Petitioner presents a single question for review in this Court: Whether the Court of Special Appeals exceeded the outer limits of its discretion by improperly excusing the State's procedural default and remanding this case to the circuit court for further proceedings. This case is a post-conviction proceeding. The primary question before the post-conviction hearing court was whether trial counsel was ineffective for failing to object at trial to the admissibility of a hearsay statement. We hold that the Court of Special Appeals has the discretion, in the context of a post-conviction proceeding, to excuse a procedural default or waiver and did not abuse its discretion in this instance.
In December 1996, petitioner Thomas Wayne Jones was tried and convicted in the Circuit Court for Prince George's County of the first degree felony murder of Gary Gulston and other related offenses, including kidnapping, robbery with a deadly weapon, and use of a handgun in a felony. The trial court sentenced Jones to life without the possibility of parole for the felony murder conviction and consecutive terms of twenty years each for the handgun and armed robbery offenses; the remaining offenses were merged for sentencing purposes. In an unreported opinion, the Court of Special Appeals affirmed the conviction. Jones filed no appeal from that judgment.
In November 1998, Jones filed a petition for post-conviction relief pursuant to the Maryland Post Conviction Procedure Act, Md.Code (1957, 1996 Repl.Vol.) Art. 27, § 645A,
The State filed an Application for Leave to Appeal to the Court of Special Appeals pursuant to the Uniform Post Conviction Procedure Act, Md.Code (2001, 2003 Cum. Supp.) § 7-109 of the Criminal Procedure Article. The State presented several legal arguments for the admissibility of the incriminating statement, among which was the argument that Don Gutrick's remark was "clearly admissible as a statement of a coconspirator made during the course of and in furtherance of the conspiracy." See Maryland Rule 5-803(a)(5); Perry v. State, 344 Md. 204, 231-35, 686 A.2d 274, 287-89 (1996). This argument had not been raised in the post-conviction court, nor was it raised in the State's opening brief to the intermediate appellate court. In its reply brief, however, the State again stated the co-conspirator exception to the hearsay rule as an alternative theory for the statement's admissibility. Because of the State's failure to raise this theory initially upon appeal, Jones's counsel filed a motion to strike that portion of the State's reply brief. The Court of Special Appeals agreed, and found that the legal theory, raised for the first time in the reply brief, was not properly before the court and therefore would not be considered on the merits by that court.
After the Court of Special Appeals affirmed the decision of the post-conviction court, the State filed a Motion to Reconsider, arguing that the court had erred in refusing to consider the co-conspirator exception theory presented in the Application for Leave to Appeal and the reply brief. Although the Court of Special Appeals rejected the legal grounds of the State's motion, it revised its opinion and, in the exercise of its discretion, ordered a limited remand so that the post-conviction court might determine whether the hearsay statement was admissible under the co-conspirator exception to the hearsay rule. The Court of Special Appeals explained its action as follows:
Before this Court, petitioner contends the intermediate appellate court abused its discretion by considering the unpreserved issue and ordering the remand to the post-conviction court. He contends that by exercising its discretion to permit the post-conviction hearing court to determine the admissibility of the hearsay statement under the co-conspirator exception, the Court of Special Appeals effectively held the State to a lower standard for preservation of post-conviction and appellate arguments than it does for criminal defendants. Finally, petitioner argues that Maryland appellate courts have consistently applied the principle of waiver to preclude consideration of arguments raised belatedly, such as in this post-conviction proceeding in which the argument was raised for the first time in the reply brief. The end result, says petitioner, was an appearance of partiality by the intermediate appellate court and a second chance by the State to resurrect a dead argument.
The State claims that the co-conspirator argument belatedly raised in its reply brief was a subsidiary of its bedrock theory that trial counsel did not render ineffective assistance, a theory that the State properly raised and maintained throughout the post-conviction proceedings. The post-conviction court could not resolve the claim of ineffective assistance of counsel without first determining whether the hearsay statement would have been admissible in any event. Thus, it was not an abuse of discretion for the Court of Special Appeals to order a remand on an issue that was necessarily included within the State's overarching objection to Jones's ineffective assistance of counsel claim. If Jones's trial counsel could not have prevented admission of Smith's written statement in any event, then Jones could not win his Sixth Amendment claim. The action by the Court of Special Appeals, according to the State, was a routine exercise of appellate judicial discretion pursuant to Maryland Rule 8-131(a).
The Court of Special Appeals exercised its authority twice when it ordered a remand to the post-conviction court. First, the court exercised its discretion to consider an unpreserved argument. Although that court did not address the merits of the State's theory under the co-conspirator exception, the court took up the belated argument implicitly when it decided to remand the case back to the post-conviction court. This act by the Court of Special Appeals is sufficient for us to determine that the court exercised the type of appellate discretion that permits consideration of unpreserved arguments.
