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Taylor v. State

Court of Special Appeals of Maryland

April 2, 2018

DEVON JORDAN TAYLOR
v.
STATE OF MARYLAND

          Circuit Court for Wicomico County Case No. 22-K-07-000921

          Wright, Kehoe, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Harrell, J.

         "Lucy, you got some 'splainin' to do."[1]

Desi Arnaz (as Ricky Ricardo) to Lucille Ball, "I Love Lucy." (CBS, 1951-57)

         Appellant, 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"[2]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.

         Appellee, 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.

         At the 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 circuit court.

         The Facts

         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 the encounter.

         The 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.[3] 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.

         The man 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."

         Officer 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."[4] The officer did not seize the knife from the crime scene for forensic testing.

         Later, 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[5] for forensic examination nor attempt to secure any fingerprints from inside the apartment.

         On 12 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 seconds."

         The 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. [6]
* * *
[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.

         The jury convicted Taylor of all charges, save attempted second-degree rape.[7] 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."

         No 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 [2008] 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.

         In this 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?

         Analysis

         I. The CSI Effect Jury Instruction.

         a. Appellant's Argument.

         Taylor 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).

         In 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.

         b. Appellee's Arguments.

         The 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.

         The 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.

         c. Preservation.

         Maryland Rule 4-325(e), governing objections to jury instructions, states:

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.

         This 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), [8] 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 on appeal

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).

         Although 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).

         Taylor's 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.

         Taylor's 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.[9] We infer that the trial judge and trial counsel were aware of Evans.

         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 instruction. Id.

         In 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.

         There is a strong presumption that trial judges know the law.[10] 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.

         Case law considering the preservation of a question for appeal is vast. The majority of the cases deal primarily with wholly un-objected-to-instructions[11] 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.[12] We find the following cases, however, persuasive in our consideration of the sufficiency of Taylor's objection.

         In Moats v. Ashburn, involving a predecessor to Md. Rule 4-325(e), [13] "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.

         In Kissinger v. State, 117 Md.App. 372, 374, 700 A.2d 795, 796 (1997), we found Kissinger's objection preserved for appeal, [14] 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 requested.

(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.

Id.

         In 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), [15] 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 (emphasis added).

         In a 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.[16] 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).

         The 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.

         We 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 effect instruction.

         Taylor's 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.

         As 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 trial.[17]

         Consequently, 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 (2009).

         The Sixth Amendment[18] and Article 21 of the Maryland Declaration of Rights[19] 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 they:

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 4-325(c)

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 actually given.

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).

         d. Direct Appeal v. Belated Appeal: Does It Make a Difference to the Law To Be Applied Here?

         As 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.

         Although 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 at 720.

         Generally, post-conviction proceedings, under the Uniform Post-conviction Procedure Act[20] (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 (1966), however:

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).[21] 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. [22] 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).

         The Act 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 ...


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