Villanueva v. Wellesley College Brief of Defendant-Appellee

    The Petitioner’s affidavit in support of this
Petition is attached hereto.

George 'E. Burns, Jr. 
Assistant Public Defender Appellate Division 
Second Floor 
312 North Eutaw Street 
Baltimore, Maryland 21201 
(301) 333-4842
Counsel for Petitioner

2



Misc. No.

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

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED 
ON APPEAL IN FORMA PAUPERIS

I, Ralph Mills, being first duly sworn, depose and 
say that I am the Petitioner, in the above-entitled case.

In support of my motion to proceed on appeal 
without being required to prepay fees, costs or give 
security therefor, I swear that the following facts are 
true.

1. I am presently indigent and cannot pay the 
costs of prosecuting this appeal. ■



2. I have qualified for representation by the 
Public Defender of the State of Maryland, and remain 
qualified as a result of my indigency.

3. I am now and have been incarcerated for the 
past several years, and as a consequence I have not been in 
a position to obtain the funds necessary to prosecute an 
appeal.

I understand that a false statement or answer to my 
questions in this affidavit will subject me to penalties for 
perjury.

qX oX  lJ . )ARalph/ Mills

Subscribed and sworn to before me, a Notary Public 
this day of ■_______ , 1987.

'CJ' & A.NOTARY PUBLIC^
My Commission Expires 7 -

Let the applicant proceed without prepayment of 
costs or fees or the necessity of giving security therefor.

JUSTICE



Misc. No

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

MR. CLERK:
NOTICE OP APPEARiiNCE

Please enter ray appearance £3 counsel for Peti­
tioner in the above captioned case.

George El Burns, Jr // 
Assistant Public Defender 
Appellate Division 
Second Floor 
312 North Eutaw Street 
Baltimore, Maryland 21201 
(301) 333-4842
Counsel for Petitioner



QUESTIONS PRESENTED
1. May the Maryland Cour-t of Appeals place a 

strained and unrealistic construction upon the Maryland 
death penalty statute in order to defeat a contention that 
the statute is unconstitutionally mandatory in its applica­
tion?

2. Was the Maryland death penalty statute applied 
to Petitioner's case in an unconstitutionally mandatory 
manner?

3. Must Petitioner's sentence of death be vacated 
because of the admission of victim-impact evidence?



NO.
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 

PETITION FOR WRIT OF CERTIORARI

Alan H. Murrell
Public Defender of Maryland
George E. Burns, Jr.
Assistant Public Defender 
Office of the Public Defender 
Appellate Division 312 North E-taw Street 
Baltimore, Maryland 21201 
(301) 333-4842
OF COUNSEL:
Michael R. Braudes Assistant Public Defender
Counsel for Petitioner



Page
OPINION BELOW........................................  1
JURISDICTION.........................................  2
CONSTITUTIONAL PROVISIONS.....i...................... 2
STATUTES.............................................  2
RULES................................................  2
STATEMENT OF THE CASE................................  2
REASONS FOR GRANTING THE WRIT........................  3
CONCLUSION...........................................  10
APPENDIX..........................................  Apx.l

TABLE OF AUTHORITIES 
Cases

Ashton v. Kentucky, 384 U.S. 195 (1966)..............  7Booth v. Maryland, ___ U.S. ___,
(No. 86-50 20, "riled June 15, 1987).............. 9

Eddings v. Oklahoma, 455 U.S. 104 (1982).............4,5
Gardner v. Louisiana, 368 U.S. 157 (1961)............  7
Gregg v. Georgia, 428 U.S. 153 (1976)................  - 4
Lockett v. Ohio, 438 U.S. 586 (1978)................. 4,5
Mullaney v. Wilbur, 421 U.S. 684 (1975)..............  7Ralph Mills v. State of Maryland,

No. TF, September Term, 1985....................  1
Stebbing v. Maryland, 105 S.Ct. 276 (1984)...........  8Sumner v. Shuman, U.S. ,

41 Crim. L. 3334 (1987777.......................  4
Woodson v. North Carolina, 428 U.S. 280 (1976).......  4

Constitution
United States Constitution,

Amendment VIII..................................  2
Amendment XIV..........  2

TABLE OF CONTESTS



Statutes
Maryland Code, (1957, 1982 Repl. Vol.),

Article 27, § 413................................2,3
§ 414...............................  2

Rule
Maryland Rule 4-343...................................2,5

2



Misc. No.

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

PETITION FOR WRIT OF CERTIORARI
Ralph. Mills, 3etitioner, requests that a writ of 

certiorari issue to review the judgment of the Court of 
Appeals of Maryland entered on June 25, 1987, in Ralph Mills 
v. State of Maryland, No. 22, September Term, 1985.

OPINION BELOW
The opinion of the Court of Appeals of Maryland, 

filed June 25, 1987, is reproduced at App. 16. This opinion 
is reported and published. Included are an opinion of the 
Court (per Eldridge, J.), a concurring opinion (per Murphy,



C.J.)/ and a dissenting opinion (per McAuliffe) J.).

JURISDICTION
The opinion of the Court of Appeals of Maryland was 

filed on June 25, 1987. The jurisdiction of this Court is 
invoked under 28 U.S.C. Sec. 1257(3).

CONSTITUTIONAL PROVISIONS, STATUTES AND RULE
The following are set forth in the Appendix:

CONSTITUTIONAL PROVISIONS
United States Constitution,*

Amendments VIII and XIV
STATUTES

Maryland Code, (1957, 1982 Reol. Vol.), Article 27,
§§ 413 and 414.

RULE
Maryland Rule 4-343

STATEMENT OF THE CASE
Petitioner was convicted of murder by the Circuit 

Court for Allegany County; Marylandj and sentenced to death. 
The Court of Appeals of Maryland, on direct appeal, affirmed 
the judgment, with one Judge concurring in the result and 
one Judge dissenting.

It was undisputed at trial that Petitioner, while 
an inmate at the Maryland Correctional Institution at 
Hagerstown, stabbed to death his cell-mate, Paul Robin 
Brown, with a "hame-raade" knife. On the basis of this 
incident, a jury returned a conviction of murder in the

2



first degree. The prosecution timely notified Petitioner of 
its intention to seek the death penalty.

The Maryland death penalty statute, Md. Code (1957, 
1982 Repl. Vol., 1986 Cum. Supp.) Art. 27, § 413, mandates 
that the sentencing authority (a jury in Petitioner's case) 
first unanimously determine whether certain enumerated 
aggravating factors exist, and if so to unanimously deter­
mine whether any mitigating factors exist. In the event 
that both aggravating and mitigating factors exist, the 
sentencing authority engages in a process of weighing and 
balancing to determine the ultimate sentence. Where on the 
other hand the sentencer finds that one or more aggravating 
factors exists, but that no mitigating factors exist, the 
sentence is automatically death. Art. 27, § 413(h)(2). In 
the present case, the jury returned the aggravating factor 
set forth in Art. 27, § 413(d)(2) - "The defendant committed 
the murder at a time when he was confined in any correc­
tional institution." It did not unanimously find any 
mitigating factors.^- The sentence was accordingly death.

REASONS FOR ISSUING THE WRIT
A. Mandatory application of the

Maryland death penalty statute and 
the construction of that statute 
by the Maryland Court of Appeals.

The Maryland death penalty statute operated in an

^The evidence generated as possible mitigating factors 
Petitioner's youthful age at the time of the offense, his 
unfortunate childhood, and the failure of the government to 
provide meaningful treatment.

3



unconstitutionally mandatory fashion, because the finding of 
a single aggravating factor in the absence of any mitigating 
factor requires a sentence of death, without any weighing of 
circumstances and without excluding the possibility that 
some or all of the members of the jury did not believe that 
death was the appropriate sanction. As a necessary corol­
lary, evidence in mitigation which could persuade some but 
not all of the jurors was effectively excluded from the 
sentencing process. The operation of the statute to impose 
a death sentence in this case violates the settled rules 
that a capital sentencing statute cannot constitutionally 
operate in a mandatory manner, or in such a way as to 
exclude from practical consideration evidence in mitigation.
See Sumner v . Shuman, ___ U.S. ___, 41 Grim. L. 3334 (1987);
Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 
438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280 
(1976); Gregg v. Georgia, 428 U.S. 153 (1976).

The Court, of Appeals of Maryland, over a dissent 
and a concurring opinion which rejected its analy is, 
construed the statute in a way that, according to the Court 
of Appeals majority, defeated any contention that the 
statute operated in a mandatory fashion and excluded from 
consideration relevant mitigating evidence. The Court's 
construction has no basis in the language of the statute, in 
precedent, or in the jury instructions propounded in this 
case and in every other cap_tal case in the State of 
Maryland. The statute as applied in this case is invalid,

4



and that a strained, artificialand totally unsubstantiated 
"construction" by an appellate court does not suffice to 
save it.

In order to understand and assess the competing 
interpretations of the statute, it is necessary to under­
stand that the sentencing jury fills out a "Findings and 
Sentencing Determination" form promulgated pursuant to 
Maryland Rule 4-343 and its predecessor, Rule 772A. See 
App. 8. Under this Rule, the jury is enjoined to mark "yes" 
any aggravating or mitigating factor which it unanimously 
finds has been established, and to mark "no" any aggravating 
or mitigating factor which "has not been so proved."

This language mandates a negative response to any 
mitigating factor which has not been unanimously agreed to 
by all of' the 12 jurors. Thus, if six jurors believe that a 
mitigating factor has been established, but six do not, that 
mitigating factor is marked 'no." Under these circum­
stances, the mitigating forcu of the evidence is totally' 
excluded from the final calc ilus, thereby establishing a 
clear violation of Lockett .ind Sddings. Moreover, in the 
common situation where the aefense relies upon more than one 
mitigating factor, it is entirely possible that each juror 
will be persuaded that at least one mitigating factor 
exists1 that no juror will be convinced that the death 
penalty is appropriate; but that under the mechanical 
application of the Mary! ?.nd statute the jury will be

5



compelled to return a death sentence. This flaw in the 
statute renders the entire scheme constitutionally invalid.

Under the approach taken by the Court of Appeals, 
the rejection as well as the acceptance of a mitigating 
factor requires unanimity, and a divided vote results in 
leaving the sentencing form blank with respect to the 
mitigating factor which gave rise to the division. Thus, a 
"no” does not mean that a juror convinced by mitigating 
evidence must put it out of his mind. For a number of 
reasons, this approach simply does not work. First, as the 
dissent points out it is an historical fact that sentencing 
forms are not left blank —  every mitigating factor on every 
form resulting in a death sentence in Maryland has received 
a "yes1* or "no." As a matter of human experience, it is 
simply not possible that each of these determinations has 
resulted from a unanimous vote, and that there has never 
been a divided jury with respect to any mitigating factor. 
Secondly, the trial.court's instructions did not permit-the 
jury t3 resolve the matter in this way —  there is no hint 
that, tie available option was to leave the form partially 
blank. Again, attention is directed to the recitation of 
the jury instructions in the dissenting opinion. Finally, 
the sentencing form itself speaks in terms of a unanimous 
affirmative response, and does not by its terms require a 
unanimous negative response. In sum, it is entirely 
possible that the "no's" affixed to the mitigating factors 
disguise and destroy many decisions by individual jurors

6



that mitigating factors did I in fact; exist.
The Court of Appeals majority goes on to posit an 

individual weighing and balancing of aggravating and 
mitigating factors in the minds of individual jurors, who 
must consider whether under all of the facts and circum­
stances death is an appropriate sanction. While such a 
decisional process could conceivably occur under a statute, 
sentencing form, and jury instructions that provide for it, 
the Maryland statute and rules, and the instructions 
actually propounded to the jury that sentenced Petitioner to 
die, do not provide such a decisional process.

Although it is generally the province of the state 
courts to "interpret, and where they see fit, to rein­
terpret" their own constitutions and statutes, Gardner v. 
Louisiana, 368 U.S. 157, 169 (1961), limitations are imposed 
on judicial reconstruction by considerations of due process. 
A court may not use its interpretive authority as a 
"1 obvious subterfuge to evade consideration of a federal 
issue.'" Mullaney v. Wilbur, 421 U.S. 684, 696 n. 11 
(1975). Moreover, the retroactive application of a novel 
construction of the statute, which could not have been 
anticipated, raises serious questions of due process. As 
this Court wrote in Ashton v. Kentucky, 384 U.S. 195, 198 
(1966), "Where an accused is tried under a broad construc­
tion of an Act which would make it unconstitutional, the 
conviction cannot be sustained on appeal by a limiting 
construction which eliminates the unconstitutional features

7



of the Act....11
As Justice Marshall has recognized in dissenting 

from denial of certiorari in an earlier case, the Maryland 
Court of Appeals has used its interpretive authority before 
to avoid a substantial federal issue by construing language 
in the death penalty statute in a manner totally at odds 
with the plain meaning of the words used. Stebbing v. 
Maryland, 105 S.Ct. 276 (1984). Just as the Maryland Court 
in Stebbing and related cases construed language which 
allocated the burden of proof to the defense to mean that 
the burden is on the government, so the same Court here has 
construed language which effectively buries probative 
evidence of mitigation to mean that individual jurors can 
and must, on an individual basis, give full consideration to 
anything in the case that they find mitigating. In reality, 
it is a safe assumption that no Maryland judge propounding 
instructions and no Maryland juror deliberating a defend­
ant's fate has ever understood the process to work this - 
way.

3. Victim Impact Statement.
The following victim impact statement, summarizing

an interview with Paul Robin Brown's brother and sister-in-
law, was introduced in evidence:

"Paul and Thomas Brown came from a family 
of six. At a very young age they were 
removed from their parents custody because 
of neglect and placed in separate foster 
homes. (Removal by the Department ofSocial Services was prompted by Paul being 
hospitalized, at age 4 for anemia and

8



t
i

malnutrition.)
"Paul was a hyperactive child and hard to 
handle which resulted in a lot of beatings 
from his various guardians. He ran away 
constantly from the various homes in which 
he had been placed. After a while Paul, 
at the age of 15, just started living on 
the streets. He was eventually sent to 
the Maryland Training School for Boys.
Paul never really had a home or a family 
as such. 'I (Thomas Brown) tried to keep 
in touch with Paul by writing and visiting 
him whenever possible. I always had good 
homes and a good life and always felt so guilty that there was nothing I could do 
to help Paul. After all, I was only one 
year older than he.1
"1 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 sometimes 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 survive and he got involved with a 
lot of bad people."
The Maryland Court of Appeals held that this did 

not constitute proscribed victim impact evidence under Booth
v. Maryland, ___ U.S. ___, (No. 86-5020, filed June 15,
1987), reasoning that the document does not describe the- 
impact of the offense upon the victim's family. (Slip op. 
at 50, n . 14.)

This reasoning construes Booth too narrowly. This 
Court made clear in Booth that victim impact evidence can 
improperly focus the sentencer's attention not only upon the 
victim’s family, but also upon "the character and reputation 
of the victim." Slip op. at 8. The Court went cn to write 
that the issue of whether the victim's character was

9



11 sterling" or "questionable" is not a proper consideration 
in selecting those few defendants who deserve to die. (Id.
at 9.) Accordingly, evidence tending to .show that Paul 
Brown was a sympathetic individual was equally inadmissible 
as evidence that his relatives were deeply affected by his
death would have been.

For this reason as well, the judgment must be
reviewed and reversed.

Respectfully submitted,
Alan H. Murrell 
Public Defender

Appellate Division 
Second Floor 
312 North Eutaw Street 
Baltimore, Maryland 21201 
(301) 333-4842
Of Counsel:

Michael R. Braudes Assistant Public Defender 
Appellate Division 
Second Floor 312 North Eutaw Street 
Baltimore, Maryland 21201 
(301) 333-4869
Counsel for Petitioner

lv
8/12/87

10



f

A P P E U D I X



A P P E N D I X

Maryland Code (1957, 1982 Repl. Vol.) Art- 27, Secs. 413—414 
provide;

Section 413- Sentencing procedure upon finding of guilty of fir3t degree murder.
(a) Separate sentencing proceeding required.

—  If a person xs found guxlty or murder xn the 
first degree, and if the State had given the notice required under Sec. 412(b), a separate 
sentencing proceeding shall be conducted as soon 
as practicable after the trial has been completed 
to determine whether he shall be sentenced to 
death or imprisonment for life.

(b) Before whom proceeding conducted. — This 
proceeding shall be conducted:

(1) Before the jury that determined the 
defendant's guilt; or

(2) Before a jury impaneled for the 
purpose of the proceeding if:

(i)' The defendant was convicted upon 
a plea of guilty;

(ii) The defendant was convicted 
after a trial before the ccurt sitting without a 
jury;

(iii) The jury that determined the 
defendant's guilt has been discharged by the court 
for good cause; or

(iv) Review of the original sentence 
of death by a court of can.patent jurisdiction has 
resulted in a remand for resentencing; or

(3) Before the ccurt alone, if a jury 
sentencing proceeding is waived by the defendant.

(c) Evidence; argument; instructions. —  (1)
The following type of evidence Is admissible in 
this proceeding:

(i) Evidence relating to any miti­
gating circumstance listed in subsection (g) of 
this section;



(ii) Evidence relating to any aggra­vating circumstance listed in subsection (d) of 
this section of which the State had notified the 
defendant pursuant to Section 412(b);

(iii) Evidence of any prior criminal 
convictions, pleas of guilty or nolo contendere, 
or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures;

(iv) Any presentence investigation 
report. However, any recommendation as to 
sentence contained in the report is not admissi­ble; and

(v) Any other evidence that the court deems of probative value and relevant to 
sentence, provided the defendant is accorded a 
fair opportunity to rebut any statements.

(2) The State and the defendant or his counsel may present argument for or against the 
sentence of death.

(3) After presentation of the evidence 
in a proceeding before a jury, in addition to any 
other appropriate instructions permitted by law, 
the court shall instruct the jury as to the 
findings it must make in order to determine 
whether the sentence shall be death or imprison­
ment for life and the burden of proof applicable 
to these findings in accordance with subsection (f) or subsection of (h) of this section.

