. 6, 381 A.2d 1146, 1149 n. 6 (1978). In the
limited and unique context of this case, we believe that the
judge could infer reasonably the grounds for Taylor's
objection, consistent with his appellate argument.
trial took place on 4 December 2008. At the time, the only
guidance (in a then uncluttered area of Maryland
jurisprudence) regarding CSI effect jury instructions was
Evans v. State. We infer that the trial judge and trial
counsel were aware of Evans.
and his co-defendant, Antwan Peaks, were convicted on heroin
possession-related charges. Evans, 174 Md.App. at
552, 922 A.2d at 622. Evans' and Peaks' convictions
were grounded on the eyewitness testimony of a police officer
who was conducting the relevant undercover narcotics
purchase. Evans, 174 Md.App. at 555, 922 A.2d at
624. During Evans' trial, the judge instructed the jury:
During this trial, you have heard testimony of witnesses and
may hear argument of counsel that the State did not utilize a
specific investigative technique or scientific tests. You may
consider these facts in deciding whether the State has met
its burden of proof. You should consider all of the evidence
or lack of evidence in deciding whether a defendant is
guilty. However, I instruct you that there is no legal
requirement that the State utilize any specific investigative
technique or scientific test to prove its case. Your
responsibility as jurors is to determine whether the State
has proven, based on the evidence, the defendants' guilt
beyond a reasonable doubt.
Evans, 174 Md.App. at 570-71, 922 A.2d at 632-33
(emphasis added). Peaks objected to the instruction, noting
that "'[he had] not previously seen this instruction
given in the Circuit Court for Baltimore City. . . .' The
objection, duly noted by the court, was overruled."
Evans, 174 Md.App. at 564, 922 A.2d at 629. Evans
failed, however, to object to the CSI effect jury instruction
on his own behalf or join Peaks' objection. We held
"[Evans'] failure to raise such issue in the trial
court precludes us from such consideration on appeal."
Evans, 174 Md.App. at 566, 922 A.2d at 630. In what
amounted to considered dicta, however, we proceeded to
analyze the appropriateness of the CSI effect jury
considering the propriety of the instruction, we explained
that the absence of forensic evidence, i.e., photographic or
video evidence of the actual heroin sale transaction, was not
material in assessing whether the State fulfilled its burden
of proof. Evans, 174 Md.App. at 570-71, 922 A.2d at
633. Although the admission of such evidence would have
"made the discharge of the jury's duty easier,
" the evidence the State did adduce was sufficient.
Id. Moreover, we commented that the instruction was
"a correct statement of the law, was applicable to the
facts in the case and was not fairly covered by other
instructions given[, ]" and the "robust and
vehement closing arguments of counsel . . . warranted
[further] giving the instruction." Evans, 174
Md.App. at 570, 922 A.2d at 632. Although Evans
spoke approvingly of the CSI effect instruction given there,
the court ruminated that such an instruction might be
problematic if it operated "ultimately, to relieve the
State of its burden of persuasion in a criminal case."
State v. Evans, 278 Md. 197, 207, 362 A.2d 629, 635
(1976)." Thus, our second inference is that the circuit
court and defense counsel here understood the foregoing to be
the ground for Taylor's objection, consistent with his
later appellate assertions.
is a strong presumption that trial judges know the
law. See State v. Chaney, 375 Md.
168, 181, 825 A.2d 452, 459 (2003). Evans, coupled
with the particular circumstances of this direct
appeal (on which we shall amplify later), enable us to
infer that the trial judge appreciated the grounds for
Taylor's objection. Thus, Taylor's objection
preserved adequately for appellate review the question of the
claimed error of the giving of the CSI effect instruction,
satisfying the underlying purpose of Md. Rule 4-325(e).
See Pickett, 283 Md. at 289, 388 A.2d at 546.
law considering the preservation of a question for appeal is
vast. The majority of the cases deal primarily with wholly
un-objected-to-instructions or a trial irregularity that
was objected to at one point, but which went un-noticed when
the same or similar irregularly repeated itself later in the
trial. We find the following cases, however,
persuasive in our consideration of the sufficiency of
Moats v. Ashburn, involving a predecessor to Md.
