Mills v. Maryland Brief of Respondent

    No.  8 7 - 5 3 6 7

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RALPH MILLS,
Pet  i t i o n e r  

v .
STATE OF MARYLAND,

Res ponde n t

ON WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

BRIEF OF RESPONDENT

J .  JOSEPH CURRAN, J R . ,  
A t t o r n e y  Ge n e r a l  of  Mar y l and

CHARLES O. MONK, I I ,
Deput y A t t o r n e y  G e n e r a l

GARY E. BAIR,
A s s i s t a n t  A t t o r n e y  Ge n e r a l

RICHARD B. ROSENBLATT,* 
A s s i s t a n t  A t t o r n e y  Ge n e r a l

The Munsey B u i l d i n g  
7 Nor t h C a l v e r t  S t r e e t  
B a l t i m o r e ,  Ma r y l and  21202 
(301)  576-6410

Counse l  for  Res ponde n t

* Counse l  of  Record

r



- i -

ISSUES PRESENTED

1. Whether the Maryland capital punishment 

statu te as interpreted by the Maryland Court of
i

Appeals permits full consideration of evidence 

• presented in mitigation of sentence?

2. Whether the jury instructions in the instant 

case provided proper guidance for the consideration of 

the evidence presented in mitigation?

3. Whether the introduction at sentencing of 

evidence describing the background of the murder 

victim was consistent with the Eighth and Fourteenth 

Amendments to the United States Constitution?

i



TABLE OF CONTENTS

Page

Issues Presented................................................................... i%
Statement of the C a s e .....................................................1

Summary of A rgum en t.....................................................6

Argument:

I. The Maryland capital punishment
statute as interpreted by the 
Maryland Court of Appeals permits 
full consideration of evidence 
presented in mitigation of 
sentence......................................................... 8

n. The jury instructions in Petitioner's
case provided proper guidance for 
the consideration of the evidence 
presented in mitigation.............................23

III. The introduction at sentencing of 
evidence describing the background 
of the murder victim was 
consistent with the Eighth and 
Fourteenth Amendments to the 
United States Constitution........................31

Conclusion 39



-  i i i -

TABLE OF CITATIONS 

Cases

Andres v. United States,
333 U.S. 740 (1948)...................................................... 26

Apodaca v. Oregon,
406 U.S. 404 (1972)...................................................... 22

Booth v. Maryland,
107 S.Ct. 2529 (1987)..................................... 8, passim

Eddings v. Oklahoma,
455 U.S. 104 (1982).......................................  17, passim

Gardner v. Florida,
430 U.S. 349 (1977)......................................................  33

Garner v. Louisiana,
368 U.S. 157 (1961)..............................................  21, 22

Henderson v. Kibbe,
431 U.S. 145 (1977)......................................................  24

Hitchcock v. Dugger,
107 S.Ct. 1821 (1987).......................................... 18, 34

Jurek v. Texas,
428 U.S. 262 (1976)......................................................  20

Lockett v. Ohio,
438 U.S. 586 (1978).......................................... 9, passim

Lowenfield v. Phelps,
56 U.S.L.W. 4071
(U.S. Jan. 13, 1988)......................................................  28



-  i v -

Mills v. State, 310 Md. 33,
527 A.2d 3 (1987).......................................... 23, passim

Mullaney v. Wilbur,
421 U.S. 684 (1975)......................................................  22

Roberts v. Louisiana,
428 U.S. 325 (1976).......................................... 8, 15, 16

Skipper v. South Carolina,
106 S.Ct. 1669 (1986)..........................................  18, 34

State v. Bell, 360 S.E.2d 706 
(S.C. 1987)..................................................................... 36

State v. Kirkley, 308 N.C. 196,
302 S.E.2d 144 (1983).................................................  20

Sumner v. Shuman,
107 S.Ct. 2716 (1987).................................................  16

United States v. Perez,
22 U.S. (9 Wheat.) 579 (1824).....................................  22

Woodson v. North Carolina, 
428 U.S. 280 (1976).......... 8, 15, 16



-  V -

Constitutional Provisions 

United States Constitution:

Eighth Amendment........................................10, 31

Fourteenth Amendment ..................................... 31

Statutes

Annotated Code of Maryland:

Article 27, S412.................................................... 11

Article 27, S413..................................... 10, passim

Rules

Maryland Rule of Procedure,
Rule 4-343........................................................ 12, 15, 29



No. 87-5367

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RALPH MILLS,

Petitioner

v.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

BRIEF OF RESPONDENT

STATEMENT OF THE CASE 

Petitioner, Ralph Mills, was tried by a jury in 

the Circuit Court for Allegany County, Maryland, and 

convicted of first degree premeditated murder. The 

same jury sentenced Petitioner to death in a separate, 

subsequent proceeding. The Court of Appeals of



- 2 -

Maryland affirmed Petitioner's conviction and 

sentence. By order of December 7, 1987, this Court 

issued a writ of certiorari.

Evidence produced at trial showed that 

Petitioner shared a cell in the Maryland Correctional 

Institution in Hagerstown, Maryland, with Paul Robin 

Brown. Officers were called to the cell to investigate 

a disturbance and discovered Petitioner demanding to 

be released from the cell saying, "My cell buddy is 

dead." The cell door was opened and Petitioner 

emerged, carrying a blood covered shank at his side. 

Brown's body was found lying on his bunk, stabbed six 

times in the chest and 39 times in the back. Written 

on the wall of the cell in what appeared to be blood 

were the words, "Helter Skelter's son."