(d) Consideration of aggravating circum­
stances . —  In determining the sentence the court 
or jury, as the case may be, shall first consider 
whether, beyond a reasonable doubt, any of the 
following aggravating circumstances exi.it:

(1) The victim was a law enforcement 
officer who was murdered while in the performance of his duties.

(2) The defendant committed the murder 
at a time when he was confined in any correctional institution.

(3) The defendant committed the murder in furtherance of an escape or an attempt to 
escape from or evade the lawful custody, arrest, 
or detention of or by an officer or guard of a 
correctional institution or by a law enforcement officer.

2



(4) The victim was taken or attempted 
to be taken in the course of a kidnapping or 
abduction or an attempt to kidnap or abduct.

(5) The victim was a child abducted in 
violation of § 2 of this article.

(6) . The defendant committed the murder 
pursuant to an agreement or contract for remunera­
tion or the premise of remuneration to commit the 
murder.

(7) The defendant engaged or employed 
another person to commit the murder and the murder 
was committed pursuant to an agreement or contract, 
for remuneration or the premise of remuneration.

(3) At the time of the murder, the 
defendant was under sentence of death or imprison­
ment for life.

(9) The defendant committed more than 
one offense of murder in the first degree arising 
out of the same incident.

(10) The defendant committed the murder 
while committing or attempting to commit a 
robbery, arson, rape, or sexual offense in the 
first degree.

(e) Definitions. —  As used in this section, the following terms have the meanings indicated 
.unless a contrary meaning is clearly intended from 
the context in which the term appears:

(1) The terms "defendant" and "person", 
except as those terms appear in subsection (d)(7), 
include only a principal in the first degree.

(2) The term "correctional institution" 
includes any institution for the detention or 
confinement of persons charged with or convicted 
of a crime, including Patuxent Institution, any 
institution for the detention or confinement of 
juveniles charged with or adjudicated as being 
delinquent, and any hospital in which the person 
was confined pursuant to an order of a court 
exercising criminal, jurisdiction.

(3) The term "law enforcement officer" 
has the meaning given in § 727 of Article 27. 
However, as used in subsection (d), the term also 
includes (i) an officer serving in a probationary

3



status,' (ii) a parole and probation officer! and 
(iii) a law enforcement officer of a jurisdiction 
outside of Maryland.

(f) Finding that no aggravating circum­
stances exist. —  It the court or jury does not 
find, beyond a reasonable doubt, that one or more

• of these aggravating circumstances exist, it shall 
state that conclusion in writing, and the sentence 
shall be imprisonment for life.

(g) Consideration of mitigating circum­
stances . —  It the court or jury rinds, beyond a 
reasonable doubt, that one or more of these 
aggravating circumstances exist, it shall then 
consider whether, based upon a preponderance of 
the evidence, any of the following mitigating circumstances exist:

(1) The defendant has not previously
(i) been found guilty of a crime of violence, (ii) 
entered a plea of guilty or nolo contendere to a 
charge of a crime of violence; or (iii) had a 
judgment of probation on stay of entry of judgment 
entered on a charge of a crime of violence. As 
used in this paragraph, “crime of violence" means 
abduction, arson, escape, kidnapping, manslaugh­
ter, except involuntary manslaughter, mayhem, 
murder, robbery, or rape or sexual offense in the 
first or second degree, or an attempt to commit 
any of these offenses, or the use of a handgun in 
the commission of a felony or another crime of violence.

(2) The victim was a participant in the 
defendant's conduct or consented to the act which - 
caused the victim'si death.

(3) The defendant act id under substan­
tial duress, damir.. ition or provocation of another 
person, but no so tubstantial an to constitute a complete defense to the prosecution.

(4) The murder was committed while the 
capacity of the defendant to appreciate the 
criminality of his conduct or to conform his 
conduct to the requirements of law was substan­
tially impaired as a result of mental incapacity, mental disorder, or emotional disturbance.

(5) The youthful age of the defendant at the time of the crime.

4



(6) The act of the defendant was not 
the sole proximate cause of the victim's death.

(7) It is unlikely that the defendant 
will engage in further criminal activity that 
would constitute a continuing threat to society.

(8) Any other facts which the jury or 
the court specifically sets forth in writing that it finds as mitigating circumstances in the case.

(h) Weighing mitigating and aggravating circumstances. —  (1) If the court or jury finds 
that one or more of these mitigating circumstances exist, it shall determine whether, by a preponder­
ance of the evidence, the mitigating circumstances 
outweigh the aggravating circumstances.

(2) If it finds that the mitigating 
circumstances do not outweigh the aggravating 
circumstances, the sentence shall be death.

(3) If it finds that the mitigating 
circumstances outweigh the aggravating circum­
stances , the sentence shall be imprisonment for 
life.

(i) Determination to be written and unani­
mous . —  The determination of the court or jury 
shall be in writing, and, if a jury, shall be 
unanimous and shall be signed by the foreman.

(j) Statements required in determination. —  The determination of the court of jury snail 
state, specifically:

(1) Which, if any, aggravating circum­
stances it finds to exist;

(2) Which, if any, mitigating circum­
stances it finds to exist;

(3) Whether any mitigating circum­
stances found under subsection (g) outweigh the 
aggravating circumstances found under subsection 
( d ) ;

(4) Whether the aggravating circum­
stances found under subsection (d) are not 
outweighed by mitigating circumstances found under 
subsection (g ); and

5



(5) The sentence determined in 
accordance with subsection (f) or (h).

(k) Imposition of sentence. —  (1) The 
court shall impose the sentence determined by the 
jury under subsection (f) or (h).

(2) If the jury, within a reasonable 
time is not able to agree as to sentence, the 
court shall dismiss the jury and impose a sentence 
of imprisonment for life.

(3) If the sentencing proceeding is 
conducted before a court without a jury, the court 
shall impose the sentence determined under 
subsection (f) or (h).

(l) Rules of procedure. —  The Court of 
Appeals may adopt rules of procedure to govern the 
conduct of a sentencing proceeding conducted 
pursuant to this section, including any forms to 
be used by the court or jury in making its written findings and determinations of sentence. (1978, 
ch. 3, §§ 1,2; 1979, ch. 521.)

Section 414. Automatic review of death sentences.
(a) Review by Court of Appeals required. —  

Whenever the death penalty is imposed, and the 
judgment becomes final, the Court of Appeals shall review the sentence on the record.

(b) Transmission of papers to Court of Appeals. —  The clerk of the'trial court shall 
transmit to the Cleric of the Court of Appeals the 
entire record and transcript of the sentencing 
proceeding within tea days after receipt of the 
transcript by the tr-.al court. The clerk also 
shall transmit the written findings and determina­
tion of the court or jury and a report prepared by 
the trial court. The report shall be in the form 
of a standard questionnaire prepared and supplied by the Court of Appeals of Maryland and shall 
include a recommendation by the trial court as to 
whether or not imposition of the sentence of death is justified in the case.

(c) Briefs and oral argument. —  Both the 
State and the defendant may submit briefs and 
present oral argument within the time provided by the Court.

6



(d) Consolidation of appeals. -- Any appeal 
from the verdict shall be consolidated in the Court of Appeals with the review of sentence.

(e) Considerations by Court of Appeals. — In 
addition to the consideration of any errors 
properly before the Court on appeal, the Court of 
Appeals shall consider the imposition of the death 
sentence. With regard to the sentence, the Court shall determine:

(1) Whether the sentence of death was 
imposed under the influence of passion, prejudice, 
or any other arbitrary factor;

(2) Whether the evidence supports the 
jury's or court's finding of a statutory aggra­
vating circumstance under § 413 (d);

(3) Whether the evidence supports the 
jury's or court's finding that the aggravating 
circumstances are not outweighed by mitigating 
circumstances; and

(4) Whether the sentence of death is 
excessive or disproportionate to the penalty 
imposed in similar cases, considering both the crime and the defendant.

(f) Decision of Court of Appeals. —  (1) In' addition to its review pursuant to any direct appeal, with regard to the death sentence, the 
Court shall:

(i) Aifirm the sentence;
(ii) S t  aside the sentence and 

remand the case for ti e conduct of a new sentenc­
ing proceeding under i 413; or

(iii) Set aside the sentence and remand for modification of the sentence to 
imprisonment for life.

(2) The Court shall include in its 
decision a reference to the similar cases which it considered.

(g) Rules of procedure. —  The Court may 
adopt rules of procedure to provide for the 
expedited review of all death sentences pursuant 
to this section. (1978, ch. 3, §§ 1,2.)

7



RULES INVOLVED
Maryland Rules of Procedure, Rule 4—343:

Rule 4—343. Sentencing —— Procedure In Capital Cases.
(a) Applicability. —  This Rule applies 

whenever sentence is imposed under Code, Article 
27, Sec. 413.

(b) Statutory Sentencing Procedure. —  When 
a defendant has been found guilty of murder in the 
first degree and the State has given the notice 
required under Code, Article 27, Sec. 412(b), a 
separate sentencing proceeding shall be conducted as soon as practicable after the trial pursuant to 
the provisions of Code, Article 27, § 413.

(c) Judge. —  Except as provided in Rule 4-361, the judge who presides at trial shall 
preside at the sentencing proceeding.

(d) Allocution. —  Before sentence is 
determined, the court shall afford the defendant 
the opportunity, personally and through counsel, to make a statement.

(CAPTION)
FINDINGS AND SENTENCING DETERMINATION

Section I
Based upon the evidence, we unanimously find that 

each of the following aggravating circumstances tha* is 
marked "yes'* has been proven BEYOND A REASONABLE DOIBT. Each 
of the aggravating circumstances that has not been so proven is marked ''no.1'

1. The victim was a law enforcement officer who 
was murdered while in the performance of the officer's duties.

Yes No
2. The defendant committed the murder at a time 

when confined in a correctional institution.

Yes No

3



3. The defendant committed the murder in further­
ance of an escape from or an attempt to escape from or evade 
the lawful custody, arrest, or detention of or by an officer or guard of a correctional institution or by a law enforce­ment officer.

Yes No
4. The victim was taken or attempted to be taken 

in the course of a kidnapping or abduction or an attempt to 
kidnap or abduct.

Yes No
5. The victim was a child abducted in violation of Code, Article 27, Sec. 2.

Yes No
6. The defendant committed the murder pursuant to 

an agreement or contract for remuneration or the promise of 
remuneration to commit the murder.

Yes No
7. The defendant engaged or employed another person to commit the murder and the murder was committed 

pursuant to an agreement or contract for remuneration or the 
promise of remuneration.

Yes No
8. At the time of the murder, the defendant was under the sentence of death or imprisonment for life.

Yes No
9. The defendant committed more than one offense 

of murder in the first degree arising out of the same incident.

Yes No



10. The defendant committed the murder while 
committing or attempting to commit robbery, arson, rape in the first degree or sexual offense in the first degree.

Yes No
(If one or more of the above are marked "yes," complete 
Section II. If all of the above are marked "no," do not 
complete Sections II and III.)

Section II
3ased upon the evidence, we unanimously find that 

each of the following mitigating circumstances that is 
marked "yes" has been proven to exist by A PREPONDERANCE OF 
THE EVIDENCE. Each mitigating circumstances that has not been so proved is marked "no."

1. As used in this paragraph, "crime of violence" 
means abduction, arson, escape, kidnapping, mayhem, murder, 
robbery, rape in the first or second degree, sexual offense 
in the first or second degree, manslaughter other than 
involuntary manslaughter, an attempt to commit any of these 
offenses, or the use of a handgun in the commission of a 
felony or another crime of violence.

The defendant previously (i) has not been found 
guilty of a crime of violence; and (ii) has not entered a 
plea of guilty or nolo contendere to a charge of a crime of 
violence; and (iii) has not been granted probation on stay 
of entry of judgment pursuant to a charge of a crime of violence.

Yes No
2. The v .ctim was a participant in the defendant's 

conduct or consentiid to the act which caused the victim's 
death.

Yes No
3. The defendant acted under substantial duress, 

domination, or provocation of another person, but not so 
substantial as to constitute a complete defense to the prosecution.

Yes No

10



4. The murder was committed while the capacity of 
the defendant to appreciate the criminality of his conduct 
or to conform his conduct to the requirements of law was 
substantially impaired as a result of mental incapacity, 
mental disorder, or emotional disturbance.

Yes No
5. The defendant was of a youthful age at the time 

of the crime.

Yes No
6. The act of the defendant was not the sole 

proximate cause of the victim’s death.

Yes No
7. It is unlikely that the defendant will engage 

in further criminal activity that would constitute a 
continuing threat to society.

Yes No
8. Other facts specifically set forth below 

constitute mitigating circumstances:

Yes No

(Use reverse side if necessary)
(If one or more of the above in Section II have been marked 
"yes," complete Section III. If all of the above in Svction 
II are marked "no," do not complete Section III.)

Section III
Based on the evidence, we unanimously find that it 

has been proven by A PREPONDERANCE OF THE EVIDENCE that the mitigating circumstances marked "yes" in Section II outweigh 
the aggravating circumstances marked "yes" in Section I.

Yes No

11



DETERMINATION OP SENTENCE
Enter the determination of sentence either "Life 

Imprisonment" or "Death" according to the following instruc­
tions :

1. If all of the answers in Section I are marked 
"no," enter Life Imprisonment."

2. If Section III was completed and was marked 
"yes," enter "Life Imprisonment."

3. If Section II was completed and all of the 
answers were marked "no," then enter "Death."

4. If Section III was completed and was marked 
"no," enter “Death."

We unanimously determine the sentence to be

Foreman

Juror 2

Juror 3

Juror 4

Juror 5

Juror 6

Juror 7

Juror a

Juror 9

Juror 10

Juror 11

Juror 12

JUDGE
(f) Advice of the Judge. —  At the time of 

imposing sentence, the judge shall advise the defendant of 
the right of appeal and the time allowed for the exercise of 
this right. The judge shall also advise a defendant who 
receives a sentence of death that (1) the sentence only will 
be reviewed automatically by the Court of Appeals, and (2) the sentence will be stayed pending review of the sentence 
by the Court of Appeals and any appeal which the defendant 
may take.

(g) Report of Judge. —  After sentence is imposed, the judge promptly shall prepare and send to the parties a 
report in the following form:

12



(CAPTION)
REPORT OP TRIAL JUDGE

I. Data Concerning Defendant
A. Date of Birth
B. SexC. Race
D. Address
E. Length of Tine in Community
F. Reputation in Community
G. Family Situation and Background

1. Situation at time of offense (describe 
defendant's living situation including 
marital status and number and age of 
children)

2. Family history (describe family history 
including pertinent data about parents and siblingsH. EducationI. Work Record

J. Prior Criminal Record and Institutional History 
(list any prior convictions, disposition, and 
periods of incarceration)

K. Military History
L. Pertinent Physical or Mental Characteristics or History
M. Other Significant Data About Defendant.

II. Data Concernirg Offense
A. Briefly describe facts of offense (include 

time, plate, and manner of death; weapon, if 
any; other participants and nature 12 £ partici­pation)

B. Was there any evidence that the defe idant was 
under the influence of alcohol or drugs at the 
time of the offense? If so describe.C. Did the defendant know the victim pitor to the 
offense?
Yes No________
1. Ir so, describe relationship.
2. Did the prior relationship in any way 

precipitate the offense? If so, explain.
D. Did the victim's behavior in any way provoke 

the offense? If so, explain.
E. Data Concerning Victim1. Nam 2

2. Date of Birth 
3 . Sex4• Race

13



5. Length of time in community
6. Reputation in community

F. Any Other Significant Data About Offense
III. A.

3.

C.

D.

E.

Plea Entered by Defendant:
Not guilty guilty____;.not guilty by
reason of insanity ____
Mode of Trial:
Court__________ Jury__________
If there was a jury trial, did defendant 
challenge the jury selection or composition? If so, explain.
Counsel
1. Name
2. Address
3. Appointed or retained

(If more than one attorney represented 
defendant, provide data on each and include 
stage of proceeding at which the representa­tion was furnished.)

Pre-Trial Publicity —  Did defendant request a 
mistrial or a change of venue on the basis of publicity? If so, explain. Attach copies of 
any motions made and exhibits filed.Was defendant charged with other offenses 
arising about of the same incident? If so, list 
charges? state whether they were tried at same 
proceeding, and give disposition.

IV. Data Concerning Sentencing Proceeding
A. List aggravating circumstance(s) upon which 

State relied in the pretrial notice.
B. Was the proceeding conducted

before same judge as trial? ____
before same jury?
If the sentencing proceeding was conducted 
-before a jury other than the trial jury, did 
the defendant challenge the selection or 
composition of the jury? If so, explain.

C. Counsel —  If counsel at sentencing was 
different from trial counsel, giv<_ information requested in III C above.

D. Which aggravating and mitigating circumstances were raised by the evidence?
E. Cn which aggravating and mitigating circum­stances were the jury instructed?
F. Sentence imposed: Life imprisonment

Death
V. Chronolog*”Date of Offense

Arrest
Charge

14



Notification of intention to seek penalty of death 
Trial (guilt/innocence) -- began and ended Post-trial Motions Disposed Of Sentencing Proceeding —  began and ended 
Sentence Imposed

VI. Recommendation of Trial Court As To Whether
Imposition of Sentence of Death is Justified.

VII. A copy of the Findings and Sentencing Determination 
made in this action is attached to and made a part 
of this report.

Judge

CERTIFICATION
I certify that on the ______ of _________________

19____ I sent copies of this report to counsel for the
parties for comment and have attached any comments made by 
them to this report.

Judge

Within five days after receipt of the report, the 
parties may submit to the judge written comments concerning 
the factual accuracy of the report. The judge promptly 
shall file with the clerk of the trial court, and in the case of a life sentence with the Clerk of the Court of 
Appeals the report in final form, noting any changes made, 
together with any comments of the parties.

15



IN THS COURT OF APPEALS OF MARYLAND

Nos. 22 and 79 
September Term, 1985

RALPH WILLIAM MILLS

v.

