Dimery v. State

O’Donnell, J,

dissenting:

I regret that in this sordid and twice-tried case I must dissent from the conclusion reached by my learned brethren.

Just as under an indictment charging murder in the statutory form prescribed in Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 616, the jury has a right to return any one of five verdicts: (a) guilty of murder in the first degree, (b) guilty of murder in the first degree, “without capital punishment” (as provided in Art. 27, § 413), (c) guilty of murder in the second degree, (d) not guilty of murder, guilty of manslaughter 1 and (e) not guilty (Jones v. State, 182 Md. 653, 661, 35 A. 2d 916, 920 (1944); Gray v. State, 6 Md. App. 677, 684, 253 A. 2d 395, 399 (1969); McFadden v. State, 1 Md. App. 511, 516, 231 A. 2d 910, 913 (1967)), under an indictment for rape under Art. 27, § 461, the jury may return one of three verdicts: (a) guilty, (b) guilty, without capital punishment (as provided in Art. 27, § 463) and (c) not guilty (see Presley v. State, 257 Md. 591, 598-99, 263 A. 2d 822, 826 (1970); Domneys v. Warden, 232 Md. 659, 660-61, 194 A. 2d 443, 443-44 (1963), cert. denied, 377 U. S. 949 (1964).)

In Presley v. State, supra, we held that “It is proper for the judge to instruct as to the penalty which may follow a *680specified verdict and in a rape case to state all the possible penalties.” 257 Md. at 599, 263 A. 2d at 826. In Presley, in giving what this Court found to be “a fair and accurate charge,” the trial court had instructed the jury:

“[I]t could find Presley not guilty or guilty, that if it found guilt it could limit the imprisonment the court could impose to not more than twenty years by adding the words ‘without, capital punishment’ to its verdict, that if it did not wish to limit the length of the sentence it could bring in a verdict of guilty without adding qualifying words and in such case the sentence could be not less than eighteen months and from eighteen months to twenty-one years or life imprisonment, and that the jury must decide which of two guilty verdicts it would return, if it determined Presley to be guilty, before the court could impose a proper penalty.” 257 Md. at 598-99, 263 A. 2d at 826.

See also Domneys v. Warden, supra, where this Court, in reviewing an instruction given the jury by the trial court, held that there could be no real doubt that the jury was made fully aware that, if it deemed it proper, it could prevent the imposition of the maximum penalty by qualifying its verdict of guilty by the phrase “without capital punishment.”

As the majority notes, in citing from Jones v. State, supra, that we there pointed out that “It is almost the universal custom in this state for the trial court in a murder case to instruct the jury as to the forms of verdict which they can render. It is true that usually counsel are asked whether they have any objection to the court so instructing the jury and usually no objection is made.” 182 Md. at 661, 35 A. 2d at 920.

As a result of the decision of the United States Supreme Court on June 29, 1972, in Furman v. Georgia, 408 U. S. 238, this Court held in Bartholomey v. State, 267 Md. 175, 297 A. 2d 696 (1972), that the imposition of the death sentence for murder under any of the existing discretionary statutes in *681Maryland which authorized the imposition of capital punishment, but which did not require that penalty, was unconstitutional as in violation of the Eighth and Fourteenth Amendments to the United States Constitution, without regard to the nature of the offense, the particular circumstances under which the crime was committed or the particular procedure followed in imposing the death sentence. In Bartholomey v. State, supra, the appellant had been sentenced to capital punishment for first degree murder. In a companion case, Sterling v. State, 267 Md. 175, 297 A. 2d 696 (1972), the death sentence, which was vacated, had been imposed on the appellant following his conviction for rape.

As a result of these decisions abolishing the imposition of the death penalty, it appears that the provisions in Art. 27, § 413, under which a jury might add the words “without capital punishment” to a verdict of murder in the first degree and thus maximize the penalty as life imprisonment, were rendered nugatory; as a result of Furman and Bartholomey life imprisonment is the sole remaining penalty for murder in the first degree. However, the provisions of Art. 27, § 463, notwithstanding these decisions, remain viable in that if a jury adds the words “without capital punishment” to a verdict of guilt in a rape case the defendant — although no longer subjected to possible capital punishment — is subjected to maximum confinement for 20 years. England v. State, 274 Md. 264, 334 A. 2d 98 (1975).