The Court of Special Appeals exercised a second, distinct type of authority when it decided to remand the issue to the post-conviction court. This sort of authority is
Maryland Rule 8-131(a) permits the appellate courts to consider unpreserved issues:
The first sentence of the Rule sets forth the general principle that the question of subject matter jurisdiction may be raised at any time and thus may be raised properly for the first time on appeal. See Lane v. State, 348 Md. 272, 278, 703 A.2d 180, 183 (1997). The second sentence of the Rule articulates the ordinary and strong presumption that appellate review is limited to those issues raised at the trial level. We are concerned in this case with the second aspect of Rule 8-131(a).
The second sentence of Rule 8-131(a) sets forth the general proposition that an appellate court ordinarily will not consider an issue that was not raised or decided by the trial court. The plain language of the rule, however, makes clear that the prohibition is not absolute. See Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184, 1191 (1990) (noting that, inasmuch as Rule 8-131(a) employs the term "ordinarily," it permits exceptions, and appellate courts have occasionally decided cases on issues not previously raised). The word "ordinarily" in Rule 8-131(a) anticipates that an appellate court will, on appropriate occasion, review unpreserved issues. This has been the practice of the Maryland appellate courts, as well as of the federal courts and our sister states, dating well before Rule 8-131(a). See Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507, 510 (1991) (noting that Rule 8-131(a) is simply enunciatory of the practice which has existed since 1825); see also Annot., Issue First Raised on Appeal, 76 A.L.R. Fed. 522 (1986). In State v. Bell, 334 Md. 178, 638 A.2d 107 (1994), we concluded:
Id. at 188, 638 A.2d at 113. Thus, under the Rule, an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party. In this case, the default is two-fold. In the first instance, the State failed to present the co-conspirator theory to the post-conviction hearing court. Compounding that error, the State did not raise the argument in its opening brief on appeal, subjecting it to the rule that an appellate court ordinarily will not consider an issue raised for the first time in a reply brief. Fearnow v. Chesapeake & Potomac Telephone, 342 Md. 363, 384, 676 A.2d 65, 75 (1996).
The primary purpose of Rule 8-131(a) is to ensure fairness for all parties and to promote the orderly administration of law. See Conyers v. State, 367 Md. 571, 594, 790 A.2d 15, 29 (2002). Although the interests of fairness generally are furthered by requiring the issues to be brought first to the attention of the trial court so that the trial court may pass upon it in the first instance, the appellate court has the discretion to excuse the default and consider the issue. Id. This discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court. While the authority to review unpreserved issues is discretionary, it should not be exercised when it will work an unfair prejudice to the parties. Bell, 334 Md. at 191, 638 A.2d at 114. Therefore, the animating policy behind Rule 8-131(a) is to ensure fairness for the parties involved and to promote orderly judicial administration. Thus, when presented with a plausible exercise of this discretion, appellate courts should make two determinations concerning the promotion or subversion of 8-131(a)'s twin goals.
First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties. Id. at 189-90, 638 A.2d at 113-14. For example, with respect to the parties, a new argument presented by the State would work unfair prejudice to a criminal defendant if its validity depended upon evidence not adduced at the trial level. Id. In such a case, an appellate court's consideration of the argument would most likely be an abuse of its discretion under Rule 8-131(a) because it would be manifestly unfair to the defendant who had no opportunity to respond to the argument with his own evidence to the contrary. Similarly, unfair prejudice may result if counsel fails to bring the position of her client to the attention of the lower court so that that court can pass upon and correct any errors in its own proceedings. Id. In addition, the reviewing court should look to the reasons for the default or waiver. The court should consider whether the failure to raise the issue was a considered, deliberate one, or whether it was inadvertent and unintentional. See, e.g., Conyers, 367 Md. at 595-596, 790 A.2d at 30.
Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice. This simply means that the Rule seeks to prevent the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation. See, e.g., Crown Oil, 320 Md. at 562-63, 578 A.2d at 1191. Although this policy goal does not require that the case be remanded back to the court, it does imply that an appellate court should feel less constrained by the ordinary course of issue preservation when its decision to raise an unpreserved issue will not effect but will improve the efficiency of judicial administration. See id.
Finally, we note that we do not reverse the Court of Special Appeals for the exercise of its discretion unless it has clearly been abused. While this Court retains its own independent discretion to hear unpreserved arguments, Squire v.
Turning now to the case sub judice and applying the analytic framework and standard of review outlined above, we hold that the Court of Special Appeals did not abuse its discretion to consider the unpreserved argument on appeal under Rule 8-131(a). We find little if any prejudice generated against either petitioner or the post-conviction court by the Court of Special Appeals's exercise of discretion in this matter; furthermore, we find the second policy goal of Rule 8-131(a), orderly and efficient judicial administration, strongly favors the outcome determined by the intermediate appellate court.
