Evans v. State

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In the Circu it Court for B altimore C ounty Case No. 83-CR-2339 IN THE COURT OF APPEALS OF MARYLAND Misc. No. 18 September Term, 2004 ______________________________________ VERNON EVANS, JR. v. STATE OF MARYLAND ______________________________________ Misc. N o. 3 September Term, 2005 ____________________________________ VERNON EVANS, JR. v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Harrell Battaglia Greene Rodo wsky, L awren ce F. (R etired, Specially Assigned), JJ. ____________________________________ Opinion by Wilner, J. Bell, C.J., Raker and Greene, JJ., Dissent _______________________________________ Filed: November 10, 2005 On April 28, 19 83, appellant, V ernon Ev ans, for a fe e of $9,00 0 to be paid by his friend, Ant hony Gra ndis on, m urde red D avid Piec how icz a nd S usan Ken nedy, delibera tely, willfully, with prem editation, in co ld blood. G randison wan ted Piechowicz and his wife, Cheryl, killed to prev ent them f rom testifying a gainst Gra ndison in a pending d rug case in Federal Court, and he hired Evans to do the job. The Piechow iczes were employed at the Warre n Hous e Motel. U nbekno wnst to Evans, Cheryl was not at work that day; her sister, Ms. Kennedy, was substituting for her. Evans drove to the motel, wa lked into the lobby with a m achine pisto l, and fired nineteen bullets at the two victims. For those crimes, he was twice sentenced to death.1 In affirming the first of the death sentences, we observed that [t]he m urders givin g rise to this prosecution were as h einous as th ose in any case to come before us under the present capital punishment statute. No killings could have been more premeditated and deliberate than those here. See Eva ns v. State, 304 Md. 487, 539, 49 9 A.2d 1261, 1 288 (1 985), cert. den ied, 478 U.S. 10 10, 106 S. Ct. 33 10, 92 L . Ed.2d 722 (1 986). We have set fo rth the underlying facts and procedural history of the case often enough in the opinions disposing of the nine previous appeals by Evans , and there is n o need to repeat them h ere. See Eva ns v. State, supra, 304 Md. 487, 499 A.2d 1261 and Evans v. State, 1 The first sentence was imposed following his trial in 1984. In 1991, that sentence w as vacated in a post con viction proc eeding be cause the se ntencing f orm used in connection with the sentencing had been declared unconstitutional in Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 367, 100 L. Ed.2d 384 (1988). Following a new sentencing procee ding, he was ag ain sen tenced to death . 382 Md. 248, 855 A.2d 291 (20 04), cert. denied, ___ U.S. ___, 125 S. Ct. 1325, 161 L. Ed. 2d 113 (2005). Before us in these two app eals his tenth and eleven th in this Court are two motions filed by Evans in the Circuit Court for Baltimore County to correct what h e regards as an illegal sentence, both of which were denied. The first appeal (Misc. No. 18) is straightforward; the second (Misc. No. 3) has a more complex background. Neither has merit. I. MISC. NO. 18 (PATERNOSTER) The motion at issue in Misc. No. 18 was based entirely on a statistical analysis conducted by Raymond Paternoster, a Professor of Criminology and Criminal Justice at the University of Maryland, which Evans claims establishes a pattern of racial and geog raphic discrimination in the impleme ntati on o f the deat h penalty i n M arylan d. Th e Stu dy, he avers, indicates that the chanc es of receiv ing a death sentence in Maryland are much greater if (1) the defendant is African-American, (2) the victim was white, and (3) the crime was committed in Baltimore County, all of which pertained to his case. That motion was filed on February 28, 2005, and was denied, without a hearing, on March 18, 2005.2 Evans complains, first, that the motion was denied, and second, that it was denied without affording him the o pportunity to c onduct d iscovery. 2 Both sides agree that such a motion was filed and the docket entries also reflect the filing. The actual motion is not in the record before us, however. Its absence is of no consequence, for its contents are well-described and not in dispute. -2- In Baker v. State, ___ Md. ___, ___ A.2d ___ (Sept. Term, 2004, No. 132, Op. filed October 3, 2005), respondin g to precisely the sam e argume nt made b y Wesley Bak er, we held that a motion to correct an illegal sentence filed pursuant to Maryland Rule 4-345(a) was not the appropriate vehicle to raise this issue based on the Paternoster Study. We explained there, as we had in an earlier opinion in Evans s case, Evans v. State, supra, 382 Md. 248, 278, 855 A.2d 291, 309, that a motion to correct an illegal sentence historically was entertained only where the alleged illeg ality was in the se ntence itself or the sentence never should have been imposed, and that, where the sentence itself was lawful, such a motion was not app ropriate . Baker, ___ Md. at ___, ___ A.2d at ___ (2005). There was nothing intrinsically illegal in Evans s sentence; he was properly found to be a principal in the first degree in two first degree murders for which the death pen alty could law fully be imposed, and the court properly found that the aggravating factors proved beyond a reasonable doubt outweigh ed any mitigatin g factors an d that death was the a ppropriate senten ce. See Evans v. State, 333 Md. 660, 637 A .2d 117 (1994 ), cert. denied, 513 U.S . 833, 115 S . Ct. 109, 130 L. Ed. 2d 56 (19 94). We acknowledged in Baker that, in Oken v. S tate, 378 Md. 179, 184-86, 835 A.2 d 1105, 1108, 1 157-5 8 (200 3), cert. denied, 541 U.S. 1017, 124 S. Ct. 2084, 158 L. Ed. 2d 632 (2004), and in Evans v. State, supra, 382 Md. at 279, 855 A.2d at 309, we had recognized a limited exception to that general principle and had entertained a motion under Rule 4-345(a) where in a capital sentencing proceeding, an alleged error of constitutional dimension may -3- have contributed to the death sentence, at least where the allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant s capital sentencing proceeding. Baker, supra, ___ Md. at ___, ___ A.2d at ___, quoting from Evans, supra. We concluded, however, that the Paternoster Study did not constitute a decision of the United States Supreme Court or of this Court and that an allegation of error, even of Constitutional dimension, based on that Study, did not qualify under the limited exception. We affirmed the denial of Baker s motion for that reason and shall do the same w ith respect to Evans s motion, which stands on no firmer ground. O ne collateral, b ut importan t, comment that we made in Baker bears repeating here: Although for statistical purposes Baker s sentencing was included in the swee p of the P aternoster S tudy, there con cededly is no conclu sion draw n there that B aker s sente nce specif ically was influence d by any imperm issible racial or geo graphic factors. Addition ally, Dr. Paterno ster stated in his te stimony before the Senate Judicial Proceedings Committee on 9 January 2003, shortly after the initial study was released to the pu blic: I would like to make it especially clear that these results [of the Study] do not mean that anyone is behaving in a racially discriminatory manner because I think there are other explan ations f or that. Baker, supra, at ___ n. 14, ___ A.2d at ___ n.14. That is equally true with respect to Evans. Apart from what Evans chose to draw from the statistics c ompile d by Prof essor P aternos ter, there is nothing in the record of this case to indicate that (1) the State s Attorney, in seeking and pursuing the death penalty against -4- Evans, was in an y way influenc ed by the fact th at Evans is a n African -America n or that his victims were white, (2) any ruling by any judge presiding at any proceeding in the case was in any way influenced by those factors, or (3) any juror wh o sat in the ca se and vo ted to impose the death penalty was in any way influenced by those factors. Thus, not only has Dr. Paternoster disavow ed any sugg estion that his Study establishes racial discrimination on the part of anyone in any particular ca se, but, after 21 years of opp ortunity to investig ate with respect to the first proceeding and 13 years of opportunity to investigate with respect to the second, Evans has been unable to show that any such discrimination was at work in this case. II. MISC. No. 3 (APPRENDI/RING) A. Background In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362, 147 L. Ed. 2d 435, 455 (200 0), the Sup reme Co urt, confirm ing, in part, a footn ote in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), held 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, and pro ved be yond a re asonab le doub t. Although Apprendi was not a capital punishment case and it did not appear from the opinions filed by the five Justices forming the Majority that the holding was intended to invalidate the Maryland death penalty statute, or any other, Evans and others promptly contended that it had precisely that effect by making principalship (in cases where it needed to be established), -5- aggravating factors, and the balancing of aggravating and mitigating factors elements of a separate crime of capital murder rather than merely sente ncing factors to be applied on a conviction of classic first degree m urder. In April, 2001, Evans filed a motion in the Circuit Court f or Baltimo re Coun ty to reopen an earlier (19 95) post co nviction pro ceeding w ith the claim that, under Apprendi, the indictment that triggered his prosecution was fatally defective.3 His argument was based more on the lang uage of th e footnote in Jones that any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonab le doubt. Jones v. United States, supra, 526 U.S. at 243 n.6, 119 S. Ct. at 1224 n.6, 143 L. Ed. 2d at 326 n.6 (emphasis added). Notwithstanding that Jones was a Federal prosecution and that in Apprendi, a State prose cution, the C ourt did not repeat the italicized language regarding the indictment, Evans contended that the indictment was def icient becau se it failed to charge that he was a principal in the first degree in the two murders, that any of the agg ravating fa ctors in the Marylan d statute we re present, or that such factors would outweigh such mitigating factors as defendant might show. The Circuit Court denied the m otion, and w e denied E vans s app lication for lea ve to appe al. Evans v. S tate, Misc. No . 