In a rape case, upon a verdict of guilty “without capital punishment,” it was held in LaGuardia v. State, 190 Md. 450, 454-55, 58 A. 2d 913, 915 (1948) — where the history of the statute is reviewed — that the trial court was not only prevented from imposing capital punishment (as then permissible), but was prevented as well from imposing life imprisonment and that the defendant could not be sentenced to a term of more than 20 years. Thus, even though in a murder case a verdict of “guilty of murder in the first degree ‘without capital punishment’ ” appears to have been rendered inoperable, in a rape prosecution the jury is still entitled to render one of three possible verdicts, including a *682verdict of “guilty ‘without capital punishment’ ” under the provisions of Art. 27, § 463 and thereby limit the penalty to imprisonment for not more than 20 years.

I must disagree with the majority in their conclusion that the holdings in Calton v. Utah, 130 U. S. 83 (1889), were limited to “statutory grounds.” As I read it, the decision was predicated on the deprivation “of a substantial right” of the defendant which today is equated with “due process of law.” See Lisenba v. California, 314 U. S. 219, 236 (1941).

Mr. Justice John Marshall Harlan, in Calton, in writing for that Court, stated:

“If their [the jury’s] attention had been callea to that statute, it may be that they would have made such a recommendation, and thereby enabled the court to reduce the punishment to imprisonment for life. We are of opinion that the court erred in not directing the attention of the jury to this matter. The statute evidently proceeds upon the ground that there may be cases of murder in the first degree, the punishment for which by imprisonment for life at hard labor will suffice to meet the ends of public justice. Its object could only have been met through a recommendation by the jury that the lesser punishment be inflicted, and it is not to be presumed that they were aware of their right to make such recommendation. The failure of the court to instruct them upon this point prevented it from imposing the punishment of imprisonment for life, even if, in its judgment, the circumstances of the case rendered such a course proper. It was well said in the dissenting opinion of Mr. Justice Henderson, in the Supreme Court of the Territory [Utah], that by the action of the District Court ‘the prisoner was deprived of a substantial right. The determination of the question as to whether he should suffer death or imprisonment was one of vital consequence to him. The jury to whom the statute commits the determination of *683that question, at least in part, were not informed of their duty and responsibility in the matter so as to require them to exercise their judgment and discretion in relation to it, and by the verdict they rendered the court had none.’ These views are in accordance with the fundamental rules obtaining in the trial of criminal cases involving life.” (Emphasis supplied.) 130 U. S. at 86-87.

The Supreme Court of Pennsylvania, in Commonwealth v. Madaffer, 291 Pa. 270, 139 A. 875 (1927), held that upon the trial of an indictment for murder the trial judge, whether requested or not, must instruct the jury that should they find the defendant guilty of murder in the first degree they must, under the statute, determine whether the penalty should be either death or life imprisonment. In recognizing that it was the “right of the defendant” to have the jury so instructed, that court stated:

“It is true that, under some circumstances, even in a capital case, the failure to ask at trial for specific instructions to the jury will bar a subsequent complaint of an omission so to charge [citations omitted], but this is not the rule where, as here, the omitted instruction relates to a specific duty required of the jury in a matter material to the accused, particularly where, as here, the matter omitted relates to a recent and important change in the law.
When we consider the charge as a whole, the failure to instruct here complained of, may justifiably be classed as more than a mere omission. . . .” 291 Pa. at 273, 139 A. at 875.