Putting our ruling in context, it is helpful to imagine hypothetically what would happen if the Court of Special Appeals had not exercised its discretion and had only affirmed the post-conviction court. In that case, Jones would receive a new trial, and the State surely would submit Smith's written statement, upon which Jones's new trial counsel, this time, would just as surely object to Gutrick's hearsay statement within Smith's written statement. Now, the State would respond with the co-conspirator exception argument that was foreclosed to it by the post-conviction proceedings, and the trial court would decide this matter of law. Essentially, the scenario would unfold whereby the question regarding the co-conspirator exception would be fully litigated even if there was no remand and petitioner's position prevailed in this Court. The only difference between the above hypothetical scenario and the current decision by the Court of Special Appeals to litigate the question in post-conviction proceedings is that the former requires the extreme and expensive measure of both empaneling a new jury and relitigating every single issue and fact relevant to Jones's conviction. The absurdity of this is made even more clear when it is understood that depriving the post-conviction court from determining this legal issue could result in the hearsay statement reaching the jury in the same manner as in Jones's original trial—nothing will have changed.
On the other hand, pursuant to the Court of Special Appeals's order to remand, the post-conviction judge will have the opportunity to determine the question of law, the admissibility of Derrick Smith's statement. If the judge determines that the statement is inadmissible, then Jones will receive his new trial. If, on the other hand, the judge determines that the statement is admissible, the post-conviction court will deny his post-conviction petition for relief based on ineffective assistance of counsel because in that case his rights were never violated.
Finally, we note, as did the Court of Special Appeals, that the State has never wavered from its position that the statement was admissible in its entirety, and that therefore Jones was afforded sufficient assistance of counsel. The State did not make a tactical decision to forgo, waive, or concede the argument that the statement was admissible under the co-conspirator argument and, indeed, had clearly set forth the legal theory in its
Initially, we addressed only the propriety of the antecedent determination by the Court of Special Appeals to consider, in the exercise of its discretion, the unpreserved argument because the propriety of the Court of Special Appeals's "limited" remand was raised solely by the State. In this regard, petitioner vigorously denounced the State's understanding of his argument, stating as follows:
"In this Court, Petitioner did not focus his challenge on the [decision by the Court of Special Appeals to order a limited remand]. Instead, Petitioner respectfully requested that this Court find that the Court of Special Appeals erred prior to that by failing to hold the State to the well-established rules for record/claim preservation....
Petitioner's Reply Brief at 2-3. The dissent believes that petitioner raises the propriety of the remand and that the issue should be addressed,
The dissent's characterization of the hearsay issue as "integral" and not collateral (and therefore inappropriate for limited remand) is without merit. The hearsay issue in the instant case is part and parcel of the larger issue before the reviewing court—the claim of ineffective assistance of counsel—and that larger issue is indisputably a collateral matter. The fact that the hearsay issue is integral to determination of the collateral Sixth Amendment challenge is irrelevant to the question of whether the matter is appropriate for remand.
The crux of the dissent's argument appears to rest on the mistaken belief and novel suggestion that "post-conviction proceedings are the equivalent of a trial," and that the "appropriate question is whether the issue is collateral to ... the proceedings out of which they arise." Dissenting op. at 11 (emphases added). This has never been the law in this State, nor
The dissent's view that this case falls within our case law on limited remands as set forth in Gill v. State, 265 Md. 350, 289 A.2d 575 (1972), and its progeny is wrong. Of course, as the dissent correctly notes, Gill is not limited to its facts; nonetheless, this case is not a "Gill" case and does not fall within the rationale of Gill. The issue in Gill was the voluntariness of a confession, a matter which is a mixed question of law and fact specially designated for the ultimate determination by a jury. In Gill, we held as follows:
Id. at 358-59, 289 A.2d at 580 (emphases added). Under Maryland law, the jury must find a confession to be voluntary beyond a reasonable doubt before the statement may be considered. See Brittingham v. State, 306 Md. 654, 665, 511 A.2d 45, 50 (1986).
In sum, the comparison of the two alternatives open to the intermediate appellate court makes clear (1) that it was not manifestly unfair or prejudicial to Jones for the Court of Special Appeals to take up the issue of the co-conspirator exception, and (2) that the interests of judicial economy are strongly furthered, not subverted, by exercise of appellate discretion. It would be unreasonable and inconsistent for this Court to conclude, particularly under the deferential standard afforded such judicial discretion, that the Court of Special Appeals abused its discretion under Rule 8-131(a) to reach a result that promoted the Rule's twin policy goals. We will not do so, and instead affirm the Court of Special Appeals's exercise of judicial discretion in this case.
JUDGMENT AFFIRMED, WITH COSTS TO BE PAID BY PETITIONER.
BELL, C.J., and CATHELL, J., dissent.
Dissenting Opinion by BELL, C. J.