Rule 4-325(e),  "the trial judge issued
instructions to the jury, which prompted an objection from
[Moats]." 60 Md.App. 487, 492, 483 A.2d 791, 794 (1984).
Moats' objection was: "Just for the record your
Honor, I make an objection to the instruction on the
unavoidable accident." Id. Ashburn asserted
that "this exception to the instruction was insufficient
because [Moats] failed to specify to the trial court the
portion of the instruction to which they objected and the
basis or ground upon which the objection was made."
Id. We disagreed, finding that there was substantial
compliance with the predecessor to Md. Rule 4-325(e) because
"[Moats] specifically objected to the portion of the
trial court's instructions dealing with the unavoidable
accident." Id. The record made clear that the
parties and court understood the reason for the objection:
"that the facts of the case did not fit the
instruction." Ashburn, 60 Md.App. at 492-93,
483 A.2d at 794.
Kissinger v. State, 117 Md.App. 372, 374, 700 A.2d
795, 796 (1997), we found Kissinger's objection preserved
for appeal,  which stated:
Your honor, I want to make an exception to one of your
instructions that wasn't requested and you gave and I am
not going to argue it, but I am going to make my exception.
You instructed the Jury about inferences with respect to
someone testifying. That was not an instruction that
anybody requested and it's an instruction that I never
(Emphasis added). This objection was not "distinct"
as required under Md. Rule 4-235(e). Kissinger, 117
Md.App. at 375, 700 A.2d at 796. It was clear,
however, that Kissinger was referring "to that
[instruction] which informed the jury not to draw any
inferences from the defendant's failure to testify."
Id. We noted that it appeared evident to the trial
judge what Kissinger was objecting to because the trial judge
acknowledged by stating "'Okay. You have your
exception.'" Id. We explained that
counsel told the court that he had not requested the
instruction, which is the only reason he could give to the
court for his objection. The instruction was not erroneous
and, consequently, there was nothing that the court could do
at that point to overcome appellant's objection. Further
elaboration and objection would have been futile and useless.
Sergeant Co. v. Pickett, Pickett noted several
exceptions to the court's failure to include certain
requested instructions. 283 Md. at 286, 388 A.2d at 545.
Pickett asserted, "I would take exception to [the]
failure of the Court to instruct the jury on plaintiff's
requested instruction one . . . two . . . three . . . four .
. . six . . . and ten, unavoidable consequences."
Id. The judge denied Pickett's exceptions as to
all save number six, noting "All right. I will give six
. . . I don't think [ten] is applicable to this one. I
will give six." Pickett, 283 Md. at 286-87, 388
A.2d at 545 (1978). The appellate court found the objections
preserved because they satisfied the purpose of the precursor
rule to Md. Rule 4-325(e),  i.e., to allow the trial judge
"an opportunity to amend or supplement his charge if he
deems an amendment necessary." Pickett, 283 Md.
at 288, 388 A.2d at 546 (quoting State v. Wooleyhan
Transport Co., 192 Md. 686, 689-90, 65 A.2d 321, 322
(1949)). We held that
appellants did not confine their objection to a simple
reference to the prayer by number . . . . Counsel mentioned
'unavoidable (sic) consequences, ' which, when
coupled with a mere cursory reading of the proffered
instruction, was sufficient to identify for the trial judge
the nature and ground of the objection. That the court fully
comprehended the legal contention being offered by appellants
and also regarded further argument unnecessary is manifest
from its measured response: 'I don't think it is
applicable to this one.' . . . Here, further exposition
by appellants' counsel of the 'ground' for the
principle of law reflected by the instruction would have been
both fruitless and unnecessary insofar as the rule was
concerned. Once the trial court had signified that it
comprehended the precise point being asserted . . . the
requirements of the rule had been met. At a minimum, this
certainly represented substantial compliance with Rule 554 d
and e, and, we hold, was therefore sufficient to preserve the
issue for appellate review.