STATE OF MARYLAND

Murphy, C.J .
*Smith 
Eldridge 
Cole
Rodowsky ♦Couch 
McAuliffe, JJ.

Opinion by Eldridge, J.
Murphy, C.J., concurs in Che Judgmen 
McAuliffe, J., concurs and dissents.

Filed: June 25, 1937
♦Smith, J., and Couch, J., now retire 
participated in the hearing and con­
ference of this case while active 
members of this Court; after being recalled pursuant to the Con3titutic 
Article IV, Section 3A, they also 
participated in the decision and adoption of this opinion.

J fS



In March 1985 Ralph William Mills was triad for first 
decrae murder cetera a jury in the Circuit Court for Allegany 
County. ills appeal challenges the resulting conviction and 
death sentence. We snail affirm.

The parties have agreed pursuant to Maryland Rule 
328(g) that the following facts are relevant to the disposition 
of this appeal. Mills shared cell number 20 on "C-Ono" tier 
at the Maryland Correctional Institution in Hagerstown with 
Raul Robin 3rown. At 10:47 p.m. on August 6, 1984, correctional 
officers were called to the cell to investigate a disturbance. 
When the officers arrived, Mills demanded to be released from 
his cell, saying, "vv cell buddy is dead." The cell doer was 
opened and Mills emerged, carrying a blood-covered "manic'," or 
home-made knife, at his side. Mills seated several times that 
he had "killed hi3 call buddy." Brown's body was found Lying 
on his bunk, stabbed six times in the chest and thirty-nine 
times in the back.

About three weeks before this homicide, Mills had 
written to the warden, threatening to kill his call mate (who 
it that time was not Raul Robin Brown) if certain complaints, 
primarily concerning visitation, were not satisfactorily



2

resolved. At the trial another innate, David Gallahan, testi­
fied for the defense that Brown had lent him the murder weapon 
prior to the homicide, and had asked for and received it back 
on the day of the incident.

Mills presents as with numerous questions for review, 
seme relating to the guilty verdict and some relating just to 
the sentence of death.

The first two questions presented concern the denial 
of Mills's motions to strike two prospective jurors for cause. 
Mills's counsel conceded in this Court that Mills had exercised 
only sixteen of his allotted twenty peremptory challenges.* 
Neither of the prospective jurors whom Mills moved to strike 
for cause was impanelled to serve as a juror or to serve as an 
alternate.

Assuming for curposes of armament that the trial\
judge should have dismissed the two veniremen for cause, it is 
difficult to understand how his failure to do so could have 
prejudiced Mills when the defendant's peremptory challenges

Maryland Buie 4-313(a) provides that defendants 
in cases such as this are permitted twenty peremp­
tory challenges plus two additional peremptory 
challenges for each alternate juror.



were not exhausted and the two veniremen were not seated. We 
have previously stated that when an accused has not exhausted 
his peremptory strikes, failure co disqualify a prospective 
juror for cause is not reversible error. Wn ize y. Szzze, 2 00 
Md. 719, 723, 431 A.2d 201 (1934), zevz. denied, 470 a.S.1062,
105 S.Ct. 1779, 34 L.£d.2d 337 (1935). See Sooz'n y. Szzze,
306 Md. 172, 135, 507 A.2d 1093 (1936), 'ja.c.J-Zzd on aikzt g-uu/icu, 

C.3. , S.Ct. , L.Zd.2d (1937).

We have also repeatedly held that a claim of error in 
the inclusion or exclusion of a prospective juror is ordinarily 
abandoned when the defendant or his counsel indicates satisfac­
tion with the jury at the conclusion of the jury selection pro­
cess. zoazr. •?. Szzze, euzzz, 306 Md. at 135; Soszer y. Szzze, 
304 Md. 439, 450-451, 499 A.2d 1236 (1935), denied,

U.S. , 106 S.Ct. 2310 , 92 L.Zd.2d 723 (1936); Shs.nzs J.

Szzze, 301 Md. 294, 310, 433 A.2d 5 (1934), zerz. denied,

U.S. , 105 S.Ct. .356 , 35 L-2d.2d 153 (1935); V> -j ze :.

•jurru, 300 Md. at 729, 731; Szlhzxn. z. 297 Md. 563 , 579-
530 , 463 A.2d 45, 52 (1933); vrr. denied, 456 U.S. 393, IQ4 
S.Ct. 2374, 30 L.Ed.2d 346 (1984). In this case, after the voir 
dire and peremptory strikes, the defense was asked if the jury 
panel was acceptable to the defendant. After checking the iden­
tity of one juror, defense counsel stated: "Your r-'cr.or, the Jury
as impaneled is acceptable to the Cefer.se." Under these circum­
stances it would be idle for us to consider whether or not the 
trial court should have struck the two veniremen for cause.



- d -

II.

Mills contends that the trial court should not have 
admitted into evidence two color photographs of the victim, 
shewing his stab wounds and blood.

At trial this issue developed as follows. The first 
chctograpn admitted into evidence (State's Exhibit 3) was a 
color photograph of the prison cell wail above the victim's 
bumk. The photograph depicts three words fingerpainted in 
blood as well as a portion of the victim's body. Counsel for 
the defendant objected that the phonograph ”[sI hows seme bias 
being a color photograph like it is,™ and argued that the Stat 
should produce a black and white photograph. The trial judge 
asked: "You concede that the fact that it's color doesn't 
automatically exclude it?" Counsel for the defendant re­
sponded, "I agree." The judge then ruled that if the State 
could establish that the colors were accurate , the photograph 
would be admitted into evidence, and afterwards it was so 
admitted.

The next photographs in evidence (State's Exhibits 
Nos. 5, 5, 7, 3, 9, 10) were admitted one after another, and 
resembled the first photograph in sice, and coloration. Ex­
hibit 3 depicted the feet of the victim, in socks; no bleed 
was apparent. There was no objection to Exhibit 3 from de­
fense counsel. Exhibit 3 shewed the r* * 7 - 1 1 7 - l - 1 -. n .-II,l — ̂3 3 ~ —



- 3 -

as it appeared when the homicide was first investigated, with red 
stained pieces of whits cloth or paper visible in the toilet bowl. 
Defense counsel objected to Exhibit 6 . Exhibit 7 showed a corner 
of the cell, including the window, a cabinet, seme clothes drying 
from a string, and 'the hand of the victim. No objection was made 
to the admission of this photograph. Exhibit 3 showed the back 
of the victim with bleed draining from standings scattered from 
the shoulders to the waist level. Defense counsel objected to 
the admission of Exhibit 3. Exhibit 9 showed the face and chest 
of the victim, with blood draining from wounds, and there was no 
abjection to this photograph. Exhibit 10 shewed the victim lying 
face up on has bunk and shewed part of the wall containing three 
words fingerpainted in blood. Blood could be seen, but net 
specific wounds. Thera was no abjection with respect to Exhibit 
10 .

The trial court admitted Exhibits 5, 7, 3 and 10 into
evidence, there bei.ng no objection to them. The court pest-
poned consideration of Ex limits 5 and 3, which were objacted
to, until after the completion of the testimony of the witness
who identified and vouched for the accuracy of all six nheto- 
graphs. With the jury excused from the courtroom, the court 
turned to the two challenged photographs. hills moved to ex­
clude the.photograph of the toilet (Exhibit 5) and the photo­
graph of the victim's back (Exhibit 3), arguing that the .photo­
graphs would needlessly prejudice the jury, ss the cicturss

/



6

reflected facts which were not disputed and which, id was 
claimed, could have been easily established by testimony and 
less vivid photographs.

The State pointed to testimony that all of the photo­
graphs were fair and accurate. With respect to the picture of 
the toilet, the State contended that it would not "unduly in­
flame" the jurors and that its probative value outweighed its 
prejudicial value. As to the picture cf the victim's back 
wounds, the State argued that It "completes the picture" by 
shewing to the jury wounds not visible in the previously ad­
mitted pictures of the victim lying face up, and that it was 
the only photograph of the back wounds.

The trial judge admitted the challenged photographs, 
ruling as follows:

"Well, the purpose of the . . . intro­
duction of photographic evidence is to 
en.ble the side which offers it to offer 
pcibative evidence to the triers of fact, 
to the jurors. I know of no rule of evi­
dence that requires me to guard the sensi­
bilities of jurors whether we know what 
tiny are or not. I think the issue is 
whether or not that photograph would tend 
to inflame the jurors to in any way provide 
an exhibit or a bit of evidence in a sensa­
tional way. I think if the State sought to 
introduce eight photographs taken from 
slightly different angles, or to a series 
of photographs one of each area where 
there’s a wound, than yes I think it would 
be potentially inflammatory. 3ut to offer 
cne single photegraph of the . . . [victim] 
as he was found, be it in color cr black 
and whits, I don’t think is ur.duiy. preju­
dicial and designed to inflame, and I don't 
think it will inflame.



7

"I'll overrule the objection and permit all 
the exhibits to come in."

On appeal, Mills contends: "Over objection, the trial 
court admitted State's Exhibits Eight and Mine." (Brief, p. 12). 
The actual objection was, "We would abject to the Mo. 3 [the back 
wounds], Your Honor, along with Mo. 5 [the toilet bowl]. As to the 
others we have no objection." Accordingly, the present contention
of error in the acmission of the State's Exhibit 9, showing the
face and chest of the victim, was clearly waived. 5aa Rule 4-3 22.
Moreover, even if Mo. 9 had been objected to, it is much less
bloody and had much less potential for prejudice than Mo. 3. As 
we shall conclude than the admission of Mo. 3 furnishes no ground 
for reversal, the same conclusion is applicable to the admission 
of Mo. 9.

Mills and the State agree that the admissibility of 
photographs turns upon a balancing of their probative value against 
their potential for prejudice, and that the application of this 
test is a matter committed to the discretion of the trial judge. 
Saa, a. 2 ., Szzza v. TizhnelZ, 3G6 Md. 423, 463, 3G9 A.2d 1179 
(1936); Grandisor,. -j. SzaZa, 303 Md. 633, 729, 306 A.2d 33G, zazz. 
dandad, U.S. , lQ7 S.Ct. 33 , 93 1.Ed.2d 174 (1936); .-.adz v.
SZ<zZa3 305 Md. 9, 20 , 501 A.2d 436 (1935); Gz-vzazz Irzza, III

Md. 437, 502-504, 495 A.2d 1 (1985), zazz. iaziai, J.S.
106 S.Ct. 363, 33 l.Ed.2d 907 (1935), and cases there acted. The 
standard was set forth in -S zhzazn Szzza, s\z:?-z, where thcs 
Court found no error in the admission of a color photograph and 
black and white photographs of a homicide victim. Me there stated 
as follows (303 Md. at 502):



8

"We have consistently held that whether or 
not a photograph is of practical value in a 
case and admissible at trial is a matter best 
left to the sound discretion of the trial 
judge. Sauers y.*Stats, 298 Md. 115, 135-36, 
468 A.2d 101, 111-12 (1983), quoting Cook v. 
Szzze, 225 Md. 503 , 608 , 171 A.2d 460 , 463 
(1961), zerZ. denied, 363 U.S. 970 , 32 S.Ct. 
445, 7 L.Sd.2d 398 (1962). A court's deter­
mination in this area will net be disturbed 
unless plainly arbitrary. Id. Under this 
standard, we have permitted the reception 
into evidence of photographs depicting the 
condition of the victim and the location of 
injuries upon the deceased, Clarke j . Szzze, 
233 Md. 11, 21-22, 207 A.2d 455, 461-62 
(1965); the position of the victim's body at 
the murder site, 3rize y. SzzZe, 264 Md. 352, 
368-69, 236 A.2d 132, 140 (1972); and the 
wounds of the victim, Uadi3an. v. Szzze, 200 
Md. 1, 7-3, 37 A.2d 593, 595 (1952). On 
certain occasions, photographs have also 
been admitted to allow the jury to visualize 
the atrociousnes3 of the crime - a circum­
stance of much import where the factfinder 
must determine the degree of murder. See 
Fuller y. Szzze, 45 Md.Aop. 414, 420-21, 413 
A.2d 111, 230-31 (1980) .'

* It *
We have previously held that photographs of 
the deceased are admissible even where the 
location of injuries was previously described y
and conceded by the defendant. S~ri:n y.
Szzze, 132 Md. 176, 137, 32 A.2d 363, 367 
(1943); Snzuden y. Szzze, 133 Md. 524, 531,
106 A. 5, 3 (1919). The Court reasoned that 
since the photographs were mere representa­
tions of what was already in evidence, their 
introduction could not be held to have in­
jured the accused. Irizh, 132 Md. at 137,
32 A.2d at 367."

Mills contends than "the more shocking the photo, 
the more important must be its contribution to the case in 
order for admission to be justified." (3rief, ?. 13). He



9

argues that Exhibit 9 added nothing of substance to the State's 
case, because the medical examiner and other witnesses testified 
as to the standings and because this testimony was never contr.o- 
verted. The State responds that any prejudice caused by the 
photograph was justified by its probative value on the issues 
of premeditation and provocation.

We are unable to conclude that Exhibit 3 was likely to 
so distort the jury's deliberations that its admission was 
"plainly arbitrary," Johnson, jurru, 303 Md. at 502. When the 
State sought to admit the photograph, no stipulation had been 
offered that the victim had been stabbed six times in the chest 
and thirty-nine times in the back. Mills does not contend that 
the photograph in any way misrepresented facts. We have examined 
Exhibit Wo. 3 and do not find it particularly gory or gruesome. 
Compare the photograph at issue in Sni-h v. 132 Md. 175,
137, 32 A.2d 353, 367 (1943) (upholding the admission of a photo­
graph snowin', th*. victim's body partially exhumed one week after 
fatal axe blows to the head, even though the facts represented 
were already in evidence without objection and were not disputed).

In this Court, Mills also contends that the trial judge 
should not have allowed Exhibits 3 and 9 to be reintroduced in
evidence at the sentencing proceeding. 3efore the jury was
returned for this phase of the trial, the State announced than
it would move to reintroduce all trial testimcny and exhibits.



10

Counsel for defendant made sure that two exhibits narked for 
identification but not introduced would be kept from the jury, 
tut, when asked by the court if he had any objection to the 
reintrocuction of the trial exhibits and documents, counsel 
replied: "No, Your Honor." Mills has obviously waived the
point. Rule 4-322(a).

III.

Next, Mills argues that the trial court erred in 
excluding evidence of the victim's character and reputation.

As we recently pointed out in Mack, v. Szazs, 300 Md. 
532, 603-604, 479 A.2d 1344 (1985), whether the exclusion of 
evidence constituted reversible error is ordinarily not pre­
served for review "unless there has been a formal proffer of 
what the contents and relevance of the excluded testimony would 
have been." Z22 Zurejay v. V -2 $ z 3 m  '-isL. . ?. . 7c. , 202 Md-. 203, 
209, 95 A.2d 367 (1953). The record shews that no such proffer 
was made in this case.

Conceding the absence of a proffer, Mills surmises on 
appeal that trial counsel made "an apparent effort to establish 
that 3 rown was the aggressor in the altercation with appellant" 
and "sought to elicit evidence that Brown had both assaultive 
and homosexual tendencies" of the sort that "could well have 
Lad the jury to believe that appellant's act was not premeditated

__C/T



and unprovoked." (Brief, op. 15, 17, 13). Even now, however, 
Mills dees not contend that zr.u of the witnesses would have 
testified that Mills struck at 3rcwn in seif defense or retalia­
tion because of homosexual advances. We are left with appellate 
counsel's mere speculation in his brief that "seme aspect of 
the victim's character and personality led to his demise." [Id., 
p. 20).^ Something more than this type of vague speculation is 
required before we can conclude that the trial judge erred in 
excluding the evidence.

The principle that ordinarily the record must contain 
a "proffer to shew precisely what the testimony, if admitted, 
would have established," does have an exception "where the tenor 
of the questions and the replies they were designed to elicit 
is clear," lerecoy -j. '.Jescam 'id. .7. .7. C:., cup re, 202 Md. at 
209. In the instant case, it is far from clear that anything 
relevant might have been established by defense counsel's ques­
tions at trial concerning the victim's character.

Moreover, appellate counsel's speculation in this 
Court 'that the homicide might have been in seif defense or in 
retaliation for a homosexual advance, in addition to not being

- 11 -

With regard to the evidentiary foundation which 
must be laid before evidence of a victim's character 
is admissible to support a claim of self defense, 
c-za Thomas v. State, 201 Md. 294, 206-307, 433 A.2d 
6 (1984), :>’r:. denied, U.3. , 105 5 . C t. 1356,
35 1.Ed.2d 153 (1935).



12

reflected in a proffer or the tenor of the questions, is squarely 
contrary to all of the evidence. 3efore the killing Mills wrote 
to the Warden threatening to kill his cell oats if his visitation 
privileges were curtailed. Some weeks later Mills took his cell
mate 1 s "shank," put on a glove to inprova his grip, and stabbed
the cell mate forty-five times on his chest and back as he lay on
his bunk. The call showed no sign of any struggle. Before being
let out of the cell, Mills fingerpaintsd the words "Helter 
Skelter's Son" in blood on the ceil wail. Gn being let out, 
Mills told the guards that he killed his ceil mare. In the 
absence of a proffer, it would appear beyond doubt that Paul 
Brown's character was irrelevant and that testimony on this 
subject was properly excluded.

IV.

The defendant Mills also argues that the trial judge 
erred in sustaining objections to certain questii ns which 
defense counsel asked the witness James Mills, who was the 
defendant's- uncle and was a fellow inmate. The recoct on 
this point reads as follows:

"Q Well first before I get into that let me 
ask you something else. Tcu indicated 
that you saw Mr. Mills on the tier on an 
almost daily basis?

"A Tes.

___________



V

- 13

"q Hew would you characterize his conduct in 
the institution?
"PROSECUTING ATTORNEY: Objection.
"BY THE COURT: Objection sustained.

"Q During the time that you were on G cell 
with Mr. Mills, do you know whether or 
net he had any trouble with the guards 
or other inmates?
"PROSECUTING ATTORNEY: Objection.