This case involves the propriety of the Court of Special Appeals' remand of this case, pursuant to Maryland Rule 8-131 and Maryland Rule 8-604, to the post conviction court to consider an issue, substantive in fact, to the underlying post conviction proceedings,
As the majority states, 379 Md. 704, 711-12, 843 A.2d 778, 782-83 (2004), the
Md. Rule 8-131(a).
Exercising its discretion, the Court of Special Appeals initially chose not to review the State's co-conspirator argument, newly raised on appeal, and struck the portion of the State's reply brief raising it. State v. Jones, 138 Md.App. 178, 231, 771 A.2d 407, 439 (2001). Upon consideration of the State's subsequently filed Motion for Reconsideration,
It is clear that an appellate court in this State may remand a criminal case to the trial court for further proceedings. Maryland Rule 8-604, in pertinent part, provides:
"(1) dismiss the appeal pursuant to Rule 8-602;
"(2) affirm the judgment;
"(3) vacate or reverse the judgment;
"(4) modify the judgment;
"(5) remand the action to a lower court in accordance with section (d) of this Rule; or
"(6) an appropriate combination of the above.
The majority believes that only one of the two exercises of discretion by the Court of Special Appeals is properly before this court on review; namely the propriety of the antecedent determination by the Court of Special Appeals to consider, in the exercise of its discretion, the unpreserved argument. The propriety of the limited remand decision, it says, was raised by the State and, in effect, rejected, certainly not adopted, by the petitioner, as the following argument from the petitioner's reply brief indicates:
"In this Court, Petitioner did not focus his challenge on the [decision by the Court of Special Appeals to order a limited remand]. Instead, Petitioner respectfully requested that this Court find that the Court of Special Appeals erred prior to that by failing to hold the State to the well-established rules for record/claim preservation....
A review of the petitioner's initial and reply briefs, clearly discloses that the petitioner argued that the intermediate appellate court abused its discretion both in excusing the State's waiver of an unpreserved issue and in ordering a limited remand.
To start with, the question presented in the petitioner's initial brief addresses and challenges the propriety of the remand. It reads:
Petitioner's Brief at 5-6 (emphasis added). Furthermore, in its reply brief, in the very portion of the argument on which the majority relies, the petitioner characterizes the preservation issue as the "primary," not the "only," question before the Court. He also stated that "[c]ertainly, under the circumstances of this case, a limited remand was the wrong solution because it unfairly prejudiced Petitioner." Petitioner's Reply Brief at 2. Moreover, one of the headings to the arguments that the petitioner advanced in his Reply Brief was "THE STATE ERRONEOUSLY TRIES TO CONVINCE THIS COURT THAT THE COURT OF SPECIAL APPEALS ISSUED A LIMITED REMAND FOR REASONS OTHER THAN TO CONSIDER THE CLAIM THE STATE FAILED TO PROPERLY PRESERVE." Petitioner's Reply Brief at 3.
Although the issue of remand may have been secondary to the petitioner's primary argument, the propriety of the Court of Special Appeals' initial exercise of discretion to consider an unpreserved argument, I believe, should be fully addressed. The majority's analysis, to the extent that it does address the issue, is simply wrong.
It is clear that an appellate court in this State may remand a criminal case, to the trial court for further proceedings. It is also well settled that, given the purpose and application of Rule 8-604(d), the remand can be for a limited, or restricted, purpose. Southern v. State, 371 Md. 93, 104-105, 807 A.2d 13, 20 (2002). See also McMillian v. State, 325 Md. 272, 296-97, 600 A.2d 430, 442 (1992); Bailey v. State, 303 Md. 650, 496 A.2d 665 (1985); Warrick v. State, 302 Md. 162, 486 A.2d 189 (1985); Mahammitt v. State, 299 Md. 82, 86, 472 A.2d 477, 479 (1984); Wiener v. State, 290 Md. 425, 438, 430 A.2d 588, 596 (1981).