Pickett, 283 Md. at 289-90, 388 A.2d at 546-47
more recent and relevant analysis of the sufficiency of an
objection in Samba v. State, the trial
judge, at the State's request, charged the jury with a
CSI effect instruction. 206 Md.App. 508, 513, 49 A.3d 841,
844 (2012). Samba objected "because [he thought] that
the general instructions on reasonable doubt, amount of
proof, number of witnesses, and the like cover that."
Brief for Appellee at 4, Samba, 206 Md.App. 508, 49
A.3d 841, (No. 1895), 2011 WL 5566181 at *5. The State
challenged, on appeal, Samba's objection asserting that
it failed to comply with Md. Rule 4-325(e), thus rendering
his appellate question unpreserved. Samba, 206
Md.App. at 529, 49 A.3d at 853 (2012). We disagreed because
"appellant's objection was similar to the defense
objection in Atkins that the pattern instruction on
reasonable doubt 'sufficiently covered' the
objectives of the "anti-CSI effect" instruction,
which the Court of Appeals treated as having preserved that
jury instruction challenge for appellate review."
Samba, 206 Md.App. at 530, 49 A.3d 854 (citing
Atkins, 421 Md. at 441 n. 5, 26 A.3d 979).
judge in the present case administered, sua sponte,
the CSI effect jury instruction and then asked counsel
whether there were "any additions or exceptions, "
prompting Taylor's timely objection. Taylor iterated
"Your honor, I would just except to the
Court's scientific evidence instruction, "
to which the trial judge stated "all right." The
purpose of Md. Rule 4-325(e) is "to afford the trial
judge and opposing counsel ample opportunity to be informed
of the nature and grounds of the exception" such to
allow the court an opportunity to address the deficiency.
Pickett, 283 Md. at 288, 388 A.2d at 546. The trial
court, like the judge in Pickett, appeared to
comprehend the thrust of Taylor's exception within the
context of Evans. Notably, this was also not the
first occasion for this judge to give such an instruction.
Moreover, the judge did not request a further explanation
from Taylor as to his grounds.
noted in Kissinger that counsel's general
objection was adequate to preserve the appellate issue raised
because the trial judge acknowledged Kissinger's
objection. Kissinger, 117 Md.App. at 374, 700 A.2d
at 796. Counsel's explanation in Kissinger (that
the instruction was not requested by any party) was the only
reason he could give the court for his objection.
Id. The instruction in Kissinger was not
erroneous, a misstatement of law, or overtly prejudicial.
Analogously, the trial judge here acknowledged affirmatively
Taylor's objection and, by not asking for further
explanation, acknowledged implicitly also that he was aware
that Taylor was objecting to the appropriateness of the CSI
general objection was specific to the court's sua
sponte CSI effect instruction. The judge, after
acknowledging that he had given this instruction in earlier
cases, stated that he believed it was warranted here because
it "has been generated by the evidence, and
perhaps will be argued by [Taylor] concerning
scientific evidence. Or lack thereof." (emphasis added).
Taylor's objection put the trial judge on notice of his
dissatisfaction with the instruction. It does not strain
credulity to imagine, from his conduct of the defense, that
Taylor's counsel wanted to impress on the jury that the
State had not met its burden of proof because it lacked
forensic evidence; however, the judge's instruction
minimized that argument and could be interpreted as implying
that such a void was of no legal consequence.
noted previously, the trial judge and the parties here had
only Evans and the judge's prior practice of
giving this same or similar instruction to guide them.
Although Stabb and Atkins took a different
view than Evans regarding CSI effect messages and
Atkins distinguished Evans, Evans
was "it" at the time of Taylor's 2008
we conclude that Taylor's objection at trial complied
substantially with Md. Rule 4-325(e). See Watts v.
State, No. 17, September Term, 2017, ___ Md. ___(2018).
Therefore, we shall view the trial judge's giving of the
jury instruction under an abuse of discretion standard.