At the sentencing proceeding that followed 

Petitioner's conviction for premeditated murder in the 

first degree, the State introduced into evidence a pre­

sentence investigation done for the case and a "victim 

impact statement." The victim impact statement



- 3 -

summarized the life history of the deceased. Defense 

counsel stated that he had no objection to the 

admission of either document (J.A. 14-15). The State 

also introduced Petitioner's prison records and 

testimony from the Division of Parole and Probation 

agent who had conducted interviews of Petitioner and 

his parents.

On Petitioner's behalf, his mother testified that 

he had a sixth grade education and began having 

problems at a young age (J.A. 45). His mother's first 

contact with a state agency concerning his behavior 

occurred when Petitioner was approximately 11 or 12 

years old (J.A. 46). His conduct required his mother to 

go to his school every day (J.A. 46). He underwent 

therapy for several months (J.A. 47). At that time, he 

was diagnosed as having minimal brain damage and was 

placed on medication (J.A. 48).

Petitioner was ultimately placed in the German 

Children's Home (J.A. 49). His misbehavior

commenced anew as a combined result of being taken



- 4 -

off the medication and having a lack of strict 

supervision. (J.A. 50-51). Petitioner stayed at the 

German Children's Home for approximately nine 

months with negative results (J.A. 51). However, his 

mother refused to take him home because she was 

afraid of what might happen (J.A. 52).

In May of 1980, Petitioner was placed in the 

Maryland Training School for Boys (J.A. 53). He ran 

away from the Training School (J.A. 54). He was 

heavily involved with drugs (J.A. 52, 54). Petitioner 

was discharged from the Training School over the 

objection of his mother (J.A. 57). According to his 

mother, going to court and being involved in the law 

was "a continuing thing" (J.A. 57).

Petitioner's parents were divorced when he was 

six or seven (J.A. 45). He had little contact with his 

natural father because most of the time "his father 

was either incarcerated or running as a fugitive from 

the law." (J.A. 55). Petitioner never accepted his 

stepfather as a father (Id.). With respect to Peti­



- 5 -

tioner's intellectual ability, his mother stated that he 

"believes he's very smart, but . . . [he's] slow." (J.A. 

55).

Petitioner elected not to testify and no further 

evidence was produced by the defense (J.A. 68). 

Following instructions to the jury,* Petitioner was 

informed of his right to speak to the jury, unsworn; he 

declined that opportunity (J.A. 75).

The State then presented its closing argument, 

and argument on behalf of Petitioner followed. 

Defense counsel argued that Petitioner had a low I.Q. 

and a sixth grade education. He argued that Petitioner 

needed to be treated, not killed. With specific 

reference to the mitigating circumstances, counsel 

argued that the jury should find the explicit mitigating 

circumstances of "youth" (J.A. 90-91) and lack of 

"future dangerousness" (J.A. 91-92). Under the "other" 

mitigating circumstances, he urged the jury to find 

that the State failed to reform Petitioner despite the 

numerous opportunities to do so (J.A. 92-93).



r

Following deliberation, the jury found the 

existence of an aggravating circumstance (the 

defendant committed the murder at a time when he 

was confined in a correctional institution), but found 

no mitigating circumstance. A sentence of death was 

imposed.

SUMMARY OF ARGUMENT

I.

The Maryland capital punishment statute 

permits full consideration of evidence offered in 

mitigation at a capital sentencing proceeding. 

Requiring a jury to make determinations as a single 

entity, rather than as twelve individual sentencers, is 

not an unconstitutional restriction on the consideration 

of mitigating evidence. Indeed, it is no restriction at 

all, for Maryland’s statute requires unanimity to 

reject, as well as accept, any mitigating 

circumstance. Anything short of unanimity results in a 

hung jury and, under the statute, a life sentence is 

then imposed.

- 6 -



- 7 -

n.

The instructions to the jury and the language of 

the verdict form clearly conveyed the need to make 

any determination unanimously. Therefore, the jury 

deliberated with a proper understanding of the law.

In this case, the Maryland Court of Appeals 

announced for future guidance an additional procedure 

to permit consideration of mitigating circumstances 

absent unanimity that was not included in these jury 

instructions. However, because this jury unanimously 

rejected all mitigating circumstances, the absence of 

an instruction on this additional procedure is of no 

consequence. Moreover, because the additional 

procedure serves only to resolve deadlock, it benefits 

the prosecution, not the defense, since the result of 

deadlock is a life sentence.



- 8 -

ra.
The third issue presented requires this Court to 

reconsider its opinion issued last term in Booth v. 

Maryland, 107 S.Ct. 2529 (1987). The written summary 

of the victim's background introduced into evidence 

without objection was not inadmissible victim impact 

evidence. The summary contained no reference to the 

impact of the murder on family members. It merely 

humanized the victim without injecting arbitrariness 

or caprice into the sentencing proceeding.

ARGUMENT

I.

THE MARYLAND CAPITAL PUNISHMENT 
STATUTE AS INTERPRETED BY THE 
MARYLAND COURT OF APPEALS 
PERMITS FULL CONSIDERATION OF 
EVIDENCE PRESENTED IN MITI­
GATION OF SENTENCE.

Throughout the State proceedings, Petitioner 

contended that the Maryland capital punishment 

statute was unconstitutional under Woodson v. North 

Carolina, 428 U.S. 280 (1976), and Roberts v.