Nevertheless, we have stated that "Rule 8-604(d) is neither an `antidote' for the errors of the State or of counsel nor a method to correct errors committed during the trial itself." Southern, 371 Md. at 104, 807 A.2d at 19, citing Reid v. State, 305 Md. 9, 17, 501 A.2d 436, 440 (1985); Comptroller of Treasury v. Panitz, 267 Md. 296, 301, 297 A.2d 289, 292(1972); Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 659, 229 A.2d 412, 416 (1967). Where, therefore, the issue to be resolved on the limited remand is collateral to the proceedings out of which the issue arose, a limited remand is proper. See Edmonds v. State, 372 Md. 314, 339-342, 812 A.2d 1034, 1048-50 (2002) (challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)); Warrick v. State, 326 Md. 696, 707-708, 607 A.2d 24, 30 (1992) (remand for in camera examination to determine whether defendant entitled
Conversely, when the error giving rise to the issue to be addressed on limited remand is one that is integral to the proceedings in which it occurred, the appropriate mandate would not be a remand for further proceedings to resolve the issue. Rather, the appropriate mandate would be a remand for new trial. Gill v. State, 265 Md. 350, 289 A.2d 575 (1972). In Gill, the issue was whether the defendant's confession was voluntary. Id. At trial, the defendant argued that his confession was coerced; however, only one of the two officers to whom the defendant confessed testified as to the circumstances under which the confession was given. Further, the officer that the defendant maintained coerced his confession while they were alone did not testify. Nevertheless, the court admitted the confession into evidence over the defendant's objection. The Court of Special Appeals agreed with the defendant's assertion that the "`failure of the police officers involved to take the stand to deny a direct accusation by the appellant would indicate that the State had failed to meet its constitutional burden to prove voluntariness of the confession.'" Id. at 353, 289 A.2d at 577, quoting Gill v. State, 11 Md.App. 378, 384, 274 A.2d 667, 670 (1971) (Gill I). Rather than remand the case to the trial court for new trial, the intermediate appellate court ordered the case returned to the trial court "`for a redetermination of the question of voluntariness after taking additional testimony' ". Id. at 354, 289 A.2d at 577, quoting Gill I, 11 Md.App. at 384, 274 A.2d at 670. The trial court reconfirmed its prior voluntariness ruling and the Court of Special Appeals affirmed the judgment in an unreported opinion. Id. at 354-55, 289 A.2d at 577-78. We reversed, holding that although Rule 1071(a),
Id. at 358-59, 289 A.2d at 580.
The Gill holding is not limited to its facts. We relied on Gill to reverse a limited remand ordered by the Court of Special Appeals in Lipinski v. State, 95 Md.App. 450, 622 A.2d 145 (1993) (Lipinski I). In Lipinski, the only contested issue was what sanction should have been applied after the trial judge, in enunciating his decision at the defendant's bench trial, relied on a flawed definition of "deliberate and premeditated", Lipinski v. State, 333 Md. 582, 583-84, 636 A.2d 994, as discussed in Willey v. State, 328 Md. 126, 613 A.2d 956 (1992). The intermediate appellate court remanded the case to the trial court with the direction that it "consider the evidence in accordance with the standard enunciated ... in Willey ..., as to whether [Lipinski] acted with premeditation and deliberation." Lipinski, 333 Md. at 584, 636 A.2d at 995. We held:
Id. at 592, 636 A.2d at 998-99.
Similarly, in Mitchell v. State, 337 Md. 509, 654 A.2d 1309 (1995), we considered "whether a new trial, rather than a limited remand, is required when a trial court fails to conduct a sufficient inquiry to determine whether a criminal defendant's reasons for appearing at trial without counsel are meritorious before ruling that the defendant had waived the right to counsel by inaction." Id. at 511, 654 A.2d at 1310. We held that a new trial was the proper sanction, holding "that a limited remand was not appropriate because the issue of whether Mitchell waived his right to counsel was not subsidiary to the criminal trial."
Id. at 517, 624 A.2d at 1313, citing Gill, 265 Md. at 357, 289 A.2d at 579.
Our most recent pronouncement on this subject was made in Southern v. State, supra, 371 Md. 93, 807 A.2d 13. We granted certiorari in that case to consider whether it was proper for the Court of Special Appeals to order a limited remand to allow the State to introduce evidence supporting the legality of an initial stop, where the defense challenged its legality at a suppression hearing and the State failed to introduce any evidence on that issue. Id. at 96, 807 A.2d at 15. Although it recognized that once the defendant challenged the propriety of the stop, the State had the burden "to present evidence justifying its actions," id. at 105-106, 807 A.2d at 20, citing DiPasquale v. State, 43 Md.App. 574, 578, 406 A.2d 665, 667 (1979), the intermediate appellate court held that the constitutionality of the stop had not been resolved and, therefore "granted a remand permitting the State to, in essence, reopen the suppression proceeding in order to introduce new evidence regarding the initial stop." Id. at 106, 807 A.2d at 21. We rejected that approach, and noted that the trial court denied the defendant's Motion to Suppress despite the fact that the State did not meet its burden of proof on the issue. Accordingly, we elucidated that "Rule 8-604 does not afford parties who fail to meet their burdens on issues raised in a completed suppression hearing an opportunity to reopen the suppression proceeding for the taking of additional evidence after the appellate court has held the party has failed to meet its evidentiary burden." Id. at 105, 807 A.2d at 19-20. We furthermore stated that "[t]he Court of Special Appeals went astray when it attempted to afford the State the opportunity to relitigate, in the same case, an issue it had failed to litigate and prove." Id. at 110, 807 A.2d at 23. We concluded:
Id. at 106, 807 A.2d at 21.