10, Sept. Term 2001 (Order). In the meanwhile, in Borchardt v. State, 367 M d. 91, 78 6 A.2d 631 (2 001), cert. denied, 535 U.S. 1104, 122 S. Ct. 2309, 152 3 The motion also asked that execution of the death sentence be stayed pending the Paternoster Study, which had been commissioned in 2000 and was expected to be completed in 2002. -6- L. Ed. 2d 1064 (2002) and Baker v. S tate, 367 Md. 648, 79 0 A.2d 629 (2 002), cert. denied, 535 U.S. 105 0, 122 S. C t. 1814, 152 L. Ed. 2d 8 17 (2002 ), we held th at Apprendi did not invalidate any part of the Maryland death penalty statute. While his motion to reopen th e post conviction proceeding was still pending in the Circuit Court, Evans, in May, 2001, filed, in that court, a Motion to Correct Illegal Sentence and/or Motion for New Sentencing Based on Mistake and Irregularity. That motion was also based on Apprendi. Evans claimed that, und er Apprendi, the determination that any aggravating factors found by the trier of fact to exist outweighed any mitigating factors had to be beyond a reasonable d oubt and that the M aryland statute, which provided f or that determ ination t o be ba sed on a prepo nderan ce of e videnc e, was u ncons titutiona l. In October, 2001, Ev ans filed yet ano ther Mo tion to Corre ct Illegal Sente nce, this time complaining that a 1983 statute that deleted a defend ant s intoxica tion as an au tomatic mitigating factor but allowed a trier of fact to consider intoxication as a mitigating factor under the catchall provision then found in Maryland Code, Art. 27, § 413(g)(8) and now codified in Criminal Law Art. § 2-303(h)(2)(viii) constituted, as to Evans, who committed the murders prior to the effective date of the statute, an unlaw ful ex post facto law. The court heard argumen t on both m otions in April, 2002. By then, Evans was aware that the Supreme Court had granted certiorari in Ring v. Arizona, 536 U.S. 584, 122 S. C t. 2428, 153 L. Ed. 2d 556 (2002), to determine the effect of Apprendi on the Arizona death penalty law indeed oral argument in Ring occurred f our days after th e hearing a fforded E vans in the C ircuit -7- Court and he asked the court to delay a ruling on the first motion pending the decision in Ring. The court agreed to reserve ruling on both motions pending further submissions from Evans. 4 Ring was decided in June, 2002, and it clearly rendered suspect some, though not all, of the underpinnings of our decision in Borchardt. In November, 2002, Evans filed a supplement to his first motion, the one based on Apprendi, to add an argume nt under Ring. Much earlier, in May, 2000, Evans had filed a pro se Motion for New Trial based on newly discovered evidence statemen ts of witnes ses that he cla imed had been w ithheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that motion was still pending. A hearing was held on all of the pending motions on December 3, 2002, although the argum ent was d evoted alm ost entirely to the M otion for N ew Trial based on newly discovered evidence. Indeed, neither the judge nor the prosecutors had received a copy of the November supplement to the other motion, dealing with Apprendi and Ring. The court agreed to hold the matters in abeyance until both sides could submit memoranda. Although both sides filed proposed findings of fact with respect to the Motion for New Trial based on newly discovered evidence, it is not clear whether additiona l memoranda w ere filed 4 Evans had asked for a postponement of the April 18 hearing in order to collect additional evidence with respect to his May, 2000 Motion for New Trial. He stated that he had filed a Freedom of Information Act request to obtain FBI and U.S. Attorney documents relating to the federal investigation of the two murders and that those documents were relevant to that motion. The request for postponement was denied, as, ultimately, was the motion for new trial. We affirmed that ruling in Evans v. State, supra, 382 Md. 248, 855 A.2d 291. -8- regarding the motions to correct illegal sentence. None are in the record.5 On July 18, 2003, the court filed two memorandum opinions and orders one disposing of the Motion for New Trial based on newly discovered evidence and the other disposing of the Motion to Correct Illegal Sentence pursuant to Md. Rule 4-345. The second memorand um, dealing with the M otion to Co rrect Illegal Sen tence, discu ssed only the ex post facto argument presented in the first Motion to Correct Illegal Sentence and did not address any of the Apprendi/Ring issues raised in the second su ch motion. The co urt concluded, however, that [i]n the present case, Evans death sentence is not an illegal sentence. The sentence is within the statutory authority of the court to impose. Evans received the maximum allowable penalty for first degree murder. Evans appealed the court s rulings but treated the denial of the Motion to Correct Illegal Sentence as dealing only with the first motion raising the ex post facto issue. No argument was made in the appeal regarding the Apprendi/Ring issue, and that issue was not discussed in our opinion affirming the Circuit Court rulings. See Evans v. State, supra, 382 Md. 2 48, 855 A.2d 2 91. Once the Supreme Court denied certiorari in that case, Evans v. Maryland, ___ U.S. ___, 125 S. Ct. 1325, 161 L. Ed. 2d 113 (2005), the State obtained a warrant of execution, directing execution of the death sentence during the week of April 18, 2005. That prompted 5 Evans had filed a memorandum on the Apprendi/Ring issue in No vember, p rior to the hearing. -9- another set of motions. On February 28, 2005, Evans moved to stay the warrant and filed the Motion to Correct Illegal Sentence based on the Paternoster Study, at issue in Misc. No. 18. In the motion to stay, Evans asserted that his earlier Motion to Correct Illegal Sentence based on Apprendi/Ring had not been ruled upon and was still pending. The motion based on the Patern oster Stu dy was d enied o n Ma rch 18, a nd an a ppeal w as note d. See ante. On March 22, 2005, through counsel, Evans filed a second supplement to what he regarded as the still-pending Motion to Correct Illegal Sentence based on Apprendi/Ring. On the same day, acting pro se, he filed a new, separate Motion to Correct Illegal Sentence, also based on Apprendi/Ring. The pro se motion raise d the same issue presen ted in his A pril, 2001 motion to reopen the 1995 post conviction proceeding, namely, that the failure of the indictment to allege principalship or the aggravating factors upon which the State intended to rely rend ered it C onstitutio nally defe ctive. The second supplement filed by counsel iterated Evans s complaint regarding use of the preponderance of evidence standard in balancing aggravating and mitigating factors but rested the complaint on Articles 16, 21, 23, 24, and 25 of the Maryland Declaration of Rights. Citing two decis ions in the C ircuit Court f or Anne Arunde l County that, due to the unusual procedure used by that co urt to effect th ose decisions, we were precluded from reviewing (see State v. Manck, 385 Md. 581 , 870 A.2d 196 (2005)), he argued as well that, u nder both the Fourteen th Amen dment to th e U.S. Co nstitution and Article 21 o f the Maryland Declaration of Rights , the indictme nt against him was deficient for failing to allege -10- principalship or the aggravating factors. On March 29, 2005, the court filed a ruling on the seco nd sup pleme nt. With respect to the argument dealing with the balancing of aggravating and m itigating factors, the court concluded that (1) it had ru led on that issu e in its July 18, 2003 order den ying the Mo tion to Correct Illegal Sentence, and (2) it was, in any event, without merit. The court stated that its July 18, 2003 ruling was based upon all issues raised by the Defe ndant in his Motion and Supplem ents thereto, r egardless of whether the Court elaborated on its reasoning for the denial and that [s]pecifically, Argument A of the Defendant s Second Supplement regarding the burden of proo f in the we ighing pro cess at senten cing was rejected by this Court in its order of July 18, 2003. With respect to the second argument, claiming a deficient indictment, the court concluded that that argument had not been previously raised or addressed in any of Evans s motions to correct illegal sentence but it found, for the reasons offered by the State in its Answer to the Seco nd Supp lement, that the argu ment had no merit. An appeal was noted from that ruling. B. Issues Evans p resents three issues: (1) Evans s in dictment fa iled to