"A None at all.
"BY THE COURT: Just a minute, Mr. Mills.
When you hear an objection, please don’t 
answer the question.
"Objection sustained.

"Q Did you ever personally see any alterca­
tion with Ralph Mills between Ralph Mills 
and any of the guards?
"PROSECUTING ATTORNEY: Objection.
"BY THE COURT: Objection sustained.

"Q Did you ever personally see any alterca­
tion between Ralph Mills and any of the 
other inmates?
"PROSECUTING ATTORNEY: Object .on.
"BY THE COURT: Objection sustained."

The defendant asserts in this Court that the purpose 
of the cuestions was to elicit evidence concerning the dezendant's 
nonviolent character and reputation. J-z-2 Maryland Coda (197 4,
1934 Repi. Vol.), “ 9-115 of the Courts and Judicial Proceedings 
Article, allowing a witness to give his personal opinion oz

/



/
- 14 -

another person's character where character evidence is relevant; 3 

Our kin v. Seize, 234 Md. 445 , 397 A.2d 500 .(1979) . Sea <zlao 
Socle y. Seize, 295 Md. 157, 131, 453 A.2d 1213 (1983); Comi y. 
Seize, 202 Md. 472, 473-479, 97 A.2d 129, cert, denied, 346 U.S. 
393, 74 S.Ct. 223, 98 L.Sd. 399 (1953). The defendant, however, 
frankly acknowledges that the above questions were "not couched 
. . . in . . . terns . . . [of] the character and reputation of 
Appellant for violence." (Brief, p. 22).

As the questions were not worded in tens of character 
evidence, as the witness was not asked to give an opinion con­
cerning the defendant's character or reputation, and as there 
was no proffer or explanation given to the trial judge by 
defense counsel, we cannot conclude that the trial judge 
committed error in sustaining the objections.

Furthermore, even if it be assumed arguendo that the 
trial court did err in sustaining the objections, such error 
would be harmless. In light of the overwhelming evidence of 
the defendant's guilt and the nature of his crime, it is

Section 9-115 states as follows:
"Where character evidence is otherwise 

relevant to the proceeding, no person offered 
as a character witness who has an adequate 
basis for forming an opinion as to another 
person's character shall hereafter be ex­
cluded from giving evidence based on personal 
opinion to prove character, either in person 
or by deposition, in any suit, action or 
proceeding, civil or criminal, in any court 
or before any judge, or jury of the State."

&



15

virtually inconceivable that the view of a fellow inmate, who 
was the defendant's uncle, that the defendant has previously 
been nonviolent in the institution, might have changed the 
guilty verdict. We are convinced, "beyond a reasonable doubt, 
that the error in no way influenced the verdict," Jersey y. 
Szzze, 275 Md. 623, 639, 350 A.2d 565, 573 (1975). "[T]here
is no reasonable possibility chat the [exclusion of the] evi­
dence . . . may have contributed to the rendition of the
guilty verdict." Ibid.

V.

Mills's next contention is that the trial court .erred 
in denying his motion to impanel separate juries for the guilt 
or innocence phase and the penalty phase of his trial. Mills's 
argument is identical to that rejected by the Supreme Court in 
Jzakharz y. '-iaCres, Q.S. , 105 S.Ct. 1753, 90 L.Cd.2d
137 (1936) , and rejacted by this Court in several cases. S 2 i
Szz.ee y. 75 r"in a Z Z , supra, 306 Md. at 453; Soczi y. * vH -• 53
swere, 306 Md. at 192; Svar.s y. Szzze, 304 Md. 437 , 522, 499
A.2d 1251 (1935) , zerz. deeded, U.S. , 106 ~ im 2 • S> • 3 310
92 l.Ed. 2d 722 (1936); Tester y. Szaze, swrpa, 304 Md. at
453-455. These cases are dispositive of the issue.

71.
A.

The defendant's principal argument as chat che 
Maryland capital punishment statute, as applied, as uncon­



15

stitutionally mandatory. Mills's analysis begins with Code 
(1957, 1932 Real. Vol.), Art. 27, § 413(h) f2), which provides 
as follows:

"If it (the court or jury]- finds that the 
mitigating circumstances do not outweigh the 
aggravating circumstances, the sentence shall 
be death."

Former Maryland Rule 772A, in affect at the time of the de­
fendant's trial, implemented the statutory provision by giving 
the jury a form to fill cut. The instructions on the form 
told the jury that if one or more aggravating circumstances 
were present, and if no mitigating circumstances were found, 
the jury should enter "Death" on the part cf the form for the 
sentence. In the present case, the jury found that one aggra­
vating factor had been established, namely that Mills was an 
inmate in a correctional ir.stituticr at the time he committed 
the murder. The jury found no mitigating circumstance, and it 
determined that the sentence should be death.

Relying primarily on «co *0*. j . ,7c re* 423
U.3. 230, 96 S.Ct. 2973, 49 L.Ed.2d 944 (1976), and v.
it:lisiznc, 423 CJ.S. 325 , 96 S.Ct. 3001, 49 D.Sd.2d 974 (1975), 
Mills maintains that "any statutory scheme which requires the 
return of a death sentence without providing the sentencer 
with an option to impose a life sentence is invalid." (Brief, 
?. 47). In this case, according to Mills, cnce the jury found



17

ng circ'instance anc
ecuired the jury to
,s that, aithough noMills suggests that, although no mitigating factors were found, 

"there is nothing in the record to indicate that had the jurors 
teen civen a choice, any one of them would have considered the 
ultimate sanction appropriate." (Ibid.). Because, in the 
defendant's view, the Maryland statute may mandate a death- 
sentence under circumstances where the sentencing authority 
is net convinced that death is the appropriate punishment, at 
is claimed that the statute violates the Eighth and "ourteenth 
Amendments.

This Court has rejected arguments like that set forth 
above on several occasions. I n  > J- ■ I • > -• zi 71:''.:-:, ,

I " J- , , • - ■»a, 305 Md. at
59, 337, 3 0 C A.2d 272 (1933
t. 3313, ■} 2 L.Ed.2d “43
Md. at 4 “ 3 -473 ;

J  <2 . :  2  K 2  1 , vj . 3 . , L u o a

(1935) ; *. r̂  * . - . — . ̂ , 3
_ a ur rc, 297 Md. at 3 3 7 ; 3 .
723, 415 A. 2d 330 (1990) . he have held that the Marylar. 
capital punishment statute does net require the teats, se 
if the jury believes death to be inappropriate and that 
not a mandatory death penalty statute. As explained m  
•03--Z? case (304 Md. at 474-473),

a . n

A *• — 3 r*

/ i

Ul



13

"§ 413(g)(3) includes as mitigating circum­
stances '[a]ny other facts which the jury or 
the court specifically sets forth, in writing 
that it finds as mitigating circumstances in 
the case.' We held in rij'nnall ' that, be­
cause of this provision, the Maryland statute 
'is not a mandatory death penalty statute,’ 
and satisfies the standards of Vccdzan j . 
.'lorn* Carolina, 423 O.S. 230, 96 S.Ct. 2973 , 49 L.Zd.2d 944 (1975) , and r.cbarzs v. Lsuizi- 

423 O.S. 323 , 96 S.Ct. 3001, 49 L.Zd.2d 
974 (1976). 237 Md. at 723, 413 A.2d 330.
We reiterated this holding in Czlhcun, point­
ing out that under the Maryland statute 'the 
sentencing authority may articulate una fzc- 
:jr it finds in mitigation.' 297 Md. an 537 
463 A.2d 43.

"Therefore, the defendant erroneously 
argues that 'if the defendant fails to meet 
his burden of proof and persuasion' con­
cerning mitigating circumstances, death 'may 
be mandated where the sentencer is uncon­
vinced that death is the appropriate punish­
ment. ' . . . A sentencing authority, uncon­
vinced that death is appropriate, may list 
as a mitigating circumstance whatever factor 
or factors may have led to this conclusion, 
irrespective of what the defendant produced 
or argued. If the sentencing authority per­
ceives anything relating to the defendant or 
the crime which causes it to believe that 
death may net be apnropriate, it may treat 
such factor as a mitigating circumstance and 
decide that it outweighs the aggravating 
circumstances."

The defendant Mills responds by indicating that the 
abave-guoted holding may be accurate if all twelve jurors can 
agree upon the same mitigating factor and can agree that it out­
weighs the aggravating factor. (Reply brief, p. IS). Mills 
asserts, however, that "[tlhe defense adduced evidence of a num­
ber of such [mitigating] factors, and indivadual jurors may well 
have been persuaded' of their existence. Again, any number of jurors



19

-ay have concluded . . . that the litigating factors outweighed
che agcravating . . . .  Nevertheless, the mechanical operation 
of the statutory scheme permitted no choice - the jurors were 
required to return a death sentence whether they believed it 
justified . . . or net." .

under the defendant's construction of the statute, 
unless all twelve jurors can agree than seme mitigating factor 
or factors exist, and further, unless all twelve jurors can 
agree on the existence of the sews mitigating factor or fac­
tors, the jury must conclude that there are no mitigating 
factors and that, if an aggravating circumstance has teen 
found, the sentence must be.death. Additionally, according 
to the defendant, all twelve jurors must agree that the same 
mitigating factor or factors outweigh the aggravating circum- 
stances in order for the penalty to be other than death. For 
example, under Hills ’ s view, in a hypothetical case six jurors 
might believe that the accused was of " /outhful age," that this 
factor outweighed the aggravating circumstances found, but 
that there were no other mitigating factors. Six other jurors 
might disagree concerning youthful age but might believe that 
the accused suffered from an unfortunate childhood, that this 
was a mitigating factor, and that it outweighed the aggravating

1 While raised in the briefs, this contention by the 
defendant was developed more extensively during oral 
argument before this Court.

__________  _______ __ 2J?-.______________________



20

factors. Yet because it could not u.na.yu.mo(î iy mark "yes'* to 
any one mitigating circumstance, according'to Mills's theory 
the jury would be required to find that no mitigating circum­
stance existed and, therefore, would be required to return a 
sentence of death.

Like other challenges to the validity of the Maryland 
death penalty statute that have been made, 3 the defendant's 
argument is premised upon an erroneous construction of the 
statute.

Nothing in the pertinent language of the death 
penalty statute purports to abolish the traditional common 
law and Maryland requirement that, absent waiver, jury deter­
minations of critical issues must be unanimous. This requirement 
of unanimity generally extends to all matters submitted to the 
jury; it applies to the entire jury determination. As stated 
by this Court long ago, a "'verdicu is the a,t<x/ii/ncu4 decision 
made by the jury . . .  on the matters lawfully submitted to 
[it] in the course of the trial.' Unca/uLn-i-Cy is indispensable 
to the sufficiency of the verdict . . . .'* raxd v. Tkz S-Cxit,
12 Md. 514, 549 (1359) (emphasis in original).° The Maryland

Szz, z.g., coster v. State, a, 304 Md. at
471-430.

Szz, g znz'ia.ZZy, z.g., Articles 5 and 21 of the 
Maryland Declaration of Rights; Smith v. State, 299 
Md. 153, 153-155, 472 A.2d 933 (1934); State v. McKay

5



21

death penalty statute refers to "the jury" as a single entity, 
maJcinc its findings and determinations concerning the presence 
or absence of aggravating circumstances, the existence of 
mitigating circumstances, and the weighing of one set against 
the other. Art. 27, § 413, subsections (d), (f), (g) and (h).

6 (Ccnt’d)
230 Md. 353, 551-352, 556-574, 375 A.2d 223 (19/7);
Coby v. State, 225 Md. 293, 297-299, 170 A.2d 199
(1961); 2 Pee, PZzzdi.ng and Pxa.cZi.cz § 333 (1925 ed.).

These provisions, in relevant part, are as follows:
"(d) CoyiAi.dzxzZi.cn o3 zqgxzvxZing ci.X- 

cumcZznczA. - In determining the sentence, 
the court or jury, as the case may be, 
shall first consider whether, beyond a 
reasonable doubt, any of the following 
aggravating circumstances exist:

#  *  *

"(f) Fi.ndu.nig ZnzZ no zggxzvzZi.ng c-ix- 
c'cmAZxnczA zx-icZ. - If the court or jury dees not find, beyond a reasonable doubc, 
that one or more of these aggravating 
circumstances exist, it shall state that 
conclusion in writing, and the sentence 
shall be imprisonment for life.

"(g) CaiLAi.dzxtzZi.an. a 3 miZi.gxZi.ng cix- 
czmAZxnczA . - If the court or jury finds, 
beyond a reasonable doubt, that one or 
more of these aggravating circumstances 
exist, it shall then consider whether, 
based upon a preponderance of the evi­
dence, any of the following mitigating 
circumstances exist:

★ * *
"(h) rJJzi.gni.ng mi.Zt.gcZi/ig end egg-ta- 

\jtzZing ci.zcxmAHzneza • - (I) If the court 
or jury finds that one or more of these



22

The jurv is required to set forth its decisions on these 
natters on a fora which, while relating to/the sentence, is

gessentially a verdict sheet. The death penalty statute 
expressly reflects the traditional requirement of unanimity, 
as it provides in § 413(i) as follows (emphasis added):

"(i) VzizxmZnaHZan Ha bz M.zZHHzn and. a/ia/tx.- 
- The determination of the court or jury 

shall be in writing, and, if a jury, ikaZl bz 
u/ian̂ jrrouu and shall be signed by the foreman."

Szz Hevt,vU v. SHcuHz, 295 Md. 329 , 339-340, 455 A.2d 979 (1933).

Consequently, the defendant Mills correctly argues 
that for the jury Ha dzHzxmZnz that the sentence is to be lZ$z 
imprisonment, the decision that there are mitigating circum- 
-stances not outweighed by aggravating circumstances must be 
arrived at unanimously. 3ecause of the same statutory re­
quirement of unanimity, however, for the jury Ha dzHz’mZnz

7 (Cant’d)
mitigating circumstances exist, it shall 
determine whether, by a preponderance of 
the evidence, the mitigating circumstances 
outweigh the aggravating circumstances.

"(2) If it finds that the mitigating 
circumstances do not outweigh the aggra­
vating circumstances, the sentence shall 
be death.

"(3) If it finds that the mitigating 
circumstances outweigh the aggravating 
circumstances, the sentence shall be »
imprisonment for life."

Szz farmer Rule 772A, which governed the instant capital sentencing proceeding.
a



23

that the sentence is to be dzz£k, the decision that there 
exists at least one aggravating circumstance which outweighs 
whatever mitigating circumstances may exist must also be 
arrived at unanimously. Thera is utterly no basis in the 
statutory language or in logic for Mills1s conclusion that 
whenever the jurors cannot unanimously agree on the same 
mitigating circumstance or circumstances, the result will 
always be a sentence of death. As long as one juror believes 
that there exists a mitigating factor, and that this factor 
is not outweighed by the aggravating circumstances, and if such 
juror continues to adhere to his or her position, the sentence 
will not be .death under the statutory scheme. It is true 
that, if there is ultimate disagreement amcng the jurors, 
there may. be no jutz/ determination of a life sentence. In 
this situation, however, there will also be no jury deter­
mination of a death sentence. Instead, the sentence will 
be life imprisonment under Art- 27, 5 413(k)(2), which stages:

"(2) If the jury, within a reasonable time, 
is not able to agree as to sentence, the court 
shall dismiss the jury and impose a sentence 
of imprisonment for life."

Thus, in the hypothetical case described earlier,
where six jurors found the existence of the statutory miti­
gating factor of youthful age and believed that it was not 
outweighed by aggravating circumstances, but found no other 
mitigating factors, while the other six jurors refused to



24

find the existence of youthful age but found the existence of a 
different mitigating factor, the jury as a-'single entity would 
not be able to indicate on the sentencing form that any particular 
mitigating factor existed because of the lack of unanimity 
among jurors. But, contrary to the defendant's argument, 
the same lack of unanimity would preclude the jury from 
indicating that no mitigating factors were present. And, as 
long as at least one of the jurors adhered to the view that 
there was a mitigating circumstance not outweighed by the 
aggravating circumstances, the sentence would ultimately be 
life imprisonment. Even if the other eleven jurors became 
convinced that there were no mitigating factors, it would 
nevertheless be improper for the jury to decide that no 
mitigating factors exist and that the sentence should' be 
death. This would be "majority rule," contrary to the 
traditional Maryland requirement of jury unanimity which 
is expressly embodied in § 412(i) of the Maryland death 
penalty statute.

To reiterate, as long as one juror perceives any 
factor relating to the crime or the defendant which he regards 
as a mitigating factor and which he -believes is not outweighed 
by the aggravating circumstances, the jury will net be able 
to determine that the sentence shall be death. Moreover, as 
pointed out repeatedly in our cases, if a juror does not 
believe that death is the appropriate punishment, whatever

4 a



25

factor relating to tie crime or tie defendant tiat led to suci 
belief nay be regarded by tiat juror as a mitigating cir­
cumstance not outweighed by aggravating circumstances.
Assuming tiat suci juror dees net ciange his mind after jury 
deliberations for a reasonable time, tie sentence in tie case 
will be life imprisonment under § 413(k) (2) .

While no issue has been raised by tie defendant 
Mills concerning tie sentencing form or tie jury instructions 
in this regard, it is notewortiy tiat both tie form and tie 
instructions were entirely in accord with tie requirement 
tiat tie critical jury determinations be reached by tie 
unanimous vote of tie jurors. Tie sentencing form, with 
tie jury's answers, was in part as follows (emphasis added):

"3ased upon tie evidence we unanimously 
find tiat each of tie following aggravating 
circumstances which is marked 'yes' has bean 
proven 3EY0ND A REASONABLE C0U3T and each . 
aggravating circumstance which is narked 
'no* has not been proven .3EYCND A REASONABLE 
SOUBT:

"1. The 
officer who 
formance of

victim was a law enforcement 
was murdered while in tie per- 
his duties.

_____ X
yes no

"2. The defendant committed tie murder 
at a time when he was confined in a correc­
tional institution.