In Webb v. State, 154 Ark. 67, 242 S. W. 380 (1922), in a murder prosecution, no request had been made for the court to instruct the jury that if they found the defendant guilty of murder in the first degree they were entitled to fix his punishment at death or life imprisonment. The Supreme Court of Arkansas initially adopted the view here followed *684by the majority that the failure to request such an instruction rested “upon the same principle as the failure to give any other instruction of law applicable to the issues involved in the trial,” and “adhered to the rule that it is not error for a trial court to fail to give an instruction on a given subject unless the court is requested to do so.” However, on a rehearing the court completely reversed its course, set aside the judgment of capital punishment and reduced the appellant’s sentence to life imprisonment. That court stated:

“The statute provides that the jury, and not the court, shall have the right to fix the punishment, and it follows that, under such a statute, it is necessary to inform the jury of the punishment imposed by the statute in order that it may properly exercise the right vested in it. If the court had explained to the jury the distinction and difference of penalty of murder in the first degree, the finding of the jury might have been different. By not telling the jury that it had a right to fix the punishment of the defendant at life imprisonment, the latter was deprived of a substantial right. The right to exercise the discretion under the statute was given to the jury, and the court could not exercise it.” 154 Ark. at 72-73, 242 S. W. at 383.
* * *
“In the present case the finding of the jury might have been different, had the court explained to the jury the alternative right given it by the statute in fixing the punishment of the accused. Therefore, the majority of the court is of the opinion that, the punishment prescribed by the statute being alternative in its character, and the statute having made it the duty of the jury to exercise its discretion in fixing the punishment, it was part of the law applicable to the case, and the trial court erred in not charging the jury in regard to the discretion to be exercised by it in case the accused *685was found guilty of murder in the first degree.” 154 Ark. at 75, 242 S. W. at 384.

In Vickers v. United States, 1 Okla. Cr. 452, 98 P. 467 (1908), a United States statute (29 Stat. 487) provided that in all cases where an accused is found guilty of murder or of rape the jury may qualify their verdict by adding thereto “without capital punishment” and upon the return of such a verdict the person convicted shall be sentenced to life imprisonment. In that case the appellant had been convicted of rape and although no request for such an instruction was made in the trial court, the court, sua sponte, took notice of such error. In finding that “the defendant was entitled to have the question of a qualified verdict submitted to the jury in this case,” the court stated:

“Although not urged upon the trial, nor here, we deem it our duty to pass upon and decide this question, as that which the law makes essential in proceedings involving the deprivation of life cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial, to object to unauthorized methods. It seems that the court did not instruct the jury as to their right to return a qualified verdict.” 1 Okla. Cr. at 457, 98 P. at 469.

The Supreme Court of Appeals of West Virginia in State v. Chaney, 117 W. Va. 605, 186 S. E. 607 (1936), overruled their earlier decisions in State v. Cobbs, 40 W. Va. 718, 22 S.E. 310 (1895) (that it was not error, after a jury returned a verdict of murder in the first degree, but before discharge of the jury, to then refuse an instruction informing the jury of their discretion under the statute in limiting the penalty), and State v. Beatty, 51 W. Va. 232, 41 S. E. 434 (1902) (where it was held that there was no duty on the trial court to give such an instruction without request), and held, in rejecting these precedents, that it was the duty of the trial court, even without any such request, to inform the jury of their authority under the statute to determine whether the *686accused, if found guilty of murder in the first degree, shall be punished by death or life imprisonment. That court concluded that in view of the fact that it was for the jury and not the court to limit the punishment which could be imposed on the defendant, that the trial court erred in so failing to advise the jury of their power and deprive the defendant of a “substantial right.”

In State v. Zuro Yamashita, 61 Utah 170, 211 P. 360 (1922), where — as under the facts of this case — the asserted error in failing to charge the jury under a statute which permitted the jury to make a recommendation was not asserted until the motion for new trial was filed in the District Court and the case had been appealed, the Supreme Court of Utah, in granting a new trial, held “that a failure to charge the jury that they may recommend imprisonment for life invades a substantial right to the defendant and constitutes fatal error.” 61 Utah at 171, 211 P. at 360.