allege p rincipalship in the first degree or the existence of any aggravating circumstances, making capital punishment unavailable as a sentence for the crime of which Evans was convicted; (2) The relaxed evidentiary standard at Evans s resentencing -11- violated fair-trial guarantees that, after Ring, attach to the determination of principalship and aggravating circumstances; and (3) The burden of proof used at sentencing for the balancing of aggravating and mitigating circumstances violated the Maryland and Federal Constitutions. The State denies that any of these propositions has merit, but points out, in addition, that (1) Eva ns s appea l with respe ct to the Apprendi/Ring issues is untimely and should be dismissed on that ground; (2) Ring provides no solace because it is not retroactive and does not, therefore, apply to Evans; and (3) the complaint regarding the evidentiary standard was not raise d or dec ided be low an d is there fore no t prope rly before us. C. Procedural Defenses The State s position that th e appeal is u ntimely mirrors th e view of the Circuit C ourt, expressed in its March 29, 2005 ruling, that the validity of the preponderance of evidence standard used in the b alancing p rocess w as resolved in the court s Ju ly 18, 2003 order, and that it is therefore too late to appeal that ruling. There is no doubt that both the State and the court believed that to be the case, that the July, 2003 order did, indeed, resolve all issues then pending before the court, including the Apprendi/Ring issue. Unfortu nately, the record itself is at least a mbigu ous in th at regar d. There were two separate motions to correct illega l sentence p ending be fore the co urt, one dealing with the alleged ex post facto effect of th e 1983 sta tute removing intoxication -12- as a statutory categorical mitigating circumstance and the other with the validity of the preponderance standard in the balancing process. Whatever the court may have intended, its memorandum addressed only the ex post facto issue and its o rder speak s to the denial o f only one motion, not two. The docket entry is consistent: Order of Court that the Defe ndant s Motion [not Motions] to Correct Illegal Sentence is [not are] hereby Denied. Suc h a record could easily have misled Evans into reasonably believing that the separate motion raising the Apprendi issue remained pending and that no appeal on that issue was then possible. If the court intend ed to deny bo th motions , it should ha ve made that intent clear in its July, 2003 order, so that the Clerk could have made that intent manifest on the docket. On the state of this record, we hold that the motion raising the Apprendi/Ring issue wa s not reso lved in Ju ly, 2003, that it remained pending until denied, as being without merit, in the March 29, 2005 order, and that the first issue raised in this appeal is therefore properly before us. The State also points out that, notwithstanding the Circuit Court s belief that Evans s claim that the indictment was deficient had not previously been raised or adjudicated, that claim had, in fact, been raised and decided when the Circuit Court denied his April, 2001 motion to reopen th e 1995 p ost convictio n proceed ing, a ruling th at, in denying his application for leave to appeal, we left undistu rbed. See Evans v. State, supra, Misc. No. 10, Sept. Term 2001 (Order). The State is correct, to a point. The issue raised in that motion was based only on Apprendi. Ring had not yet been decided. The claim here is based primarily on Ring. Ring was not just a confirmation of Apprendi. It focused entirely on -13- capital punishment schemes, which the Apprendi Court had indicated it was not addressing, and put a new gloss on the procedu re for resolv ing principa lship and ag gravating factor issues. Although the general issue was the same, Ring added a significantly new dimension to it that could not have been adequately addressed under just Apprendi. Compare Borchardt v. State, supra, 367 Md. 91, 786 A.2d 631, with Oken v. State, supra, 378 Md. 179, 835 A.2d 1105. We acknow ledge the S tate s argum ent, based on Schriro v. S umme rlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) and Hughe s 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 p rovide no relief to Eva ns. 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 preserve it. In order to forestall the inevitable claim that his eminently competent and diligent attorne ys rendered C onstitutionally deficient performance in not raising that issue, how ever, we s hall address it. D. Validity of the Indictment Maryland Code, § 2-208(a) of the Criminal Law Article, provides that an indictment for murder is su fficient if it sub stantially states that (name of defen dant) on (d ate) in (cou nty) feloniously (willfully and with deliberately premeditated malice) killed (and -14- murdered) (name of victim ) agains t the pea ce, gov ernme nt, and d ignity of th e State. At the time of Evans s indictm ent, that statute appeared, in substantially the same form, as § 616 of Art. 27 of the C ode. See also Maryland Rule 4 -202. There is no exception in the statute for cases in which the State seeks the death penalty, and there is no dispute that the indictment against Ev ans com plied with the statutory requirements. The first and second counts alleged that Evans feloniously, wilfully and of deliberately premeditated malice aforethought did kill and murder David Piechowicz and Susan Kennedy against the peace, govern ment a nd dign ity of the S tate. Under the statutes in effect when Evans was indicted (Art. 27, §§ 412 and 413) and under the current law (Criminal Law Article, § 2-202), a defend ant found guilty of murder in the first degree may be sentenced to death on ly if (1) at least 30 d ays before trial, the State gave the defendant written notice of (i) its intention to seek the death penalty and (ii) each aggravating factor on which it intended to rely, (2) with exceptions not relevant here, the defendant was a prin cipal in the first d egree, and (3) the s entence o f death is im posed in accordance with other statutory requirements, now set forth in § 2-303 of the Criminal Law Article, then co dified in § 413 o f Art. 2 7. In relevant p art, those statutes require, as a condition to imposition of the death penalty, that the jury (or judge, if sentencing by a judge is elected by the defendant) finds beyond a reasonable doubt at least one of the aggravating factors listed in the Sta te s n otice and further f inds , by at least a preponderance of the evidence, that any such aggravating factors so found outweigh any mitigating factor(s) found -15- to exist. In Sep temb er, 19 83, th e Sta te provid ed E vans wit h tim ely written notice that it intended to seek the d eath pena lty if he was found guilty of the murders under the indictment and that it intended to rely on two aggravating factors allowed under the statute: that Evans committed the murde rs pursuan t to an agreement or co ntract for remuneration (fo rmer § 413(d)(6) of Art. 27, current § 2-303(g)(vi) of the Criminal Law Article) and that he committed more than one murder in the first degree arising out of the same incident (former § 413( d)(9) of Art. 27 , curren t § 2-30 3(g)(ix) of the C riminal L aw A rticle). Evans does not dispute that the Notice complied with the statutory requirements. He also does not dispute that the jury in the second proceeding the one at issue here found beyond a reasonable doubt that he was a principal in the first degree in the two murders and that the two aggravating circumstances relied on by the State existed, and that the jury also found those aggravating factors to outweigh the one mitigating factor (drug influence) that one or more but less than all of the jurors found to exist. His argument is that none of that matters that, because the indictment did not allege either his principalship or the two aggravating factors, it wa s fatally deficient under Apprendi and Ring and could not serve as the basis for a prosecution for which the death p enalty was so ught. His argument is grounded on both the Federal and State Constitutions. The Federal rights allegedly violated arise from the Fifth and Sixth Amendments, in particular the clauses in the Fifth Amendment prohibiting the deprivation of life, liberty, or -16- property without due process of law and the first clause that [n]o p erson shall b e held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a Grand Jury, and the requirement in the Sixth Amendment that, in all criminal prosecutions, the accused has the right to be informed of the nature and cause of the accusation. In Jones v. United States, supra, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311, 326 n.6, a Federal prosecution to which the Fifth and S ixth Am endmen ts directly applied, the Court stated its core holding as follows: Under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and p roven b eyond a r easona ble dou bt. Based on Apprendi and Ring, Evans maintains that bo th principalship and any aggrav ating factors relied upon by the State constitute elements of the crime of capital murder, elements that serve to increase the maximum penalty otherwise available upon a conviction of first degree murder, and that they must therefore be alleged in the indictment and found by a jury beyond a reasonable doubt. There is no question here that those elements were found by a jury beyond a reasonable doubt; the only issue