Louisiana, 428 U.S. 325 (1976), inasmuch as the statute



- 9 -

"mandated" a death sentence in any case where a 

sentencing jury could not unanimously agree on the 

existence of at least one mitigating circumstance. 

Additionally, Petitioner contended that the Maryland 

capital punishment scheme precluded the consideration 

of mitigating evidence in contravention of Lockett v. 

Ohio, 438 U.S. 586 (1978), because it required 

unanimity on the existence of each separate mitigating 

factor.

In considering Petitioner's contentions, the 

Maryland Court of Appeals did not repudiate Peti­

tioner's interpretation of the decisions of this Court. 

Rather, the Court of Appeals held that Petitioner's 

interpretation of the operation of the Maryland statute 

was flawed and, as a result, the foundation for his 

argument was destroyed. The Maryland high court 

proceeded to articulate the mode for the consideration 

of mitigating factors and, under that construction, re­

jected Petitioner's contentions. There is no basis for 

this Court either to encroach upon the State court's



- 1 0 -

interpretation of the State law or to find that inter­

pretation unconstitutional.^

A. The Maryland Capital Punishment Statute.

To avoid the arbitrary and capricious imposition 

of a death sentence in violation of the Eighth 

Amendment to the United States Constitution, the 

Maryland Capital Punishment Statute, Md.Ann. Code 

art. 27, S413 (1957, 1982 Repl.VoL), responded to this 

Court's demand for guided discretion by requiring 

multiple findings to be made by a sentencer (either 

judge or jury, at the defendant's election) before a 

death sentence may be imposed. The sentence may be 

imposed only upon conviction of first degree murder.

1 Petitioner apparently does not challenge the 
constitutionality of the Maryland Court of Appeals' 
interpretation of the law. Instead, he complains that 
he did not receive the benefit of that interpretation. 
Petitioner misperceives the court's holding as a new 
limitation on the operation of the statute. Because of 
this misperception, the State has set forth the 
applicable interpretation of the capital punishment law 
and explained its facial constitutionality. Petitioner's 
argument concerning the inadequacy of the jury 
instructions is addressed in Argument n, infra.



- 1 1 -

Art. 27, 5412(b). Additionally, the State must

demonstrate beyond a reasonable doubt that the 

defendant either was the principal in the first degree 

to the murder or had contracted for its perpetration. 

Art. 27, S413(e)(1). It is then incumbent upon the 

State to prove beyond a reasonable doubt the existence 

of one or more statutorily delineated threshold 

conditions, i.e., "aggravating circumstances," before 

the sentencer considers the question of life or death. 

Art. 27, 5413(d). Unless the State demonstrates that 

the defendant either was a principal in the first degree 

or that he contracted for the perpetration of the 

murder, and that an aggravating circumstance exists, 

the process is aborted and a sentence of life imposed.^ 

Once the sentencer finds that the State has met 

its initial burdens, the sentencer proceeds to consider

o For offenses occurring after July 1, 1987, the 
sentencer must further determine whether the 
sentence should be life or life without the possibility 
of parole where the State has filed notice seeking the 
latter sentence. Md.Ann.Code art. 27, 5412 (1957, 
1987 Repl.Vol.).



- 1 2 -

whether the evidence demonstrates by a pre­

ponderance the existence of any mitigating cir­

cumstances. Art. 27, S413(g). If any mitigating 

circumstances are found, they are to be weighed 

against the aggravating circumstances to determine 

the appropriate sentence. If none is found, no 

weighing process is conducted — the sentence is death.

Seven mitigating circumstances are specifically
3

enumerated for the sentencer's consideration. 

Number eight permits the sentencer to articulate any 

other factor relevant to the crime or to the defendant 

that it finds militates against a sentence of death. 

Art. 27, S413(g). Pursuant to Maryland Rule 4-343, a 

prepared verdict sheet is completed by the sentencer 3

3
The seven legislatively articulated mitigating 

circumstances may be summarized as: (1) lack of a 
prior record for violent crimes; (2) participation of the 
victim in the crime; (3) murder committed under 
duress, domination, or provocation; (4) impaired 
capacity of the defendant; (5) youthful age of the 
defendant; (6) defendant's act not the sole proximate 
cause of death; and (7) defendant would not constitute 
a continuing threat to society.



- 1 3 -

in each case, setting forth the aggravating factors and 

the mitigating factors relied upon in determining the 

appropriate sentence. There is a blank for "Yes" and a 

blank for "No" alongside each of the eight mitigating 

circumstances listed.

To find the existence of any mitigating factor, 

a sentencing jury must be unanimous. The sentencing 

jury also must be unanimous to reject any mitigating 

factor. If, after a reasonable time, the jury cannot 

unanimously agree on the existence or non-existence 

of a mitigating circumstance, the jury is declared 

deadlocked and excused. Art. 27, S413(k)(2).4 The 

result of a deadlocked jury is the mandatory imposition 

of a life sentence. Id.5

4 This deadlock provision also is applicable to the 
ultimate balancing determination in which the question 
of life or death is decided.

5 See footnote 2, supra.



- 1 4 -

B. The Maryland Court of Appeals' interpretation of 
the statutory scheme is constitutional,______

Petitioner based his assertion of unconsti­

tutionality in the state court on his own interpretation 

of how a jury would consider mitigating circum­

stances. Under his interpretation of the statute, a jury 

would mark "Yes" for those mitigating circumstances 

unanimously found to exist and would mark "No” any 

time there was a lack of unanimity with respect to 

"Yes." Petitioner postulated before the Maryland 

Court of Appeals a situation where 11 jurors could 

have favored a mitigating factor but, because of a 

single holdout, "No" would have to be marked. The 

import, Petitioner contended, was that, because of the 

single holdout, a death sentence was mandated by the 

absence of a finding of any mitigating circumstance.

