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A jury convicted Appellant Jody Miles of first-degree felony murder and related offenses, including robbery with a deadly weapon and use of a handgun in the commission of a crime of violence. Miles was sentenced to death. The Court of Appeals affirmed Appellant's convictions and sentence. Miles subsequently filed a motion to correct an illegal sentence, arguing that he was entitled to a new sentencing hearing on the ground that the jury should have been instructed that a death sentence cannot be imposed unless every juror is persuaded beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. The circuit court denied the motion. The Court of Appeals affirmed, holding that Appellant was not entitled to a new sentencing hearing as Maryland's capital sentencing procedure did not violate the Sixth Amendment.Receive FREE Daily Opinion Summaries by Email
HEADNOTE: Miles v. State, No. 120, September Term, 2007
CRIMINAL PROCEDURE; CAPITAL PUNISHMENT STATUTE: In Cunningham v.
California, 127 S.Ct. 856 (2007), the United States Supreme Court held that California’s
determinate sentencing law (DSL) - - by placing sentencing-elevating fact finding within the
judge’s province - - violates a defendant’s right to a trial by jury safeguarded by the Sixth
and Fourteenth Amendments. That case, however, did not render invalid -- on Sixth
Amendment grounds -- Maryland’s statutory capital sentencing procedure. While the Sixth
Amendment does require that the State prove beyond a reasonable doubt every fact that
establishes the defendant’s eligibility to receive a death sentence, the Sixth Amendment does
not prohibit the imposition of a death sentence unless the jury (or trial judge, if the defendant
has waived his or her right to a jury) finds beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating circumstances.
IN THE COURT OF APPEALS
September Term, 2007
JODY LEE MILES
STATE OF MARYLAND
Raker, Irma S. (Retired,
Cathell, Dale R. (Retired,
Opinion by Murphy, J.
Bell, C.J., Greene and Raker, JJ., dissent.
September 20, 2011
In the Circuit Court for Queen Anne’s County, a jury convicted Jody Lee Miles,
appellant, of first-degree felony murder and related offenses, including robbery with a deadly
weapon and use of a handgun in the commission of a crime of violence. That jury thereafter
sentenced appellant to death. In Miles v. State, 365 Md. 488, 781 A.2d 787 (2001), this Court
affirmed appellant’s convictions and the sentence of death. On February 25, 2002, the United
States Supreme Court denied appellant’s petition for writ of certiorari. Miles v. Maryland, 534
U.S. 1163, 122 S.Ct. 175 (2002).
Appellant now argues that he is entitled to a new sentencing hearing on the ground that
the jury should have been instructed that a death sentence cannot be imposed unless every juror
is persuaded beyond a reasonable doubt that the aggravating circumstances - - in appellant’s
case, that he committed the murder while committing or attempting to commit the crime of
robbery with a deadly weapon - - outweigh the mitigating circumstances. The Circuit Court
rejected that argument. For the reasons that follow, so do we. We shall therefore affirm the
denial of appellant’s motion to correct an illegal sentence.1
Appellant concedes that nothing about Maryland’s capital sentencing procedure violates
The State has moved to dismiss this appeal on the ground that (in the words of its
brief), “the Supreme Court case relied upon by Miles in support of his motion to correct an
illegal sentence, Cunningham v. California, 127 S. Ct. 856 (2007), is a non-capital case that
merely reiterates the principles espoused in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Ring v. Arizona, 536 U.S. 584 (2002). Cunningham does not constitute a new judicial
interpretation of Apprendi and Ring[.]” While we agree with the State’s interpretation of
Cunningham, we shall deny the motion to dismiss on the ground that appellant has a right
to appellate review of his claim that he is entitled a new sentencing proceeding on the ground
that Cunningham did establish a Sixth Amendment standard that must be applied
the Eighth Amendment. That concession is required as a result of Kansas v. Marsh, 548 U.S.
163, 126 S.Ct. 2516 (2006), in which the United States Supreme Court held that “Kansas’ death
penalty statute, consistent with the Constitution, may direct imposition of the death penalty when
the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators,
including where the aggravating circumstances and mitigating circumstances are in equipoise.”
Id. at 173, 126 S.Ct. at 2524. According to appellant, however, his sentence became “illegal”
when the United States Supreme Court decided Cunningham v. California, 549 U.S. 270, 127
S.Ct. 856 (2007). Appellant argues that (1) Cunningham rendered invalid -- on Sixth
Amendment grounds -- every state capital sentencing procedure that does not require the jury (or
trial judge, if the defendant has waived his or her right to a jury) to find beyond a reasonable
doubt that the aggravating circumstances outweigh the mitigating circumstances, and (2) the new
standard established in Cunningham must be applied retroactively.