is whether they needed to be alleged in the indictmen t. The simple answer is that, although the general requisites implicit in the due process clause of the Fifth Amendment are applicable to the States through the comparable clause of the Fourtee nth Am endmen t, any requireme nt implicit in the Fifth or Sixth Amendment that -17- elements of a criminal offense be alleged in a presentment or indictment returned by a Grand Jury has been found in applicable to State p rosecu tions. See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S. Ct. 1221, 1226-27, 3 1 L. E d. 2d 536, 543-44 (1972) ( Although the Due Process Clause guarantees p etitioner a fair trial, it does not require the States to observe the Fifth Amendment s provision for presentment or indictment by a grand jury ); Hurtado v. California , 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (188 4); Baker v. State, supra, 367 Md. at 683-90, 790 A.2d at 650-54, confirming Bower s v. State, 298 Md. 115, 468 A.2d 101 (1983). Nothing in Apprendi or Ring alters tha t conclu sion. The Apprendi Court made expressly clear tha t it was n ot addr essing th at issue. See Appren di, supra, 530 U.S . at 477 n.3, 12 0 S. Ct. at 23 55 n.3, 147 L. Ed. 2d a t 447 n.3 (Fourteen th Amendment has not been construed to include th e Fifth A mendm ent right to presentment or indictme nt of a Gr and Jury an d the Court declined to address the indictment question separately today ). Indeed, it is noteworthy that, in confirming the essence of its footnote in Jones, the Appren di Court, aware tha t it was dealin g with a S tate prosecution, dropped any referenc e to the need to include e lements in a n indictment. See Apprendi, 530 U .S. at 490 , 120 S . Ct. at 23 62-63 , 147 L . Ed. 2d at 455. Ring was based solely on the Sixth Amendment right of jury trial and did not address any issue regard ing the nec essity or validity of an in dictme nt. See Ring, supra, 536 U.S. at 588, 122 S. Ct. at 2432, 153 L. Ed. 2d at 563 ( This case concerns the Six th Amendment right to a jury trial in capital prosecutio ns ); Id. at 597 n.4, 1 22 S. Ct. at 2437 n.4, 153 L. Ed. -18- 2d at 569 n.4 ( Ring s claim is tightly delineated. He contends only that the Six th Amendment required jury findings on the aggravating circumstances asserted against him ); and Id. at 609, 122 S. Ct. at 244 3, 153 L. E d. 2d at 576 -77 ( For th e reasons sta ted, we ho ld that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty ). (Em phasis a dded). Nothing in either case purported to disturb the long-established view of the Supreme Court that a ny requireme nt emana ting from th e Fifth or S ixth Amendments that a criminal charge, or the elements of a criminal charge, be stated in a grand jury indictment was not applicable to prosecutions in State courts. Under Ring, principalship and aggravating factors are no longer regarded as mere sentencing factors, but as matters to be determined by a jury (unless a jury trial is prop erly waiv ed) beyo nd a rea sonab le doub t, but that does n ot, ipso facto, mean that they have to be alleged in an indictment. That has been the view expressed by every State court, s ave New Jersey, that has considered the effect of Ring on the indictment issue. See McKaney v. Foreman, 100 P.3d 18, 22-23 (Ariz. 2004) (en banc) ( All state jurisdictions with one exception have thus far held, as we hold today, that aggravating factors need not be specified or alleged in the indictmen t ); Stallworth v . State, 868 So.2d 1128, 1186 (Ala. Crim . App. 2003) (on return to second remand), cert. denied, 868 So.2d 1189 (2003), cert. denied, 540 U.S. 1057, 124 S. Ct. 828, 157 L. Ed. 2d 711 (200 3); Banks -19- v. State, 842 So.2d 788, 793 (Fla. 2003) ; Terrell v. State , 572 S.E.2d 595, 60 2 (Ga. 2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (200 3); People v . McCla in, 799 N.E.2d 322, 336 (Ill. App. 2003), appeal denied, 806 N.E .2d 1070 (Ill. 2003); Soto v. Comm onwea lth, 139 S .W.3d 827, 84 2 (Ky. 20 04), cert. denied, ___ U.S. ___ , 125 S. Ct. 1670, 161 L. Ed. 2d 4 95 (2005 ); St. Clair v. C ommo nwealth , 140 S.W .3d 5 10, 5 59-6 0 (K y. 2004); Stevens v. Mississippi, 867 So.2d 219, 227 (Miss. 2003) , cert. denied, ___U.S. ___, 125 S. Ct. 222, 160 L . Ed. 2d 96 (2004); State v. Edwards, 116 S.W.3d 511, 543-44 (Mo. 2003) (en ban c), cert. denied, 540 U.S. 1186, 124 S. Ct. 1417, 158 L. Ed. 2d 92 (2004); State v. Hunt, 582 S.E.2d 593, 60 2-07 (N .C. 200 3), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 136 L. Ed. 2d 70 2 (2003); Primea ux v. State, 88 P.3 d 893, 8 99-90 0 (Okla. Crim . App. 2004), cert. denied, ___ U .S. ___ , 125 S . Ct. 371, 160 L. Ed. 2d 2 57 (2004 ); State v. Oatney, 66 P.3d 475, 487 (Or. 20 03), cert. denied, 540 U.S. 1151, 124 S. Ct. 1148, 157 L. Ed. 2d 1045 (2004); State v. Edwards, 810 A.2d 226, 234 (R .I. 2002 ), cert. denied, 538 U.S. 980, 123 S. Ct. 1808, 155 L. Ed. 2d 670 (2003); Moeller v. Weber, 689 N.W.2d 1, 19-22 (S. D. 2004); State v. Berry, 141 S.W.3d 549, 560 (Tenn. 20 04); compa re State v. Fo rtin, 843 A.2d 974 (N.J. 2004). We decline to follow Fortin and confirm our holdings in Bowers and Baker. Evans s argument unde r Article 21 of the Md. Declaration of Rights and Maryland common law fares no better. The common law argument emanates from Article 5 of the Declaration of Rights which, among other things, guarantees to the inhabitants of Maryland the common law of E ngland in e ffect on Ju ly 4, 1776, subject, nevertheless, to the revision -20- of, and amendment or repeal by, the Legislature of this State . To the extent that the English common law, as extended by decisions o f this Cou rt, might ever have requ ired principa lship or aggravating factors to be alleged in an indictmen t, the Gene ral Assem bly is compete nt to change that law , see Hea th v. State, 198 M d. 455, 464 , 85 A.2d 4 3, 47 (195 1), and it clearly has do ne so b y providin g for th ose fac tors to be alleged in a sep arate N otice. Article 21 provides, in relevant p art, that in all criminal prosecutions, every [person] hath a right to be informed of the accusation against him [or her]; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his [or her] defence. In furtherance of that provision, we have held that a charging document ordinarily must allege all essential elements of the criminal offense intended to be charged, in order (1) to give the defendant fair notice of what he or she is called upon to defend, (2) to protect the accused from a subsequent prosecution for the same offense, (3) to enable the defenda nt to prepare for trial, (4) to provide a basis for the court to consider the legal sufficiency of the indictmen t, and (5) to inform the c ourt of the crime charged s o that any sente nce will relate to that crim e. See Cam pbell v. State , 325 Md. 488, 601 A.2d 667 (1992); Ayre v. Sta te, 291 Md. 1 55, 433 A.2d 1 150 (1 981). As we pointed out in Heath, supra, 198 M d. at 464, 85 A.2d at 47 , howev er, Article 21 does not re quire that ther e be an ind ictment; nor does it specify the form that an indictment must take, but merely confers the substantial right to be apprised of the charge on which the accused s tands trial. As noted, Evan s s argument is that, under Ring, -21- principalship and aggravating factors constitute elements of the separate crime of capital murder, that all elements of a crime must be alleged in the charging document, and, citing Busch v. State, 289 M d. 669, 426 A.2d 95 4 (1981); Dunca n v. State, 282 Md. 385, 384 A.2d 456 (1978); State v. Mulkey, 316 M d. 475, 560 A.2d 24 (1989); Ayre v. State, supra, 291 Md. 155, 433 A.2d 1 150, an d two d ecision s of the Circuit C ourt fo r Anne Arun del Co unty, State v. Abend and State v. Henry, he posits that sources extrinsic to the indictme nt are immaterial in de term ining its s ufficien cy or insuf ficie ncy. We have previously held that the form of indictm ent used in th is case wa s legally sufficient under Article 21 in a death penalty case. In Collins v. Sta te, 318 Md. 269, 297, 568 A.2d 1, 14 (1 990), cert. denied, 497 U.S. 1032, 11 0 S. Ct. 3296, 111 L . Ed. 2d 805 (199 0), we held expressly that Art. 21 does not require that the statutory notice specifying the aggravating factors alleged by the State be part of or ap pende d to the in dictme nt. See also Baker v. State, supra, 367 Md. at 686-90, 790 A.2d at 651-54 ( Baker w as notified well before trial that his case was a capital case and he was also notified of the aggravating circumstance upon which the State intended to rely. The information that Baker contends made the indictment invalid was provided to him through the notice required by [Article 27] section 412(b). ). We see nothing in Ring that requires a different construction of Article 21. The point of that provision is to give fair and adequate notice, and, as we made clear in both Collins and Baker, that notice may come from the statutory Notice. That Notice, to be filed by the -22- State s Attorney at least 30 days before trial, serves every purpose, to the same degree, as would an indictment containing those averments. It gives the defendant fair notice of what must be defen ded; coup led with the indictmen t, it protects the defendant from a subsequent prosecution for the sam e offense ; it enables the defendant to prepare for both phases of the trial; to the extent relevant, it provides a basis for the court to consider the legal sufficiency of the indictment; and it informs whether and und er what