Please ensure Javascript is enabled for purposes of website accessibility

Use-or-lose objections to advisory instructions began in 1980, court says

Court of Special Appeals rules in Unger-related case

Hon. Kathryn Grill Graeff

While the Court of Appeals has held that convicts can generally challenge their convictions based on advisory instructions at any time, regardless of whether their attorneys raised the objection at trial, objections at trial have been required since a 1980 opinion by the top court, as attorneys are presumed to know the holdings of high-court rulings, Court of Special Appeals Judge Kathryn Grill Graeff wrote last week in rejecting a defendant’s challenge to his 1981 murder conviction. (Maximilian Franz/The Daily Record)

Criminals seeking to overturn post-1980 convictions based on unconstitutional “advisory” jury instructions are out of luck if their attorneys failed to raise the constitutional objection at trial, Maryland’s second-highest court has ruled in upholding the 1981 conviction and life sentence of the killer of a police officer and a private-security-firm employee.

In its 3-0 decision, the Court of Special Appeals held that criminal defense attorneys were put on notice by a 1980 Maryland high court decision that guilty verdicts were constitutionally suspect if jurors were told – as they commonly were before 1980 – that the judge’s instructions were merely “advisory.”

Due to that notice – provided by the Court of Appeals’ Stevenson v. State decision – attorneys who do not raise the constitutional objection at trial waive the challenge on appeal, the intermediate court added.

In its reported decision, the Court of Special Appeals said James A. Calhoun-El’s defense attorney failed to object at trial, thus costing the convict an opportunity to challenge his conviction and life sentence based on the judge’s alleged flawed instruction.

The Court of Special Appeals’ decision followed the Maryland high court’s 2012 ruling in Unger v. State that trial judges before 1980 routinely violated defendants’ constitutional right to due process by telling jurors that their judicial instructions to them were merely “advisory” — including the bedrock admonitions that innocence must be presumed and guilt must be proven beyond a reasonable doubt.

The Court of Appeals, in more recent rulings, has held that convicts can generally challenge their convictions based on advisory instructions at any time, regardless of whether their attorneys raised the objection at trial.

But the Court of Special Appeals said in its decision last week that objections at trial have been required since Stevenson, as attorneys are presumed to know the holdings of high-court rulings, Judge Kathryn Grill Graeff stated in the court’s opinion.

“Where a petitioner (defense attorney) could have objected, but failed to do so, ‘there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation,’” Graeff wrote, quoting from the Maryland Uniform Postconviction Procedure Act. “Thus the mere failure to object to a jury instruction constitutes a waiver.”

White Oak shooting

In Stevenson, the Court of Appeals held on May 6, 1980, that advisory instructions were not necessarily unconstitutional so long as the jurors were told that essential elements of due process were not “advisory” but binding on them, including guilt beyond a reasonable doubt and the need for a unanimous jury verdict.

At Calhoun-El’s trial in the fall of 1981, his lawyer failed to object when the judge told the jury that the instructions “become advisory and you are not bound to follow them,” as jurors “become the sole judges of the law and the facts.”

The Montgomery County Circuit Court jury subsequently convicted Calhoun-El of the first-degree murders of police officer Philip Carl Metz and David W. Myers during a March 1981 robbery at a W. Bell & Co. store in White Oak. Myers, an employee of Electro Protective Corp., had responded to burglar alarms at the store when he was shot.

Calhoun-El’s sentence of death was changed via appeal to life in prison in 1990.

The Court of Appeals rendered its decision in Unger on May 24, 2012. Calhoun-El moved six weeks later to challenge the constitutionality of his conviction based on the advisory instruction.

The Montgomery County Circuit Court rejected his motion without a hearing, and he sought review by the Court of Special Appeals.

In affirming the rejection, the appellate court said Calhoun-El’s defense counsel could have objected to the instruction at trial but did not.

‘Unpreserved issue’

“First, Stevenson had been decided at the time of appellant’s trial, and therefore, there existed a reasonable basis for appellant to object at trial to the alleged advisory nature of the instructions,” Graeff wrote. “Second, exercising our discretion to excuse the waiver, and potentially reverse a conviction more than 35 years after a crime, would present the potential for unfair prejudice to the state. Third, the extensive litigation that already has occurred regarding ‘advisory’ jury instructions weighs against exercising our discretion to review this unpreserved issue.”

The Maryland attorney general’s office hailed the court’s decision in a statement.

“We are very pleased that the Court of Special Appeals held that Calhoun-El waived his right to claim error because he failed to object to the instructions at trial, and because the court declined to excuse the waiver, recognizing that the granting of a new trial 35 years after the original conviction ‘would present the potential for unfair prejudice to the state,’” the statement read in part.

Calhoun-El’s appellate attorney, Paul M. McLaughlin, declined to comment Wednesday on the decision and whether he and his client intend to seek review by the Court of Appeals.  McLaughlin, of Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C., was handling the appeal on assignment from the Maryland public defender’s office.

Graeff was joined in the opinion by Judges Timothy E. Meredith and Irma S. Raker, a retired judge sitting by special assignment.

The Court of Special Appeals heard arguments Dec. 2 and rendered its decision Dec. 21 in James A. Calhoun-El v. State of Maryland, No. 2768, September Term 2012.


To purchase a reprint of this article, contact reprints@thedailyrecord.com.