In this case, the trial and the direct appeal of the judgment thereby rendered
To be sure, post conviction proceedings themselves are collateral to the trial. When issues ordinarily cognizable on post conviction are pursued in the context of the trial, i.e., by litigating the competence of counsel on direct appeal, see, e.g., Harris v. State, 299 Md. 511, 517, 474 A.2d 890, 892-93 (1984),
In the case sub judice, the petitioner challenged his conviction in post conviction proceedings on the basis that his trial and appellate counsel rendered ineffective assistance. As to trial counsel, he alleged that the ineffective assistance occurred when he failed to object to the admission of the Smith hearsay statement. Although the State defended counsel's effectiveness, it did not do so on the grounds that the statement was admissible pursuant to the co-conspirator's exception to the hearsay rule, the grounds it now pursues and on the basis of which the case has been remanded. Rather, the State argued that counsel did object to the statement and that it was admissible under Nance as a prior inconsistent statement. In fact, the State never argued the co-conspirator exception during the post conviction hearing. Furthermore, although it referred to the exception in the Application for Leave to Appeal, the State failed to make the argument in its initial brief to the Court of Special Appeals.
Gill, its progeny and, indeed, all of the cases in which a special or limited remand have been ordered involved direct appeals of a criminal judgment. It is not surprising, therefore, that all of them spoke of issues collateral to the "trial." What is most instructive and significant, however, is the distinction that Gill drew between prejudicial error committed at trial and subsidiary procedures. There are proceedings other than criminal trials at
Whether the co-conspirator exception applies to the Smith hearsay statement to render it admissible is not at all subsidiary to the post conviction proceedings or collateral to the issue being litigated; namely whether the petitioner's counsel was ineffective. Rather, that determination is directly and critically related to the issue of ineffective counsel. In fact, the outcome of that issue is dispositive as to whether the trial counsel acted in a manner that amounted to ineffective assistance. An erroneous ruling on this issue, which is integral to the post conviction allegations, certainly would be prejudicial.
In this case there is no allegation that the trial or the appellate courts in the original matter made any prejudicially erroneous ruling. In fact, the argument at issue in this case and for the consideration of which the Court of Special Appeals ordered remand was never raised by the State nor considered by the trial court or the appellate court on review. Thus, the purpose of the remand is not to correct an erroneous ruling; rather it is for the purpose of permitting a determination of whether, even though the issue was never raised or argued during the original trial or appeal, an erroneous ruling might have been committed. In light of my assertion that the State's proposed co-conspirator exception argument would be integral to the outcome of the post conviction proceedings, and considering my stance that an erroneous ruling on the newly posited argument would certainly prejudice the petitioner, it is clear the Court of Special Appeals erred in ordering a limited remand. Moreover, I believe that when it first considered the issue, the intermediate appellate court properly and accurately analyzed the effect of excusing the State's failure to preserve the co-conspirator exception argument:
State v. Jones, supra, 138 Md.App. at 234, 771 A.2d at 440.
As indicated, the Court of Special Appeals recognized and intended that, on remand, additional evidence could be presented, as well as additional argument. As we have also discussed, the purpose of the remand in this case was not to correct a procedural error, but to allow the State to present an argument that it failed to present timely to the post conviction court. That is precisely what we held, in Southern, to be inappropriate. The intermediate appellate court in this case, as it did in Southern, went astray "when it attempted to afford the State the opportunity to relitigate, in the same case, an issue it had failed to litigate and prove." Id. at 110, 807 A.2d at 23.
The Court of Special Appeals also abused its discretion when it elected, pursuant to Rule 8-131(a),
In Bell, the defendant was tried and convicted in the Circuit Court for Baltimore City on narcotics charges. The evidence on which the conviction was based consisted of drugs in a vial, which the police observed in plain view, and drugs in a gym bag discovered after, the State argued and trial court held, consistent with the State's argument, the police conducted an inventory search. On appeal, in its initial brief, the State added an additional argument that the second search was appropriate under the Carroll doctrine.
In this Court, the State argued, relying on Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221, 1223 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980), that the intermediate appellate court erred by refusing to consider the Carroll argument, reasoning that an appellate court may affirm a trial court on "grounds that had not been relied upon by either, the trial court or the parties." Bell, 334 Md. at 187, 638 A.2d at 112. Affirming the Court of Special Appeals, we first noted that the decision to consider grounds not raised at trial is discretionary, not mandatory. Id. at 188-89, 638 A.2d at 113. Further, we explained, "this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court." Id. at 189, 638 A.2d at 113. Moreover, we expounded:
Id. 334 Md. at 190, 638 A.2d at 113-14, quoting Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 1251, 2 L.Ed.2d 1503, 1510-11 (1958). See also, Crown Oil and Wax Co. of Delaware v.