Cunningham presented only the question of “whether [California’s determinate
sentencing law] DSL, by placing sentence-elevating factfinding within the judge’s province,
violates a defendant’s right to a trial by jury safeguarded by the Sixth and Fourteenth
Amendments.” Id. 274, 127 S.Ct. at 860. Cunningham, however, did not establish the rule that
the Sixth Amendment requires that “any fact (other than prior conviction) that increases the
maximum penalty for a crime . . . be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.” The United States Supreme Court first established this rule on
March 24, 1999 in Jones v. United States, 526 U.S. 227, 243, 119 S.Ct. 1215, 1224 (1999). On
June 26, 2000, the United States Supreme Court held that “[t]he Fourteenth Amendment
commands the same answer in [a] case involving a state statute.” Apprendi v. New Jersey, 530
U.S. 466, 476, 120 S.Ct. 2348, 2355 (2000). This rule was made applicable to capital cases in
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), which was decided on June 24, 2002.
The State argues that, because (1) Ring -- not Cunningham -- extended the requirements
of Apprendi to capital sentencing proceedings, and (2) Ring does not apply retroactively,2
Cunningham does not entitle appellant -- who was sentenced by a jury on March 19, 1998 , and
whose conviction became “final” on February 25, 2002 -- to a new sentencing proceeding. In
Evans v. State, 389 Md. 456, 886 A.2d 562 (2005), this Court stated:
We acknowledge the State’s argument, based on Schriro
v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004) and Hughes v. State, 901 So.2d 837 (Fla. 2005), that
Ring is not to be applied retroactively. We need not address that
issue in this case, as we shall conclude that, even if Ring were
applicable, it would provide no relief to Evans. As to Evans’s
complaint about the evidentiary standard used at the sentencing
hearing, it is true, as the State contends, that Evans never raised
that issue in the Circuit Court and has therefore failed to
In Beard v. Banks, 42 U.S. 406, 124 S.Ct. 2504 (2004), the United States Supreme
State convictions are final “for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of
certiorari has elapsed or a timely filed petition has been finally
denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948,
127 L.Ed.2d 236 (1994).
Id. at 411, 124 S.Ct. 2510. In Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519 (2004),
the United States Supreme Court squarely held that “Ring announced a new procedural rule
that does not apply retroactively to cases already final on direct review.” Id. at 358, 124
S.Ct. at 2526.
preserve it. In order to forestall the inevitable claim that his
eminently competent and diligent attorneys rendered
Constitutionally deficient performance in not raising that issue,
however, we shall address it.
Id. at 472, 886 A.2d at 571. As was the situation in Evans, we need not determine in the
case at bar whether - - under Maryland’s rule of retroactivity - - Cunningham and Ring
apply retroactively to appellant’s sentencing proceeding.
A majority of this Court remains persuaded that, even if Cunningham and Ring do
apply retroactively, appellant is not entitled to a new sentencing hearing. Judge Harrell’s
majority opinion in Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003) includes a
thorough analysis of the United States Supreme Court’s death penalty jurisprudence,
which compel the following conclusions:
As is readily apparent from the opinion of the Court, Ring
only addresses the eligibility phase of the sentencing process.
Those aggravating factors which narrow the class of deatheligible defendants for Eighth Amendment purposes must be
found by a proper sentencing authority beyond a reasonable
doubt in order to comply with the requirements of the Sixth
Amendment. Contrary to the present assertions of Oken, Ring
holds no implications for the selection phase of Maryland’s
sentencing process. This is emphasized in the concurring
opinion of Justice Scalia, joined by Justice Thomas, noting that:
[t]oday's judgment has nothing to do with
jury sentencing. What today's decision says is that
the jury must find the existence of the fact that an
aggravating factor existed. Those States that leave
the ultimate life-or-death decision to the judge
may continue to do so -- by requiring a prior jury
finding of aggravating factor in the sentencing
phase or, more simply, by placing the
aggravating-factor determination (where it
logically belongs anyway) in the guilt phase.
Ring, 536 U.S. at 612-13, 122 S. Ct. at 2445, 153 L. Ed.2d at
579 . That Ring is inapplicable to Maryland’s death penalty
statute is further highlighted by the dissenting opinion of Justice
O’Connor, observing that the Majority Opinion effectively
identified Colorado, Idaho, Montana, Nebraska, Alabama,
Delaware, Florida, and Indiana as the affected States.