Although all the preceding cases have involved the right of the jury to limit, upon conviction, a defendant’s sentence to life imprisonment rather than subjecting him to capital punishment, the rule has been equally applied in non-capital cases. See Harris v. State, 59 Ga. 635 (1877), where the defendant, convicted of “hog stealing,” was subject to confinement in the penitentiary “unless the prisoner be recommended to mercy” by the jury under a statute, in which event he was subjected to punishment of fine, jail imprisonment or work in a chain gang. The trial court did not charge the jury concerning the right to make this recommendation and no request was made for such an instruction. In reversing his conviction and in holding that the court should have given such instruction, whether requested or not, the court stated:

“[I]t is clear that it is for the jury not only to pass upon the guilt of the accused, but to fix the punishment, to grade the offense, to determine whether it be felony or misdemeanor. This is an important right of the accused, to have his offense graded and the penalty of the law fixed by the jury. *687The statute gives him the right, but the court below took it from him by not telling the jury that the law gave it to him, and that they must pass upon his guilt, the nature and extent of it, so as to send him to the penitentiary, or to jail, or chain-gain [sic], or perhaps to subject him only to a fine. It seems just as necessary to give the charge in such a case, as in the case of homicide to give its various grades.” 59 Ga. at 636.

See also Thompson v. State, 151 Ga. 328, 106 S. E. 278 (1921), on certiorari from the Court of Appeals of Georgia, reversing its decision in 25 Ga. App. 483 and holding that it was error for the court to fail to instruct the jury on the trial of one charged with assault with intent to commit murder that in the event of a conviction they could recommend that the defendant be punished “as for a misdemeanor” under that state’s indeterminate-sentence act.

I cannot find persuasive the holdings in People v. Gonzales, 187 Cal.App. 2d 472, 10 Cal. Rptr. 12 (Dist.Ct.App., 3rd Dist. 1960); Ferguson v. State, 90 Fla. 105, 105 So. 840 (1925); Penn v. State, 62 Miss. 450 (1884); and State v. Adams, 68 S. C. 421, 47 S. E. 676 (1904), all cited by the majority in support for their holding that the failure on the part of the appellant to request such an instruction precluded an appellate review of the question. In Gonzales the District Court of California held that it was not reversible error for the trial court, to instruct the jury in a narcotics case, that they might find the defendant guilty of having sold narcotics, or not guilty of sale, or guilty of possession — in the absence of a request for an instruction concerning a verdict of “not guilty of possession.” In Ferguson the Florida court held that the failure to request an instruction “for mercy” in a capital case which would have operated to limit the defendant’s penalty to life imprisonment was not error since the trial court, even in the absence of such a jury recommendation, nonetheless had the discretion to sentence the defendant to life imprisonment. The decision completely overlooks the fact that had the jury *688by their verdict recommended “mercy” the trial court would possess no residual discretion to sentence the defendant to other than life imprisonment. In Penn the jury returned a verdict of guilty, and had the right by their verdict in a capital case to limit the penalty to life imprisonment; in announcing their verdict of guilty they merely “plead the mercy of the court.” Counsel for the defendant had not requested an instruction concerning such a limitation on the penalty. Finding that the exhortation added by the jury for mercy was mere surplusage, the court held that there was nothing, in addition to the verdict, or what took place when it was announced, to induce a belief that the jury had intended to fix the defendant’s punishment at life imprisonment. In State v. Worthy, 239 S. C. 449, 477, 123 S.E.2d 835, 849 (1962), the court suggested “that the dictum in the majority opinion in State v. Adams, 68 S. C. 421, 47 S. E. 676 [1904] to the effect that the right to a charge on the statute may be so waived in a capital case is not consonant with the now settled rule infavorem vitae.