X ___yes no
* * *

V /



26

"10. The Defendant committed the murder 
while committing or attempting to commit 
robbery, arson or rape or sexual -offense in 
the first degree.

_____ X
yes no

"(If one or more of the above 
are marked 'yes', complete 
Section II. If all of the 
above are marked 'no', do not 
complete Sections II and III.)

"SECTION II
"Based upon the evidence wz u./ia./u.nrou.̂ Zy 

ji/id thauC each of the following mitigating 
circumstances which is marked 'yes' has been 
proven to exist by A PREPONDERANCE OF THE 
EVIDENCE and zzjza m-iii gating cXt cunts-fane 2. 
mtz.ia.zd ' ao ' kcu> a at bzzn psiavzn by A PRE­
PONDERANCE OF THE EVIDENCE:

"1. The defendant previously (i) has not 
been found guilty of a crime of violence; and 
(ii) has not entered a plea of guilty or nolo 
contendere to a charge of a crime of violence; 
and (iii) has not been granted probation on 
stay or entry of judgment pursuant to a charge 
or a crime of violence. As used in this 
paragraph, 'crime of violence' means abduction, 
arson, escape, kidnapping, manslaughter, 
except involuntary manslaughter, mayhem, 
murder, robbery, or rape or sexual offense 
in the first or second degree, or an attempt 
to commit any of these offenses, or the use 
of a handgun in the commission of a felony 
or another crime of violence.

_____ X
yes no

"2. The victim was a participant in the 
defendant’s conduct or consented to the act 
which caused the victim's death.

____ __X_
yes no

V i



27

"3. The defendant: ached under substantial 
duress, domination or provocation of another 
person, but not so substantial as to consti­
tute a complete defense to the prosecution.

_____ X
yes no

"4. The murder was committed while the 
capacity of the defendant to appreciate the 
criminality of his conduct or to conform his 
conduct to the requirements of law was sub­
stantially impaired as a result of mental 
incapacity, mental disorder or emotional 
disturbance.

_____ X
yes no

"3. The youthful age of the defendant at 
the time of the crime.

_____ X
yes no

"5. The act of the defendant was not the 
sola proximate cause of the victim's death.

_____ X
yes nc

"7. It is unlikely that the dafindant will 
engage in further criminal activity that would 
constitute a continuing threat to society.

yes no
”3. Other mitigating circumstances exusm, 

as set forth below:
Mone_____________________________________

(Use reverse soda if necessary)

"We a/ic/t-i/nou-4iu determine the sentence io be 
Oeath_____

[Signatures of all twelve jurors!"



23

It is clear that the fora required the jurors to 
agree unanimously that there were no mitigating factors in 
order for the jury to mark "no” with respect to ail statutory 
or other possible mitigating factors. Despite the suggestion 
to the contrary in the dissenting opinion, there is no 
ambiguity in the language of Section II concerning unanimity.
The words are: "we unanimously find that each of the following 
mitigating circumstances which is marked 'yes' has been proven 
to exist . . . and each mitigating circumstance marked 'no' 
has not been proven . . . ." 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." The sen­
tencing form or "verdict sheet," as completed in this case, 
demonstrates that not a single juror found the existence of 
any mitigating circumstance.

The trial judge's instructions in the present case 
similarly emphasized that jury determinations must be unanimous. 
After the court clerk handed the jurors copies of the sen­
tencing form, the trial judge instructed the panel as fol­
lows: "let me remind you that in reaching your determination 
as to any of the issues raised by the case and prssencec to 
you on this sentencing form your verdict must be unanimous;

.,-LdT.



- 29

that is, all twelve of you trust agree. ' 1 When the trial judge 
explained mitigating circumstances to the jury, he said:
"Again I stress that your finding as to mitigating circum­
stances must be unanimous, that is you must all agree." At 
the end of his instructions the judge said: "Again 1st me 
remind you of . . . the requirement than vcur verdict or your 
decision with regard to any of these items must be unanimous. 1 

After closing arguments, just before the jury recired to 
deliberate, the judge added: "Let me remind you that . . . 
as you consider each of the circumstances you must indicate 
•jzi> ax no , however your unu/ti/nous decision falls. You must 
indicate either yes or no as to each of those circumstances." 
(Emphasis added). The jury was fully instructed that it must 
be unanimous in finding that no mitigating circumstances 
existed. In.light of the verdict sheet and the trial judge's 
instructions, there is no basis for Mills's speculation that 
seme of the jurors might have believed, that seme mitigating 
factors existed.

Finally, we are aware of no Maryland authority 
which would support the apparent view of che defendant and 
of Judge McAuliffe that, if jurors are unable to agree 
unanimously in favor of one party or one side of an
issue submitt,ed, but rsmain in disagreement, the resu.
is somehow a verdict or determination in favor of the
party or the n  I* ■? *» t-  «  i n O? tb a L 5 S U ® . Judes McAuliff

i -



30

suggests in his dissenting opinion that when a jury is asked 
if a particular circumstance exists or has .'been proven, 
unanimity is required for the jury to answer the question in 
the affirmative but not in the negative. The dissent states 
that "[i]f one juror believes it has been so proven, but 
eleven do not the jury answers ’no’ to the question . . . ." 
This is not, however, how the jury system and the burden of 
proof traditionally function.

For example, in many ordinary tort cases, the only 
disputed issue is whether the plaintiff has met the burden 
of proving that the defendant was negligent. The ultimata 
question regarding liability presented to the jury is: "has 
it been proven that the defendant was negligent?" If ail 
twelve jurors agree that the plaintiff has proven negligence, 
there will be a verdict for the plaintiff. If all twelve 
jurors believe that the plaintiff has failed to prove negli­
gence, there will be a verdict for the defendant. But, any 
other alignment will result in a hung jury. Thus, if one 
juror believes that the plaintiff has proven that the de­
fendant was negligent, and if eleven jurors believe that the 
plaintiff has failed to prove negligence, the result is not 
a verdict for the defendant. In this situation, the jury is 
unable to answer the question "was the defendant negligent?" 
The fact that the plaintiff has the burden of proof dees 
not result in some form of majority or plurality rule.



31

Rather, the burden of proof operates with respect to each 
juror individually.

The sane is true in a criminal case. As previously 
pointed out, the jurors must be unanimous one way or the other 
an all issues submitted, Fatd v. Tkz Sbuba, iap̂ ia, 12 Md. at 
549. If one juror believes that the State has met its burden 
of proving the defendant's guilt, but the other eleven jurors 
are not convinced beyond a reasonable doubt of guilt, the 
result is not an acquittal but a hung jury. Otherwise, there 
would be no need for modified 411in-type instructions to jurors 
who are unable to reach 'unanimous agreement. Szz, a. 3 ., 
Uaui+zld v. Sbnba, 302 Md. 524, 490 A.2d 537 (1985); GaadmiUh. 
v. Sbaba, 302 Md. 513, 490 A.2d 532 (1935); Sutnebba v. Sbaba, 
230 Md. 33, 371 A.2d 553 (1977); Kaily v. Sbuba, 270 Md. 139, 
310 A.2d 333 (1973).

The dissenting opinion, at another point, seams to 
agree that the jury's "determination of any ulb-irnaba i-uiaa 
essential to the verdict must be unanimous." The dissent 
gees on to state, however, that "where alternative findings 
of historic facts are advanced in support of a single con­
clusion the better rule is that the jurors need not agree on 
any single alternative fact provided they all agree on seme 
alternative fact than leads them to a single conclusion an 
the ultimate issue." We shall assume than this is the 
"better rule" with regard to alternate findings of historical

%



32

facts in support of a single conclusion. Nevertheless, the 
presence ax xbzzncz of aggravating and .-litigating circumstances, 
and the weighing of aggravating against mitigating circuit- - 
stances, ail fail into the category of ’’ultimate issues." The 
General Assembly by statute has made them the critical issues 
to be submitted to and determined by the capital sentencing 
jury. Not only are they "ultimate issues essential to the 
verdict," but, under the statute and rule, the jury's deter­
minations of the presence or absence of aggravating and miti­
gating circumstances constitute part of the "verdict" itself.
As such, unanimity is contemplated under Maryland law.
Art. 27, § 413 (i); 2m.U'x v. 2ZzZz, 299 Md. 153 , 163-155 , 472 
A.2d 933 (1984); Faxd a. Tkz 2ZaXz, iapxa, 12 Md. at 549 .

The defendant Mills's contention, concerning the 
effect of juror disagreement on an issue, is also contrary to 
the position taken generally throughout the country. The 
cases regularly point out that unanimity is required fr.r -a 
jury determination on either side of an issue,, that th.i burden 
and standard of proof operate upon each juror individually and 
not upon the jury collectively on a majority basis, aid that 
the failure to achieve unanimity on either side of an issue 
ordinarily results in a hung jury. Sit ] zxzm.xL'..j , z.a., 3a iZ 
v. 2ZzZz, 29 Ala.App. 152, 193 So. 560 (1940); Sxoxn v. SZxZz, 
369 A . 2d 632, 53 4 (Del. 1976); Cui Zt z a . ■ 'i Z S Cr C <1 , 7 3 -nd.
145 (1331); Shihc v. Thz SZxZZ, 104 Ind. 359, 352-353, 4 N.3.

4 *



33

145 (1385); Gcuidzrt v • Moaxz, 174 Iowa 376, 156 N.W. 410, 411 
(1916); Tfiz 3-t̂ Cz u. SZz:o<z.l£, 52 Iowa 284,;2S6-237 (1379); 
Ecu-Ct-t v. 3-Cut £, 191 Miss. 651, 4 So. 2d 227, 137 A.L.R. 391 
(1941); Comma nutzaZXk v. !Jlz£Z, 93 Pa. Super. 446 , 448-449 (1923); 
Siaia v. HcuuUA; 39 R.I. 202, 206-207, 152 A.2d 106 (1959);
Cu-i-iiaven-i v. Taxt-i i ?. Zu . C 3 .. , 119 Tex. 455, 32 3.VI. 2d 537,
533 (1930); S-tmta a. t, 94 W.Va. 224, 113 S.2 . 139, 141
(1923); Sinia u. McCauaid/id, 32 w.v a. 525, 96 S.S. 933, 941
(1913); .Anno., Zza^anah-Lz 0au.aZ Jj l a<LL\i zdixaJ. Ju.A.o\, 137 A.L.R.  

394 (1942); 1 Un.dz-iliJ.ZZ' i C/ulmi/tc-d Evida/tca, § 30 (6th a d . ) ;

1 Wha-tia/t’<i Ctimi/tui cvzdznzz 5 11 (13th ad.).

This principle of unanimity has specifically teen 
applied to jury determinations of the penalty in capital cases. 
Thus, in Ancitti v. U/u.-Czd ZZsXz-i, 333 U.S. 740, 746-7 49, 63 
S.Ct. 330, 92 L.Sd. 1055 (1943), a statute provided that the 
jury in a murder case could qualify its verdict by adding 
"without capital punishment," that if the jury sc qualified 
its verdict the punishment would be life imprisonment, but that 
"[i]f a qualified verdict is not returned, the death penalty is 
mandatory." 333 U.S. at 746. The government’s argument, 
somewhat like the defendant's argument in the instant case, 
was that the jurors were required to be unanimous in order for 
the jury to add the qualification but that unanimity was not 
required to reject the qualificaticn. In the government's



34

view, if the jurors remained in disagreement, there would be 
no qualification, and the sentence would be death. The Ninth 
Circuit rejected the government's argument, holding "that 
unanimity of the jury was required both as to guilt and the 
refusal to qualify the verdict by the words 'without capital 
punishment. ' " Ii. at 746-747. The Supreme Cour-i in Xndxzz 
agreed with the Ninth Circuit and disagreed with the govern­
ment:, stating as follows (ii. at 743-749):

"Unanimity in jury verdicts is required 
where the Sixth and Seventh Amendments apply. 
In criminal cases this requirement of una­
nimity extends to all issues - character or 
degree of the crime, guilt and punishment - 
which are left to the jury. . . . [W]e con­
clude that the construction placed upon the 
statute by the lower court is correct - that 
the jury's decision upon both guilt and 
whether the punishment of death should be 
imposed must be unanimous. This construction 
is more consonant with the general humani­
tarian purpose of the statute and the history 
of the Anglo-American jury system than that 
presented by the Government."

Numerous caS' s are in accord with the position taken 
in XncLzz± concerning tie jury's finding of mitigation or deter­
mination of the penalty in a capital .case. Szz, z.i., Smi-Ck u. 
UnUZzd S-Cataa, 47 r.2d 313 , 319-520 (9th Cir. 1921); Pzopiz v. 
GsiZZ/i, 47 Cal.2d 209, 302 ?. 2d 307, 313-322 (1956); Pzapiz v. 
Mali, 199 Cal. 451, 249 ?. 359 (1925); Stzzz v. Pz'.jnai±z, 41
N.J. 163, 137, 195 A.2d 449 (1963); Pzaplz v. Hiit4, 237 N.Y. 
165 , 170-171, 174, 33 N.Z.2d 432 (1941). Szz -ill a,: ii v.
SZJJIZ, 51 Okla.Cr. 336, 339-390, 393-397, 1 ?.2d 324, 2 9.2d

s x



35

965 (1931); Anno., L'/tixnJ.mA.iu A-i To Pnn-î  kmzndl Lti Cxd.mx.AoJ. Ca.4Z 
'JJkzxz Jllxlj Can Pzzommznd Lznzx Pzao. H u , l_A.L.R.3d 1461 (1965). 
CoajZx x : Comma amzoJZ'a a. SZzmo^H, 359 Mass. 671, 270 N.Z.2d 311, 
314-315 (1971), MizoiZzd, 403 U.S. 345 , 92 S.Ct. 2845 , 33 L.Zd.2d 
744 (1972).9

Consequently, we reject the defendant's argument that 
whenever the jurors cannot unanimously agree on the same miti­
gating circumstance or circumstances, they must return a death 
sentence.

3.

The foregoing discussion disposes of the defendant's
contention that the Maryland death penalty statute, as applied

10to the facts of this case, i3 unconstitutionally mandatory. * S

With regard to the requirement of unanimity in 
cases under recvnt death penalty statutes, izz Whalen 
v. State, 492 A.2d 552, 562 (Del. 1935); State v. Loyd, 
439 So.2d 493, 503 (La. 1984); State v. Williams,
23 Ohio St.3d 16, 490 N.S.2d 906, 913 (1986); State 
v. Jenicins, 15 Chio St.3d 164, 473 N.E.2d 264. 306- 
307 (1934); Evans v. Commonwealth, 223 Va. 463, 323
S .£. 2d 114, 121 (1984), CZ-H. dzxJzd, 471 *J.S. 1025,
105 S.Ct. 2037, 35 L.Sd.2d 319 (1935); State v. Mak,
105 Wash.2d 592, 713 ?.2d 407, 442, 445, zzxC. dz>Uzd, 

U.S. , 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).
The only case of which we are aware supporting the 

defendant Mills's argument under a recent death penalty 
statute (although not supporting his view as to consti­
tutionality) is State v. Eirklev, 308 W.C. 196, 302 S.E. 
2d 144, 155-157 (1983) .. The Worth Carolina court cited 
no authority in support of its conclusion.

The defendant also asserts that the Maryland death- 
penalty statute is unconstitutional with regard to

....____________ :...........  .................................._ .............................. _ ____ __________________________



36

nevertheless, considering the defendant's misconstruction of 
the statute and the views expressed in the-dissenting opinion, 
we believe that it would be useful for future guidance to 
comment generally upon the required jury determinations under 
Art. 27, §§ 413(d)(f)(g) and (h) in light of the traditional 
requirement of unanimity which is expressly embodied in § 413(i)

In the usual criminal trial, of course, involving 
the issue of whether the defendant committed the offense 
charged, the result of a hung jury is ordinarily a mistrial 
and, at the state's option, a new trial on the issue. It is 
clear from Art. 27, § 413 ()<) (2), however, that the General 
Assembly did" not intend for juror disagreement in a capital 
sentencing proceeding to result in a mistrial and a new sen­
tencing proceeding. As previously pointed out, § 413(k)(2) 
provides for dismissal of the jury and a court-imposed life 
sentence "[if] the jury, within a reasonable time, is not able* 
to agree as to sentence."

One difficulty in applying 5 413 (3c) (2) is that the 
General Assembly has required more of the jury than the single 
determination of what the sentence should be. Under §§ 413(d).

IQ (Cont'd)
the allocation of the burden of proof. The identi­
cal argument has repeatedly been rejected by this 
Court. Sea coster, Ivans and Huffingtcn v. State, 
305 Md. 306, 503 A.2d 1326, ce-tf. denied, O.S.

, 106 S.Ct. 3310, 3315, 92 L.Td.2d 722, 723,
745 (1936); Faster v. State, iapna, 304 Md. at 
471-430, and cases there cited.



37

(f) (g) and (h), the jury must sake decisions concerning the
existence or non-existence of aggravating circumstances, the 
existence or non-existence of mitigating circumstances, and the 
weighing of aggravating against mitigating circumstances. More­
over, analytically (if not always practically) these decisions 
are to be made in sequential stages. The matter which the 
statute does not fully address is what happens where the jurors 
are unable to achieve entirely the contemplated unanimity and 
there is juror disagreement at different stages and with 
respect to different types of issues.

Section 413(d) first requires the jury to determine 
whether or not any of ten statutorily specified aggravating 
circumstances exist. Section 413(f) states that if the jury 
"does not find, beyond a reasonable doubt, that one or mere 
of these aggravating circumstances exist, it shall state that 
conclusion in writing, and the sentence shall be imprisonment 
for life." Section 413(g)' then provides that if the "jury 
finds beyond a .reasonable ioubt, that one or more of these 
aggravating circumstances exist," the jury must go on to a 
consideration of mitigating circumstances. Under these pro­
visions, a finding that at least one aggravating circumstance 
exists is clearly a precondition for the jury to consider 
mitigation, weighing and the possibility of a death sentence.