Stabb, 423 Md. 454, 465, 31 A.3d 922, 928 (2011).
The abuse of discretion standard explains that:
a ruling reviewed under an abuse of discretion standard will
not be reversed simply because the appellate court would not
have made the same ruling. The decision under consideration
has to be well removed from any center mark imagined by the
reviewing court and beyond the fringe of what that court
deems minimally acceptable.
King v. State, 407 Md. 682, 697, 967 A.2d 790, 799
Sixth Amendment and Article 21 of the Maryland
Declaration of Rights grant to criminal defendants not only
the right to effective assistance of counsel, but also
"the right to a fair trial, which includes a requirement
that trial judges refrain from making statements that may
influence improperly the jury." Stabb, 423 Md.
at 463, 31 A.3d at 927. Moreover, "Article 23 of the
Maryland Declaration of Rights provides [also], in relevant
part, that the Jury shall be the Judges of the Law, as well
as of fact . . ., " which limits trial judges from
giving jury instructions that comment on evidence properly
before the jury. Stabb, 423 Md. at 463-64, 31 A.3d
at 927 (citing Gore, 309 Md. at 210, 522 A.2d at
1341). Thus, "a defendant has the right to be tried by a
fair and impartial jury, " Md. Dec. of Rts. Art. 21, and
the "'jury is the exclusive judge of the
fact[s].'" Atkins, 421 Md. at 443, 26 A.3d
at 983 (quoting Gore, 309 Md. at 210, 522 A.2d at
1341 (citing Md. Dec. of Rts. Art. 23)). In that process,
trial judges occupy an authoritative position, such that
should be exceedingly careful in any remarks made by [them]
during the progress of a trial, either in passing upon
evidence or ruling upon prayers, and should carefully
refrain, either directly or indirectly, from giving
expression to an opinion upon the existence or not of any
fact, which should be left to the finding of the jury . . . .
Gore, 309 Md. at 212, 522 A.2d at 1342 (quoting
Elmer v. State, 239 Md. 1, 10-11, 209 A.2d 776, 782
(1965)). Md. Rule 4-325(c), assisting a trial court in
delivering jury instructions, whether given sua
sponte or requested by a party, provides:
The court may, and at the request of any party shall,
instruct the jury as to the applicable law and the extent to
which the instructions are binding. The court may give its
instructions orally or, with the consent of the parties, in
writing instead of orally. The court need not grant a
requested instruction if the matter is fairly covered by
instructions actually given.
Md. Rule 4-325(c) is not entirely self-contained, however.
Gunning v. State, 347 Md. 332, 347, 701 A.2d 374,
381 (1997). Evans v. State, interpreted Md. Rule
as requir[ing] the trial court to give a requested
instruction under the following circumstances: (1) the
requested instruction is a correct statement of the law; (2)
the requested instruction is applicable under the facts of
the case; and (3) the content of the requested instruction
was not fairly covered elsewhere in the jury instruction
333 Md. 660, 691, 637 A.2d 117, 132 (1994). Stabb
explained that an improper jury instruction in the context of
an anti-CSI effect message is one that operates to relieve
the state of its burden to prove a criminal defendant's
guilt beyond a reasonable doubt. Stabb, 423 Md. at
464, 31 A.3d at 928 (citing Evans, 278 Md. at 207,
362 A.2d at 635).
Direct Appeal v. Belated Appeal: Does It Make a
Difference to the Law To Be Applied Here?
noted earlier, on 1 December 2016, "post-conviction
counsel [and the State and the circuit court] entered into a
consent order allowing [, among other things, Taylor] to file
a belated notice of appeal and application for review of his
sentence in exchange for waiving his right to pursue any
further post-conviction relief under the Maryland Uniform
Post-Conviction Procedure Act." Taylor contends that,
under the consent order, the present case should be treated
as a direct appeal, which relates-back to when a
timely appeal should have been taken in 2008 and running
through the present, and, on that basis, he is entitled to
the benefit of Stabb and Atkins. The State
counters that, between 2008 and 2016, "[t]his case was
not on direct review . . . this belated appeal is a
post-conviction remedy, coming before this Court by way of a
consent order from the post-conviction court." According
to the State, therefore, we must review Taylor's jury
instruction error contentions under Evans only.
there is not much serious consideration in Maryland cases
regarding whether a "belated appeal" is a direct
appeal, we think that the State's assertion is incorrect.