The Court of Appeals corrected Petitioner's 

misinterpretation of the statute, noting that just as 

"Yes" would be appropriate only where a sentencing 

jury unanimously agreed upon the existence of the 

mitigating circumstance, to mark "No" similarly



- 1 5 -

required unanimity. The single holdout would not 

result in a mark of "No" for all mitigating circum­

stances, because there would be no unanimous "No" 

vote. Instead, the jury would simply be unable to
g

agree. Rather than a death sentence being imposed 

by operation of law under Maryland Rule 4-343(e) 

(verdict sheet, "Determination of Sentence" section, 

subsection 3), a sentence of life would be imposed by 

operation of law pursuant to Article 27, S413(k)(2) 

(where jury not able to agree unanimously within 

reasonable time, court shall dismiss jury and impose 

sentence of imprisonment for life).

Given this construction, Woodson v. North 

Carolina and Roberts v. Louisiana are inapposite. The

g
As required by the Maryland Code, Art. 27, 8413(b), 

this sentencing proceeding was conducted before the 
jury that determined the defendant's guilt. A jury 
deliberating guilt/innocence is aware that a lack of 
unanimity on "Guilty" does not automatically result in 
a finding of "Not Guilty." Rather, "Not Guilty" 
requires an independent unanimous determination. 
This jury was simply required to apply that concept 
again.



- 1 6 -

sentence imposed in this case was not based solely on 

the crime without regard to the individual character of 

the defendant. The sentencer possessed the means to 

consider anything about the defendant when imposing 

sentence. To unanimously reject the evidence in 

mitigation, the evidence had to be considered. The 

Maryland statute, which permits the consideration of 

any other factor relevant to the crime or the 

defendant that militates against a sentence of death, 

is totally distinguishable from the statutes found 

unconstitutional in Woodson and Roberts. Cf. Sumner 

v. Shuman, 107 S.Ct. 2716 (1987) (statute mandating 

death sentence where murder committed by inmate 

serving life without parole held unconstitutional). 

There is no constitutional infirmity.

As a corollary to the proscription on mandatory 

sentences and the recognition of the need for 

individualized sentences in capital cases, this Court 

ruled in Lockett v. Ohio that there can be no

limitation on the introduction of evidence offered in



- 1 7 -

mitigation of sentence. 438 U.S. at 604. In reliance on 

Lockett, Petitioner argued that the unanimity require­

ment, as it related to the finding that a mitigating 

factor existed, served to preclude consideration of 

mitigating evidence. Initially, a unanimity require­

ment does not preclude the consideration of any 

mitigating evidence and therefore is not the type of 

restriction proscribed by Lockett.

Lockett concerned a statute that permitted 

consideration of mitigating evidence only as it related 

to (1) the victim's involvement in the crime, (2) the 

duress or coercion under which the defendant commit­

ted the crime, and (3) the diminished capacity of the 

defendant. A similar limitation was addressed by this 

Court in Eddings v. Oklahoma, 455 U.S. 104 (1982), 

where a sentencing judge articulated that he could not 

by law consider evidence relating to the background of 

the offender. This Court equated this erroneous 

interpretation of the law with the statutory limitation 

in Lockett, and held that the judge had improperly



- 1 8 -

restricted his considerations underlying the imposition 

of sentence. 455 U.S. at 113.

Later, in Skipper v. South Carolina, 106 S.Ct. 

1669 (1986), a ruling that precluded the introduction of 

evidence from the defendant’s wife and correctional 

officers concerning the defendant's conduct in prison 

was also found to constitute an improper restriction on 

the ability to impose an individualized sentence. 

Again, last term, in Hitchcock v. Dugger, 107 S.Ct. 

1821, 1824 (1987), "the advisory jury was instructed 

not to consider, and the sentencing judge refused to 

consider, evidence of non-statutory mitigating 

circumstances, and . . . the proceedings therefore did 

» not comport with the requirements of Skipper . . ., 

Eddings . .  ., and Lockett."

There is no such restriction precluding the 

consideration of mitigating evidence in the Maryland 

statutory scheme. The Maryland statute permits the 

jury to find and weigh as a mitigating circumstance 

"any other facts which the jury or the court



- 1 9 -

specifically sets forth in writing that it finds as 

mitigating circumstances in the case." Article 27, 

S413(gX8). There is absolutely no restriction on what 

the defendant may put forth by way of evidence.

Nor is there any improper restriction on the

consideration of this evidence. Under the

interpretation of the statute proffered by Petitioner,

an unconstitutional restriction existed in that

unanimity on a particular mitigating circumstance was

required before it could be weighed in determining the

appropriate sentence. However, Lockett and Eddings

relate to restrictions on "input," not the subsequent

deliberative process. Although a jury has twelve

component parts, it is a single entity. The rejection of

a mitigating circumstance, after introduction and full

consideration of the evidence, is simply a factual

determination. There is no legal impediment to the
7

consideration of the evidence. The requirement of 7

7
Under Petitioner's definition of an unconstitutional 

restriction, even a majority requirement would work a 
(Continued)



- 2 0 -

jury unanimity is simply not the type of restriction 

found unconstitutional in Lockett and Eddings. See 

State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 157 

(1983).8

Most importantly, because the Maryland scheme 

requires unanimity to reject a mitigating 

circumstance, any particular legislative mitigating 

circumstance will escape consideration only after its 

existence is unanimously rejected by the sentencing 

jury. An "other" mitigating circumstance will be

restriction on the consideration by the minority. 
Petitioner views a jury as twelve independent 
sentencers operating free of the views of the others. 
Such a view is completely contrary to any notion of 
guided discretion.