Because the Maryland statute already requires that the finding
of the existence of an aggravating circumstance must be made
by a jury beyond a reasonable doubt, the Maryland statute is
unaffected by the Ring holding.
Id. at 251-53, 835 A.2d at 1147-48.
Judge Harrell then addressed the argument “that the plain language of the
Maryland statute requires that we view the weighing process as a ‘fact finding,’ and, thus,
subject to Apprendi.” Id. at 260, 835 A.2d at 1152. Noting that this argument had been
made by the “dissenters” in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), Judge
The dissent in Borchardt cited no legislative history or other
authority to support its conclusory insights as to legislative
intent. That is explained by the fact that no such support
exists. A review of the relevant legislative history indicates
that neither the Legislature nor the Governor intended the
meaning ascribed to the words of the statute by the Borchardt
Id. at 261-62, 835 A.2d at 1153. After setting forth a thorough review of the relevant
legislative history, Judge Harrell concluded:
Far from supporting the contentions of the Borchardt
dissent that weighing was intended to be “a factual finding
within the meaning of Apprendi,” this history reveals exactly the
opposite intent. . . .. As for weighing, the legislative history
makes clear that the intention behind supplying a standard at all
was an attempt to insure that the statute would be applied in a
consistent manner between the various county circuit courts of
the State, thus frustrating inconsistences in application which
would violate the post-Furman requirements and result in
successful Eighth Amendment attacks on the statute.
We also conclude that the Maryland death penalty statute
cannot be read to be implicated by Ring under any theory of
legislative interpretation. The legislative history indicates that
the weighing process never was intended to be a component of
a “fact finding” process required to narrow the class of deatheligible defendants. Rather, the history shows that the
Legislature and Governor understood that the finding of an
aggravating circumstance alone performed that Furman
requirement. Far from being designed to further refine the class
of death-eligible defendants, the assignment of a standard to the
weighing process was intended to protect the statute from
Constitutional attack by such defendants.
Id. at 268-70, 835 A.2d at 1157-58.
Oken was cited and quoted with approval by the Supreme Court of Indiana in
Ritchie v. State, 809 N.E.2d 258 (Ind. 2004), a case in which a defendant who had been
sentenced to death argued “that the trial court should have instructed the jury that it must
apply a reasonable doubt standard in finding that the State proved that the aggravating
circumstances outweigh the mitigating factors.” Id. at 265. After noting that the Supreme
Courts of Delaware,3 California,4 Nebraska,5 and Maryland have held that Ring is
applicable only to the eligibility phase of the sentencing process, the Ritchie Court’s
In sum, we conclude that the Indiana Death Penalty
Statute does not violate the Sixth Amendment as interpreted by
Apprendi and Ring. Once a statutory aggravator is found by a
jury beyond a reasonable doubt, the Sixth Amendment as
interpreted in Ring and Apprendi is satisfied. Indiana now places
the weighing process in the hands of the jury, but this does not
convert the weighing process into an eligibility factor. The
outcome of weighing does not increase eligibility. Rather, it
fixes the punishment within the eligible range. It is therefore not
required to be found by a jury under a reasonable doubt
Id. at 268.
In Evans v. State, 389 Md. 456, 887 A.2d 562 (2005), a majority of this Court yet
again refused to award a new sentencing hearing on the ground that the appellant had
been sentenced to death by a jury that was instructed to apply the preponderance standard
to the issue of whether any aggravating factors outweigh any mitigating factors. Writing
for the majority, Judge Wilner stated, “[w]e addressed that precise issue in Oken v. State,
supra, 378 Md. 179, 835 A.2d 1105 and found no merit in it. Evans has not persuaded us
that our decision in Oken was wrong, and we therefore confirm it.” Id. at 483, 835 A.2d
Brice v. State, 815 A.2d 314, 322 (Del. 2003).
People v. Prieto, 66 P.3d 1123, 1147 (Cal. 2003).
Nebraska v. Gales, 658 N.W. 2d 604, 623 (Neb. 2003).
In Grandison v. State, 390 Md. 412, 889 A.2d 366 (2005), a majority of this Court
reaffirmed “our prior holdings that Maryland’s death penalty statute, which permits the
jury to find that aggravating factors outweigh mitigating factors by a preponderance of
the evidence, is constitutional under Apprendi v. New Jersey [530 U.S. 466, 120 S.Ct.