"[A] new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final" and
where the issue has been preserved. Griffith v.
Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708 (1987);
see also Allen, 204 Md.App. at 721, 42 A.3d
post-conviction proceedings, under the Uniform
Post-conviction Procedure Act (the Act), are not unto
themselves a means in which direct appellate review is given
in such a proceeding, Kelly v. Warden, Maryland
Penitentiary, 243 Md. 717, 718, 222 A.2d 835, 836
It was early established that [the Act] was procedural only
and did not create new substantive rights not given before
its passage by habeas corpus, coram nobis
or other writs available at common law. State v.
McCray, 267 Md. 111, 132-133, 297 A.2d 265[, 275]
(1972); Jordan v. State, 221 Md. 134, 140, 156 A.2d
453[, 456] (1959); State v. D'Onofrio, 221 Md.
20, 28-29, 155 A.2d 643[, 647] (1959) . . . [Exceptions exist
at common law] to the general rule that a post[-]conviction
proceeding may not serve merely as an appeal, Cheeseboro
v. Warden [Of the Maryland Penitentiary], 224
Md. 660, 661, 168 A.2d 181 (1961), and was not designed to
review the regularity of judicial proceedings as an
alternative to appeal[.] Warrington v. Warden
[Of the Maryland Penitentiary], 222 Md. 601, 604,
159 A.2d 360, 362 (1960) . . . In certain circumstances,
therefore, the lower courts have granted belated appeals
under post-conviction procedures, and [our] appellate courts
have entertained them.
Wilson v. State, 284 Md. 664, 671-72, 399 A.2d 256,
260 (1979). "There exists, [therefore, ] no rule 
preventing courts from providing belated appeals as a
remedy under the [Act]."
Garrison v. State, 350 Md. 128, 139, 711 A.2d 170,
175 (1998) (citing Wilson, 284 Md. at 672, 399 A.2d
at 260) (emphasis added). Belated appeals have been
permitted when "'a timely direct appeal was
attempted, but thwarted by the action of State officials,
'" Wilson, 284 Md. at 672, 399 A.2d at 260
(quoting Sewell v. Warden, 235 Md. 615, 618, 200
A.2d 648, 649 (1964)) (the Court granted a belated direct
appeal from a post-conviction on issues not raised on direct
appeal because the failure to raise such issues was due to
appellate counsel's incompetence), or when a defendant is
denied an appeal through no fault of his own.  Beard v.
Warden, 211 Md. 658, 661, 128 A.2d 426, 427 (1957);
see also Creighton v. State, 87 Md.App.
736, 738, 591 A.2d 561, 563 (1991) ("Belated appeals
have been allowed where it is shown that the defendant
requested an appeal, but either his request was not honored
or an appeal noted was summarily dismissed because of (1)
actions or omissions by State officials, (2) actions or
omissions by trial counsel; (3) actions or omissions by
appellate counsel; or (4) State laws that violate due
process." (citations omitted)); Waters v.
State, 76 Md.App. 548, 553, 547 A.2d 665, 668 (1988).
contemplates that belated appeals insure remedially that a
defendant receives a full review of his or her case as if his
or her appeal had been pursued timely and properly.
Wilson, 284 Md. at 676, 399 A.2d at 263 ("In
light of the legislative scheme apparent in the Uniform
Post-Conviction Procedure Act, we believe that it
contemplates that an accused be granted a belated appeal as a
remedy to obtain full appellate review of his allegations of
error, constitutional in scope, and neither finally litigated
nor waived, when he has been denied his entitled appellate
review of his claims due to improper action of his appellate
counsel. We think that ...