Consequently, absent a finding of an aggravating 
factor, a life sentence is to be imposed at the conclusion



33

of the proceedings under subsection (d) and (f). If the jurors 
unanimously find the absence of any statutory aggravating circum­
stance, the jury under subsection (f) completes the verdict *sheet 
accordingly and a life sentence is imposed. If the jurors are 
in disagreement and, after a reasonable period of time, unable 
to determine unanimously (as required by 5 413(D) that at least 
one aggravating circumstance is present, § 413 C<) (2) comes into 
operation, the jury is dismissed, and the court imposes a life 
sentence.

The situation may also arise in connection with ag­
gravating circumstances where the jurors unanimously agree that 
one or more aggravating circumstances exist, unanimously agree 
that several aggravating circumstances do not exist, but, after 
a. reasonable time, remain in disagreement over the existence 
of one or more other possible aggravating circumstances listed 
in the statute. It is obvious that 5 413(k)(2) does not 
operate in this situation to terminate che proceed, ng, b icause 
§ 413(g) makes it clear that, upon a finding of only one 
statutory aggravating circumstance, the jury is oc proceed and 
consider possible mitigating circumstances. Thus, in the 
hypothetical situation posed, the jury should mark "yes" on 
the form or verdict sheet as to the aggravating circumstance 
or circumstances which it finds present, should mark "no" as 
to the aggravating circumstance or circumstances which it finds 
absent, should not give any answer as to the presence or 
absence of the aggravating circumstance or circumstances over



39

which it remains in disagreement, and should proceed to consider 
the oresence or absence of mitigating circumstances under § 413(g) .

stances, § 413(g) requires the jury to decide "whether . . .
any of the following (eight statutorily specified] mitigating 
circumstances exist." The eighth one is any fact which the 
jury relieves is mitigating. Therefore, as discussed in Part 
A above, under the statute and implementing form prescribed 
by farmer Rule 772A, the jurors are expected to reach a unani­
mous decision concerning the presence or absence of each miti­
gating circumstance, as the jurors in the instant case did.
The statute then provides in § 413(h) that "Ci]f the court or 
jury finds that one or more of these mitigating circumstances 
exist, it" shall weigh the mitigating circumstances against 
the aggravating, determine which outweighs the other, and 
enter a sentence of life imprisonment or death depending on 
which outweighs the other.

(h), however, contains substantial gaps. There is no provision, 
comparable to § 413(f) (regarding the absence or aggravating 
circumstances), telling the court or jury what to do if it 
finds no mitigating circumstances. Furthermore, there is no

complete determination. The Language or §§ 413(g) and (h)

Turning to the consideration of mitigating circum-

The express language of the statute in §5 413(g) and

provision specifying what happens if the jurors are divided 
over some mitigating circumstances and thus cannot reach a



40

deals only with the situation where the court or jury deter­
mines that one or more mitigating circumstances exist.

Nevertheless, the General Assembly obviously did not 
intend that the sentencing proceedings should end in a stalemate 
and that § 413(k)(2) should be invoked ii the jury failed to fi-d 
any mitigating circumstance. This would result in a life sen­
tence for a defendant where there is no finding of mitigation.
In contrast, § 413(h) would require a death senmence for the de­
fendant where there is a finding of mitigating circumstances but 
they are deemed outweighed by aggravating circumstances. Such 
construction of the statute would be entirely unreasonable.

The General Assembly, however, did provide that pro­
cedural gaps in the statute could be filled by the Court of 
Appeals. Section 413(1) states:

"The lourt of Appeals may adopt rules of 
procedure to govern the conduct of a sentencing 
proceeding conducted pursuant to this section, - 
including any forms to be used by the crurt or 
jury in taking its written findings ard deter­
minations of sentence."

Pursuant to subsection (1), this Court in former Pule 772A 
provided for the situation where the court or jury determined 
that no mitigating circumstance existed. The sentencing form 
specifies that, where there is a determination of no mitigating 
circumstances, the sentence is to be death. This is logical 
and in accord with the General Assembly's purpose that miti­
gating and aggravating circumstances be weighed. If there

St



41

are no mitigating circumstances, there is nothing to weigh 
against the aggravating factors? one side o'f the scale is zero. 
Consequently, a death sentence is appropriate under the statu­
tory scheme.

The sentencing form under former Rule 772A does not, 
however, deal with the situation where there is no jury agree­
ment cn the existence of any particular mitigating circumstance 
but where there also is no ’unanimous jury determination that no 
mitigating circumstance existed. This situation could take a 
variety of forms. For example, all of the jurors might agree 
that several very weighty mitigating circumstances are present, 
but there may be no unanimity concerning the existence of any 
one particular mitigating circumstance. At the other extreme, 
eleven jurors might believe that no mitigating circumstance 
exists, but one juror might insist that one mitigating circum­
stance exists although it is outweighed by the aggravating 
circumstances. It would not be consistent with the legislative 
scheme for che sentencing proceeding to be aborted under 
§ 413 (k) (2) in this situation.

In our view, where the jurors after a reasonable 
period of time cannot agree on any particular mitigating 
circumstance or circumstances, but also cannot agree that 
no mitigating circumstances exist, the jurors should pro­
ceed to the weighing process ’under § 413 (h) . Each juror 
should weigh the mitigating circumstance which ha or she

/  7



42

finds, if any, against the aggravating circumstances which the 
jurv under § 413(d) has unanimously found to exist. In this 
manner, a jury might well arrive at a unanimous determination 
cn the sentence even though there was underlying disagreement 
on the presence or absence of seme mitigating circumstances.
This process comports with the general legislative intent that 
the imoositicn of the penalty in these cases should depend upon 
the weighing of mitigating and aggravating circumstances.

In sun, with regard to mitigating circumstances, the 
jury should mark the sentencing form "yes" for each mitigating 
circumstance which is unanimously found to exist, mark the 
form "no" for each mitigating circumstance which is unani­
mously found not to exist, and leave the form blank with 
regard to those mitigating circumstance (if any) as to which 
there is disagreement. Then, unless there is unanimity that 
no mitigating circumstance exists (such as in the -instant 
case), the jurors should engage in the weighing proo-ss.

VII.

Mills next argues that the trial court erred in failing 
to instruct the jury that it must find that he was a principal in 
the first degree in order for the death penalty to be a possible 
sentence. Preliminarily, we note that Mills made no request for 
such instruction, and made no objection to one trial court's 
failure to give the instruction iuu ipa/t-ti.

* - , r



43

Furthermore, under the facts of this case, the absence 
of the instruction could not have prejudiced Mills- There could 
be no doubt concerning the defendant's status as a principal in 
the first degree. Mills and the victim were isolated in a 
locked jail cell. Mills emerged with a bloody "shank" in his 
gloved hand and confessed to killing his cell mate, as previously 
described. He concedes in his brief "the absence of any factual 
dispute raised by the evidence" regarding the matter. (3rief, ?. 
53). Accordingly the omission in the trail court's instructions, 
even if error, was clearly harmless.

VIII.

Mills makes two additional complaints concerning the 
sentencing hearing. Neither matter, however, was preserved far 
appellate review. Rules 4-322, 4-325(e) and 335.

Fitab, the defendant claims that the trial court's 
instruction to the-jury on the possible mitigating circumstance 
of the youthful age of the defendant provided insufficient 
"guiiance" and was "oversimplified." (3rief, pp. 53-54). Ne 
need not explore this question, as Mills never requested an 
instruction on the mitigating circumstance of youthful age, 
did not abject to the instruction given, and defense counsel 
expressly stated at the conclusion of the trial judge's jury 
instructions: "The defense has no objection to the instructions
given to the jury, your honor.

S'?



44

Szzond, the defendant asserts that the jury was 
remitted to hear "a great deal of inadmissible and highly 
prejudicial evidence." (3rief, p. 56). Not only was there 
no defense objection to this evidence, but some of the evidence 
complained of was apparently introduced by the defense. The 
defendant on appeal obviously cannot challenge the admissi­
bility of this evidence.-1

IX.

The defendant contends that the death sentence in 
this case is excessive and disproportionate to the penalty 
imposed in similar cases.^ Mills cites six allegedly 
"similar cases" from the circuit courts involving homicides 
in correctional i n s t i t u t i o n s I n  all six cases, the

To the extent that trial counsel's tactics in 
deciding to present certain evidence may relate to 
the constitutional adequacy of counsel, the matter is 
not appropriate for resolution on direct' appeal. It 
can be raised in a cost conviction traces, cing. Harris 
v. State, 299 Md. 511, 517-519, 474*A.2d9?0 (1994), 
and cases there discussed.

Art. 27, § 414(e)(4) requires that this Court de­
termine "(4)[w]hether the sentence of death is ex­
cessive or disproportionate to the penalty imposed 
in similar cases, considering both the crime and the 
defendant."

They are State v. Parker, No. 25,113, Circuit 
Court for Anne Arundel County* State v. Holt, No.
5215, Circuit Court for Washington County; State 
v. Appleby, No. 19429601, Circuit Court for Balti­
more City; State v. Sllison and Little, Nos. L3403101 
and 13403103, Circuit Court for Baltimore City; State 
v. Gee, No. 13321503, Circuit Court for Baltimore 
City; State v. Mack, No. 5.737, Circuit Court for 
Washington County.

6 #



45

dafer.car.ts either were convicted of first degree murder and 
received life sentences or were convicted of second degree 
murder and received a term of years. The defendant Mills 
asserts that his "research has disclosed *10 cases in which 
murder perpetrated by an inmate has resulted in a death 
sentence." (Brief, ?. 63).

Preliminarily, we note that because no person has 
previously been sentenced to death for a particular type of 
murder, under a recently enacted death penalty statute, dees 
not mean that the first death sentence for that type of 
murder is necessarily disproportionate or excessive. Other­
wise, no one would ever receive the ultimate penalty under a 
capital punishment statute requiring proportionality review. 
For a detailed discussion of proportionality review under 
the present Maryland capital punishment statute, as well as 
under similar statutes in other states, sss TichnalZ v. 
Jeers, 297 Md. 432, 457-473 , 46a A.2d 1 (1933), rsrr.
466 U.5. 993, 104 S.Ct. 2374, 30 L.£d.2d 346 (1934).

We have examined the six cases relied upon by the 
defendant Mills, and we conclude that the death sentence in 
the present case is not disproportionate or excessive in 
light of the sentences imposed in those cases. In only one 
of those cases was there a capital sentencing proceeding 
(Jrcis y. ?cr<sr), and there the sentencing authority found



46

as a mitigating factor that the defendant had a significant 
mental impairment. In the other cited cases there were factors 
or circumstances distinguishing them from the instant case.
For example, in one case there was evidence that the defendant 
had been physically and verbally abused by the victim and in 
another cited case the jury could not determine whether the 
accused were principals in the first degree.

The record before us shows that Mills brutally 
stabbed his ceil mate to death. There was neither evidence 
of provocation nor of a struggle; there was express evidence 
of long premeditation. Mills fingerpaintsd a slogan with 
the victim's blood, and he acknowledged the deed as soon as 
it was discovered. The jurors unanimously found no mitigating 
factors, and our review of the record confirms that the jury's 
action was warranted. Mills was serving-a sentence for second 
degree murder at the time of this offense.

Cor. sidering the crime and the c.efendant, and com­
paring the penalty in this case to the death sentences im­
posed in cases such as 3cozr. y. iurrc, 206 Md. 172;

v. surra, 304 Md. 439; and Cclvin y. Jtors,
299 Md. 33, 472 A.2d 953, csrr. daniad, 469 U.5. 373, 105 
S.Ct. 226, 33 L.2d.2d 155 (1934), where the defendants also 
brutally and without provocation stabbed their victims oo 
death, we do not believe that the sentence here was dispro­
portionate or excessive.



47

X.

Mills's final argument is that Art- 27, § 413(d)(2), 
specifying as an aggravating circumstance that '* [t]he defendant 
committed the murder at a time when he was confined in any 
correctional institution," is unconstitutional. The gist of 
his contention is as follows (Brief, p. 66):

"It is a fundamental constitutional requirement 
that 'an aggravating circumstance must genuine­
ly narrow the class of persons eligible for the 
death penalty and must reasonably justify the 
imposition of a more severe sentence on the 
defendant compared to others found guilty of 
murder.' lent y. Sizvhensj 462 U.S. 362, 77 
L.£d.2d 235 , 249-250 '(1933). Applying the 
foregoing standard to § 413(d)(2) it is clear 
that this aggravating factor fails to meet the 
constitutional standard. 3cth of the tradi­
tional, presumably rational, concerns in dealing 
with prisoners —  escape and deterring ’lifers' 
—  are specifically provided for by other ag­
gravating factors. Article 27, § 413(d)(3) &
(3) ."

In addition, Mills asserts that § 413(d)(2) is overly broad, 
covering some "individuals . . .  no more culpable than members 
of society at large . . . ." (Ibid.).

In our view, the Maryland General Assembly was not 
constitutionally prohibited from listing as an aggravating 
circumstance the commission of a murder while an inmate in a 
correctional institution. This aggravating factor closely 
resembles one of the aggravating factors proposed by the 
Model Penal Code, and cited with approval in .7 race r. Zscvcia,



43

423 U.S. 153/ 153-195 n. 44, 96 S.Ct. 2909, 2935 a. 4, 49 
L.Sd.2d 359 (1976), namely that "[t]he murder was committed 
'ey a convict under sentence of imprisonment." Moreover, it 
seems plain to us that this circumstance does genuinely 
narrow the class of persons eligible for the death penalty.

Finally, the General Assembly is entitled to treat 
inmate status as an aggravating factor to deter inmates from 
murdering each other and those who come in contact with them. 
As pointed out by the Supreme Court of Arizona in Sects v. 
Sillies, 135 Ariz. 500 , 662 P .2d 1007, 1019 (1933), the "legis­
lative intent of this . . . [aggravating factor] is to protect 
the guards and other inmates at such institutions where a 
defendant is confined and to discourage violence by incar­
cerated persons." We cannot conclude that this legislative 
purpose is irrational. Furthermore, this purpose is net en­
tirely met by other aggravating factors such as § 413(d)(3) 
and (3), concerning those sentenced to life imprisonment or 
death and those who escape or attempt to escape, neither of 
which would have been applicable .to Mills.

We reject, therefore, the defendant’s assertion 
that § 413(d)(2) is unconstitutional.A*

In light of the Supreme Court's recent decision 
in Booth v. Maryland. rJ.S. , ■ S.Ct. ,L.£d.2d (1937), we note chat in the instant
case no "Victim Impacn Statement" was introduced in



49

JUDGMENT AfTIRMED.

14 (Cont'd.)
evidence or even proffered. There was attached to 
the Division of Parole and Probation's investigation 
report a memorandum from Jane Christy of the victim/ 
witness assistance program zo the State's Attorney, 
summarizing an inter’/iew with the victim'3 brother 
and sister-in-law. This memorandum was admitted 
into evidence after Mills's counsel expressly in­
formed the Court that he had read it and did not 
object to its admission. The memorandum stated in 
its entirety as follows:

"Paul and Thomas Brown came from a family 
of 3ix. At a very young age they were 
removed from their parents custody because 
of neglect and placed in separate foster 
homes. (Removal by the Department of 
Social Services was prompted by Paul being 
hospitalized at age 4 for anemia and mal­
nutrition. )
"Paul was a hyperactive child and hard to 
handle which resulted in a lot of beatings 
from his various guardians. He ran away 
constantly from the various homes in which 
he had been placed. After a while Paul, 
at the age of 15, just started living on 
the streets. He was eventually sent to 
the Maryland Training School for 3oys.
Paul never really had a home or a family 
as 3ucii. 'I (Thomas Brown) triad to keep 
in touch with Paul by writing and visiting 
him whenever possible. I always had good 
homes and a good life and always felt so 
guilty that there was nothing I could do 
to help Paul. After all, I was only one 
year older than he.'
"'Paul was a good person who had a tcugh 
life, a lot of bad breaks, no family, no 
home, nobody to really give him a chance.
I sometimes think he felt more secure in 
prison, because he had no one on the out­
side. Sure, he committed crimes, but he 
wasn't violent. He did what he had to do



4 (Coat'd)
to survive and he got involved with a lot
of bad people."'

This memorandum did not purport to b » and did not 
fall within the statutery recuiremei'.;s of a victim 
impact statement'. S&z Code (*1957, 1986 Repl.
Voi.), Art. 41, § 4-609(c). The memorandum did 
net describe the impact of the crime on the 
victim's family or the "family members' opinion 
and characterizations" of the crime .and the 
defendant. 3coth v. Maryland, iupta. As defense 
counsel recognized at the sentencing proceeding 
in this case, the content of this statement would 
not inflame a jury or otherwise prejudice Mills. 
Consequently, the memorandum did not- constitute 
the "victim impact evidence" found constitutionally 
inadmissible in 3ooth v. Maryland, -sujatc.

/. /.



THE COURT C?

Tuna 23 , 133 7

/  "7



M urphy ,

I am in L — ^ ̂ it s 0 rr. 0 n ̂ with the Court's

3 r»  ̂ C 0 of Mills' S*. *+ i r  ■* <^ +• ■* ,“ v m  ^ * ^  ■*•* 
>» w  1 *  V .*. W >* _ U«< 4 . — W  _ f4 rst dssr',,‘32 nurdsr

- ,cu: uu*~0r.w  ̂i.rTiir.g "he
- i . = -■ .» * — 2 a_oneu rn no ■

concur j w  ̂. s o: 2 and
io lng as; . j. v; v _ o:



IN  THE COURT OF APPEALS  OF MARYLAND

Nos. 22 and 79 
September Term, 198S

RALPH WILLIAM MILLS

v .

STATE OF MARYLAND

Murphy, C.J. 
■"Srai th 
Eldr idge 
Cole
Rodowsky 
Couch 
McAuli££e,

JJ.

Concurring ind Dissenting Opinion 
by McAuliffe, J.

Filed: June 25, 1937
* Smith and Couch, JJ., now retired, 
participated in the hearing and con­
ference of thus case while active 
members of this Court; after being 
recalled pursuant to the Constitution 
Article IV, Section 3A, they also 
participated in tne decision and 
adoption of thus opinion.