2348 (2000)] and Ring v. Arizona [536 U.S. 584, 122 S.Ct. 2428 (2002)] as previously
stated in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001).” Id. at 442, 889 A.2d at
384. Writing for the majority, Judge Battaglia stated:
The issue of whether Maryland Code (1957, 1982 Repl.
Vol.), Article 27, Section 413(h) violates due process by
permitting the jury to find, by a preponderance of the evidence,
that the aggravating factors found by the jury outweigh the
mitigating circumstances it finds to exist has been addressed and
resolved by this Court on numerous occasions, beginning with
Tichnell v. State, 287 Md. 695, 729-34, 415 A.2d 830, 848-50
(1980), and ending most
recently in Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003),
cert. denied, 541 U.S. 1017, 124 S.Ct. 2084, 158 L.Ed.2d 632
(2004). We have consistently determined that the weighing
process based on a preponderance of the evidence does not
violate due process.
The actual holding of Apprendi is that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, an jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147
L.Ed.2d at 455. In Ring, the Supreme Court stated that
“[b]ecause Arizona’s enumerated aggravating factors operate as
‘the functional equivalent of an element of a greater offense,’
the Sixth Amendment requires that they be found by a jury.”
Ring, 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576-77
(internal citations omitted). As we stated in Oken, it is clear
from the Supreme Court’s opinion that Ring only applies to the
“eligibility phase of the sentencing process.” Oken, 378 Md. at
251, 835 A.2d at 1147. Thus, those aggravating factors, which
serve to narrow the class of death-eligible defendants in
compliance with the Eighth Amendment, must be found “by a
proper sentencing authority beyond a reasonable doubt in order
to comply with the requirements of the Sixth Amendment.” Id.
The holding in Ring clearly states that it is the finding of
an aggravating circumstance, and only the finding of an
aggravating circumstance, that results in death-eligibility.
Because the Maryland death penalty statute requires that an
aggravating circumstance be found by a proper sentencing
authority beyond a reasonable doubt, the Maryland statute does
not violate the Sixth Amendment requirements most recently
stated in Apprendi and Ring.
Moreover, as we stated in Borchardt v. State, 367 Md.
91, 786 A.2d 631 (2001):
Notwithstanding the language in [Article 27,] §
414(e)(3) directing this Court, on appellate
review, to determine whether ‘the evidence
supports the jury’s . . . finding that the
aggravating circumstances outweigh
mitigating circumstances,’ the weighing process
is not a fact-finding one based on evidence.
Mitigating circumstances do not negate
aggravating circumstances, as alibi negates
criminal agency or hot blood negates malice. The
statutory circumstances specified or allowed
under § 413(d) and (g) are entirely independent
from one another – the existence of one in no way
confirms or detracts from another. The weighing
process is purely a judgmental one, of balancing
the mitigator(s) against the aggravator(s) to
determine whether death is the appropriate
punishment in the particular case. This is a
process that not only traditionally, but
quintessentially, is a pure and Constitutionally
legitimate sentencing factor, one that does not
require a determination to be made beyond a
reasonable doubt. See Gerlaugh v. Lewis, 898
F.Supp. 1388, 1421-22 (D. Ariz. 1995), aff’d,
129 F.3d 1027 (9th Cir. 1997), cert. denied, 525
U.S. 903, 119 S.Ct. 237, 142 L.Ed.2d 195 (1998)
(Constitution does not require weighing beyond a
reasonable doubt); State v. Sivak, 105 Idaho 900,
674 P.2d 369 (1983), cert. denied, 468 U.S. 1220,
104 S.Ct. 3591 , 82 L.Ed.2d 887 (1984); Miller v.
State, 623 N.E.2d 403, 409 (Ind. 1993) (weighing
is a balancing process, not a fact to be proven;
reasonable doubt standard does not apply).
Id. at 126-27, 786 A.2d at 652. We affirm the reasoning
explicated in Borchardt that the weighing process is not a factfinding one deducible from the evidence, but rather is a matter
of judgment. Ring applies only to the finding of aggravating
factors during the eligibility phase of sentencing and does not
impact the selection phase of th e process. Oken, 378 Md. at
259, 835 A.2d at 1152. As we noted in Oken, the Supreme Court
has consistently held that as long as “there are no undue
restraints upon the sentencing authority’s ability to consider
mitigating circumstances, there are no constitutional
requirements regarding the actual act of selection, or regarding
the relative weight attached to the factors.” Id. at 259-60, 835
A.2d at 1152. Therefore, we conclude that the jury’s weighing
of aggravating and mitigating circumstances under the
preponderance of the evidence standard is constitutional.