® The focus on restrictions to "input" rather than on 
deliberation is evident from the application of Lockett 
to the statute in Jurek v. Texas, 428 U.S. 262 (1976). 
Lockett v. Ohio, 438 U.S. at 606-07. The Texas 
statute passed muster because the state courts 
interpreted "future dangerousness" to permit the 
introduction of limitless evidence that could reflect on 
this finding. Some of this evidence would mitigate 
against a death sentence, but might not be considered 
in the ultimate determination if the jury deemed it 
irrelevant to the question of "future dangerousness." 
Yet, no improper restriction was cited.



- 2 1  -

rejected only after the jury considers the evidence and 

unanimously concurs that it supports no such "other" 

mitigating circumstance. Any juror who is convinced 

that a mitigating factor has been demonstrated by a 

mere preponderance of the evidence cannot be forced 

to surrender that view and impose a sentence of death 

simply by being outvoted. His determination to retain 

his view will result in a deadlocked jury and a life 

sentence.

The existence or non-existence of any parti­

cular mitigating circumstance is a question of fact for 

the sentencer. After consideration, the sentencing 

jury may choose to reject the evidence offered in 

mitigation as being without mitigating value. 

However, there is no legal restriction on the 

consideration of mitigating evidence that would render 

the statutory scheme unconstitutional.

C. The state  court's interpretation of the Maryland 
s ta tute is entitled to deference._________

It is beyond question that a state court has the 

sole power to interpret its statutes. Garner v.



- 2 2 -

Louisiana, 368 U.S. 157, 169 (1961). Only on rare 

occasions, where a state court interpretation of state 

law appears to be "an obvious subterfuge to evade 

consideration of a federal issue," will the state 

interpretation be reexamined by this Court. Mullaney 

v. Wilbur, 421 U.S. 684, 691 n .ll (1975).

The interpretation in this case was clearly not 

an "obvious subterfuge." Historically, all deter­

minations by a jury have been required to be unani­

mous. See Apodaca v. Oregon, 406 U.S. 404, 407-08, 

nn. 2 & 3 (1972). If all twelve jurors are not convinced 

of guilt in a trial, the jury does not automatically 

return a verdict of "Not Guilty." Rather, where a jury 

is unable to agree, a mistrial is declared. Cf. United 

States v. Perez, 22 U.S. (9 Wheat.) 579 (1824) (jury 

unable to agree on verdict constitutes manifest 

necessity for mistrial).

Additionally, as the amicus concedes (Br. of 

Amicus at 9), the construction by the Court of Appeals 

constitutes a grammatically correct interpretation of



- 2 3 -

the language in Section n of the verdict sheet. "In 

addition to the clause referring to each mitigating 

circumstance marked 'yes,' the clause referring to 

each mitigating circumstance marked 'no' is also the 

object of 'we unanimously find that.' " Mills v. State. 

310 Md. 33, 58, 527 A.2d 3, 15 (1987). Under these 

circumstances, there is no basis upon which to 

reexamine the Maryland court's construction of its own 

statute and rule.

n.

THE JURY INSTRUCTIONS IN 
PETITIONER’ S CASE PROVIDED 
PROPER GUIDANCE FOR THE 
CONSIDERATION OF THE EVIDENCE 
PRESENTED IN MITIGATION.

Petitioner argues that, regardless of the 

constitutionality of the current interpretation of the 

statute announced in his case, he was denied the 

benefit of it. Specifically, he asserts that the 

instructions to the jury failed to convey "that 

mitigating circumstances not unanimously found could 

nevertheless be considered in the balancing process."



- 2 4 -

(Br. of Petitioner at 16). Petitioner's focus is 

misplaced. Because the instant instructions were not 

susceptible to any interpretation other than that 

unanimity was required to reject any mitigating 

circumstance, it cannot reasonably be inferred that 

any juror believed that a mitigating circumstance had 

been shown.®

In instructing the sentencing jury, the trial 

judge stated, in pertinent part:

Let me remind you that in reaching 
your determination as to any of the issues 
raised by the case and presented to you on 
this sentencing form your verdict must be 
unanimous; that is, all twelve of you must 
agree. [(J.A. 69)]

• *  *

Now should you find the existence 
unanimously and beyond a reasonable 
doubt of aggravating circumstance number

g
Petitioner took no exception to the instructions 

given (J.A. 74). As a result, review of the instructions 
in this case is limited to a determination of whether 
the instructions, taken as a whole, so infected the 
proceeding with unfairness as to constitute a denial of 
due process. See Henderson v. Kibbe, 431 U.S. 145, 
154 (1977).