circ umstance s a death sen tence is permis sible. Th ere is no prejud ice to a d efend ant from this ove rall statuto ry approa ch. The cases relied upon by Evans do not compel a different result. In Busch, the offense allegedly charged w as resisting arre st, but the body of the charging document did not allege that the defen dant had re sisted an arre st, only that he hindered a police officer in the lawful execution of his duties . We held that the defic iency could not be cured by the fact that the indictment was captioned Resisting Arrest. Busch, supra, 289 Md. at 678-79, 426 A.2d at 959. We noted that the caption of an offense appearing in a charging document does not determine the charac ter of the of fense alleg ed to have been committed by the accused. Id. In Ayre, the statutory offe nse was k nowing ly selling any obsce ne matter. The charging document failed to allege that th e magaz ine sold by the defendant contained obscene matter or that he knowingly sold obscene matter. Those deficiencies, we held, were not cured by the fact that the charging document referenced the statute. We noted, in that regard, that reference to the statute d oes not supply the missing elements and tha t, if the law were otherwise, it would obviate the necessity of alleging any materia l eleme nt of the offen se. -23- Ayre, supra, 291 Md. at 167 -68, 433 A.2d at 11 58 (emphasis in origina l). Neither Dunca n v. State nor State v. Mulkey, supra, 316 Md. 475, 560 A.2d 24 do anything to assist E vans. Duncan is not at all in point. In Mulkey, we reversed an order of the Circuit Court dismissing an indictment charging child sexual offenses for lack of particula rity. If there is any relevance in that c ase, i t must be our o bser vatio n tha t, ord inarily, a bill of particulars forms no pa rt of the indictment and ca nnot be applied to cure a defective indictm ent. Id. at 489, 433 A.2d at 30. We explained the rationale for that conclusion in State v. Lassotovich, 162 Md. 147 , 158, 159 A. 362 , 366-67 (1932): It would be illogical to hold that an accuse d must de mand a b ill of particulars in order to perfect a legal charge against him, and such is not the requirement. The rule allowing a bill of particulars is for the benefit of the accused. He may, but is not bound to, request it; and if he does not, he is entitled to attack the validity of the charge as made out by the indictment. To hold otherwise would be to say that no indictment could be attacked by demurrer by an accused, for vagueness or indefiniteness of its allegations, without first dem anding a b ill of parti culars. The problems evident in Busch, Ayre, and Lassatovich do not a ppear in this case . The indictmen t properly set forth a charge of first degree murder in conformance with § 2208 of the Criminal Law Article, and the Notice filed pursuant to §§ 2-202 and 2-303(b) of that Article adequately informed Evans of all additional elements needed to warrant the death penalty. Most of the courts that have considered the effect of Ring on their ow n State law have c ome to the sam e conc lusion: th at it has n o effe ct. See McKaney v. Foreman, supra, 100 P.3d at 21, and the other cases cited above with respect to the effect of Ring on -24- the Federa l right to a n indictm ent. To the ex tent that State v. Abend and State v. Henry reach a differen t conclusion , they are wron g. The ind ictment in this c ase was n ot deficient. E. Evidentiary Standards Applied At Sentencing Former Maryland Code, Article 27, § 413(c) (currently codified as Criminal Law Article, § 2-303(e)) made admissible at a death penalty sentencing proceeding evidence relating to mitigating or aggravating circumstances, evidence of prior criminal convictions or the absenc e of such convictions, a pre-sentence investigation report (other than a recommendation as to sentence), and any other evidence the court finds to have probative value and releva nce to sentencing, provided the defendant is accorded a fair oppo rtunity to rebut any statem ents. 6 Evans acknowledges that we have, on several occasions, found no Constitutional problem with those somewhat relaxed statutory evidentiary rules. See Conyers v. State, 354 M d. 132, 1 75, 729 A.2d 9 10, 933 (1999 ), cert. denied, 528 U.S. 910, 120 S. Ct. 258, 145 L. E d. 2d 216 (1999); Bruce v. State, 328 Md. 594, 630-31, 616 A.2d 392, 410 6 Probative value and relevance may be the key criteria for purposes of the statute, but M aryland R ule 5-4 03 also applies , as it doe s to all ev idence offere d in cou rt. Hunt v. State, 321 Md. 387, 425, 583 A.2d 218, 236 (1990) (during capital sentencing, [e]ven relevant ev idence m ay be exclud ed if its prejud icial effect su bstantially outw eighs its probat ive valu e ). See also Conyers v. State, supra, 354 Md. at 181, 729 A.2d at 936 (recognizin g that Md . Rule 5-40 3 applies to c apital sentenc ing procee dings). Th at Rule makes cle ar that [a]ltho ugh releva nt, evidence may be exc luded if its pro bative valu e is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cum ulative evidence. (Em phasis added). -25- (1992), cert. denied, 508 U.S. 963, 113 S. Ct. 2936 , 124 L. Ed . 2d 686 (1 993); Booth v. S tate, 327 Md. 142, 160-61, 608 A.2d 162, 170-7 1 (199 2), cert. denied, 506 U.S. 988, 113 S. Ct. 500, 121 L . Ed. 2d 437 (1 992). See also Hunt v. State, 321 Md. 387, 431-32, 583 A.2d 218, 239 (1990 ), cert. denied, 502 U. S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 86 (1990) and State v. Colvin, 314 Md. 1, 17-18 n.5, 548 A.2d 506, 514 n.5 (1988). Nonetheless, he contends that, under Ring, that conclusion is no longer valid, and that, notwithstanding that a jury has found the elements of first degree murder, the defendant remains innocent of the greater crime of capital m urder and that [t]he ad ditional elem ents necess ary to convict a defendant of that crime i.e. principalship and aggravating circumstances therefore must be proved under the rules of evidence established for, and subject to the requirements of the Sixth, Eighth, and Fourteenth Amendments (and the parallel state guarantees) applicable to, the determ ination o f guilt or innoce nce in c riminal c ases. Evans never raised this issue at his sentencing proceeding. Indeed, he acknowledges that he failed to mount any defense to the State s claim of principalship or to the two aggravating factors posited by the State. He blames that, 13 years later, on the fact that lower evidentiary standards were applicable. He complains, in particular, about the admission of a pre-sen tence in vestiga tion rep ort, his pr ison rec ords, an d victim impac t stateme nts, all declared admissible by statute. This issue has been raised elsewhere, in both Federal and State courts, and it has been universally rejected . See United States v. Fell, 360 F.3d 135 (2 nd Cir. 200 4), cert. denied, -26- ___U.S. ___, 125 S. Ct. 369, 160 L. Ed. 2d 2 59 (2004 ); United States v. Lee, 374 F.3d 637 (8 th Cir. 200 4), cert. denied, ___ U.S . ___, 125 S . Ct. 2962, ___ L. Ed. 2d ___ (20 05); United States v. Rodriguez, 380 F. Su pp. 2d 10 41, 1053 -54 (D. N .D. 2005) ; United States v. Johnson, 378 F. Supp. 2d 1051, 1069 (N. D. Iow a 2005); United States v. Sampson, 332 F. Supp. 2d 325 (D. Mass. 20 04); United States v. Taylor, 302 F. Supp.2d 901, 905 (N.D. Ind. 2003); United States v. Battle, 264 F. Supp. 2d 1088, 11 05-07 (N .D. Ga. 20 03); United States v. Haynes, 269 F. Supp. 2d 970, 985 -87 (W.D . Tenn. 20 03); United States v. Matthews, 246 F. Supp. 2d 137 , 142 (N.D.N.Y . 2002); United Sta tes v. Lentz, 225 F. Supp. 2d 672, 682-83 (E.D. Va. 2002); State v. Reid , 164 S. W.3d 28 6, 319 (Te nn. 2005 ); Ploof v. State , 856 A.2d 539, 544 (Del. 2004). The rationale, explained in Fell and Lee, is that the relaxed standard, allowed as well unde r the Federa l Death Pe nalty Act, does not impair the reliability of the evidence admissible during the penalty phase . . . Rather, the admission of more rather than less evidence durin g the pena lty phase increa ses reliability by provid ing full and complete information about the defendant and allowing for an individualized inquiry into the appropriate sentence for the offense. United States v. Lee, supra, 374 F .3d at 64 8. We are in agreement with those decisions. The relaxed standards were designed largely for the defendant s benefit, both to allow the defenda nt to offer evidence in su pport of mitigating factors or to defend against or ameliorate aggravating factors that might otherwise be inadmissible and, as noted in Lee, to allow the ju ry to have a m ore comp lete picture of the defendant. The proper application of Rule 5-403 can serve as a brake on -27- eviden ce that is unduly p rejudici al. F. Balancing of Aggravating and Mitigating Circumstances Evans s final complaint deals with the standard by which the jury must find that any aggravating circumstance(s) found beyond a reasonable doubt outweigh any mitigating factor(s). Maryland statutory law requires that the dete rmin ation be m ade b y a preponderance of the e videnc e. See former Maryland Code, Art. 27, § 413(h), current Criminal Law A rticle, § 2-303 (i). Evans contends that, under Apprendi and Ring, that standard is unconstitu tional that the determina tion is required by the Sixth an d Fourtee nth Amen dments to the U.S. Constitution and by Articles 16, 21, 23, 24, and 25 of the Maryland Declaration of Rights to be mad e beyond a re asonable d oubt. We addressed that precise issue in Oken v. S