Id. at 438-440; 889 A.2d at 381-83.
In Borchardt, supra, after noting that in nine states the reasonable doubt standard
was applicable to the “weighing” process in a death penalty case,6 Judge Wilner stated for
a majority of this Court
As individual judges, we might well entertain the
367 Md. at 122 n.4, 786 A.2d at 649 n.4.
personal belief that it would be more fair, or better public policy,
for the jury to apply a reasonable doubt standard in determining
that aggravating circumstances outweigh mitigators – to be that
convinced before sentencing a person to death. That is a
judgment for the Legislature to make, however, and, unlike its
counterparts in other States, which have legislatively imposed
a reasonable doubt standard, the Maryland General Assembly
has chosen a different approach – one that we have consistently
upheld as Constitutional. To apply Apprendi as Borchardt urges
would be nothing less than a substitution of our judgment of
what the law ought to be for what the Legislature has said it is.
That is not our function.
367 Md. at 128-29, 786 A.2d at 653.
To apply Ring and Cunningham as appellant urges would be the very same
substitution of our judgment for that of the Legislature. For the reasons stated in the
above quoted opinions, the majority of this Court remains persuaded that Maryland’s
capital sentencing procedure does not violate the Sixth Amendment. If our conclusion is
incorrect, it can be corrected. As Judge Digges stated for this Court in Stevenson v.
State, 289 Md. 167, 423 A.2d 558 (1981) (quoting Anderson v. Baker, 23 Md. 531, 629
If we err in our conclusions, . . . there is a Supreme Court erected
expressly for the final adjudication of such questions, where our
judgment may be reviewed and corrected, and the rights of the
citizen vindicated. To this we . . . defer[,] confidant that none
will more cordially concur in the result.
Id. at 189, 423 A.2d at 570.
DENIAL OF MOTION TO CORRECT
ILLEGAL SENTENCE AFFIRMED;
APPELLANT TO PAY THE COSTS.
IN THE COURT OF APPEALS
September Term, 2007
JODY LEE MILES
STATE OF MARYLAND
Raker, Irma S.
(Retired, specially assigned)
Cathell, Dale R.
(Retired, specially assigned)
Dissenting Opinion by Raker, J., which
Bell, C.J., and Greene, J., join.
Filed: September 20, 2011
Raker, J., dissenting, joined by Bell, C.J., and Greene, J.
I would grant appellant’s Motion to Correct an Illegal Sentence pursuant to Maryland
Rule 4-345 and grant appellant a new sentencing proceeding. I would hold that the portion
of § 2-303(i) that appellant now challenges, and that provides that the punishment shall be
death if the sentencing authority finds that the aggravating factors outweigh the mitigating
factors by a preponderance of the evidence, violates the Sixth Amendment of the United
States Constitution and the Maryland Declaration of Rights.
I would sever the
unconstitutional portion of the statute, require the beyond a reasonable doubt standard to be
applied as a matter of law, vacate appellant’s sentence of death imposed pursuant to § 2303(i), and remand for a new sentencing hearing.
Under the circumstances, I rely upon the reasons stated in my previous dissents in the
cases of Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003), and Borchardt v. State, 367 Md.
91, 786 A.2d 631 (2001), and Judge McAuliffe’s dissenting and concurring opinion in Evans
v. State, 304 Md. 487, 539, 499 A.2d 1261, 1288 (1985). I rely also upon the United States
Supreme Court cases of Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed.
2d 856 (2007), United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the state court cases
of People v. Montour, 157 P.3d 489, 496 (Colo. 2007), State v. Rizzo, 833 A.2d 363, 393
(Conn. 2003), Johnson v. State, 59 P.3d 450, 460 (Nev. 2002), State v. Papasavvas, 751 A.2d
40, 75-76 (N.J. 2000), State v. Jenkins, 473 N.E.2d 264, 304 (Ohio 1984), State v. Odom, 336
S.W.3d 541, 571 (Tenn. 2011), State v. Lafferty, 20 P.3d 342, 376 (Utah 2001), and Olsen
v. State, 67 P.3d 536, 574-75 (Wyo. 2003).
I cannot fathom authorizing the imposition of the death penalty based on a
determination that death is “more likely than not” the appropriate sentence. That is exactly
what the plain language of the Maryland Death Penalty statute permits and what the majority
of this Court endorses. To me, such a standard violates the United States Constitution and
the Maryland Declaration of Rights.
I am authorized to state that Chief Judge Bell and Judge Greene join in the views
expressed in this dissenting opinion.