- 2 5 -

two and mark that yes, then you should 
proceed to section two, which begins at 
the top of page two. That provides that 
based upon the evidence we unanimously 
find that each of the following mitigating 
circumstances which is marked yes has 
been proven to exist by a preponderance 
of the evidence, and each mitigating 
circumstance marked no has not been 
proven by a preponderance of the 
evidence. Again I stress that your finding 
as to mitigating circumstances must be 
unanimous, that is you must all agree. 
t(J.A. 70-71)3

*  *  *

Again let me stress the require­
ment of unanimity, that is your finding 
under section two and your findings under 
section three must be one in which all 
twelve of you agree. [(J.A. 73)]

*  *  ♦

Again let me remind you of the
burdens of proof as I have defined them 
for you and the requirement that your 
verdict or your decision with regard to any 
of these items must be unanimous. l(J.A.
74)]

It is clear from the above that the jury was 

adequately informed that any determination in any of 

the sections on the verdict form had to be unanimous. 

There was nothing in the instructions to indicate that



- 2 6 -

unanimity was not required to reject a mitigating 

circumstance. With the understanding that unanimity 

was required for any finding, the jury marked "No" for 

each mitigating circumstance. Under the instructions 

given, the jury in Petitioner's case had to apply the 

interpretation of the statute articulated by the Court 

of Appeals, i.e., the need for unanimity to reject a 

mitigating circumstance.*®

*® Petitioner's reliance upon Andres v. United States, 
333 U.S. 740 (1948), in support of his contention that 
the instructions here require reversal is misplaced. In 
Andres, death was the mandatory sentence for first 
degree murder unless qualified by the jury. In 
construing the federal statute in question, this Court 
held that qualification of the verdict was mandated 
unless the jury unanimously concluded that death was 
appropriate. Id. at 749. The jury had been instructed 
that "before you may return a qualified verdict of 
murder in the first degree without capital punishment, 
that your decision to do so must, like your regular 
verdict, be unanimous." Id. at 751. The Government 
conceded that if petitioner's interpretation of the 
statute was accepted (as it was), the instructions were 
inadequate. Here, the jury was not instructed that a 
mitigating circumstance should be affirmatively 
rejected if not unanimously found to exist. Rather, as 
outlined above, the jury was instructed that unanimity 
was required for all findings.



- 2 7 -

Petitioner ignores these instructions on 

unanimity and instead assumes that the instructions 

only required unanimity to find — and not to reject — 

a mitigating circumstance. Proceeding from this 

faulty premise, he assigns error of constitutional 

magnitude to the absence of instructions covering that 

part of the Maryland Court of Appeals' opinion where, 

in dicta, the court indicated that a jury that was not 

unanimous did not have to deadlock on a mitigating 

fac to r.11 This aspect of the decision is, however,

11 In Section VI.A. of the Mills opinion, the Maryland 
Court of Appeals rejected the contention that the 
Maryland death penalty statute as applied was 
unconstitutionally mandatory, relying on the deadlock 
provision discussed above. In Section VI.B. of the 
opinion, the Court proceeded to "comment generally 
upon the required jury determinations . . .  in light of 
the traditional requirement of unanimity" for future 
guidance. Mills v. State, 310 Md. at 63, 527 A.2d at 
17. In Section VI.B., the court indicated that, as an 
alternative to deadlock, the jury could pass over the 
mitigating circumstance, leaving both the "Yes" and 
"No" blanks empty, and any individual juror finding 
that the circumstance had been shown could weigh 
that circumstance in determining the appropriate 
penalty. Mills v. State, 310 Md. at 67-68, 527 A.2d at 
19.



- 2 8 -

irrelevant to Petitioner's case, since the unanimous

rejection of all mitigating circumstances under proper

instructions on unanimity indicated there was no

dissension within the jury that would make this
12provision applicable. There is no indication

anywhere that there was a lack of total agreement.

Moreover, application of this alternative to 

Petitioner's case would have benefitted the 

prosecution, not Petitioner. As stated above, and as 

noted by the Maryland Court of Appeals, the impact of 

a lack of unanimity is a declaration, after a reasonable 

period of time, that the jury cannot agree and, under

*2 In support of his argument that a mark in the "No" 
blank likely reflects a non-unanimous vote, Petitioner 
ignores the instructions in this case and instead goes 
outside the record to focus upon the outcomes in two 
other sentencing proceedings held since the decision in 
this case where the jury's verdict sheet reflected 
division on some mitigating factors. No conclusion can 
be drawn from a proceeding where the jury deliberates 
with knowledge that unanimity is not required and, 
therefore, with no motivation to achieve agreement. 
Cf. Lowenfield v. Phelps, 56 U.S.L.W. 4071 (U.S. Jan. 
13, 1988) (unanimity achieved after Allen charge given 
despite poll where jury indicated further deliberation 
would not be productive).



- 2 9 -

Article 27, §413(k)(2), the imposition of a life 

sentence. With respect to deadlock on the existence 

of a mitigating circumstance, a life sentence would be 

required no matter how little weight the mitigating 

circumstance in dispute may have carried. The pro­

cedure articulated by the Court of Appeals for these 

situations now permits the sentencer to move on to the 

weighing process despite an inability to agree over the 

existence of a mitigating circumstance.1 Thus, under 

the court's articulation of the law a weighing process 

can occur, and a death sentence can result, in a situa­

tion that otherwise would have resulted in a hung 

jury. Even if this aspect of the decision was relevant 13

13 The Court of Appeals determined that the capital 
punishment statute did not address the procedure to 
follow where there was a lack of unanimity on the 
existence of a mitigating factor. The court noted that 
it was empowered by the statute to fill procedural 
voids but that the Rule previously adopted did not 
address this situation. Mills, 310 Md. at 64-68, 527 
A.2d at 18-20. Under these circumstances, the court 
examined the legislative intent and announced a 
procedure for this situation. This pronouncement has 
now been officially adopted as a new verdict form in 
Md.Rule 4-343.