tate, 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 wr ong, and w e therefore confirm it. IN MISC. NO. 18, ORDER OF CIRCUIT COURT FOR BALTIMORE COUNT Y OF M ARCH 18, 200 5 AFFIRMED, WITH COSTS; IN MISC. NO. 3, ORDER OF CIRCU IT COURT FOR BALTIMORE COUNTY OF MARCH 29, 2005 AFFIRMED, WITH COSTS. -28- In the Circu it Court for B altimore C ounty Case No. 83-CR-2339 IN THE COURT OF APPEALS OF MARYLAND Misc. N o. 3 September Term, 2005 VERNON EVANS, JR. v. STATE OF MARYLAND Bell, C.J. Raker Wilner Harrell Battaglia Greene Rod ows ky, Lawrence F . (Retired, Specially Assigned), JJ. Dissenting Opinion by Raker, J, which Bell, C.J., and Greene, J., join. Filed: November 10, 2005 Raker, J., dissenting, in which Bell, C.J., and Greene, J., join: I would reverse the death sentence, affirm the guilty verdicts, and affirm the prison sentences in this case. I would remand for a new sentencing proceeding on the murder conviction. My reasons for dissenting are essentially the same reasons as expressed in Borchardt v. State, 367 M d. 91, 786 A .2d 631 (2 001) (Ra ker, J., dissenting, jo ined by Bell, C.J. and Eldridge, J.), Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003) (Raker, J., dissenting, joined by Bell, C.J. and Eldridge, J.), and Miller v. State , 380 Md. 1, 843 A.2d 803 (20 04) (Raker, J., concurring in part and dis senting in pa rt, joined by Bell, C .J., and Eldridg e, J.). I would hold that the portion of Maryland Code (1957, 1996 Repl. Vol.) Art. 27, § 413(h)1 that provides that the pun ishment sh all be death if the sentenc ing authority 2 finds that the aggravating factors ou tweigh the mitigating fa ctors by a prep onderan ce of the evidence violates due process und er the Fourteenth Amendment and the Sixth Amendment of the United States Constitu tion and A rticle 24 of th e Maryland Declaratio n of Righ ts. I would 1 This case was tried prior to the 2002 Code recodification. For that reason, unless otherwise indicated, all statu tory reference s are to M aryland Cod e (1957, 19 96 Rep l. Vol.), Art. 27. 2 Future references to the sentencing authority will be to a jury, with the recognition that the defendant may waive the right to have the sentence determined by a jury and may elect to h ave the court se ntence . See § 413(b)(3), (k)(3). sever the unconstitutional portion of the statute, require the beyond a reasonable doubt standard to be applie d as a matte r of law, va cate appella nt s sentenc e of death imposed pursuant to § 413 and remand for a new sentencing hearing. The Maryland death penalty statute requires the State to give notice of an in tent to seek the death penalty and to allege in that notice the existence of a statutory aggravating factor. § 412(b)(1)(i). With the exception of a contract murder and the killing of a law enforcement officer, the jury must find that the State has proven, beyond a rea sonable doubt, that the defendant was a principal in the first degree. § 413(d)(7), (e)(1). Th e jury must then make three fin ding s for a dea th senten ce to be im pose d. First, th e jury must find that the State has prove n, beyond a re asonable d oubt, the existence of at least one aggravating factor. § 413(d), ( f). Secon d, the jury m ust then consider and find, by a preponderance of the evidence, whether one or more mitigating circum stances exist. § 413(g). Third, the jury must also find that the aggravating factors outweigh the mitigating factors. § 413(h)(1). The statute states that the sentence shall be dea th if the jury finds that the aggravating fa ctors outweigh the mitigating factors by a pre pondera nce of the evidence . § 413(h)(2 ). This finding is a necessa ry predicate to the imposition of a sentence of death. In my view, the jury must find this last and ultim ate finding beyond a rea sonable d oubt. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and Apprendi v. New Jersey, 530 U .S. 466 , 120 S . Ct. 234 8, 147 L . Ed. 2d 435 (2 000), in the framework of the Maryland death penalty statute, mandate that the jury must find that -2- aggravating factors outweigh mitigating factors beyond a reaso nable doubt and n ot by a mere preponderance of the e videnc e. Apprendi held that [o]ther than the fact of a prior conviction, any fact that inc reases the p enalty for a crim e beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490, 120 S. Ct. at 23 62-63 . Ring made clea r that Apprendi applied to death penalty proceedings, reasoning that [c]apital defendants, no less than non-capital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. Ring, 536 U.S. at 589, 122 S. Ct. at 2432. Life imprisonment is the maximum sentence for first degree murder in Maryland. The penalty for first deg ree murde r in Maryland is death, imprisonment for life, or imprisonment for life without the possibility of parole. § 412(b). Life imprisonment without the possibility of parole and death are enhanced penalties and may not be imposed unless the State satisfies the statutory requir emen ts of § 4 13 justif ying enh ancem ent. Id. The statute requires that before a sentence of death may be imposed, the jury must make ce rtain additional findings beyond the finding of gu ilt of the mur der. Those findings in crease the m aximum penalty from life imprisonment to death. It is the jury finding that aggravating circumstances outweigh mitigating circ umstance s that increase s the penalty fo r first degree m urder in Maryland beyond the prescribed statutory maximum. See John son v. State , 362 Md. 525, 529, 766 A.2d 93, 95 (2001) (holding that basic sentence for first degree murder is life imprisonment and that life w ithout parole and death are enhance d penalties); Gary v. S tate, -3- 341 Md. 513, 520, 671 A.2d 495, 498 (1996) (holding that maximum penalty for first degree murder is life imprison ment). Because the def ault penalty for f irst degree m urder in Maryland is life imprisonment, a jury s determination that aggravating circumstances outweigh mitigating circumstances is an additional finding beyond that of guilt that serves to make a defendant eligible for the enhanced penalty of death. Ring and Apprendi require that such a f inding be m ade beyond a reasonab le doubt. The Ring Court pointed out that every fact that the legislature r equires bef ore death may be imposed be found by a jury beyond a reasonable doubt. The Court reiterated that the dispositive questio n . . . is one not of form, but of effect. Ring, 536 U.S. at 602, 122 S. Ct. at 2439, 153 L. Ed. 2d at 572 (quoting Apprendi, 530 U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457). The Court stated: If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact no matter how the State lab els it mus t be f ound by a jury beyond a reaso nable d oubt. Id. Thus, under Ring, a substantive element of a capital offense is one that makes an increase in authorized punishment contingent on a finding of fact. Using this description, before the death penalty may be mandated in Maryland, the jury must find the existence of one or more aggravating circumstances and that the aggravators outw eigh the mitigators. It is the latter finding, that aggravators outweigh mitigators, including the determination that death is appropriate, that ultimately authorizes jurors to consider and then to impose a sentence of death. That is, the increase in punishment from life imprisonment to the death penalty is -4- contingent on the factual finding that the aggravators outweigh the mitigators. Under the death penalty statute, then, when the jury finds that the aggravating outweigh the mitigating circumstances, the defen dant is exposed to an increased potential range of punishment beyond that for a conviction for first degree murde r. See Harris v. United States, 536 U.S. 545, 567, 122 S. Ct. 240 6, 2419, 153 L. E d. 2d 524 (2002 ) (plu rality o pinion) ( Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis ). In an attempt to escape the conclusion that Ring requires every factual finding necessary for imposition of the death penalty to be found b eyond a reaso nable dou bt, some courts have portrayed the balancing of aggravating and mitigating factors as a nonfactual determination. See, e.g., Commonwealth v. Roney, 866 A.2d 351, 360 (Pa. 2005) (stating that Ring and Apprendi narrowly focused on a jury s fact-finding responsibility and did not involve any question concerning whether the beyond a reasonable doub t standard applies to a jury s weighing of the aggravating and mitigating circumstances after the defendant has been found eligible for the death penalty ). The balancing of the aggravating and mitigating factors, howev er, is a factual f inding of th e sort Ring and Appren di require to be proved beyond a rea sonable d oubt. Three aspects of the Maryland death pen alty statute show that all three steps in the death penalty scheme are factual in n ature. First, the General Assem bly has provided for a -5- burden of proof in the weighing process. Such standards of proof are reserved customar ily for factual finding s. See Olsen v. State, 67 P.3d 536, 589 (Wyo. 2003) (stating that language in Wyoming death penalty statute that aggravating circumstances be proved beyond a reasonable doubt and mitigating circumstances be proved by a preponderance of the evidence references burdens assigned to factual issues (empha sis added)). S econd, this C ourt is mandated under § 414(e)(3) to re view the jury finding of death for sufficiency of the evidence, which involves determining whether the