In my view the trial court was obligated in its instructions to the jury — whether requested or not — “to cover the various possible verdicts.” See Beard v. State, 216 Md. 302, 320, 140 A. 2d 672, 682 cert. denied, 358 U. S. 846 (1958). Even though the appellant made no request, under the provisions of Art. 27, § 463, that the jury be instructed that they had the right, if they found the defendant guilty, to add to their verdict the words “without capital punishment,” it was plain error not to have submitted to the jury such an option as one of the three possible verdicts available to it. The defendant, by his election of a jury trial, was entitled to a complete jury trial and was entitled as well that the jury be informed of the right under the statute to render such a verdict. When the trial court failed to properly submit such a possible verdict to the jury it did not inform them of their right2 to render such a verdict and this deprived the appellant — to his prejudice — of a “substantial right.” It *689was for the jury alone to render the verdict in the appellant’s case. See Presley v. State, supra. Under the provisions of the statute, by adding the words “without capital punishment” the jury is also entitled to fix the maximum penalty. Indeed, it might be argued with some force that the trial court’s failure to inform the jury of this statutory right prevented the defendant from having been afforded a “complete” jury trial as guaranteed him under Art. 5 of the Maryland Declaration of Rights.

Nor can I agree with the conclusion reached by the majority — inferentially based as it is on a matter of trial tactics — that there was an affirmative waiver by the appellant in not requesting such an instruction.

At the outset of the instructions to the jury the trial judge (Parker, J.) told the jury that he would give them “in my own handwriting each of these counts and [the] possible verdicts as to each and every one prior to your going in the jury room so that you will know specifically what the defendant is charged with as to each count and the possible verdicts that could apply to those counts.” There is no suggestion anywhere in the record that these handwritten “possible verdicts” were ever exhibited to counsel, contrary to the “usual custom” mentioned in Jones v. State, supra, or that counsel were ever afforded any opportunity before instructions and argument to comment thereon. The handwritten “possible verdicts” were handed to the jury just before they left the jury box to commence their deliberations and it was only then that the trial judge undertook to read them to the jury — lest they be unable to decipher his writing — and told them, “Criminal trials 11,565, count 1, is the crime of rape; possible verdict is either guilty or not guilty. Count 3 is assault and battery; the possible verdict would be either guilty or not guilty. Count 6, the crime of arson; possible verdict is guilty or not guilty. Count 9 is grand larceny; possible verdict is guilty or not guilty. Criminal trials 11,586, crime of attempted murder; possible verdict is guilty or not guilty.” It would appear in the context and sequence of events that at that stage of the case there was little, if any, opportunity for counsel — if then *690aware of the failure to include the third possible verdict on Count 1 in Criminal No. 11,565 — to have noted an exception to the possible verdicts submitted. As pointed out in Johnson v. Zerhst, 304 U. S. 458 (1938), a waiver is an intentional relinquishment or abandonment of a known right or privilege and the courts do not presume acquiescence in the loss of such fundamental rights. See also 21 Am.Jur.2d Criminal Law § 219 (1965). It is here significant to note that in Smith v. State, 240 Md. 464, 480, 214 A. 2d 563, 572 (1965), Judge Oppenheimer, in listing some of the various constitutional rights that defendants had previously been deemed to have waived, made no mention of the right to have the jury correctly informed of the possible verdicts available to it as among them.

To me the failure to grant an instruction entitling the jury, in returning a verdict of guilty, to add the words “without capital punishment” is completely different from those cases cited by the majority where, as in Reynolds v. State, 219 Md. 319, 149 A. 2d 774 (1959), the court, without objection, had failed to define for the jury the elements of the crime charged.

In the view I have of the case, this Court should, under Maryland Rule 756 g, take cognizance of the plain error committed by the trial court in failing to instruct the jury under the provisions of Art. 27, § 463, resulting as it did in the denial unto the appellant of a “substantial right” and the denial of the procedural due process of law. See Rowe v. State, 234 Md. 295, 199 A. 2d 785 (1964); Wolfe v. State, 218 Md. 449, 146 A. 2d 856 (1958).

I would reverse the judgment of the Court of Special Appeals.

Judge Digges authorizes me to state that he concurs in the views expressed in this dissent.

. See Weighorst v. State, 7 Md. 442 (1855); and State v. Flannigan, 6 Md. 167 (1854).

. See State v. Simmons, 234 N. C. 290, 291, 66 S.E.2d 897, 898 (1951), holding that the jury possess such an “unbridled discretionary right.”