- 3 0 -

to Petitioner's case, Petitioner was not denied the 

"benefit" of any "reconstruction."

In context, it is clear that Petitioner received 

the benefit of the Court of Appeals' articulation of the 

law in his case. Petitioner argued to the state  court 

that the lack of unanimity on "Yes" would result in the 

marking of "No" on a mitigating factor, and "No" on all 

mitigating factors would result in a death sentence 

without undertaking a weighing process, even though 

some (and perhaps most) jurors believed mitigating cir­

cumstances were present. The Court of Appeals indi­

cated that Petitioner's interpretation of the law was 

incorrect. "No" was not simply a place to mark for 

"Not Yes;" it was an ultimate finding that necessitated 

an unanimous rejection of the mitigating factor. A 

review of the jury instructions (to which no objection 

was lodged) indicates that the jury, in fact, was re­

peatedly advised that any finding had to be unan­



-31  -

imous. As a result, the constitutional interpretation of 

the Maryland statute articulated by the Court of 

Appeals in Petitioner's case was applied to Petitioner.

m.

THE INTRODUCTION AT SENTENCING 
OF EVIDENCE DESCRIBING THE 
BACKGROUND OF THE MURDER VICTIM 
WAS CONSISTENT WITH THE EIGHTH 
AND FOURTEENTH AMENDMENTS TO 
THE UNITED STATES CONSTITUTION.

Despite the dissimilarities between the 

evidence about the victim in this case and that 

considered by this Court in Booth v. Maryland, 107 

S.Ct. 2529 (1987), Petitioner contends that the 

introduction of "victim impact" evidence in his case 

violated his rights under the Eighth and Fourteenth 

Amendments to the United States Constitution. The 

State of Maryland continues to urge, as it did in Booth, 

that the introduction of evidence demonstrating the 

extent of the harm caused by a murder is a relevant 

circumstance of the crime to consider in a capital 

sentencing proceeding. Because the extent of the 

harm caused is a proper sentencing consideration,



- 3 2 -

"victim impact" evidence ought to be permitted. At a 

minimum, the prosecution should not be precluded 

from humanizing the victim with background evidence.

In this case, the sentencing jury was informed 

through a written interview summary introduced 

without objection that the victim, Paul Brown, and his 

brother came from a family of six, but at a young age, 

because of neglect, were removed from their parents’ 

custody and placed in separate foster homes. Brown 

was a hyperactive child, who ran away constantly from 

the various homes in which he had been placed. At the 

age of 15, he started living on the streets and was 

eventually sent to the Maryland Training School for 

Boys. His brother opined that Paul "was a good person 

who had a tough life, a lot of bad breaks, no family, no 

home, nobody to really give him a chance. I some­

times think he felt more secure in prison, because he 

had no one on the outside. Sure he committed crimes, 

but he wasn't violent. He did what he had to do to



- 3 3 -

survive, and he got involved with a lot of bad people." 

(J.A. 85-86).

There was no evidence introduced in this case 

concerning the effect that Paul Brown's death may 

have had on his brother and sister-in-law. There was 

no mention of any other family or friends that may 

have been left behind. There was no evidence 

suggesting that the community at large suffered from 

the loss of one of its stalwart members. There was no 

evidence indicating that Paul Brown led a life to be 

valued over others. The evidence showed only one 

thing — that the victim in this case was not just a

carcass, not just a nameless mass forced to endure the
1 4tortures imparted by Petitioner; he was a person.

** The amicus asserts that this background evidence 
introduced at sentencing portrayed only the positive 
side of the victim and that Petitioner was precluded 
from introducing any evidence to contradict his 
portrayal in contravention of Gardner v. Florida, 430 
U.S. 349 (1977). Gardner is inapposite. Petitioner's 
attem pt to introduce the negative character evidence 
came at trial and was rejected as irrelevant. He never 
renewed his attempt to introduce this evidence at 
sentencing. As a result, no restriction is evident.



- 3 4 -

Above all else, the combined issues presented in 

this case demonstrate the imbalance existing between 

the prosecution and the defense in a capital 

punishment proceeding. On the one hand, under 

Lockett, Eddings, Skipper, and Hitchcock, there can be 

no limits on what a defendant can place before the 

jury to evoke emotion and to show the type of person 

that stands before the sentencer. Evidence concerning 

what happened to the defendant in childhood cannot be 

excluded (Eddings); evidence concerning the behavior 

of the defendant after the offense and after arrest, 

but before sentencing, cannot be excluded (Skipper). 

On the other hand, under Petitioner’s interpretation of 

Booth, nothing can be introduced to humanize the 

victim.

In holding that victim impact evidence was 

"irrelevant to a capital sentencing decision, and that 

its admission creates a constitutionally unacceptable 

risk that the jury may impose the death penalty in an



- 3 5 -

arbitrary and capricious manner," Booth v. Maryland, 

107 S.Ct. at 2533, this Court focused upon the fact 

that the statement in that case centered upon the 

effect of the murder on the family, the articulateness 

of the family members, and the standing of the victim 

in the community. Id. at 2534. No comparable 

evidence was presented here.

The evidence was presented in the form of a 

summary prepared by a probation agent. Questions 

regarding how the victim's family was affected or how 

well they could articulate were never generated. The 

evidence merely described an individual, one who had 

been in trouble all his life and who, at the time of his 

murder, was serving time in prison.