Bell and the other cases cited are instructive as to when an appellate court, pursuant to Rule 8-131, may consider, and decide, an issue not presented to the trial court; they differentiate the situation in which the record is sufficient to allow the appellate court to decide the issue and the situation where the record is insufficient. As in Bell, in this case, because the State failed to raise, during the post conviction proceedings, the argument that Smith's statement was admissible under the co-conspirator exception to the hearsay rule, the petitioner was never given a chance to counter that argument at that level. As a result, the record was never developed with regard to that argument; consequently, the Court of Special Appeals was unable to exercise its discretion to "decide" that issue and it would not have been fair, in any event, because the defendant was never afforded the opportunity to meet this "new argument." Crown Oil and Wax Co. of Delaware v. Glen Construction Co. of VA., supra, 320 Md. 546 at 561, 578 A.2d 1184 at 1191 (1990). All the intermediate appellate court could have done was to forgive the State's waiver of the co-conspirator argument and, in so doing give the State a second opportunity to prevail in the post conviction arena on the appellate level.
Having excused the waiver of the unpreserved issue, as to which the record was insufficient to permit a decision on the merits, the Court of Special Appeals had no choice but to order a limited remand pursuant to Rule 8-604. But a limited remand, it is well settled, is appropriate only when the issue to be decided is one collateral to the case before the trial court. For all intents and purposes, as the only remaining forum, the "trial" before the lower court in this matter, was the post-conviction hearing. Whether the statement is admissible under the co-conspirator exception to hearsay rule is not collateral to the post conviction case, it is integral, if not critical, to it. Certainly, the Court of Special Appeals believed that to be the case, why else would it remand the issue to the post conviction court for the limited purpose of determining its admissibility.
The majority proposes a two part test for determining whether a plausible exercise of discretion under Rule 8-131(a) is
Id. at 716, 843 A.2d at 785.
To the majority, expediency demands that the Court of Special Appeals' decision to remand this case to the Circuit Court for a limited purpose be upheld, notwithstanding the State's patent failure to abide by the procedural rules of the court. An important factor for the majority is the fact that the issue the State neglected to raise in the post conviction proceedings or in its initial appellate brief would be admissible even if the remand were a general one for a new trial. It is better to ensure that procedural integrity is reserved than that we send the message that, in post conviction cases, the State need not concern itself with compliance with the procedural rules, and that it will be able, at any time, even when the appellate process is complete, to correct even egregious procedural defaults, as in this case, simply by invoking judicial economy. It bears repeating that
State v. Jones, supra, 138 Md.App. at 234, 771 A.2d at 440. If the majority is correct,
The majority also fails to consider that orderly administration of justice is not limited to ensuring that we save time and expense or to ensuring that we accelerate the termination of litigation. To be sure, the Maryland Rules of Procedure also were enacted to ensure the orderly and equitable administration of justice. See Md. Rule 1-201, which reads, in relevant part: "These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay." See also Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128, 130 (1960) (explaining that "[t]he Rules are established to promote the orderly and efficient administration of justice and are to be read and followed."); Stewart v. State, 334 Md. 213, 216, 638 A.2d 754, 755 (1994) (holding that "the Maryland Rules of Procedure are not guides to the practice of law but precise rubrics `established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.'") (citation omitted).
I submit that, in terms of judicial economy, when pondering the propriety of the exercise of its discretion to consider new arguments on appeal, the appellate court must consider whether the failure to consider the issue would result in a waste in judicial resources, and whether, as the majority acknowledges, but refuses substantively to address, the failure of the party submitting the additional argument prior to appeal so egregiously violates the procedural rules that it compromises the simplicity of procedure and fairness in administration.
The law in Maryland is clear, when a post-conviction defendant could have, but failed to assert an allegation of error at a prior proceeding, the allegation is deemed to have been waived and he or she may not raise it on appeal. See Md.Code, (2001) § 7-106 of the Criminal Procedure Article.
As the Court of Special Appeals acknowledged, there is no reason not to hold the State to the same standard and determine that when the State fails to raise an issue before the post-conviction court, it may not properly raise the issue on appeal absent a showing of special circumstances. Jones, 138 Md.App. 178, 228-29, 771 A.2d 407, 437 (2001).
Oken is particularly instructive. In that case, Oken was convicted of murder. 343 Md. at 263, 681 A.2d at 33. At his trial, he requested that voir dire include certain "reverse-Witherspoon " questions that he proposed, to identify prospective jurors who "harbored `any convictions in support of the death penalty' in violation of Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), and Evans v. State, 333 Md. 660, 637 A.2d 117, cert. denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994)." Id. at 268-69, 681 A.2d at 36. The court refused to ask the questions he requested, but Oken did not raise the issue on direct appeal. He subsequently filed a petition for postconviction relief, in which one of the issues was the trial court's refusal to voir dire the venire as to "reverse Witherspoon." He also raised the issue in his initial brief before this Court.
This Court held that Oken had waived his right to assert the issue. In so holding, we noted that, notwithstanding the Morgan decision, there was ample precedent defining a defendant's right "during voir dire [to] identify prospective jurors who harbored disqualifying biases in favor of the death penalty." Id. 343 Md. at 273-74, 681 A.2d at 38. Given that precedent, this Court stated, the petitioner offered no special circumstances that would obviate his responsibility to raise the issue on appeal. Accordingly, we refused to exercise our discretion under Rule 8-131 to excuse the waiver.