I concur in the decision to affirm the conviction. 
3ecause I am unable to agree with Part VI o£ the majority 
opinion and because I believe the sentencing procedure employed 
in this case was constitutionally unfair to t-he Defendant, I 
dissent from the affirmance of the sentence of death.

At the threshold of my disagreement with the majority 
lies a question of statutory construction. The majority holds 
chat the Legislature intended to make the non-existence (as 
well as the existence) of aggravating and mitigating 
circumstances an ultimate issue in a capital sentencing 
proceeding, and therefore intended to require a unanimous 
verdict of existence or non-existence. I believe the 
Legislature intended to require unanimity for a finding of the 
existence of a circumstance, but did not intend to mandate a 
unanimous finding that any individual circumstance does not 
exist. I further believe it is probable, or at least 
reasonably possible, that this jury understood the language as 
the Legislature intended it, and that the answers of ”noM given 
on the sentencing form represented their failure to unanimously 
find the existence of a circumstance, rather than a unanimous 
determination that the circumstance did not exist. This is no 
mere semantic difference, for if I am correct, it means that 
the procedure followed in this case impermissibly and 
unconstitutionally precluded the ultimate consideration of 
mitigating factors that may have been proven.



Moreover, even if I were to accept the majority's
interpretation of the statute, I would find it intellectually
difficult to accept the rather extraordinary,.and I think
illogical, "filling of the gaps" accomplished by Section VI.3
of the majority opinion. Finally, if this newest creative
interpretation o'f our capital punishment statute is entirely
correct there should nonetheless be a new sentencing proceeding
in this case. It is clear to me that no one at the trial could
have understood the law to be as it is announced today, and the
trial judge’s instructions were to the contrary. I turn to a
more detailed examination of these several problems.

Our death penalty statute mandates that the jury "shall
first consider whether, beyond a reasonable doubt, any of the
[enumerated] aggravating circumstances exist." Maryland Code,
Art. 27, 5 4.13(d). Combining that with the requirement of
unanimity which appears elsewhere in the statute, I interpret
the question presented to the jury as to each enumerated
aggravating circumstance to be:

Do the jurors unanimously determine that this 
aggravating circumstance has been proven to 
exist beyond a reasonable doubt?

If one juror believes it has been so proven, but eleven do not
the jury answers "no" to the question, and that particular
aggravating factor cannot be considered in the ultimate
weighing process. Every relevant section of the statute speaks
to whether the jury finds that an aggravating circumstance



- 3 -
ejcis_ts--no thing therein suggests the jury must also be 
unanimous in determining that an aggravating circumstance does 
not exist. Consider the language of these sections:

(d) [T]he court or jury, as the case may 
be, shall first consider whether, beyond a 
reasonable doubt, any of the following 
aggravating circumstances exist:

* * *
(f) If the court or jury does not find, 

beyond a reasonable doubt, that one or more 
of these aggravating circumstances exist, it 
shall state that conclusion in writing, and 
the sentence shall be imprisonment for life.

(g) If the court or jury finds, beyond a 
reasonable doubt, that one or mere of these 
aggravating circumstances exist, it shall 
then consider whether, based upon a 
preponderance of the evidence, any of the 
following mitigating circumstances exist:

* * *

Ch) If the court or jury finds that one 
or more of these mitigating circumstances 
exist, it shall determine whether, by a 
preponderance of the evidence, litigating 
cirtumstances outweigh the aggravating 
circumstances . ̂

We have Interpreted this language tc mean that the jury 
shall determine whether, by a prepondeiance of the evidence, 
aggravating circumstances outweigh the mi tigatins circumstanc 
Foster v. state, 304. Md. 439, 499- A.2d 1 2 3 6 i. i 9 3 o") , cert. 
denied, U.S. , 106 S.Ct. 3310 (1986).

/.=

<0 
n



4
Unfortunately, the form initially approved by this 

Court for use in capital sentence proceedings did not make 
clear that the requirement o£ unanimity with respect to 
consideration of an aggravating circumstance applied only to 
the question of whether that circumstance had been proven to 
exist. Rather, Maryland Rule 772A(d), effective January 1, 
1979, approved the following language:

Based upon the evidence we unanimously 
find that each of the following aggravating 
circumstances which is marked Wes' has been 
proven 3EY0ND A REASONABLE DOUBT and each 
aggravating circumstance which is marked 'no' 
has not been Droven BEYOND A REASONABLE 
DOUBT___

Although this language can accommodate the interpretation I 
believe to be correct, it also can accommodate the 
interpretation placed upon it by the majority--that the jurors 
must be unanimous in their determination that the aggravating 
circumstance does not exist in order to answer "no." A change 
in this language was made by the adoption of Rule 4-343(c) 
which supplanted Rule 772A(d), and which became effective July 
1, 1984. That section now reads:

Based upon the evidence we unanimously 
find that each of the fallowing aggravating 
circumstances that is marked 'yes' has been 
proven BEYOND A REASONABLE DOUBT. Each of 
the aggravating circumstances that has not 
been so proven is marked 'no.'

This change, intended to be one of style and not substance,
more accurately reflects the intent of the Legislature.
Unfortunately, the new language is not so clear in its meaning

7 J



3

that it docs not require explanation by means o£ careful 
instruction, and in any event the revised form was not used in

ithis case.
Had the sentencing form simply used the language of the 

statute by providing that "we unanimously find beyond a 
reasonable doubt that the following aggravating circumstances 
exist" and then listed the aggravating factors with a box to be 
checked as to each found to exist, I believe jurors would have 
had no difficulty in concluding they were to mark only those 
circumstances they unanimously found to have been proven to 
exist. They simply would not mark those about which they 
disagreed. 3ecause the jurors are specifically instructed that 
they may consider only the aggravating factors they have 
unanimously found to exist, the defendant is fully protected. 
Thus there is no need, much less any legislative mandate, for a 
jury to unanimously find that a particular aggravating 
circumstance does not exist before it may continue 
delibe'*ition.

Mot only is the legislative scheme for consideracion 
and determination of aggravating circumstances adequate for the

 ̂ The form actually used in this case tracked Rule 77’A(d), 
rather than Rule 4-343(c). The latter rule was applicable and 
should have been followed, but that change alone would not have 
cured the deficiencies present in this sentencing procedure. I 
have reviewed other differences between the form actually used 
and that which should have been used, and I find no indication 
of possible prejudice to the Appellant.



6
protection of an accused, it may well grant him more protection 
than is constitutionally required. The Supreme Court of 
Virginia has held, for example, that the requirement of 
unanimity extends to the ultimate question of whether death is 
the appropriate sanction and to the question of existence of 
any statutory enumerated aggravating factors that justify the 
imposition of the death penalty, but not to the existence of 
each individual aggravating circumstance. Clark v.
Commonwealth, Z19 Va. 237, 257 S.c.Zd 734, 791-92 ( 1979), cert. 
denied, 444 U.S. 1049 (1980). See also Brilev v. 3ass, 334 
F.Supp. 307, 319 (E.D. Va.) (United States Constitution does 
not require that jury be unanimous as to aggravating factors 
relied upon in imposing death penalty), cert. denied, 469 U.S. 
393 (1984); Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (jury 
conclusion that sufficient aggravating circumstances exist 
cannot be impeached by showing that part of the jury proceeded 
upon one interpretation and part upon another), cert, denied, 
434 U.S. 960 (1977)

In State v. Kirklev, 308 N.C. 196, 3G2 S.E.Zd 144 
(1933), the Supreme Court of North Carolina ccrsidered and 
rejected a defendant’s claim that the requirement of unanimity 
extended not only to the existence of aggravating and 
mitigating circumstances, but to their non-existence as well. 
That Court said, id. at 137:

Defendant contends, however, that even if 
it is proper that a mitigating circumstance 
exist only when there is unanimous agreement 
by the jury, the trial judge erred when he



7

instructed the jurors that a mitigating 
circumstance must be deemed not to exist in 
the absence of a unanimous agreement on its
existence. Defendant 
impose the following 
order for a jury to f 
factor does not exist 
unanimously agree it 
unanimous agreement i 
contends, the result 
automatic imposition 
Although novel, the s 
unworkable and contra 
principles of unanimi

* * *

urges this Cour.t to
requirement: that in
ind that a mitigat ing
it mus t first

does not exist. If no
s reached , defenda nt
is a hung jury and the
of life impri sonment.
ugges ted approach is
ry to the general
cy.
*

The unanimity requirement is only placed upon 
the finding of whether an aggravating or 
mitigating circumstance exists.

The mandate of our statute that the jury specifically and in
writing determine ”[w]hich, if any, aggravating circumstances
it finds to exist" obviates consideration of the above approach
and the thorny subject of unanimity as it relates to the
existence of aggravating circumstances. With this language the
Legislature has made it clear that there must be unanimity as
to each individual aggravating circumstance before it can be
considered. Still, I shalL return to the question of unanimity
and a consideration of the levels at which it must be applied
in the adjudicative process, when I turn to analysis of the
proper function of the jury with respect to the consideration
of mitigating circumstances.



3
Under Appellant's interpretation of the statute, with

which I agree, a split o£ six-six on whether an aggravating or 
a mitigating circumstance has been proven to exist simply means 
that the answer or the jury should be "no", i.e. the jury 
cannot unanimously determine by the appropriate standard of 
persuasion that the particular circumstance has been proven to 
exist. As previously stated, this conclusion causes no 
difficulty with respect to aggravating circumstances. it is 
well within the province of the Legislature to determine that 
an aggravating circumstance cannot be considered unless all 
jurors agree that it has been proven to exist, even though that 
result is not constitutionally required.

Legislature to impose as a condition precedent to the 
collective consideration of relevant mitigating circumstances 
the requirement that all twelve jurors agree on the existence 
of each mitigating circumstance to be considered. As Appellant 
points out. the result of such a restriction not only would be 
illogical, but unconstitutional. Following Appellant's 
hypothetical situation and interpretation of the statute to a 
logical conclusion demonstrates the point. 3ecause of the 
six-six split on the two mitigating circumstances, these 
circumstances have not been unanimously found to exist, and the 
form will be marked "no” as to each. If no enumerated or

It is quite a different matter, I suggest, for the



9

separately articulated mitigating circumstance has received the 
unanimous vote of the twelve jurors, the answers to each of the 
eight paragraphs of Section II (the mitigating circumstances 
section) will be "no." The consequence of that situation is as 
automatic as it is deadly--the jurors are not permitted to 
engage in the weighing-process or any deliberation on the 
appropriateness of the penalty of death, but are instructed 
chat ”[i]f Section II was completed and all of the answers were 
marked 'no', then enter 'Death'." Assuming there was a single 
aggravating circumstance in the hypothetical situation we have 
considered, and assuming that the six jurors who were not 
persuaded as to the existence of the first mitigating 
circumstance were the same six who were persuaded of the 
existence of the second mitigating circumstance in dispute, we 
are presented with twelve jurors who believe that relevant 
mitigating circumstances have been proven to exist and yet they 
are absolutely precluded from engaging in their principal 
function--the weighing of the aggravating against the 
mitigating circumstances to determ:ne the appropriate 
sanction. It is entirely conceivable that if allowed to engage 
in appropriate deliberation on the ultimate question, the 
jurors may not be persuaded by a preponderance of the evidence 
that the aggravating circumstance outweighs the mitigating 
circumstance that each juror is convinced exists. To prohibit



10
che jury from considering relevant mitigating circumstances is 
to effectively sever the constitutionally indispensible "link 
between contemporary community values and the' penal system" 
chat the jury is intended to provide. Woodson v. North 
Carolina, 428 U.S. 280, 29S, 96 S.Ct. 2978, 49 L.Hd.2d 944 
(1976) (quoting Witherspoon v. Illinois, 391 U.S. 310, 319, 38 
S.Ct. 1770, 20 L.Ed.2d 77 6 ( 1963))-. Drawing on the predicate 
that the penalty of death is qualitatively different from any 
other sentence, the Supreme Court said in Woodson, 423 U.S. at 
304:

[I]n capital cases the fundamental respect 
for humanity underlying the Eighth Amendment 
... requires consideration of the character 
and record of the individual offender and the 
circumstances of the particular offense as a 
constitutionally indispensable part of the 
process of inflicting the penalty of death.

Other hypothetical situations provide more dramatic evidence of
the potential dangers of requiring a unanimous verdict on the
question of the existence of each individual mitigating
factor. If the vote of the jury if; eleven to one for the
existence of each of three mitigating circumstances and the
dissenting vote is cast by a different juror in each instance,
we can be certain that all twelve jurors have been convinced .by
a preponderance of the evidence that at least two relevant
mitigating circumstances exist. Yet, because they do not agree
on which two exist, the procedure employed in this case would



11
foreclose their consideration o£ any mitigating circumstances, 
even though they unanimously believe that some relevant 
mitigating factor has been proven to exist. .■

To understand the evolution of the Maryland death 
penalty statute into its present fora, and to place in sharp 
focus the exact nature of the problem as it relates to the 
required consideration of mitigating circumstances, a brief 
history of legislative enactments and relevant case law may be 
helpful.0 From 1903 until 1972 trial courts of general 
jurisdiction were vested with discretion to sentence a person 
convicted of first degree murder to either death or life 
imprisonment. In 1972 the United States Supreme Court held 
that the grant of such unfettered discretion to impose the 
sentence of death violated the Eighth and Fourteenth Amendments 
to the Federal Constitution. Furman v. Georgia. 403 U.S. 233, 
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Responding to Furman, 
this Court promptly declared Maryland's death penalty statute 
unconstitutional. Bartholomey v. State, 267 Md. 173, 297 A.2d 
636 (1972). Unfortunately, we read Furman as holding "that the 
death penalty is unconstitutional when its imposition is not 
mandatory.” 3artholomev. 267 Md. at 134. The Legislature 
responded by passing a mandatory death penalty statute in 
1975. Chapter 232, Acts of 1973, codified at Art. 27, § 413 of 
the Maryland Code (1937, 1976 Repl. Vol.). Within a /ear the

J A more detailed history may be found in Tichnell v. State, 
237 Md. 693, 720-29, 415 A.2d 330 (1980).



1 Z

United States Supreme Court held that mandatory death penalty 
statutes for first degree murder were unconstitutional because 
they did not permit the sentencing authority .to consider 
mitigating circumstances involving the accused and the 
character of the offense before deciding whether the imposition 
of the death penalty was appropriate. Woodson v. Morth 
Carolina, supra; Roberts v. Louisiana, 423 U.S. 3ZS, 96 S.Ct. 
3001, 49 L.Ed.Zd 974 (1976). We then held the Maryland 
mandatory death penalty statute unconstitutional. Blackwell v. 
State. 273 Md. 466, 363 A.2d 343 (1976), cert, denied, 431 U.S. 
913 (1977).

At the same time it decided Woodson, however, the 
Supreme Court upheld the capital punishment statutes of 
Georgia, Texas and Florida, finding that the discretion of the 
sentencing authority had been -adequately directed and limited 
so as to minimire the risk of wholly arbitrary and capricious 
action, but retained sufficiently to permit consideration of 
appropriate mitigating factors and thus to maintain the 
essential link with contemporary community values. Gre<zg v. 
Georgia, 423 U.S. 133, 96 S.Ct. 2909, 49 L.Ed.Zd 339 (1976); 
Jurek v. Texas, 423 U.S. 262, 96 S.Ct. 2930, 49 L.Ed.Zd 929 
(1976); Proffitt v. Florida, 423 U.S. 242, 96 S.Ct. 2960, 49 
L.Ed.Zd 913:(1976). Our Legislature then returned to the 
drawing board and produced a death penalty statute that it



13

believed consonant with the several views expressed in the
joint opinions by which Greg?, Jurek and Proffitt were
decided". Senate Bill 374 was enacted on March 10, 1973, as
Chapter 3 of the Laws of 1973, and became effective July 1 of
that year. That act established as conditions precedent for
the imposition of the death penalty the same eight aggravating
circumstances (with minor language changes) that had been
contained in the 197S mandatory death penalty law, but also
added seven specific mitigating circumstances that could be
considered by the sentencing authority in the ultimate
determination of whether death was the appropriate sanction.
Two days after the new statute went into effect the Supreme
Court held that, with the possible exception of the-.rarest kind
of capital case, a sentencing authority could "not be precluded
from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett v. Ohio, J-33 U. 5. 3 36, 304,
93 S.Ct. Z95d, 37 L.Ed.Zd 973 (1973). Our Legislature
responded to Lockett by enacting Chapter 3Z1 of the Laws of
1979 to'add the following paragraph to the list of mitigating
circumstances to be considered by the sentencing authority

(3) Any other facts which the jury or the 
court specifically sets forth in writing that 
it finds as mitigating circumstances in the 
case.

6



14

This serpentine path of evolution has been aptly described as the 
"product of a considerable history reflecting the law's effort to 
develop a system of capital punishment at once consistent and. 
principled but also humane and sensible to the uniqueness of the 
individual." Sddinzs v. Oklahoma, 453 U.S. 104, 110, 102 S.Ct. 
369, 71 L.Ed.Zd 1 (1982). From the earlier concept that only 
mandatory death sentences would cure the problem of unbridled 
discretion condemned in Furman we have proceeded to an 
understanding that although the sentencer’s discretion must be 
restricted to ensure that the penalty of death will not be 
inflicted in an arbitrary and capricious manner, the sentencer 
must be free to Consider any relevant mitigating evidence 
regarding the character or record of the the defendant and any of 
the circumstances of the offense. Sumner v. Shuman, U.S. , 
S.Ct. , L.Ed.Zd [Mo. 36-246 decided June 22, 1937];
Hitchcock v. Dugger, 431 U.S. , S.Ct. , L.Ed.Zd [53 
U.S.L.fc. 4567] ( 1987); California v. Brown, U.S. , 107 S.Ct. 
337, L.Ed.Zd (1987); Skipper v. Sjuth Carolina, U.S. ,
106.S.Ct. 1669, 90 L.Ed.Zd 1 (1936). 'Ye now know that room must
be left for interposition of societal judgments of mercy and 
sympathy that may be engendered by a consideration of relevant 
mitigating evidence. Id. In my view, the Maryland process for 
jury determination'1 of punishment in a capital case, 
consisting as it does of the requirements of both statute and

Problems created by an improper and mechanical application 
of the requirement of unanimity are not present when the 
defendant elects to be sentenced by a judge.



