Argued: April 8, 2019
Circuit Court for Harford County Case No. 12-K-11-000887
Barbera, C.J. Greene McDonald Watts Hotten Getty Raker, Irma
S., (Senior Judge, Specially Assigned) JJ.
the State of Maryland, challenges the Court of Special
Appeals' decision affirming postconviction relief for
Respondent, Mark Edmund Christian, II. Before oral argument
in this matter, the State filed a Motion to Correct the
Record, which, if granted, would resolve the merits of the
State's appeal by eliminating the sole ground for
Christian's postconviction relief. Because the record
lacks the factual determinations necessary to rule on the
State's motion and, in turn, the merits of its argument
before this Court, we vacate the judgment of the Court of
Special Appeals with instructions to remand the case to the
postconviction court for further fact finding.
Facts and Procedural History
The Underlying Convictions
March 2012, a jury convicted Respondent Christian of first
degree murder, attempted armed robbery, conspiracy to commit
armed robbery, and use of a handgun in the commission of a
felony or crime of violence. The judge who presided over the
trial in the Circuit Court for Harford County sentenced
Christian to life plus 30 years' incarceration. The Court
of Special Appeals affirmed the convictions, and we
subsequently denied Christian's petition for writ of
certiorari. Christian v. State (Christian I), No.
636, 2012 Term (Md. Ct. Spec. App. June 4, 2013), cert.
denied, 434 Md. 312 (2013).
January 2016, Christian filed a petition for postconviction
relief in the Circuit Court for Harford County. He raised
several claims of ineffectiveness of trial counsel, only one
of which is before us: whether trial counsel rendered
ineffective assistance, in contravention of the Sixth
Amendment, by failing to object to an unconstitutional
Unger instruction.According to the trial transcript
from February 29, 2012, the trial judge instructed the jury,
"Since this is a criminal case, you are judges,
judges of both the law and the facts."
(Emphasis added). In March 2017, the postconviction court
granted Christian's petition, finding that trial counsel
provided deficient assistance by not objecting to a blatantly
improper jury instruction, and ordered a new trial.
State filed an Application for Leave to Appeal
("ALA") in the Court of Special Appeals. While the
application was pending, the State filed in the circuit court
a Motion to Reconsider Post-Conviction Relief, requesting an
evidentiary hearing. In its motion, the State asserted that
the trial judge never gave the improper jury instruction and
was prepared to testify to that fact. The postconviction
court denied the motion, ruling that it lacked jurisdiction
given the State's pending appeal. The court suggested,
however, that the State could "seek leave to correct the
record" on appeal.
the Court of Special Appeals granted the ALA and transferred
the case to the court's regular docket. The intermediate
appellate court affirmed the order granting Christian
postconviction relief based on the unconstitutional
Unger instruction. State v. Christian (Christian
II), No. 392, 2017 Term, slip op. at 14 (Md. Ct. Spec.
App. Oct. 26, 2018). The Court of Special Appeals also upheld
the postconviction court's denial of the State's
motion for reconsideration. Id. at 23. The
intermediate appellate court held that under Maryland Rule
8-414, it had no legal basis to correct the record because
the State had not produced an affidavit stating that
"the language in the transcript is incorrect."
Id. at 22-23. C. The Pending Motion
February 2019, we issued a writ of certiorari granting the
State's request for further review. State v.
Christian, 462 Md. 555 (2019). Prior to oral argument,
the State filed a Motion to Correct the Record pursuant to
Maryland Rule 8-414, asking this Court to "strike the
offending language appearing in the February 29, 2012
transcript of Christian's trial." With its motion,
the State filed an affidavit from the judge who presided over
Christian's trial. In that affidavit, the trial judge
asserted that "none of the Unger type language
was used at all" in Christian's trial. Instead, the
judge averred that "the Court Reporter . . . had not
been transcribing all of the prefatory, boiler-plate
[i]nstructions as I read them but rather used an old template
that included this questionable language." Christian
opposed the motion as untimely and prejudicial.