In addition to the long-standing law and precedent regarding waiver in collateral review, this Court has also consistently held that an appellate court will not address an argument that the appellant first raises in the reply brief. Health Svcs. Cost Review Comm'n v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55, 61 (1984). Logan v. Town of Somerset, 271 Md. 42, 67, 314 A.2d 436, 449-50 (1974), Harmon v. State Roads Commission, 242 Md. 24, 30-32, 217 A.2d 513, 516-17 (1966).
Under our precedents, see Basoff v. State, 208 Md. 643, 650, 119 A.2d 917, 921 (1956); Banks v. State, 203 Md. 488, 495, 102 A.2d 267 (1954),
The majority maintains, however that the failure to raise the co-conspirator argument was inadvertent and that, in any event, the State "never wavered from its position that the statement was admissible in its entirety, and that therefore, Jones was afforded effective assistance of counsel." 379 Md. at 717, 843 A.2d at 785. That one does not waver in making an argument on a particular ground does not preserve another ground on which that argument could have been based; persistence, if for the wrong reason, will not, and, in truth, should not, carry the day.
Further, the majority holds that "[t]he State did not make a tactical decision to forgo, waive, or concede the argument that the statement was admissible under the co-conspirator argument ..." Id. at 717, 843 A.2d at 785-86. But that is merely a conclusion; we are not provided with any basis for why the majority so concludes. The State most assuredly knew the requirements of the Maryland Rules as they pertain to objections at trial and the law as it pertains to waiver in post-conviction proceedings.
Moreover, and even more telling, the State only raised the issue of co-conspirator admissibility once, in the application for leave to appeal, when it sought to challenge the post conviction court's decision. The State never argued, or even raised, that issue at the post conviction trial and it failed to include it as an argument in its initial brief in the Court of Special Appeals. That smacks, far from inadvertence, of a tactical decision.
The majority, in overlooking its consistent procedural errors, would allow the State to raise issues on appeal from the grant of post-conviction relief that it never raised before the post-conviction court and that it never properly raised on appeal, despite its consistent refusal to afford the same opportunity to criminal post-conviction defendants. In effect, it allows the State, for tactical reasons and secure in the knowledge that it will be considered, notwithstanding multiple procedural defaults, to refrain from presenting some of its arguments, perhaps the dispositive one, until, as a last resort, it must do so, so long as an argument can be made that the interests of judicial economy are satisfied. If judicial economy is the overriding interest, however, one wonders why we have procedural rules applicable to collateral review at all. This case suggests an answer: to hold criminal defendants to procedural requirements to which the State, which is allowed to assert new claims as, and when, it chooses to do so, need not adhere.
I believe that the majority, in affirming the intermediate appellate court has announced a rule that treats the State and criminal defendants guilty of the same procedural default quite differently, with the State being treated much better. In light of its failure to preserve the co-conspirator issue for review during the post-conviction proceedings or even to raise the issue on appeal in a timely fashion, the State should not be allowed another opportunity to present evidence on the point. I repeat, this Court consistently has denied that opportunity to defendants on appeal from post-conviction proceedings.
In addition to ensuring that we dispose of cases in the most expedient fashion possible, the overriding goal of Rule 8-131(a) is to ensure that neither party is unfairly prejudiced. I would hold that the decision of the Court of Special Appeals to exercise discretion, under Rule 8-131(a), to consider the State's unpreserved argument is an abuse of its discretion.
Judge CATHELL joins in the views herein expressed.
State v. Jones, 138 Md.App. 178, 228, 771 A.2d 407, 436-37 (2001). It did not make that argument in its initial brief filed in the Court of Special Appeals, however, making it only when it filed its reply brief.
"Appellant made no objection at the trial of the case to the policewoman's testimony as to Mrs. Thomas' statements. Therefore, we cannot consider the objection here. One of our rules respecting appeals provides: `In no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below.'" Rules of the Court of Appeals, rule 9.
"This rule applies to both civil and criminal cases. When a party has the option either to object or not to object, his failure to exercise the option while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal. The Court of Appeals adopted the rule to ensure fairness for all parties to cases and to promote the orderly administration of the law."
Citing Courtney v. State, 187 Md. 1, 48 A.2d 430 (1946); Davis v. State, 189 Md. 269, 55 A.2d 702 (1947); Banks v. State, 203 Md. 488, 495, 102 A.2d 267 (1954). In Banks, the Court also referred to the predecessor of Rule 8-131, but only to explain why, given the defendant's failure to object to proceeding with trial in the absence of a stenographer, it would not address the substance of the issue.
"(b) Waiver of allegation of error.—
"1. before trial;
"2. at trial;
"6. in a prior petition under this subtitle; or
"7. in any other proceeding that the petitioner began.