13

rule, retains too much of the vestiges of the mandatoriness and 
fails to permit meaningful consideration of relevant mitigating 

c ircums tances .
The majority seems to suggest that no other application 

of the requirement of unanimity is possible--that the mandate 
of unanimity- controls not only the verdict but also every 
subordinate predicate finding. Certainly where unanimity is 
required, the verdict must be unanimous. State v. McKay, 230 
Md. 333, 373 A.2d 223, 97 A.L.R.od 1233 (1977); Ford v. State, 
12 Md. 514 (13S9). Furthermore, the determination of any 
ultimate issue essential to the verdict must be unanimous. 
However, the determination of historic facts presents a 
different question, and where alternative findings of historic 
facts are advanced in support of a single conclusion the better 
rule is that the jurors need not agree on any single 
alternative fact provided they all agree on some alternative 
fact that leads them to a single conclusion on the ultimate 
issue. For example, in an action for damages arising out of an 
automobile accident, the jury must be unanimous in its finding 
on the ultimate questions of duty, breach, causation and 
damages, and of course on the verdict. Still the jurors need 
not agree on the historic facts supporting their common 
conclusion on an ultimate question. If the plaintiff has 
advanced alternative theories of negligence, e.g. the defendant 
was speeding, failed to keep a proper lookout, or failed to



16

sound his horn, the jurors may be unanimous in their conclusion 
that the defendant was negligent, but for different reasons.
The Supreme Court of Illinois, writing nearly a century ago, 
stated the applicable law succinctly:

The common law requires that verdicts shall 
be the declaration of the unanimous judgment 
of the 12 jurors. Upon all matters which 
they are required to find, they must be 
agreed. 3ut it has never been held that they 
must all reach their conclusions in the same 
way and by the same method of reasoning....
To require unanimity ... not only in the 
result, but also in each of the successive 
steps leading to such result, would be 
practically destructive of the entire system 
of jury trials .Chicago S N.W. Ry . Co . v . Dunleavv, 129 111. 
132, 22 N.e.  15 ,' 17-13 1 13 39 J .

The Court of Special Appeals acknowledged the 
applicability of this principle to criminal prosecutions in 
Craddock v. State, 64 Md. App. 269, 273, 494 A.2d 971, cert. 
denied, 304 Md. 297 (198S):

Generally, jurors are not required to 
uniformly accept all of che evidence 
presented in order to arrive at a unanimous 
verdict. Some jurors unquestionably reject 
evidence that others accept in determining 
guilt or innocence. In short, the law 
requires unanimity only in the verdict, not 
in the rationale upon which the verdict is 
based". In the case sub judice, the statute 
sets forth various acts tnat constitute the 
crime of theft. As long as jurors 
unanimously agree that theft in some form was 
committed, nothing more is required.

Compare U.S Gipson, 333 F.2d 433 (3th Cir. 1977). See also



17

State v. Smith, 136 Aria. 273, 665 P.2d 995 (1933), (where 
jurors are unanimous in finding first degree murder they need 
not agree on whether it was premeditated or felony murder); 
31ake v. State, supra, (if a verdict may be justified upon 
either of two interpretations of the evidence the verdict 
cannot be impeached by showing that a part of the jury 
proceeded upon one interpretation and part upon another); Claric 
v. Commonwealth, supra, (aggravating circumstances are treated 
as a single unit and jurors need not specify which portion of 
the unit they find in order to satisfy requirement of 
unanimity); State v. Lomagro, 113 Wis.Zd 532, 335 N. W. 2 d S33 
(1933) (where a single crime is charged, jury unanimity on the 
particular alternative means of committing the crime is not 
required if the acts are conceptually similar); State v. Carey, 
12 Wash. App. 310, 711 P.2d 703 (1986) (jurors need not be 
unanimous on determination of premeditated or felony murder so 
long as they are unanimous that one or both have been proved). 
Contra, State v. Kir^lev, supra, 302 S.5.2d at 157 (jury must 
unanimously agree that a mitigating circumstance exists before 
it may be considered).

Although the question of unanimity may arise in 
connection with instructions to be given in cases where a 
general verdict is to be returned, the problem will be seen 
more frequently where the case is submitted to the jury on



13

special verdicts or interrogatories. As Dean McCormick pointed
out in his article, Jurv Verdicts Coon Special Questions in
Civil Cases, 2 F.R.D. 176 (1941), the impetus' in several states
for resort to special questions may have been to provide a
check on jury nullification of the law, and in some cases to
avoid tedious instructions on the law. Dean McCormick
concluded that submission on special questions had worked well
where a few ultimate questions stated in simple form were
submitted, but that submission on multiple subordinate facts
and issues had caused difficulty.

The particular problems of jury unanimity in cases
involving special verdicts is also discussed by Professor Ruth
Ginsburg in Special Findings and Jury Unanimity in the Federal
Courts, 63 Colum.L.Rev. 236 (1963). As Professor Ginsburg
cogently observes, the definition of what constitutes an
’’ultimate question" and the precise formulation of the question
to be put to the jury are matters of considerable importance.

[Wjhen separate fact allegations, each 
supported by evidence, would independently 
permit the jury to reach a conclusion on an 
ultimate issue, appropriate definition of the 
elements of the case on which the jury must 
agree poses a problem of more than academic 
significance. In close cases, the chance of 
a verdict for one side or the other may be 
enhanced or restricted depending upon the

3 Additional problems resulting from the failure of one or 
more jurors to join in the answer to a special interrogatory or 
special verdict are collected in an annotation, Annot., Failure 
To Join In Special Verdict, 133 A.L.R. 336 (1943).



19

detail or the general ity of the propo siti ons
upon which agreement is requ ired •

Id. at 262.
After discussing two alternat ives to a proper def inition of the

requirement of unanim ity, Professor Gins burg cone ludes:
A def ini tion of unanimity in terms of

particular facts corresponds to a theoret ical
image of the jury as a singu lar. body- -twe 1 ve
men who, through the alchemy of the
deliberative process , become as one. In
reality, however, perfeet harmony, even if it
were desirabl e, is not to be ant icipa ted. A
formal requirement of accord on independent
particulars, each of which standing alone 
would support an ultimate finding, impels 
formal agreement. If each juror subscribes 
to at least one of the independent 
particulars, but no particular is subscribed 
to by all, it seems improbable, that the jury 
would--and out of tune with common-sense 
notions of justice that the jury 
should--report itself ’’hung" rather than 
proceed to decision. In such a case, if 
particular fact questions were -subraitted to 
the jurors, agreement to'answer the ’’right 
way" by reporting unanimity on one or more of 
the particulars would be the more likely 
course.

The alternative def ini tiorx--unanimi ty upon 
ultimate issues--appears the more desirable. 
It takes into account the collective nature 
of the jury and does not purport to carry the 
image of a composite individual beyond 
practical limits. In’short, unanimity 
defined in terms of ultimate issues strikes a 
balance between two extremes: failure to 
define the objects of unanimity and 
"particular fact" definition. The latter, 
rigidly and unrealistically, equates the 
collective judgment of twelve with the 
individual judgment of a single trier. The 
former, although it would provide maximum 
leeway for the "equitable dispensing power" 
of the jury as a palliative for archaic rules 
of law, would also constitute an abdication 
of the judicial function.
Id. at 163 (footnotes omitted).

FT



Having concluded chat the requirement of unanimity is 
properly applied to the ultimate questions presented by a given 
case, I turn to the more specific problem of what constitutes 
the ultimate question or questions in a capital sentencing 
proceeding. The absolute ultimate question is, of course, 
whether death is the appropriate penalty. To reach that 
question the jury must determine whether one or more of the 
statutory enumerated aggravated circumstances exist in the 
case. If one or more aggravating circumstances are found to 
exist, the jury must determine whether one or more relevant 
mitigating circumstances exist. The verdict is then determined 
by the jury weighing the aggravating against the mitigating 
circumstances and determining whether, by a preponderance of 
the evidence, the aggravating outweigh the mitigating.

Clearly, the ultimate verdict must be unanimous. In 
addition, I enterta-.n no doubt that the jurors must be 
ur.animous in their determination that one or more enumerated 
aggravating circums :ances have been proven to exist. As noted 
earlier, I am not persuaded that there is a constitutional 
requirement that all jurors agree as to the existence of each 
aggravating circumstance to be considered, but that question is 
not before us. The Legislature has imposed that requirement by 
statute, and the requirement does not in any way contravene 
rights of the defendant.



21
Mot quite as clear, but acceptable to me for the 

purposes o£ this case, is the proposition that in order to 
engage in the ultimate weighing process each-'juror must 
determine that one or more relevant mitigating circumstances 
exist.6 I do not agree, however, that the
Legislature may constitutionally require unanimity as to each 
individual mitigating circumstance before it may be given 
consideration in the final weighing process. As I have taken 
some pains to point out, this is a position that extends the 
requirement of unanimity beyond the ultimate question of 
whether all jurors believe some relevant mitigating 
circumstance or circumstances exist, and therefore it is out of 
step with currently accepted principles of law. More 
important, however, che requirement may mechanically exclude 
from consideration by the jury substantial historical facts and 
mitigating circumstances :hat might well tip che balance in che

Of
, th e

0 A strong argument can ?e made that even in che absence 
a finding that one or nor.* mitigating circumstances exist 
jury must be free to reject che sanction of death as the 
appropriate penalty. Th-? rationale is that although an 
aggravating circumstance determined by the Legislature to be 
sufficient to support the the, penalty of death has been proven, 
che jurors may agree that che facts of the particular offense 
are not so egregious as to warrant imposition of the death 
penalty in a particular case. I agree that this option must 
open to the jury, but I conclude that it is under Maryland 
death sentencing proceedings, and chat the problem is one of 
semantics. Where twelve jurors agree that the circumstances 
the offense, although crossing the legal threshold so as to 
justify consideracion of che death penalty, do not in fact 
warrant death in che particular case, that jury has in fact 
found a mitigating circumstance even though it may be difficult 
to articulate. Trial judges and counsel should make this Clear 
to che jury through appropriate instructions and argument.

be

at



zz

final weighing process, and thus it is constitutionally 
infirm. Unfortunately, our Legislature has imposed precisely 
that requirement. Read together, subsections' (i) and (j) of 
$ 413 require a written determination by the jury, stating 
"specifically ... [wjhich, if any, mitigating circumstances it 
finds to exist."

Returning to the original hypothetical situation, if 
six jurors believe one mitigating circumstance has been proven 
to exist and six others believe another has been proven to 
exist, under the procedure followed in this case none of them 
can consider either mitigating circumstance in the final 
weighing process. Indeed, no matter how many jurors believe 
how many mitigating circumstances exist, no one will be allowed 
to consider any of them unless all twelve happen to agree on a 
single one. Nor does the presence of a "catchall" provision 
cure the def:ciency, at least as it appears in the statute and 
the rule. After listing seven mitigating factors the jury . 
should consiler, subsection (g)(3) of the statute adds "(alny 
other facts which the jury ... specifically sets forth in 
writing thar it finds as mitigating circumstances in the 
case." (emphasis added). Manifestly, this language excludes 
the possibility that individual judgments concerning the seven 
circumstances previously considered could somehow be worked 
into this section. Moreover, by requiring in the same format 
that the jury state specifically and in writing any other facts



23

that it finds as mitigating circumstances, the statute and rule 
perpetuate tile requirement for specific unanimity as to 
historical facts rather than unanimity on the collective

•j
existence of relevant mitigating circumstances.

I appreciate the fact that entirely legitimate concerns 
about the need to impose limitations on "unbridled discretion" 
and the need to provide as much information as possible for 
proportionality review have prompted the extraordinary 
requirements for precision and written findings. But we have 
gone too far. In an attempt to cure one problem we have caused 
another--not, as we have seen, an unusual occurrence in the 
difficult process of reaching an acceptable middle ground 
between important but conflicting interests in this area of the 
law. The process must be as simple and as fair as we can mak.e 
it. He must be strict in the requirement that no person be 
considered for the death penalty unless and until there has

7 One could argue that there is nothing to stop a jury from 
writing in as a "catchall" mitigating circumstance that- "we 
unanimiously conclude from a consideration of the aggi :..vating and 
mitigating circumstances disclosed by the evidence that death is 
not the appropriate penalty" or words to that effect. The 
difficulty is that the form and the statute direct the jurors away 
from, instead of toward that type of determination. In the 
absence of a specific instruction from the judge informing the 
jury that they would be permitted to make such an entry if they so 
found, I have no confidence that the jury could reach that 
conclusion on its own.



2-1

been a unanimous finding, beyond a reasonable doubt, of the 
existence of one or more statutory enumerated aggravating 
circumstances. 3ut we must be liberal in all-owing the jury to 
consider evidence of any relevant mitigating circumstance and 
in allowing every juror to utilize in the ultimate weighing 
process every mitigating circumstance proved by a preponderance 
of the evidence satisfactory to that juror. If any individual 
juror is not persuaded of the existence of any relevant 
mitigating circumstance, there will of course be no weighing of 
circumstances, and the verdict will either be death, or the 
jurors will be unable to agree. However, if all twelve jurors 
believe there are mitigating circumstances, the ultimate 
weighing process must be allowed to take place.

To briefly summarize the foregoing discussion, I 
conclude as follows. First, that the statute requires and the 
Legislature intended to requiie as a condition precedent to the 
consideration of any aggravating or mitigating circumstance., 
the unanimous agreement of th<? jurors as to the existence of 
that circumstance. Second, that the statute does not require, 
nor die. the Legislature intend to require, any finding by the 
jury that a particular circumstance does not exist, either 
unanimously or otherwise. Third, that because of the 
imposition of an artificial and wholly unnecessary requirement 
of unanimity as to each mitigating circumstance, the statute 
unconstitutionally precludes jury consideration of relevant 
collective mitigating circumstances.



25
Applying these principles to the case before us

persuades me that the sentence of death must be reversed. It 
is entirely possible, and indeed I suggest very probable, that 
this jury answered ’’no” as to certain aggravating and 
mitigating circumstances because they were not unanimous in 
their belief that the circumstance had been proven to exi'st, 
and not because they unanimously agreed that it did not exist. 
The trial judge's instructions were entirely consistent with 
the interpretation of the statute that I believe to have been 
intended by the Legislature. After referring to the sentencing 
form that had been distributed to the jurors, and discussing 
the requirement of unanimity with respect to a finding of the 
existence of aggravating circumstances, the trial judge said:

Let me, before we begin the enumeration of 
the items of aggravating circumstances, 
remind you that in order to answer any of 
those questions yes you must be unanimously 
satisfied beyond a reasonable doubt of the 
existence of one of those aggravating 
circums tances.

The judge then defined the burden of persuasion, and said:
If, after consideration and comparison ov the 
evidence you have heard this morning, ycr. 
cannot find an abiding conviction to a a.cral 
certa-inry of the existence of an aggravating 
circumstance, then reasonable doubt does 
exist and you must answer no.

The trial judge then pointed out that the State had given 
notice only as to aggravating circumstance number two, and he
said:



Mow in considering these natters, you must 
consider whether aggravating circumstance 
number two has been proven beyond a 
reasonable doubt. If you unanimously- 
conclude that it has been so proven, you 
should answer that question yes. If you are 
not so satisfied, then of course vou must 
answer no. (emphasis aacedj.

Concerning the requirement of unanimity with respect to the 
existence of mitigating circumstances, the trial judge 
instructed in the language of the form that was before the jury.

If, as I suspect, the jury followed logic and the trial 
judge's instructions rather than the strained interpretation of 
the meaning of a "no” vote put forth by the majority, it 
follows that a number of the jurors may have been persuaded of 
che existence of certain mitigating circumstances, but agreed 
to marking them "no" because the jury did not unanimously find 
cheir existence. Moreover, because the trial judge instructed 
in accordance with the statute, there was no opportunity tor 
che jurors to incorporate within the "catchall" section any 
individual judgments they may have reached concerning the 
enumerated mitigating circumstances. Judge Sharer instructed 
them:

Mow number eight indicates, other 
mitigating circumstances exist as set forth 
below. Should you find any other mitigating 
circumstances not specifically enumerated in 
the first seven that we have just reviewec 
wnicn nave oeen raised by the evidence and 
proved to you by a preponderance of that 
evidence you may so indicate.... If you find 
no other mitigating circumstances then you 
make no entry upon those lines under number 
eight. (emphasis added).



The jury unanimously found one aggravating circumstance to
exist, but was unable to agree unanimously on the existence of

. . . .  * 3any particular mitigating circumstance.
Thus, the hypothetical posed by Appellant comes to 

life. This jury was precluded from a consideration of 
mitigating circumstances that should have been permitted. It 
was precluded from engaging in any weighing of aggravating and 
mitigating factors by the draconian instruction that '’if 
Section II was completed and all of the answers were marked 
"no" then enter "Death."

The majority’i conclusion that when the jury answers 
"no" it means that every juror agrees that the circumstance in 
question does not exist (or perhaps more precisely, that every 
juror agrees the circumstance has not been proven to exist by 
the requisite standard of persuasion) solves the problem of 
mandatoriness--if every answer with respect to mitigating 
circumstances is "no" there cannot be a single juror who 
believes that a single mitigating circumstance exists. 3uc 
this poses another prjblem. If "yes" meanr. all jurors agree 
that the circumstanor does exist, and "no’ means all jurors 
agree that the circumstance does not exist, what is to happen 
when there is disagreement? According to the interpretation

 ̂ The possibility that the jury could have fashioned some'type 
of collective mitigating circumstance under the "catchall" 
provision was further diminished by the trial judge's instruction 
that if the jurors found any "other" mitigating circumstances, 
they "must write them in the space provided and number them so 
that they may be distinguished one from the other."