evidence before the trier of fact was sufficient to support its factual findings. See Polk v. State , 378 Md. 1, 7-8, 835 A.2d 575, 579 (2003). Fin ally, the repeated use of the word find suggests the determination of an observab le fact. See W EBSTER S T HIRD N EW INTERNA TIONAL D ICTIONARY 852 (1961) (defining finding as the resu lt of a judicial or quasi-judicial examination o r inquiry esp[ ecially] into matters of fact as embodied in the verdict of a jury or decision of a co urt, referee, or administrative body ). In addition to a ffronting th e guarante e of fede ral due proc ess, Maryland s death penalty scheme violates Article 24 of the Maryland Declaration of Rights and the basic principles of fundamental fairness guaranteed by the State Constitution. Article 24 of the Maryland Declaration of Rig hts prov ides, in p ertinent part, T hat no m an oug ht to be . . . deprived of his life, liberty or property, but . . . by the Law of the land. Long before Apprendi, Maryland law recognize d that any fact re lating to the circumstance of an offense that exposed a defendant to enhanced punishment had to be determined by the trier of fact -6- beyond a reaso nable d oubt. See, e.g., Fish er & Utley v . State, 367 Md. 218, 2 80-82, 786 A.2d 706, 743-44 (2001) (holding that imposition of enhanced penalty under child abuse statute where abuse causes the death must be alleged and proven be yond a reasonable dou bt); Wadlow v. State, 335 M d. 122, 132, 642 A.2d 213, 217-18 (1994) (holding that when the State seeks enhanced penalties, provided by statute, for possession of cocaine with intent to distribute, the State m ust allege the necessary fact concerning the amount of controlled dangerous substance , and prove that fact beyon d a reason able doub t); Jones v . State, 324 Md. 32, 37, 595 A.2d 463, 465 (1991) (holding that f or imposition of enhan ced pena lty provided for by Legislature, the State must prove all statutory conditions precedent beyond a reasonable doubt). Permitting a jury to sentence a person to death based on a preponderance of the e videnc e stand ard, i.e., that death is more appropriate than not, offends Maryland due process and pri nciples of fun dame ntal fairn ess. Cf. State v. Biegenw ald, 524 A.2d 13 0, 151, 155 -56 (N.J. 19 87); State v. Wood, 648 P.2d 71, 80-81 (Utah 1981). Evans was ah ead of the time s. At his initial trial, Evans objected to a jury instruction on grounds that it improperly specified the burden of proof on the issue of the balancing of aggravating and m itigating factors . Evans v. State, 304 Md. 487, 537, 499 A.2d 1261, 1287 (1985). Well before Apprendi and Ring, in his opinio n in Evans dissenting from the Court s decision to affirm the sentence death, Judge John F. McAuliffe, concluded that the portion of the Marylan d death pe nalty statute addressing the ultimate burden of persuasion and the weighing of the aggravating versus mitigatin g facto rs was u ncons titutiona l. Id. at 539, 499 -7- A.2d at 1288 (McA uliffe, J., concurring in part and dis senting in part). He was persuaded that [d]rawing upon the basic principles of [In re] Winship [, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed. 3 68 (19 70)], Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975 ),] and Patterson [v. New York, 432 U.S. 197, 209, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977)], . . . due process requires that the burden of persuasion on this ultimate issue must be upo n the St ate, and the jury must be persuaded beyond a reasonable doubt that the aggravating circumsta nces outw eigh the mitigating circumstances before the penalty of death can be imposed. Id. at 550-51, 499 A.2d at 1294 (emph asis add ed). Apprendi and Ring, in my view, h ave prov en Judge McA uliffe to be c orrect. Several other states have held that due process requires a jury to find beyond a reasonab le doubt that the aggravating circumstances found to exist outweigh any mitigators found to exist beyond a reasonable doubt. 3 In Woldt v. P eople, 64 P.3d 256 (C olo. 2003), 3 Some state statutes require a beyond a reasonable doubt standard, others require a prepon deranc e of the eviden ce stand ard, and others a re silent. Compare Ark. C ode A nn. § 5-4-603(a)(2) (1987); Conn. Gen. Stat. § 53a-46a (2005) (beyond a reasonable doubt standard not directly in statute, but interpreted as such in Connecticut v. Rizzo, 833 A.2d 363, 410-11 (Conn. 2003)); N.J. Stat. Ann. § 2C:11-3(c)(3) (West 2005); N.Y. Crim. Proc. Law § 400.27(11)(a) (McKinney 2005); Ohio Rev. Code Ann. § 2929.03(D)(1) (West 2 005); T enn. C ode A nn. § 39 -13-20 4(g)(1) (B) (20 03); U tah Co de An n. § (contin ued...) -8- the Colorado Suprem e Court, following Ring, conclude d that the C olorado d eath pena lty statute, like the Arizona statute, improper ly assigned a fa ctfinding ro le to a judge in violation of the Sixth A mendm ent. 4 Noting that [i]n a weighing state, the trier of fact must weigh the aggravating factors against all the mitigating evidence to de termine if the defenda nt is eligible for death. . . . A standard of beyond a reaso nable dou bt applies to e ligibility 3 (...continued) 76-3-2 07(5)(b ) (2003 ) (beyond a reaso nable d oubt), with Del. Code Ann. tit. 11 § 4209(d)(1) (2001); Md. Code (1974, 2002 Repl. Vol., 2005 Cum. Supp.), § 2-303(i)(1) of the Criminal Law Article (preponderance of the evidence); Mo. Rev. Stat. § 565.030 (2004) (silent). 4 The Colorado statute has four steps, with the third step the weighing one. The court noted that through the first three steps, Colorado's process resembles a weighing state. [T]he eligibility phase continues through step three, when the jury weighs mitigating evidence against statutory aggravators . Id. at 264 (citations omitted) (alteration in original). The fourth step, determining whether under all the circumstances, death s hould b e impo sed, is the selectio n stage . Id. The court held that [b]ecause the Sixth Amendment requires that a jury find any facts necessary to make a defendant eligible for the death pen alty, and the first thre e steps of [ the statute] req uired judge s to make findings of fact that render a defendant eligible for death, the statute under which Woldt and Martinez received their death sentences is unconstitutional on its face. Id. at 266-67. -9- fact-fin ding. Id. at 263. The court found the balancing stage to be a factfinding stage, required to be determined by a jury and beyond a reasonable doubt as required under Ring. Id. at 265. The Nevada Supreme Court, in Johnson v. State, 59 P.3d 450 (N ev. 2002), held that the weighing of aggravating against mitigating circumstances is in part a factual determination falling within the Ring rubric. The court stated: Moreove r, Nevada statutory law requires two distinct findings to render a de fendant d eath-eligible: The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found. This second finding regarding mitigating circumstances is necessary to authorize the death penalty in Ne vada, and we con clude that it is in p art a factual determination, not merely discretionary weighing. So even though R ing expres sly abstained fro m ruling on any Sixth Amendment claim with respect to mitigating circumstances, we conclude that Ring requires a jur y to make this f inding as w ell: If a State makes an increase in a defendant s authorized punishment contingent on the finding of a fact, that fact no matter how the State labels it must be found by a jury beyond a reasonable doubt. Id. at 460 (citations and footno tes omitted). Wyoming, a weighing state like Maryland, addressed the burden of persuasion on the process of weigh ing aggrav ating factors against mitig ating factors under the s tate's death penalty statute. See Olsen, 67 P.3d at 584-92. The Wyoming statute does not assign a specific burden in directing the jury to consider aggravating and mitigating circum stances . Id. at 587. Nonetheless, the c ourt directed that the jury should be instructed that be fore the -10- sentence may be death, each juror must be persuad ed that the aggravating circu mstances are so substantial in comparison with the mitigating circumstances that it warran ts death instead of a life sentence. Id. at 588. The court went on to state that the burden of proof in a capital case necessary for a sentence of death remains on the state, and that if the jury is to be instructed to weigh, the defendant must produce evidence of mitigating circumstances. Id. at 589. The court concluded that, just as with affirmative defenses, the ultimate burden of negating such defenses by proof beyond a reasonable doubt remains with the State. Id. at 589 n.12. See also Rizzo, 833 A.2d at 407 (no ting that [i]m posing the reasonab le doubt standard on the w eighing proces s, more over, fulfills all of the functions of burdens of persuasion. By instructing the jury that its level of certitude in arriving at the outcome of the weighing process must meet the demanding standard of beyond a reasonable doubt, we minimize the risk of error, and we commu nicate both to the jury and to society at large the importance that we place on the awesome decision of whe ther a convicted capital felon shall live or die. ). Missouri considered the question of whether the principles set out in Ring invalidated a death sentence when a judge made the factual determinations on which eligibility for the death sentence was predicated in State v. Wh itfield, 107 S.W.3d 253 (Mo. 2003) . Step three of the Missouri statute requires the jury to determine whether the evidence in mitigation outweighs the evid ence in aggrav ation. Id. at 259. Like the Maryland statute, [i]f it does, the defendant is not eligible for death, and the jury must return a sentence of life -11- imprisonm ent. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a f actual findin g, this Cour t again disagre es. Id. The court held that steps one, two, and three (similar to the Maryland steps) require factual find ings that are p rerequisites to the trier of fac t s determina tion that a defendant is death-eligible. Id. at 261. Th e Missouri Supreme Court rejected the s tate s argument that the finding merely required a subjective finding by the trier of fact, noting as follows: But, the State fails to note that this Court rejected this very argumen t in its opinion on M r. Whitfield s appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a 'finding of fact by the jury, not a discretionary decision. This holding is supported by the plain language of the statute . In order to fu lfill its duty, the trier of fact is required to make a case-by-case factual determina tion based o n all the aggravating facts the trier of fact finds are present in th e cas e. Th is is n eces sarily a determination to be made on the facts of each case. Acc ordingly, under Ring, it is not permissible fo r a judge to make this factual d etermination. The jury is requ ired to determine whether the statutory and other aggravators shown by the evid ence w arrants th e impo sition of death. 5 5 In Missouri, step four of the statute requires the jury to assess and declare the punishment at life imprisonment if it decides under all of the circumstances not to assess and de clare the punish ment a t death. Id. at 261. Step four in Missouri gives the jury the discretio n to giv e a life se ntence . Id. Under the Maryland statute, the Missouri steps three and four are collapsed into one step step three. Thus, step three in Maryland is a (contin ued...) -12- Id. at 259 (citations and emph asis omitted). Fina lly, the Supre me Cou rt of Arizo na, in State v. Ring, 65 P.3d 915 (Ariz. 2003), on remand from the Suprem e Court, rejected the state s argument that the Arizona death pen alty statute requiring a judge to weigh aggravating against mitigating circumstances did not require a factual de termination . The Ariz ona cour t, in concludin g that Ring required that finding to be made by a jury, necessarily concluded that the determination was a factual one. Id. at 942-43. Commen tators recognize that balancing aggravating against mitigating circumstances is a factfinding process. For example: Although there are many variations among the capital sentencing statutes currently in existence, most of these statutes employ a common, tripartite factfinding process that involves the sentencer s making factual findings on three different issues: the existence o f aggrava ting circum stances; the existence of mitigating aspects of the defendant's character, record, or offense; and wh ether the aggravating circumstances outweigh the mitigating circumstances. Th e portion of this tripartite structure that has been the central focus of Sixth Amendment scrutiny up to this point has been the first prong: factfinding on the existence of aggravating circumstances. This was the factfinding determination that the now-overruled Walton decision and its jurispr udentia lly linked p redece ssor, Hildwin , deemed suitable for a judge. And it is the factfinding determination that Ring, in overruling Walton, reserved for the jury. In the wake of Ring, the inevitable next questions for 5 (...continued) factual finding. -13- resolution are whether the Ring rationale req uires a jury also to make the second and third factfinding determinations the determination of the existence of mitigating circumstances and the assessment whether aggravating circumstances outweigh mitigatin g circum stances . B. Steven son, The Ultim ate Authority o n the Ultim ate Punish ment: Th e Requisite Role of the Jury in Capital Sentencing, 54 Ala. L . Rev. 109 1, 1121 (2 003) (em phasis added) (footnote omitted). See also id. at 1129 n.214 (recognizing that balancing of aggravating against mitigating factors is a factual finding). Noting the tripartite nature of the Arizona dea th penalty statute, Professor Stevenson argues that the Ring reasoning as to the first determination, the finding of an aggravating factor, applies equally to the other two determinations. He reasons as follows: All of the features of the aggravation finding that the Ring Court regarded as significant are equally true of the two oth er compon ents of the tripartite sentencing determination. Arizona law conditions a death sentence upon not just a finding of an aggravating circumstance, but also a determination after identification of any mitigating circumstances in the case of whether the mitigatin g circumstan ces [are] su fficiently substantial to call for leniency. Thus, as the Ring Court itself remarked, a defendant cannot be sentenced to death [under Arizona law] . . . un less [the se] furth er findi ngs [a re] mad e. Indeed, the statutory feature that the Ring Court deemed essential to rejecting the state's characterization of Arizona law as treating a con viction of first-degree murder as sufficient authorization for a death sentence that the first-degree murder statute itself cross-referenced the aggravation finding as a necessary additional predicate for a sentence of death applies equally to the other two findings. The statutory cross-reference is not merely to the provision governing the finding of aggravating circumstances: It reference s the entire tripa rtite -14- structure for determining the existence of aggravating and mitigatin g circum stances and ga uging their rela tive we ight. Id. at 1126-27 (footnotes omitted) (alterations in original). Inasmuch as the Maryland s tatute requires that the aggravators outweigh the mitigators as an essen tial predicate for imposition of the death penalty, the central reasoning of Ring should apply to it just as to the Arizona statute. Reflected throughout the Supreme Court jurisprudence underlying th e Eighth Amendment is the principle that death is differe nt. See, e.g., Ring, 536 U.S. at 605-06, 122 S. Ct. at 2441 -42; Ford v. Wainwright, 477 U.S. 399, 411, 106 S. Ct. 2595, 2602, 91 L. Ed. 2d 335 (1986) (plura lity opinion) (no ting that [t]his especial co ncern [fo r reliability in capital proceedings] is a natural consequence of the knowledge that execution is the most irremediab le and unfa thomable of penalties ; that death is d ifferent. ); Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197, 1204, 51 L. Ed. 2d 393 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976) (plurality opinion ); Furman v. Georg ia, 408 U.S. 238, 289, 92 S. Ct. 2726, 2752, 33 L. Ed. 2d 346 (1972) (Brennan, J., concurring). In a death procee ding, the Supreme Court has recognized that the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a noncapital case. Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 21 17, 124 L . Ed. 2d 30 6 (1993). Ju stice Kenn edy has obse rved that [ a]ll of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the -15- enhancement of reliability and accuracy in some sense. Sawyer v. Smith, 497 U.S. 227, 243, 110 S. Ct. 2822, 28 32, 111 L. Ed. 2d 193 (1990). We pay mere lip se rvice to the p rinciple that de ath is differe nt and yet con tinue to impose a lower level of certainty in the death penalty context than we do for other lesser important interests in Maryland. Maryland has required a higher burden of persuasion than preponderance of the evidence in situations involving penalties far less severe than the ultimate penalty at stake u nder § 4 13. See, e.g., 1986 Mercedes v. State, 334 Md. 264, 282, 638 A.2d 1164, 1173 (1994) (requiring the state to prove the requisite elements under drug forfeiture laws by clear a nd conv incing evid ence); Mack v. Mack, 329 Md. 188, 207, 618 A.2d 744, 753 (1993) (requiring clear and convincing evidence for the withdrawal of life-sustaining medical treatment); Owens-Illinois v. Zenobia, 325 Md. 420, 469, 601 A.2d 633, 657 (1992) (requiring the clear and convincing evidence standard for proof of punitive damages); Wash. Co. Dep't Soc. Serv. v. Clark, 296 Md. 190, 197, 461 A.2d 1077, 1081 (1983) (requiring proof of parental unfitness by clear and co nvincing e vidence in order to terminate parental righ ts); Coard v . State, 288 Md. 523, 525, 419 A.2d 383, 384 (1980) (per curiam) (requiring proof by clear and convincing evidence in civil commitment proceeding s); Berkey v. Delia, 287 M d. 302, 3 17-20 , 413 A.2d 170, 177-78 (1980) (requiring the heightened evidentiary standard of clear and convincing evidence for libel and slander of a public official); cf. Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979) (stating that in cases involving individual rights, whe ther crimina l or civil, -16- [t]he standard o f proof [a t a minimu m] reflects th e value soc iety places on ind ividual liberty. (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971) (Sobe loff, J., concurring in part and dis senting in part), cert. dismissed sub nom . Murel v. B altimore C ity Criminal Court, 407 U.S. 355, 92 S . Ct. 2091, 32 L. Ed. 2d 791 (1972)). Chief Judge Bell and Ju dge Gre ene have authorized me to state that they join in this dissenting opinion. -17-

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