Evidence about the victim demonstrating the 

extent of the harm caused can be introduced in a 

manner so limited as to minimize the possibility of a 

sentence predicated on passion. Permitting such 

evidence would enable the sentencer to see the victim 

as a real person, without generating concern that a



- 3 6 -

particular sentence is based upon considerations 

totally irrelevant to the sentencing process. This case 

presents a perfect example of such evidence about the 

victim.

Although this Court in Booth included, within 

the scope of "victim impact" evidence, reference to 

the character of the victim, 107 S.Ct. at 2533, this 

Court also indicated that "similar types of information 

may well be admissible because they relate directly to 

the circumstances of the crime." 107 S.Ct. at 2534, 

n.10. Utilizing this distinction, evidence concerning a 

victim's affluent lifestyle and plans for the future has 

been held admissible at sentencing because it may 

have helped explain her whereabouts on the night of 

the murder. State v. Bell, 360 S.E.2d 706, 712 (S.C. 

1987). There is no principled way to draw such a fine 

distinction. Rather, objective evidence of character



- 3 7 -

to humanize the victim of the crime ought be 

permitted in any case.15

As articulated by Justices White and Scalia in 

their dissents in Booth, the determination of an 

appropriate penalty is dictated not only by the "moral 

guilt" of the perpetrator, but also by the extent of the 

harm he caused. 107 S.Ct. at 2539 <5c 2541. Despite 

the fact that the penalty of death is unique from all 

others, the extent of the harm caused is an appropriate 

consideration in a capital punishment proceeding — 

especially where the "harm” is limited to knowing that

15 In Maryland, the holding of Booth has been asserted 
in support of claims of error in contexts well beyond 
formal victim impact statements. In State v. Colvin. 
Sept. Term, 1986, No. 88, currently pending before the 
Maryland Court of Appeals, Booth error was claimed in 
the prosecutor’s description of the victim in opening 
argument. In Hunt v. State, Sept. Term, 1987, No. 53, 
also pending, Booth error was said to have been 
generated when the victim's family shed tears at trial 
when a tape recording of the victim's voice was 
played. The defense in Hunt, relying on Booth, even 
sought to exclude the victim's wife from the court­
room.



- 3 8 -

the victim was an individual with an identity and his
1 6own personal characteristics.

16 Mills specifically stated that he had no objection to 
the introduction of the victim impact evidence in this 
case (J.A. 14-15). Nor was any issue concerning the 
admissibility of victim impact evidence raised by Mills 
on his automatic direct appeal. However, the issue 
was addressed by the Maryland Court of Appeals in 
view of the temporal proximity between this Court's 
opinion in Booth and the Mills decision. Because the 
Maryland court found that the evidence in this case did 
not constitute a victim impact statem ent such as that 
proscribed in Booth, the court did not assess the 
possibility that any error in the introduction of this 
evidence was harmless, although the court did note 
that "the content of this statem ent would not inflame 
a jury or otherwise prejudice Mills." 310 Md. at 72-73 
n. 14, 527 A.2d at 22 n.14.

Even if the introduction of this evidence was 
error, it is harmless, not only because of the objective 
nature of the statement itself, but also because of the 
absence of any weighing process in this case. As was 
implicitly recognized in Booth, a victim impact 
statement is irrelevant to the presence or absence of 
any aggravating or mitigating circumstance. Rather, 
victim impact evidence was asserted to be a 
circumstance of the crime that would constitute the 
flesh on the skeleton on the aggravating side of the 
scale, together with considerations such as the 
heinousness or atrocity of the crime, for purposes of 
weighing. Here, however, there was no weighing. 
Petitioner was sentenced to death because the jury 
found no mitigating factor. Inasmuch as the existence 
of victim impact evidence had no relationship to that 
conclusion, its admission does not necessitate the 
(Continued)



- 3 9 -

CONCLUSION

The Maryland capital punishment statute is not 

mandatory in any respect. It permits full considera­

tion of any evidence offered by the defense in miti­

gation of sentence. If the jury unanimously concludes 

that the evidence presents no circumstance of 

mitigation, the death sentence is to be imposed 

without a weighing process. This is logical inasmuch 

as there is nothing on the side of mitigation to weigh. 

Given the absence of any limitation on the defendant's 

right to produce evidence, and the absence of any 

limitation on the jury's right to find mitigation, the 

procedure is constitutional.

The constitutional Maryland capital punishment 

scheme was properly applied in Petitioner's case. The 

jury was instructed in conformance with the law as 

articulated by the Maryland Court of Appeals in 

Petitioner's case. No "new" principle of law which 

could inure to Petitioner's benefit was denied him. No

setting aside of the death sentence.



- 4 0 -

"limiting" revision of law to render the ultimate 

decision constitutional was applied to his case. No 

improper evidence was introduced to render his death 

sentence suspect.

For these reasons, the State of Maryland

respectfully requests that the judgment of the court

below be affirmed.

Respectfully submitted,

J . JOSEPH CURRAN, JR.,
Attorney General of Maryland

CHARLES O. MONK, H,
Deputy Attorney General

GARY E. BAIR,
Assistant Attorney General

RICHARD B. ROSENBLATT,*
Assistant Attorney General

The Munsey Building 
7 North Calvert Street 
Baltimore, Maryland 21202 
(301)576-6410

Counsel for Respondent

* Counsel of Record



*
+
r
r

f

\

\